“This fall, Roe is on the ballot. Personal freedoms are on the ballot,” said President Joe Biden in a recent speech. “A woman’s right to choose — reproductive freedom — is on the ballot in November,” House Speaker Nancy Pelosi similarly emphasized. “You have the power to elect leaders who will defend and protect your rights,” echoed Vice President Kamala Harris.
They’re speaking to an important political reality: Democrats do need to keep both their majority in the House and get a bigger one in the Senate in order to pass any legislation that could codify abortion rights long term.
Abortion rights activists, though, have been underwhelmed with that response: They want to see more short-term policy solutions, more specifics about long-term plans, and they really want top Democrats’ rhetoric to match the urgency they feel. “It is extremely patronizing to tell people that the answer is to vote, when many of us have been voting for years,” says Tamya Cox-Toure, co-chair of Oklahoma Call for Reproductive Justice, a coalition of abortion rights advocacy groups. “It’s a vote and.”
The White House, meanwhile, has stressed that it’s operating under serious legal constraints and weighing concerns that taking some of the more aggressive actions activists are demanding could create political backlash on what is currently a winning issue for Democrats. Biden has signaled that his administration will protect the right to travel across state lines for abortion and defend access to medication abortion — without going into the particulars. He’s noted, too, that he supports eliminating the filibuster in order to codify the protections of Roe into law, though that avenue is currently stymied by members of his own party. Additionally, he’s indicated that there could be more executive actions to come.
The legal and legislative challenges facing the White House — and national Democrats overall — are real and in some cases, insurmountable. Some of the things activists want, Biden simply might not be able to achieve, and may have less political support than leaving legislation up to Congress. At the same time, many of the demands activists are making are within the administration’s capacity and could have immediate impacts on people’s access to reliable information, and their ability to obtain abortions in the near term. Ultimately, too, if Democrats want their voters to stay mobilized this fall, they need to demonstrate that they’re able to act when they are in power.
The Biden administration is weighing political and legal constraints
The Biden administration has sounded caution thus far about what it can do.
“The administration is looking at everything we can do to protect women’s rights,” a White House official told Vox. “But it’s important to remember that an executive order cannot restore a constitutional right that the Supreme Court has taken away.”
Passing any legislation with stronger abortion rights protections is up to Congress, where Democrats don’t currently have the numbers they need to advance any bill. Thus far, Senate Democrats have taken two failed votes on the Women’s Health Protection Act, which would enshrine the right to an abortion into law, after House Democrats previously passed it. Because of the filibuster, most bills in the Senate need 60 votes in order to pass — a threshold that the 50-person Democratic caucus currently falls short of.
Biden, along with many other Democrats, has called for the elimination of the filibuster in order to pass abortion rights legislation, but the party doesn’t have the numbers for that, either. All 50 Senate Democrats would have to be on board in order to make that happen, and thus far, Sens. Joe Manchin (WV) and Kyrsten Sinema (AZ) have been staunchly opposed to taking this route.
Antjuan Seawright, a Democratic strategist and Biden supporter, thinks national Democrats and the administration are doing the most they can under the limitations they face. “I think the president has focused on what he knows he could do without being legally challenged, which could cause even more disruption. I think that he’s urged Congress to do what it can,” Seawright told Vox.
But there are things activists see as within Biden’s power — and interest — to do.
Activists want a plan
Activists want Democrats to provide specifics about what’s next, and to bring more energy to defending abortion rights, both things they could do now.
Their demands have included ambitious ones that are likely to prompt legal pushback — like attempting to establish clinics on federal lands — as well as more straightforward tasks like building out the administration’s website to show how people in different states are affected by this decision.
One of activists’ core frustrations is that there hasn’t been an explicit roadmap for what the White House, and Democrats broadly, intend to do next, beyond calling on people to vote.
