WASHINGTON — President Biden’s top aides are weighing whether he can or should take a series of executive actions to help women in Republican-controlled states obtain abortions if the Supreme Court eliminates a woman’s right to end her pregnancy, according to senior administration officials.
Some of the ideas under consideration include declaring a national public health emergency, readying the Justice Department to fight any attempt by states to criminalize travel for the purpose of obtaining an abortion, and asserting that Food and Drug Administration regulations granting approval to abortion medications pre-empt any state bans, the officials said.
Since a draft opinion was leaked last month indicating that the Supreme Court was prepared to overturn the landmark Roe v. Wade decision — an action that would prompt at least 20 states to prohibit or severely curtail access to abortion — abortion rights advocates have been lobbying the White House to take extraordinary steps to mitigate the effect.
“We are at a crisis moment for abortion access in this country, and officials at all levels of government must respond — including the executive branch,” said Marya Torrez, senior director of policy development and strategy at Planned Parenthood Federation of America.
No executive order can re-establish a constitutional right. It would take an act of Congress to restore a national legal standard barring states from outlawing abortion, and proponents currently lack sufficient votes in the Senate, where Republicans can filibuster such a bill. But Mr. Biden has signaled that he wants to move on his own.
“I don’t think the country will stand for it,” Mr. Biden told the talk show host Jimmy Kimmel last week in discussing the likely end of Roe v. Wade, adding: “There’s some executive orders I could employ, we believe. We’re looking at that right now.”
The White House counsel, Dana Remus, the director of its gender policy council, Jennifer Klein, and the director of its domestic policy council, Susan Rice, are overseeing the legal and policy vetting of potential executive actions. Anita Dunn, a senior policy adviser to Mr. Biden, is in charge of broader planning, including communications strategy, officials said.
The Supreme Court is expected to issue a decision at the end of its term in about two weeks, and White House aides believe the ruling could touch off a political crisis, including mass protests. Further complicating matters, the decision may come down while Mr. Biden is in Europe for the Group of 7 summit.
The contingency planning is also said to include what to do if such a fiercely polarizing development leads to acts of violence. The administration has already heightened security for the Supreme Court justices after one man, apparently angered by anticipated conservative rulings on abortion and guns, traveled to suburban Washington from California intending to kill Justice Brett M. Kavanaugh.
The ruling could reshape the political environment at a time when Democrats are considered likely to lose control of Congress in the November midterm elections. Against that backdrop, Mr. Biden’s advisers have been grappling with both legal and political complexities as they develop a list of possible responses.
Read More on the U.S. Abortion Debate
Part of the dilemma, according to people familiar with the internal deliberations, is that Mr. Biden’s approach is likely to be seen as a litmus test by many centrist or liberal-leaning voters. This will put him under pressure to aggressively demonstrate a deep concern over the loss of the nearly 50-year-old right to reproductive freedom, and could make it preferable for him to go down fighting rather than demoralize certain voters.
In the past, Mr. Biden has adopted a position that his legal team warned him was unlikely to stand up in court, betting that the political benefits of his executive actions outweighed the legal risks. In August, as House Democrats urged him to reverse course on letting a pandemic-related ban on evicting renters expire, Mr. Biden unilaterally extended the measure.
The move won praise from the left, at a moment when he needed to hold his coalition together in order to advance his legislative agenda. But while Mr. Biden’s decision bought a little more time for pandemic assistance funds to reach renters, its practical impact was limited because courts, as predicted, swiftly struck it down — and his critics accused him of lawlessness.
In the abortion debate, some of Mr. Biden’s advisers both inside and outside the administration are wary of providing Republicans with similar fodder, allowing them to shift the political narrative from what their party has done to raising the alarm about the overreach of executive power.
Laurence Tribe, a Harvard Law School professor who has consulted with Ms. Remus’s team, said in an interview that while he did not want “to pour cold water on people’s peaceful reactions to impending disaster,” some of the proposals the White House was being lobbied to consider were unwise and implausible extensions of executive power.
“It would take attention from the things that are really relevant — that the Supreme Court is out of control and we ought to be very critical of it — and shift the criticism to the president for responding in kind and doing things that are every bit as ungrounded in the Constitution as the court’s overruling of Roe will be,” Mr. Tribe warned.
Not every idea has elicited the same degree of caution. For example, the administration appears likely to ask the Federal Trade Commission to push makers of apps that track menstrual cycles to warn users that the data could be used to identify women in the early stages of pregnancy.
