Biden White House has planned for Supreme Court to overturn Roe for months
By Kevin Liptak and Jasmine Wright, CNN
President Joe Biden has been bracing for the Supreme Court's decision to overturn Roe v. Wade for months, preparing for it to potentially set off mass protests and heap pressure on the White House to act, according to officials, even as there remains little he can do through executive action to mitigate the court's ruling.
The announcement of Friday's ruling punctuates months of contingency planning at the White House and lobbying efforts by abortion rights advocates, who have wanted Biden to take immediate action.
The President blasted the court's decision in a televised address from the White House early Friday afternoon, lamenting what he called a "sad day for the court and for the country." And he said he is directing the Department of Health and Human Services to take steps to defend access to certain medications, such as contraception and mifepristone -- one of the pills used to induce a medication abortion.
Biden said he's directing HHS "to take steps to ensure these critical medications are available to the fullest extent possible. And that politicians cannot interfere with a decision that should be made between a woman and her doctor."
Along with eliminating barriers to accessing medication abortion, behind the scenes, Biden has been considering taking steps to challenge state laws that criminalize out-of-state travel to receive an abortion, according to people familiar with the discussions.
Vice President Kamala Harris has heard from privacy experts about how law enforcement could use period tracking apps to monitor for abortions and the possibility that embryo destruction could become more difficult for those who have in vitro fertilization. Advocates for communities of color and undocumented immigrants have raised specific concerns to the White House about women in those groups accessing abortion across state lines. And state lawmakers have pressed for more federal resources to help manage what many describe as a looming crisis.
"We're exploring every option to respond to the upcoming decision ... and to protect access to reproductive health care, including abortion," White House Gender Policy Council Chair Jennifer Klein told Wednesday's virtual meeting.
But with a federal law in place barring taxpayer funds from going toward abortion in most cases and a rash of state bans poised to take effect as soon as a Supreme Court ruling comes down, there remains little Biden can do that would fundamentally restore the national right to end a pregnancy. And his calls for Congress to codify the right to abortion lack enough votes in the Senate.
That has left some advocates and lawmakers looking for rhetorical leadership from a President who has, at various points in his long career, shied away from a full embrace of abortion rights. He rarely uses the word "abortion" itself -- an absence his aides downplay but that advocates say is still symbolic.
"It's time for this President -- past time for this President and this administration -- to name what's happening as a moral failing in this country and as a public health and human rights crisis. It's beyond the point of playing politics. It's time to say the word abortion out loud," said New Mexico state Rep. Michaela Lara Cadena, who was one of six Western state lawmakers who joined a call with senior White House officials last week to discuss reproductive rights.
New Mexico, a state without any major types of abortion restrictions, stands to receive an influx of patients from neighboring states like Texas should the nationwide right to abortion be eliminated. Cadena's appeal to the White House was to be prepared to help states like hers as women seeking abortions travel there to look for them.
"It's going to be a stretch for us to keep our doors and our clinics open for people coming from across the country. We are ready and our values are there, but it will be a stretch and to be real, this is decades in the making," she said.
Pressure on Biden from the left
Ahead of the ruling, Biden had come under pressure from activists and Democratic lawmakers to use the full extent of his executive power to dampen its impacts. But White House officials sought to temper expectations for what the President would be able to do unilaterally to maintain access to abortion for the millions of women living in states where it is now expected to be outlawed.
In conversations with advocates, the White House has heard a range of options, not all of which officials believe are tenable or would withstand legal scrutiny. For example, calls for Biden to allow abortion providers to work from federal property have raised concerns among some lawyers. And providing federal funding for women to travel out of state has the potential of running afoul of the Hyde Amendment, the law that prohibits federal funding of abortions in almost all cases.
Other options have appeared more feasible to officials, including making it easier for women to obtain abortion pills through the mail. But legal hurdles remain.
In a meeting with reproductive justice leaders last month, White House officials heard concerns about accessing abortions for undocumented women, who could risk deportation by passing through checkpoints on their way to access clinics out of state.
"Folks who lack immigration papers are probably less likely to travel out of state to seek abortion care because of checkpoints and the fear of arrest, adding the additional layer of criminalization," said Yvonne Hsu, the chief policy and government affairs officer at the National Asian Pacific American Women's Forum, who has participated in meetings with White House officials. "To communities of color and immigrant communities, I think it's really having a chilling effect. And so what we've been doing is just making sure that they know these barriers already exist."
