As the nation erupted over news that the Supreme Court is poised to strike down half a century of abortion rights, President Joe Biden returned to a playbook he crafted 35 years ago.
Pulling from his long career overseeing court confirmation fights — and reflecting his long-standing reluctance to talk specifically about abortion — Biden said on Tuesday that the issue confronting the public now was not just a future without Roe v. Wade. As he prepared to board Air Force One, the president foreshadowed the message he will relay in the weeks and months ahead: If the high court’s draft opinion remains unchanged, it will threaten a larger collection of rights long taken for granted by the public, from contraception to marriage.
“It’s the main reason why I worked so hard to keep Robert Bork off the court,” Biden said of his work to defeat President Ronald Reagan’s Supreme Court nominee in 1987. “It concerns me a great deal that we’re going to, after 50 years, decide a woman does not have a right to choose.”
The comments from Biden came hours after POLITICO reported on a draft Supreme Court opinion that would fully undo the 1973 Roe v. Wade decision establishing the constitutional protection to access an abortion. Chief Justice John Roberts confirmed the authenticity of the document though stressed it was not a final decision. Still, Democrats rushed to warn voters that their right to abortion was on the ballot come November. Biden echoed that message but strategically attempted to expand on it.
“It would mean that every other decision relating to the notion of privacy is thrown into question,” the president said. “If what is written is what remains, it goes far beyond the concern of whether or not there is the right to choose. It goes to other basic rights ... who you marry, whether or not you decide to conceive a child or not, whether or not you can have an abortion, a range of other decisions.”
The White House views the expected unraveling of Roe as a galvanizing moment for Democratic voters. Current and former Biden advisers told POLITICO to expect the president to continue highlighting the stakes, noting Biden felt it was “very important” to illustrate the choice before voters in November in his first statement on the draft opinion. In it, Biden acknowledged that Democrats currently lack the votes in Congress to pass meaningful abortion rights protections, and if the nation wants Roe codified, “We will need more pro-choice senators and a pro-choice majority in the House.”
Moving forward, the White House plans to focus on the political ramifications and the policy options at Biden’s disposal should he act without the help of Congress.
For decades prior to his 2020 White House bid, the president portrayed himself as anti-abortion but he supported Roe for the majority of his career. His engagement on the debate has also been defined by attempts to broaden the scope of it. Pulling from his old strategy on Tuesday, the president argued that the right to an abortion, like a number of other protections afforded by the Supreme Court over the years, rests on the Ninth Amendment and what falls under the right to privacy.
Biden’s approach was forged during the Bork confirmation, when he consciously decided to sidestep the issue of abortion itself in favor of its implications on privacy.
“If there was an argument to be made against Bork in the Senate, it would have to be made to Republicans and Democrats in the political center,” Biden wrote in his 2007 memoir, “Promises to Keep.” “If we tried to make this a referendum on abortion rights, for example, we’d lose.”
A key player who helped Biden find the right language at the time was his sister, Valerie Biden Owens. The two asserted that Bork’s reading of the Constitution was strict. Bork believed that if the framers didn’t spell out a particular right explicitly, it wasn’t essential, effectively threatening civil rights, reproductive rights, and the right to privacy, Biden Owens recalled in her memoir, “Growing up Biden,” released earlier this year.
“[Biden] wanted to demonstrate to the American public how Bork’s narrow reading of the Constitution might affect their lives,” Biden Owens wrote. As she watched her brother and his advisers raise Bork’s objections to a 1965 Supreme Court decision in Griswold v. Connecticut that established the right to privacy in using contraceptives, Biden Owens chimed in. “It sounds like it means that the government could enter our bedroom and tell Jack and me that we couldn’t use contraceptives,” she wrote.
When Biden’s legal experts echoed his sister’s assessment, he turned to his team: “Did you hear that? Write down every damn word of what she just said. We’re going with that,” Biden Owens recalled in her memoir.
In the draft opinion published Monday night, Justice Samuel Alito took aim at not only Roe but the Supreme Court’s 1992 Planned Parenthood v. Casey decision, which held that people have freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy.” Alito also took issue with high court rulings that established protections for gay marriage and private sexual acts between two men. Though he wrote that “our decision concerns the constitutional right to abortion and no other right,” he also said: “None of these rights has any claim to being deeply rooted in history.”
On Tuesday, Biden again turned to the privacy established in Griswold and the Ninth Amendment to lay claim that the Court’s draft decision was not just an assault on abortion but other matters as well. Former staffers said it all goes back to Biden’s battles on the Senate Judiciary Committee.
“When [Biden] linked [Roe] to Griswold, that was a strategic move to make the law real in people's lives and real for men as well as women,” said Victoria Nourse, Biden’s top lawyer on the committee in the early 1990s, of Biden’s argument during the Bork confirmation. “Gender is a very fundamental organizing concept for people. It's visceral. It's physiological.”
“He knows all this law because he imbibed it during Bork,” said Nourse, a constitutional law scholar, who also served as Biden’s chief counsel when he was vice president.
But lawmakers and progressive abortion rights advocates want more than smart messaging from Biden. They’re pushing the administration to take concrete steps to protect access to abortion before the final Supreme Court ruling drops — likely in June.
Executive actions that advocacy groups have discussed closely with the White House include directing the Department of Defense to draft a rule to pay for abortions for active servicemembers and enabling people’s Medicaid coverage to follow them if they need to travel to another state to get an abortion. Though the White House is exploring the president’s legal authority for actions to protect abortion access and reproductive rights, such announcements are unlikely to be announced until after an official Supreme Court decision.
Abortion rights groups also want the Food and Drug Administration to lift the remaining restrictions on abortion pills as more than two dozen states are expected to enact sweeping bans. While the Biden administration lifted many of the pill restrictions last year — clearing the way for them to be prescribed through telemedicine and sent by mail for the first time since they were approved two decades ago — it kept rules in place requiring pharmacies and doctors who prescribe them to go through special training and licensing that activists argue hampers access in a post-Roe country.
Progressives also want Biden to direct the Justice Department to get involved in lower court battles over abortion rights and crack down, for example, on states attempting to ban pregnant people from leaving the state for the procedure.
“We’ve got to look at whatever we can do, because, to me, stopping a woman from crossing a state line to make a decision about her own body sounds totally unconstitutional,” Sen. Mazie Hirono (D-Hawaii) told reporters.
There’s also pressure for Biden to improve contraception access so there are fewer unwanted pregnancies in the first place. The administration faces calls to undo a Trump-era rule allowing most employers to exclude birth control coverage from their insurance plans, ramp up enforcement against insurance companies who flout Obamacare’s mandate for covering contraception, and crack down on the states trying to kick Planned Parenthood out of their Medicaid programs.
“This is a time that calls for all of us to engage in ways we may not have thought we would have to in our lifetimes,” Fatima Goss Graves, the president of the National Women’s Law Center, told reporters. “[Biden] can take steps to make sure people have access to abortion care. He can make sure the creative state protections that are now popping up are defended.”
Ultimately, advocacy groups and Democratic lawmakers on Tuesday acknowledged that meaningful policy options are limited and said they’re counting on the likely fall of Roe v. Wade to motivate the Democratic base and independents.
“Electorally, what we’re hoping is that this serves as a wakeup call,” said Mini Timmaraju, the president of NARAL Pro-Choice America, on a call with reporters Tuesday. “This gives a very clear political contrast between the two parties. People are very angry. There were spontaneous uprisings all over the country last night. So unfortunately, as horrific as this is, this is probably the push we needed.”