Democrats Want Biden to Do More on Abortion, But He Faces Tricky Legal Challenges

Three days after the Supreme Court overturned Roe v. Wade, Republican-controlled states are moving fast to outlaw abortion, and frustration is growing among Democrats in Congress that the Biden administration isn’t acting boldly enough to meet the moment.

“I want President Biden to do absolutely everything in his power to protect access to abortion in America,” Sen. Patty Murray, Democrat of Washington, tells TIME. “Let’s really push the envelope to protect women in this country, and let’s do it now.”

Biden promised as much in a White House address on Friday shortly after the decision was announced, yet it came with a caveat: He can only do so much. “My administration will use all of its appropriate lawful powers,” he said. “But Congress must act.”

In the days since, many Democrats have called on the White House to take more sweeping actions to protect abortion rights in a post-Roe America, while the White House has grappled with the limits of executive power to legally address the situation.

Many advocates view that approach as overly cautious. “There are all sorts of things that this government could be doing,” says Stephanie Schmid, a former legal counsel for the Center for Reproductive Rights. “Will they be challenged in court? Absolutely. Does that mean we shouldn’t be throwing everything at the wall to show people the power of the federal government?”

Since the Supreme Court ended a constitutional right to abortion, the White House has moved to increase access to medication abortion by mail and to protect doctors and patients from criminal liability in states where the procedure is a crime. Within hours of the ruling, the Department of Justice said that states couldn’t ban the abortion pill Mifepristone. Legal experts argue the statement underscores how state laws are preempted by federal regulations; the Food and Drug Administration has approved use of the medication within 10 weeks of pregnancy.

Many Congressional Democrats say those moves should have already been followed by additional efforts. Weeks before the ruling, Murray, along with Sen. Elizabeth Warren, Democrat of Massachusetts, organized a letter calling on the president to issue an executive order that would direct the federal government to “develop a national plan” to defend women’s reproductive freedom. Twenty five Senators—half the Democratic Caucus—signed it in the wake of a leaked draft of the decision.

The letter ticked off policy ideas such as expanding access to medication abortion, providing resources for women to travel accross state lines to seek abortions, and allowing Medicaid beneficiaries to obtain family planning services from a provider of their choice. It also urged the administration to explore an audacious proposal for the federal government to lease federal land to abortion providers, with the theory being that state laws wouldn’t be applicable there. Since the high court announced its decision, that novel idea has been touted by some of the nation’s most prominent Democrats, including Rep. Alexandria Ocasio-Cortez of New York.

The White House, however, has raised serious concerns about the feasibility of creating federal abortion enclaves in states where the procedure is banned. “While this proposal is well-intentioned, it could put women and providers at risk,” a White House official who declined to be named tells TIME. “And importantly, in states where abortion is now illegal, women and providers who are not federal employees could be potentially be prosecuted.”

Even some of the policy’s advocates recognize that it would put the government in tricky “untested” waters. Rachel Rebouché, the interim dean at Temple University’s law school, says a statute called the Assimilation of Crimes Act means doctors and women might still be at risk of criminal liability.

The statute “says if there is no federal law on point, then the federal jurisdiction will assimilate the state criminal law and that’s what will apply,” she explains to TIME. Other skeptics have pointed to the Hyde Amendment.

“The president opposes the Hyde Amendment, but it remains law and generally prohibits funding abortion except in cases of rape, incest, and threats to the life of the mother,” the White House official says. “We are going to continue to look at everything we can do, consistent with Hyde, to protect a woman’s right to choose.”

Vice President Kamala Harris also seemed to dismiss the idea on Monday when asked about it on CNN. “It’s not right now what we are discussing,” she said.

Roughly half of the states are expected to ban abortion after the ruling. Thirteen states have so-called trigger laws on the books that were designed to ban or restrict abortions in the event that the Supreme Court struck down Roe, though some of those are facing court challenges. Ten other states have laws banning abortions from before the landmark 1973 ruling that will now go back into effect. And several other GOP-led states, such as Ohio, are moving to pass abortion restrictions.

Meanwhile, some national Republican leaders, like former Vice President Mike Pence, want to restrict abortion access even further, calling for the party to keep pushing for a national ban.

With little Biden can do in the immediate future, he’s making it a political issue—arguing to voters that electing more Democrats in November would enable them to enshrine abortion rights into federal law.

“The president is being straight with the American people, taking major actions under executive authority as he fights this extreme decision very hard but being clear and honest that only Congress can fix the situation,” the White House official says.

Murray, for her part, echoed the same sentiment. “There are limits to what the president can do on his own—and as Republicans eye a nationwide abortion ban, the clearest path to protecting a woman’s right to make her own health care decisions, free of interference from extreme politicians, is by electing a pro-choice majority in the Senate and protecting our pro-choice majority in the House,” she says.

Shortly after the draft ruling leaked in May, Democrats pushed through a vote on a bill that had passed the House codifying a national right to an abortion. But in the evenly split Senate, 60 votes are needed to override a filibuster and the Democratic caucus has 50 members. Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona refused to change the Senate rules for the bill, allowing Republicans to block it.

Barring a change of heart from Manchin and Sinema, the only real solution, the White House argues, is to elect more Democrats willing to get rid of or modify the filibuster.

In the coming days, Democrats in Congress will try again to shore up support for those seeking abortions in states where it is banned, by considering a measure to bar states from prohibiting individuals from receiving abortion pills by mail from other states and localities, according to sources familiar with the matter. But with the support of 60 votes needed in the Senate, the effort is essentially doomed to failure, a House Democratic aide tells TIME.

“Federally,” the staffer says, “we’re at a dead end.”