“It is unacceptable that there was not a concrete plan the minute this decision came down,” says Morgan Hopkins, the interim executive director of All Above All, an abortion rights advocacy group.
The White House, like the broader public, had known for weeks that this decision was coming since Politico published a scoop outlining the contours of it in early May. Yet, on the Friday the Court’s Dobbs v. Jackson Women’s Health Organization decision was announced, the administration offered few specifics, noting broadly that it would defend people’s ability to travel and that it would advocate for access of medication abortion to the “fullest extent possible.”
Experts have long emphasized that the Justice Department could challenge state laws that try to curb access to medication abortion and that there’s precedent to take such actions. They note that there are likely to be legal challenges but solid grounds to make this case: because the FDA has made medication abortion more accessible, that policy theoretically supersedes state laws attempting to ban abortion altogether.
Neither the White House nor the DOJ has committed to this approach. And this past week, Health and Human Services Secretary Xavier Becerra declined to provide more context about how exactly the agency would offer protections of medication abortion. Being clearer about their willingness to challenge state laws on abortion pills would be helpful, Georgetown University health law professor Lawrence Gostin told Vox. Becerra had said that they are taking the time to figure out responses that align with “what a state tries to do.” Several states’ restrictions on abortion pills have been in place since last year, giving lawmakers more time to determine a response.
The White House didn’t provide much context for how it would go about shielding people’s ability to travel and obtain abortions in different states, either. “If any state or local official, high or low, tries to interfere with a woman’s exercising her basic right to travel, I will do everything in my power to fight that deeply un-American attack,” Biden has previously said. Activists want to hear about what this defense would entail as well as how the administration could help people address the costs and logistics of having to travel for abortions.
Beyond these two areas, advocates have also called on Biden to consider a range of executive actions including the idea of leasing federal lands to abortion clinics, and declaring a public health emergency that could help unlock staffing and funding for states dealing with an influx of people seeking abortions. The administration has pushed back on the idea of leasing federal lands, citing concerns that providers and patients could still be prosecuted by different states. It has yet to consider a public health emergency, which activists note could help provide funding for different resources that wouldn’t clash with the Hyde Amendment, a measure that bars the use of federal funds for many abortions.
“We’ve seen in the last three years that tremendous resources can be marshaled to address a public health emergency,” says Kimberly Inez McGuire, the executive director of URGE, a reproductive justice organization aimed at mobilizing young people. “This requires a response of that scale.”
Biden has also given one major speech on the issue before leaving for a major foreign policy trip in Europe. Activists hope to see him and others speaking out on the issue more, and using rhetoric that acknowledges the need for abortion care in an array of instances.
In particular, they’re interested in seeing him continuing to dispel any stigma surrounding abortions by treating the procedure as health care, rather than something that people can only use in particular cases. In his initial remarks, for example, Biden cited specific instances of when abortions would now be restricted in many states, such as in the case of threats to a woman’s health or in the case of rape.
“How hard is it for the president to go out there and say, ‘my fellow Americans, every single one of us has loved someone who’s had an abortion, and it’s health care’?” asks Renee Bracey Sherman, the executive director of abortion rights advocacy group, We Testify. Both Inez McGuire and Bracey Sherman noted, too, that it would be meaningful for the administration to hold public events and meetings with people who have had abortions.
Finally, activists are calling on Democrats to provide more centralized resources. Currently, reproductiverights.gov is already beginning to address some of those questions — but it could be much more robust.
“What they have is a good start,” said one reproductive justice advocate, who noted that “additional information on where to go, information on what an abortion is, what a medication abortion is,” would be helpful.
Any efforts that Biden can take will, as the White House has repeatedly explained, fall short of fully bringing back the abortion rights protections guaranteed by Roe. Activists, broadly, are aware of this dynamic, but they’d like to see Biden try actions that could lead to incremental gains and send a powerful message about where he stands.
