Yuri Gripas/Abaca/Sipa USA via AP Images
President Biden delivers remarks on the Supreme Court decision to overturn Roe v. Wade at the White House in Washington, June 24, 2022.
The Revolving Door Project, a Prospect partner, scrutinizes the executive branch and presidential power. Follow them at therevolvingdoorproject.org.
During his campaign, now-President Biden loved likening his image to that of FDR. But when a rogue U.S. Supreme Court threatened to overturn the sweeping reforms of FDR’s New Deal, Roosevelt directly challenged their gross power grab by threatening court expansion coupled with expansive judicial reforms. The controversial move paid off; the Court subsequently backed down and FDR preserved the slate of New Deal–era reforms that kept the working class alive during the depths of the Great Depression and formed the basis for much more broadly shared prosperity in the subsequent decades.
Opposing today’s radical Supreme Court is no less high-stakes an endeavor. And yet, Biden, unlike his self-proclaimed role model, thus far refuses to unabashedly employ all legal and political means to fight back, particularly if they are controversial or polarizing. The president has many options at his disposal, like declaring a national emergency, limiting the Supreme Court’s jurisdiction, or providing abortions on public lands, but there is little sign they are even under consideration.
In the immediate aftermath of the Supreme Court’s decision to overturn Roe v. Wade last Friday, President Biden promised to do “all in [his] power to protect a woman’s right in states where they will face the consequences of today’s decision.” In the same speech, he announced a number of commitments toward that end, including preserving access to mifepristone, a self-administered early abortion drug, and defending people’s right to travel across state lines to access abortion care. Then on Thursday, he announced that he would support a reform of the filibuster to codify Roe. These are important first steps, though with Sen. Pat Leahy in the hospital and Sen. Joe Manchin still a supporter of the filibuster, codifying Roe will be impossible.
But, alarmingly, in the days since the Dobbs decision was announced, the Biden administration has repeatedly signaled that those initial actions—alongside asking people for donations and to vote in November—may represent the sum total of its planned response.
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This is, to put it mildly, giving up the fight before it has even begun. Even Republicans are reportedly shocked that Democrats aren’t “tak[ing] every potential approach [they] can” following Roe’s fall. Republicans have been successful at finding innovative ways to advance their agendas and produce concrete results. Democrats, by contrast, have yet to utilize even the small actions they can take to fight for their priorities.
When asked specifically about these options, the administration’s response has roughly been: “Oh, when we said everything in our power, you didn’t really think we meant that?”
Take, for example, the calls from several lawmakers to make abortion services available on public lands. In a press briefing Tuesday, White House Press Secretary Karine Jean-Pierre indicated that the proposal carried “dangerous ramifications” and was not under serious consideration within the White House. Among the ramifications she pointed to were the risks of prosecution for abortion seekers and providers, factors that are not obviously insurmountable. Left unaddressed in Jean-Pierre’s response were the well-established and deadly consequences we know will occur when people do not have access to safe and legal abortions.
What the administration does now will determine whether America’s grim present will become even grimmer.
The real obstacles, according to unnamed sources inside and outside the White House, are the risks that bold action would be “politically polarizing,” risk “undermining trust in … the Supreme Court,” and “lack a strong legal footing.”
If these excuses sound familiar, it’s because this administration has trotted them out many times already to justify its inaction. Last summer, they were behind its decision to roll over on the eviction moratorium, until overwhelming backlash forced the administration to backtrack. It’s why Trump-appointed FBI Director Chris Wray still has a job, despite mounting evidence of the Bureau’s shocking failure to prepare for January 6th (not to mention countless other disqualifications). It is reportedly why Americans have felt no relief from climbing drug prices, despite the administration having the authority to take action right away. We could go on.
The lasting hold of these ideas is evidence of many things. The administration is out of touch with its constituents; even before this decision, the Supreme Court’s legitimacy was gone for over half the country. It continues to prioritize an outdated idea of bipartisanship over the long term; let’s not forget the revelation this week that former President Trump sought to ensure that the mob that stormed the Capitol on January 6th not be prevented from having deadly weapons, in what amounts to an endorsement of assassinations for his political opponents.
But perhaps above all, it is a sign of the administration’s profound misdiagnosis of what went wrong under Trump and, by extension, how they fix it. Their working theory, it would seem, is that the Trump administration’s boisterous norm-breaking—not its chronic disrespect for the rule of law, transparency, or democratic processes, nor its penchant for violence—was the real danger. To move the country forward, therefore, the Biden administration must respect every norm and institution, to the point of obsequiousness, even and especially when they are thoroughly corrupted, bankrupt, or being flagrantly abused by Republicans.
