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President Joe Biden is eyeing legal avenues through which he could protect access to abortion if the Supreme Court overturns Roe v. Wade.
The administration is mulling the use of executive orders to preserve abortion access in a post-Roe America, though the orders are not binding and could be discarded under a Republican administration.
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Biden signaled his willingness to take executive action in the event that the Supreme Court rules to uphold Mississippi’s 15-week abortion ban in Dobbs v. Jackson Women’s Health Organization, a ruling that would nullify legal federal protection for pre-viability abortions and return authority to regulate abortion access to the states. A leaked draft ruling indicated that the court is prepared to overturn the 1973 Roe decision.
The contents of those executive orders remain unknown, but White House press secretary Karine Jean-Pierre confirmed on Thursday that the administration is vetting potential actions.
“The administration continues to explore every possible option in response to the anticipated Supreme Court decision in Dobbs,” Jean-Pierre said. “If the Supreme Court overturns Roe, we will need Congress to take action to restore Roe.”
A group of 25 Democratic senators has already offered Biden a road map for preserving access to abortion in the event that the high court deems the right unconstitutional. The senators, led by Elizabeth Warren (D-MA) and Patty Murray (D-WA), have proposed several initiatives the administration could pursue via executive order, such as expanding access to abortion-inducing medication, providing resources such as travel vouchers and childcare services for women traveling across state lines to obtain a legal abortion, and standing up abortion clinics on federal land, such as military bases, within states that have banned the procedure.
“As extremist judges and Republican politicians intensify their efforts to strip Americans of their basic reproductive freedoms, you can demonstrate to the country and women everywhere that you will do everything in your power to fight back,” the senators said last week. “We urge you to immediately issue an executive order instructing the leaders of every federal agency to submit their plans to protect the right to an abortion within 30 days.”
Biden’s options for lending financial support for abortion access are extremely limited due to the Hyde Amendment, an appropriations rider that outlaws the use of federal taxpayer dollars to pay for abortion care. A proposal to provide travel vouchers and childcare services for women who are unable to obtain abortions in their home states legally could be a violation of the Hyde Amendment.
The fight over accessible medication-induced abortions is gearing up to become the next front in the battle for abortion rights. The medication, comprising two separate drugs taken 24 to 48 hours apart, is safe and about 95% effective at ending a pregnancy in the first trimester. It can be taken in the privacy of one’s home in most states, but more than a dozen states have so-called trigger laws on the books that would ban abortion, including the medication to induce one, immediately upon the release of a Supreme Court decision in favor of the Mississippi law.
The Food and Drug Administration, which approved the use of medication-induced abortion in 2000, scrapped certain restrictions for accessing it in December last year, permanently lifting the requirement that it must be dispensed in person, as well as the ban on healthcare providers prescribing the drugs through telehealth appointments and sending them to patients through the mail.
The FDA’s rule changes could supersede state-level restrictions such as an in-person dispensing requirement through executive action, drawing on the legal principle that federal law overrides state law — known as preemption, according to Patricia Zettler, a lawyer from the Ohio State University Moritz College of Law, and Ameet Sarpatwari, assistant director of the Program on Regulation, Therapeutics, and Law at Brigham and Women’s Hospital in Boston.
“States cannot, however, impose policies that conflict with FDA requirements; under the U.S. Constitution, federal law preempts state law when the two clash,” they wrote earlier this year in the New England Journal of Medicine. “Even if other challenges to state abortion laws fail, preemption challenges to mifepristone restrictions might provide an avenue for expanding access to medication abortion.”
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Any executive order that Biden issues still will not restore constitutional protection for abortion. Only Congress can do that, which is not likely. Congress already had the opportunity to solidify the right to an abortion up to and beyond the point of viability with the Women’s Health Protection Act, which was brought up for a vote last month by Democrats who wanted to send a message to voters. Democrats were unsuccessful, and, given the likelihood that the GOP wins big in November, they are not expected to have another shot at passing the WHPA or similar legislation.