The political calculus
Besides the issues the administration is running up against legally, officials have also indicated there’s another reason the White House has been more reserved in its response: politics. “Biden and officials are concerned that more radical moves would be politically polarizing ahead of November’s midterm elections, undermine public trust in institutions like the Supreme Court or lack strong legal footing, sources inside and outside the White House say,” according to a Reuters report.
Democratic pollster Joey Teitelbaum, however, says the politics of the issue are firmly in Democrats’ favor at the moment, and actually suggests that they should be as aggressive as possible. “The good news for [Biden] is protecting Roe and abortion rights is not only the right thing to do, it’s popular with voters from across the spectrum,” Teitelbaum tells Vox. “It would benefit him electorally to take action, and it would benefit women everywhere to have control over their own health care decisions.”
Support for a national law to protect abortion rights, for example, is strong. According to a Morning Consult/Politico poll conducted after the Supreme Court decision was announced, 52 percent of people supported Congress passing one. It’s unclear whether the White House believes that some of the executive actions that have been floated could potentially be more polarizing. Other proposals, like an executive action to preserve access to medication abortion and the declaration of a national public health emergency, had 54 percent and 44 percent support, respectively, in the same Morning Consult poll.
“A defense of Roe is not divisive within the Democratic Party and it commands a clear majority in the country. So perhaps the reference is to something more extreme to that,” says Bill Galston, a governance studies fellow at Brookings Institution. “Obviously, a serious administration doesn’t want to put itself in the position of looking ridiculous with symbolic acts that are impractical or would do very little to address the problem.”
Overall, the bulk of Democrats’ messaging in the wake of the Dobbs decision has been focused pretty extensively on the threat that Republicans pose, rather than the affirmative case of what Democrats are doing.
“Republicans aren’t stopping at overturning Roe,” notes a recent ad campaign from the Democratic National Committee. “They want to go further and ban abortion. Believe them.” “[Biden] is ‘telling people the truth and putting the focus where it needs to be, holding Republicans’ feet to the fire for the harm they’re causing,’” a White House official told Reuters.
The implication of all this messaging is that voting for Democrats this fall will serve as a check on any GOP efforts to pass even more expansive abortion restrictions, something Galston sees as an important point to make before the party can make an argument for solutions of its own. Aides for both the Democratic Congressional Campaign Committee and the DNC note that Democrats have a track record in the House of passing legislation that would codify abortion rights, and that the case for electing more Democrats is the fact that they would advance such bills if they had the numbers required in the Senate.
Speaker Nancy Pelosi has also said the House could consider other legislation that focuses on protecting people’s data on reproductive health apps and reiterates people’s ability to travel for services.
Some of the skepticism from protesters has stemmed from Democrats’ failure to codify Roe in past administrations, like in the Obama administration, when they had a 60-vote majority in the Senate as well as a majority in the House. In 2009, for example, Democrats controlled both chambers of Congress as well as the presidency, and did not pass legislation to codify Roe.
“Democrats have used this for 50 years to fundraise. They had opportunities to codify Roe,” Carolyn Yunker, a pro-abortion rights protester, told NPR this past weekend.
Then as now, however, there was dissent among the Democratic caucus about abortion rights: Even though the party had a filibuster-proof Senate majority, not all of those lawmakers were necessarily supportive of such legislation, USA Today reports. And because of the Supreme Court precedent, few lawmakers actually thought that Roe was at risk and would need legislation to enshrine it.
Democrats’ past track record and their recent approach to the issue has only fueled activist pushback. Bracey Sherman is among those who wondered why the DNC’s reproductive rights website focused on phone banking for candidates and fundraising, rather than offering guidance to people about how they can access abortions and advocate for these rights in their states. A DNC aide noted that the group had coordinated more than 25 events and rallies in states across the country since the Supreme Court decision had been announced, including protests in Ohio and Michigan.
“None of this will actually help people get abortions right now. It’s exhausting,” Bracey Sherman said, of the DNC website.