At news of the leaked draft opinion from the Supreme Court spread late on Monday, White House officials “panicked as they realized how few tools they had at their disposal” to respond to the impending loss of nationwide abortion rights, an “outside adviser briefed on several meetings” told the Washington Post.
The draft majority opinion, authored by Justice Samuel Alito, outlined the court’s justification for overturning its previous decision in Roe vs. Wade, a 1973 ruling that found women have the right to an abortion as part of their right to privacy, and laid out a framework for legal regulation of the procedure. It was in response to a case heard in December, Dobbs v. Jackson Women’s Health Organization, in which the Mississippi government directly asked the high court to consider the validity of the Roe decision.
The court has since confirmed the draft’s authenticity, but the opinion is not its final published ruling and could change before its expected official release in June or July. If at that time it still overturns the Roe decision, it would immediately ban abortion in 13 US states, plus reactivate anti-abortion laws still on the books from before the Roe decision in nine other states.
According to the Post, the Biden administration is considering a few options, including that already stated by US President Joe Biden, but which is possibly the least likely to occur: passing the Women’s Health Protection Act (WHPA), which would codify the Roe decision into US law. The House passed the bill in September, but it died in a Senate vote in March in which Democrats failed to stand united.
“If the court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November,” Biden said on Tuesday. “At the federal level, we will need more pro-choice senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”
In other words, Biden is placing the responsibility of defending abortion rights on US voters, and he is relatively powerless.
Another option reportedly being considered by the White House is expanding funding for Medicaid, the government-funded health insurance system that provides rudimentary care for some of the nation’s poorest citizens. The funding would specifically provide for women traveling across state lines to seek abortion in states where access to the procedure remains legal.
However, Medicaid has problems, too: a coverage gap caused by states’ lack of adopting a federally-backed Medicaid expansion program has left more than 2.2 million Americans without coverage who otherwise would have it. Because it must be adopted by state governments, Biden has limited ability to force the issue by himself.
The biggest problem, however, is the Hyde Amendment: a law that since 1980 has banned federal funding for abortions. Biden, who was as a devout Catholic was originally anti-abortion, yielded to Democratic pressure and pledged during the 2020 election campaign to remove the Hyde Amendment. His proposed budget in 2021 excluded Hyde, which set Democrats up for a tough fight in the Senate, where Republicans were sure to block the spending bill. In the end, Biden signed the bill in March 2022 with the amendment added back in, because the $14 billion it provided for weapons to send to Ukraine was judged to be too urgent.
While Medicaid expansion would cover the cost of the procedure, it would not cover the costs of travel, which for people deep in the Republican-dominated Great Plains states could be hundreds or even thousands of miles.
The Department of Justice could also file lawsuits challenging anti-abortion laws in different states, which have proliferated in their stringency and difficulty of overturning in recent years. However, without Roe or Planned Parenthood vs. Casey, another case that affirmed the Roe decision but which Alito’s draft opinion also overturned, making the case before federal judges that the laws are illegal would be a very uphill battle. The DOJ has already failed to block several anti-abortion laws in the past year, including one in Texas that uses third-party lawsuits against people who “aid and abet” an abortion as a way to both intimidate people into not getting abortions and as a way to dodge a court injunction.
For Republicans, the striking down of Roe is a victory decades in the making. After the 1973 decision, religious leaders and conservative politicians mounted a massive effort to cast abortion as the murder of an unborn child and to make “pro-life” opposition to abortion the standard bellwhether for Republican politicians.