It is only by staring into this funhouse-mirror reflection of its predecessors that this administration could possibly conclude that maintaining respect for the Supreme Court—the very institution that is sapping Biden’s own power—should be a priority right now, or that pursuing every creative option that it believes in good faith to be legal is somehow the greatest threat our democracy faces.
To make this more concrete, let’s return for a moment to the proposal that the federal government make abortions available on federal property in states where they are no longer legal. The administration is likely worried about running afoul of the Hyde Amendment, a provision that has banned federal Medicaid funding from being used for abortions since shortly after Roe was first decided. While the amendment’s effects have undoubtedly been wide-reaching and devastating, they are not all-encompassing; Hyde does not clearly foreclose any and all federal opportunity for action. For example, abortions are already performed in federal prisons and in immigration custody. But seeking legal routes around Hyde or pursuing novel legal strategies to test its limits might be deemed controversial—or even Trumpian. So the Biden administration won’t touch it.
The Biden administration also enjoys multiple other legitimate options for recourse regarding Dobbs. Declaring a national health emergency would allow the Department of Health and Human Services to enable out-of-state prescriptions for abortion medication. An emergency declaration could also bypass the Hyde Amendment and enable federal funds to pay for abortion seekers’ travel expenses. AOC and other progressives have also suggested that Biden entertain court expansion, a fully precedented presidential move. Of course, Biden could also work with Democrats in Congress to explore limiting the Supreme Court’s appellate jurisdiction, a power specifically enumerated in the Constitution. While there is little case law on the subject, and the Supreme Court enjoys protected authority over certain classes of cases, Biden could aid Congress in exploring this authority to limit the reach of an extremist Court. Bottom line, Biden has no excuse for his milquetoast advocacy for abortion rights.
Lessons From Progressives
Abortion rights are not explicitly on the ballot this fall, but the very politicians who are failing to provide solace in this moment are. Establishment Democrats simply are not pursuing, enacting, or fighting for any sufficient concrete actions to defend abortion rights while they are in office, and their calls to vote (for them, no less) without any clear action are only further enraging for a populace already increasingly disenchanted with both political parties. (The party’s absolute indifference is exemplified by Nancy Pelosi and Jim Clyburn spending massive amounts of time, money, and effort to barely save Rep. Henry Cuellar—the only anti-abortion Democrat in the House—from a primary challenge from Jessica Cisneros, a pro-choice woman of color.)
Should Democrats actually want to galvanize people into voting for their party come November, they must take notes from the political-messaging strategy laid out by progressives like Alexandria Ocasio-Cortez and Elizabeth Warren. The key takeaways go something like this:
- Call out institutional illegitimacy and conservative hypocrisy when you see it and where it exists. Start with decrying a politicized Supreme Court and the conservative establishment that manufactured it.
- Don’t tell the public what you can’t do to protect them. Tell them what you are already doing to act in their interests right now.
- Votes follow action. Telling people you can do nothing until (and in case of) a blue supermajority in November is a great way to ensure you don’t get one. Roe isn’t on the ballot come the fall, you are. What you did, what you could have done, to protect peoples’ rights will be. Own it.
Pre-Roe Strategies Are Ill-Suited for a Post-Roe World
The leaders atop our gerontocracy have almost all lived in a pre-Roe world, so they may feel they understand what is to come. But Dobbs has not returned America to its pre-Roe days. With increased surveillance technologies and the criminalization of pregnancies, we have entered a post-Roe era that may be much more dangerous. States with abortion bans are now easily able to track women’s locations, access their clinic visits, monitor their menstrual cycles on period-tracking apps—information that might be used in an abortion prosecution. Further, since Roe was decided on the basis of privacy rights, courts can apply the argument striking it down beyond abortion to other cases that were decided on the same basis: same-sex marriage, contraceptives, and privacy in the bedroom. Slowly but surely, the Court will steal Americans’ right to privacy, to bodily autonomy, to minority rights, and more.
Two years ago, Biden campaigned on making Roe the “law of the land,” yet his futile allegiance to norms is closing off pathways that could make this happen. What his administration does now will determine whether America’s grim present will become even grimmer.
Right now, it is failing to meet the moment. But this doesn’t have to continue. An infuriated populace is looking for a leader to channel their anger and to finally represent their interests in Washington. Biden has an opportunity to prove himself to be that leader. But he has to be willing to learn a new kind of politics and to be a new kind of politician who is willing to make enemies, to act boldly, and to abandon the facade of a co-partisanship that has long abandoned the public. If he doesn’t, he might be the last Democratic president in American history.
