In a statement Thursday morning, Biden used the word again, harshly criticizing the Texas law as an “unprecedented assault on a woman’s constitutional rights.”
In far stronger language than he’d employed a day earlier, Biden called the law’s novel enforcement structure — which allows private citizens to bring civil suits against anyone who assists a pregnant person seeking an abortion — a “bizarre scheme” with the potential to unleash “unconstitutional chaos.”
“Complete strangers will now be empowered to inject themselves in the most private and personal health decisions faced by women,” he wrote.
Biden said he was launching a “whole of government” effort to respond to the law, tasking the Department of Health and Human Services and the Justice Department “to see what steps the Federal Government can take to ensure that women in Texas have access to safe and legal abortions.” He said the effort would be led from within the White House.
As the Texas law that prohibits abortions after six weeks takes effect, Biden is facing pressure to defend abortion rights more aggressively. It’s an issue the President has shifted on over the course of his long career, including as a candidate for the Democratic presidential nomination, when he reversed his stance on a measure allowing federal funds to pay for abortion.
In his two statements on the Texas law, Biden has vowed to find a way to protect a woman’s right to choose to have an abortion. Yet the avenues for doing so remain unclear, and so far the White House has been vague on what specific actions might be possible.
Asked Wednesday by reporters what options Biden had available to him, White House press secretary Jen Psaki said the President would push Congress to codify Roe v. Wade as law.
“That is a specific course of action that can be taken to help protect from these type of lawsuits in the future,” she said.
The prospect of Congress enshrining a right to abortion in law remains a long shot; doing so would require 60 votes in the Senate to overcome a certain Republican filibuster, and even passage in the House is unclear given Democrats’ narrowest of majorities.
Biden had already faced calls to support changes to filibuster rules for issues like voting rights but has stopped short of supporting getting rid of the filibuster altogether. In 2018, Democrats successfully used the filibuster to prevent a law banning abortion after 20 weeks when Republicans controlled the House, Senate and White House — a reminder of how changes to the rules could haunt them down the road if the GOP returns to the majority.
Since taking office, Biden has taken some steps to reverse restrictive abortion rules from the Trump era, including the “Mexico City Policy” banning US funding of international organizations that perform abortions. He also tasked the Department of Health and Human Services to replace a Trump-era rule barring certain federally funded health care providers from referring patients for abortions, a step long demanded by abortion rights groups.
Yet the issue has been far from a driving agenda item for his administration. As a senator, Biden had been among the more moderate Democrats on abortion, including supporting the Hyde Amendment that banned federal abortion funding.
In 2019, as he was vying for the Democratic presidential nomination, Biden said he’d changed his mind, even as he declared he made “no apologies for my last position.” Instead, he said he’d reversed his position because largely Republican-led states had enacted strict new abortion laws.
Biden, a Catholic, has also faced criticism from conservative US bishops, who earlier this year sought to enact rules that would deny communion to public figures who support abortion rights.
Biden has shrugged off those attempts, calling it a “private matter” that he did not think would gain traction.
For Biden and his party, the political environment has been deteriorating for weeks. The resurgence of coronavirus infections, rising fears of inflation, and catastrophic images from Afghanistan have pulled down the President’s public standing and brightened Republican prospects for regaining control of Congress in the 2022 midterm elections.
The restrictive Texas abortion law, and the Supreme Court’s willingness to let it take effect, could alter the political equation in Democrats’ favor, some operatives said.
“Democrats will use this to gin up their disillusioned base,” said Republican pollster Glen Bolger.
“It’s a policy disaster but a political bonanza,” observed Mark Mellman, a Democratic pollster who advises party leaders in Congress. “Democrats will finally realize the right to choose is not a settled issue but rather, actually at stake in these elections. They will be fired up, and ready to vote, and anxious to give of their time and money.”
As the issue returns to the fore with Texas’s new law, Biden is facing renewed calls to endorse an expansion of the Supreme Court after it allowed Texas’s restrictive new abortion law to take effect. Biden as a candidate punted on the question, and instead established a commission of experts to weigh that and other ideas for reforming the Supreme Court.
The panel has met three times since it was established in April — once each in May, June and July. The meetings have occurred virtually, and mostly entail the members and witnesses reading from prepared testimony. They are all available on the White House website.
More meetings are scheduled in the fall, and a report is due by November 15, which is 180 days since the panel’s first public meeting.
Officials say the report will not contain recommendations for or against expanding the court or other potential changes. Instead, it will analyze various arguments for and against Supreme Court reform. Officials say it could inform further debate among lawmakers.
Aside from court expansion, the panel has heard arguments over limiting the court’s power of judicial review; changing how the court decides which cases to hear; and debated the idea of term limits for justices.
The panel has also engaged on the so-called “shadow docket,” which allows the court to make decisions without full public arguments or briefings — a practice that has come under new scrutiny following the use of the tactic in the Texas case.
In his statement Thursday, Biden also criticized the court for deciding in secret something with major ramifications.
“For the majority to do this without a hearing, without the benefit of an opinion from a court below, and without due consideration of the issues, insults the rule of law and the rights of all Americans to seek redress from our courts,” Biden wrote. “Rather than use its supreme authority to ensure justice could be fairly sought, the highest Court of our land will allow millions of women in Texas in need of critical reproductive care to suffer while courts sift through procedural complexities.”
The Supreme Court commission, led by former White House counsel Bob Bauer, was established in April and is comprised of 36 members across an ideological spectrum. Most are professors at elite law schools.