A long process to figure out next steps
The process of coming up with options for the President began before a draft decision leaked this spring showing the court was poised to overturn Roe v. Wade. But work accelerated after the leaked draft opinion, which surprised some White House officials with just how sweeping the ruling could be.
Biden himself learned of the draft opinion late on May 2, when his chief of staff, Ron Klain, phoned him in the White House residence to brief him on the leak. In the weeks since, senior White House officials have met virtually and in person with dozens of representatives from reproductive rights groups, state legislators and private law experts to discuss a path forward.
Senior White House staffers have also met weekly with the leaders of Planned Parenthood and NARAL Pro-Choice America since the draft opinion leaked, according to a White House official.
"They really want to hear what we are hearing and what we're seeing from the folks that we work with on the ground, our partners, how people in the community are reacting, and also what we anticipate is going to come. I think right now they're really thinking about their response. They want to do something, but they're trying to do that in an informed way," Hsu said.
The work has been led by the White House Gender Policy Council and its director, Klein, along with outgoing White House counsel Dana Remus and Domestic Policy Council Director Susan Rice.
Harris has also assumed a leading role, convening her own discussions with advocates, faith leaders and law experts to collect different perspectives and policy ideas on how the administration could intervene to ensure the protection of certain safety and security rights should Roe be overturned.
In a conversation on June 14 that focused on privacy, Harris was focused in part on questions about digital technology like period trackers, according to Melissa Murray, a constitutional lawyer and reproductive rights expert from New York University who participated in the discussion.
"She was right there, asking really good questions, thinking about not only the sort of nuances of the issue, but also what's the best way to explain this to the public so that they understand what's actually at stake," Murray said of the conversation.
Menstruation tracking apps and IVF in the spotlight
Advocates fear that data from menstruation tracking apps could be used to prosecute women who have or seek abortions in states where they are illegal. Harris was interested in "whether those individual private entities might have a role in limiting the amount of data that can be turned over to state authorities who are interested perhaps in prosecuting abortion," Murray said.
Jennifer Weiss-Wolf, a Women and Democracy Fellow at the Brennan Center for Justice who participated in the discussion, said Harris was particularly interested in ideas in a letter that Democratic Sens. Elizabeth Warren of Massachusetts and Patty Murray of Washington state had sent to Biden in June that called on the President to use the Department of Health and Human Services to clarify how websites and apps that collect reproductive information should safeguard the sensitive data.
Harris also raised the Federal Trade Commission's role in those efforts. And the group discussed the prospect of requiring tampon and pad manufacturers to provide more accurate information on early pregnancy and menstruation with their products.
"We talked about some more creative things that have been put on the table already. And she was very enthusiastic of all kinds of ideas. These aren't going to be the solutions to the full crisis that our nation is in, but these are steps that the government can take to still protect us and fill gaps ... that exist that make our life ... in this new reality much more dangerous," Weiss-Wolf said.
Another issue that was raised was the possibility that those who fertilize embryos through the IVF procedure could face restrictions when it comes to destroying them, if a state adopts the viewpoint that an embryo is an unborn child -- language that Justice Samuel Alito used to describe abortion in the leaked draft.
"I told the vice president I'm more worried about what I would call a sideswipe," Harvard law professor Glenn Cohen said. "The idea that we'll introduce language that's really aimed at abortion but will end up implicating in vitro fertilization and create uncertainty."
Worries about violence
The prospect of large protests following a ruling has concerned some White House officials. Biden has made clear he is opposed to violence surrounding the decision and recently signed legislation extending around-the-clock security to Supreme Court justices' families.
Security protections surrounding the high court received fresh attention after the Justice Department arrested a man near Justice Brett Kavanaugh's house in Maryland earlier this month and charged him with attempting or threatening to kidnap or murder a US judge.
While protests around the country have been largely peaceful following the leak of the draft opinion, law enforcement officials in the nation's capital have braced for potential security risks. Last month, an 8-foot-tall, non-scalable fence was installed around parts of the Supreme Court building, and crews set up Jersey barriers to block the street in front of the court.
In conversations with groups and advocates, the White House has sought to gauge what the response to the ruling might look like while encouraging community leaders to channel frustration and anger into constructive action.
During an early June conversation with faith leaders in Los Angeles, Harris asked a group of diverse clergy members what they would be preaching the weekend after the ruling comes down, according to Rabbi Dara Frimmer of Temple Isaiah.
"What's going to be your message of hope and resilience and faith that -- while the world has been turned upside down -- here is what we as a faith community believe, and here is where we are going to be able to mobilize as we move forward," Frimmer said, describing Harris' message.
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