Biden administration prepares reaction to Dobbs

During an appearance on the late-night talk show Jimmy Kimmel Live! on Wednesday, President Joe Biden hinted at actions his administration might take to counteract the possible overturning of Roe v. Wade, the 1973 Supreme Court decision that read a right to abortion into the U.S. Constitution.

After calling on Congress to codify a right to abortion in federal law, the president mentioned an alternative avenue: “I think what we’re going to have to do, there’s some executive orders that I could employ. … We’re looking at that right now.”

“Employ ’em!” said host Jimmy Kimmel, as the audience responded with applause.

Although the White House has not outlined exactly what those executive orders will be, some pro-lifers are keeping tabs on possible actions the administration could take if the Supreme Court justices overturn Roe, as a recent leak of a draft court opinion in Dobbs v. Jackson Women’s Health Organization suggests. Media outlets have reported on talks happening inside of the White House, and abortion advocates have publicly shared their own advice for the administration. Many of the proposals, though, could face legal roadblocks that make them largely unfeasible.

“They’re creative if nothing else,” said Tom McClusky, director of government affairs for Catholic Vote. Since the beginning of the Biden presidency, he’s been compiling a Microsoft Word document listing possible actions the president and his officials could take to keep abortion accessible even in a post-Roe scenario.

The Biden administration began considering its options for responding to state pro-life advances last year after the Texas Heartbeat Act went into effect. Department of Health and Human Services (HHS) Secretary Xavier Becerra announced actions his department was taking to tell “doctors and others involved in the provision of abortion care, that we have your back,” including a reminder to healthcare providers of a law that requires physicians to provide medical treatments in emergency situations “irrespective of any state laws.” The Department of Justice also sued Texas over the law.

In a January 2022 fact sheet, HHS announced the creation of a “Task Force on Reproductive Healthcare Access,” citing its goal “to protect and bolster reproductive health, rights, and justice.”

In a statement from the White House on May 3—the day after Politico published the leaked Dobbs draft opinion—Biden declared, “We will be ready when any ruling is issued.”

According to The Washington Post, White House officials have been considering methods to fund abortion-related travel for women in pro-life states through programs such as Medicaid. But that approach seems unlikely to work: Rachel Morrison, a fellow at the Ethics and Public Policy Center who works on the HHS Accountability Project, pointed to the Hyde Amendment as the primary barrier. Under that long-standing budget rider, the federal government cannot use taxpayer funds to pay for abortions. Morrison said abortion-related travel is essentially the same thing. If the administration pursues this avenue, McClusky said he expects HHS to argue that Hyde does not apply to travel costs.

Since states and the federal government jointly fund the Medicaid program and states can use their own funds for abortion, there’s a chance that states could help women cover these costs.

Some of the proposals McClusky has tracked are even more creative. His running list includes a February article from news website The 19th that mentions a recommendation from Drexel University law professor David Cohen. “It is possible that clinics can operate on federal lands without having to follow state law,” Cohen said.

The federal government owns about 640 million acres of land in the United States, totaling about 28 percent of all land in the country. The National Park Service, the Fish and Wildlife Service, and the Department of the Interior oversee the land. In this hypothetical, the government wouldn’t directly fund abortions but would make operations possible by leasing out the land to abortion businesses.

“Presumably, the federal government has more leeway to conduct abortion or allow abortions to occur on their land, and it wouldn’t be subject to the state regulations,” said Morrison, describing the argument government attorneys might make. She suggested such a plan would specifically target the federal land in pro-life states.

But such an approach is unlikely to withstand a legal challenge. Even Cohen seemed skeptical such a plan would work. “It’s not a slam-dunk legal argument,” he told The 19th, “but these are the kinds of things that need to be tried.”

Another federal avenue on McClusky’s list: the expansion of drug-induced abortion. In December 2021, the Food and Drug Administration removed a long-standing rule that required women to pick up abortion pills in person. That opened the door for online abortion pill startups that dispense the drugs after a video call or a series of text messages. Democratic congresswomen signed a letter in March urging the HHS Reproductive Health Care Access Task Force to expand access to the abortive drugs, “including by facilitating the dispensing and safe provision of care via clinics, mail-order pharmacies, retail pharmacies, the mail and other forms of delivery, as well as telehealth.”

Although many states have passed laws requiring stricter safety protocols than the federal government, McClusky noted the administration could challenge such laws on the grounds that they conflict with the looser FDA rules. He also said the administration could look for a way to allow doctors to prescribe abortion pills across state lines. Biden’s Justice Department could also challenge individual state pro-life laws in court.

But as The Washington Post noted, White House officials know they have limited options. Passing the Women’s Health Protection Act would have codified and expanded Roe, but that has already failed twice in the Senate. Biden and other pro-abortion politicians now have their eyes on ousting pro-life politicians in the upcoming midterm elections.

“You gotta make sure that you vote,” Biden told the audience on Jimmy Kimmel Live! “You gotta vote and let people know exactly what … you think.”