But administration officials see other suggestions as extremely risky. One calls for Mr. Biden to invite abortion doctors to work at federal enclaves, like military bases, inside states that criminalize abortion. State prosecutors lack jurisdiction in such zones, so the federal government handles crimes there, and it is not always clear whether criminal laws at the state level apply.
Doctors might still face challenges to their state medical licenses. And while the Justice Department under Mr. Biden could decline to pursue charges as a policy matter, control of the department could flip in the 2024 presidential election, and federal prosecutors could then charge people with crimes, like abortion, retroactively.
Several other proposals for executive actions raise questions about the scope of the Hyde Amendment, a law that generally prohibits paying for abortions with federal taxpayer funds. The Biden administration is said to have asked the Justice Department’s Office of Legal Counsel whether the law also bars using those funds for expenses related to abortion, like travel.
The State of Roe v. Wade
Card 1 of 4
What is Roe v. Wade? Roe v. Wade is a landmark Supreme court decision that legalized abortion across the United States. The 7-2 ruling was announced on Jan. 22, 1973. Justice Harry A. Blackmun, a modest Midwestern Republican and a defender of the right to abortion, wrote the majority opinion.
What was the case about? The ruling struck down laws in many states that had barred abortion, declaring that they could not ban the procedure before the point at which a fetus can survive outside the womb. That point, known as fetal viability, was around 28 weeks when Roe was decided. Today, most experts estimate it to be about 23 or 24 weeks.
What else did the case do? Roe v. Wade created a framework to govern abortion regulation based on the trimesters of pregnancy. In the first trimester, it allowed almost no regulations. In the second, it allowed regulations to protect women’s health. In the third, it allowed states to ban abortions so long as exceptions were made to protect the life and health of the mother. In 1992, the court tossed that framework, while affirming Roe’s essential holding.
Administration officials have signaled their confidence that the department would approve granting federal employees paid leaves of absence to travel to another state to terminate unwanted pregnancies. The same goes for using federal funds to help pay travel and lodging costs for poor women seeking abortions in states where the procedure remains legal.
Skeptics of the plan to pay for travel costs have argued that nonprofits are raising private money for that purpose; that it would prompt a vote in Congress to ban such spending, which would imperil Democrats in conservative-leaning districts; and that Republican states would sue before like-minded judges willing to interpret the Hyde Act more expansively.
“Are we dealing with the law as we think it is, or the law as we think it is going to be once the right — or wrong — judges get their hands on it?” said Stephen Vladeck, a University of Texas, Austin, law professor consulted by the White House. “It’s one thing to roll out a bunch of stuff that gets blocked by Republican judges if the goal is the symbolism of having tried. But if the goal is effective measures, that’s not helpful.”
The administration is also studying ideas to help pave the way for women in states banning abortion to obtain pills that can terminate a pregnancy during the first 10 weeks from out-of-state pharmacies. In December, the F.D.A. approved a regulation allowing such drugs to be prescribed in telemedicine visits and distributed by mail.
One complication is that doctors are licensed at the state level, and practicing medicine without a license in another state is a crime, although it can be difficult to decide where a doctor consulting virtually with an out-of-state patient is “practicing.”
To provide doctors with legal cover, some supporters are urging the Biden administration to take several steps that would reimpose a degree of federal control over abortion law.
One idea is for the Department of Health and Human Services to declare a public health emergency based on expected patient surges at clinics in border states where abortion remains legal, and to use that emergency to invoke a 2005 law that shields doctors from legal liability for treating patients in a state where they are not licensed.
These advocates also want the F.D.A. to declare that its regulation approving the use of abortion pills — or a strengthened version of the rule — pre-empts state laws banning abortion.
Both moves would rely on aggressive interpretations of the power Congress granted those agencies, and are likely to draw immediate court challenges, raising the possibility of rulings that limit the government’s flexibility under public health and drug safety laws.
Richard Fallon, another Harvard Law School professor the White House has consulted, noted that the Supreme Court’s conservative majority has been deeply skeptical of the power of agencies to regulate major issues without explicit authorization from Congress. He cautioned against “false hopes,” saying that legally, “the administration is in a very, very hard position.”
Melissa Murray, a New York University law professor who specializes in reproductive issues and has consulted with the administration, said that it may want to take some “calculated risks” on executive actions, but argued that its foremost goal should be prompting supporters to vote.
“Everyone keeps asking me what we should do when the decision comes down,” she said. “You can cry or you can vote.”