Report: White House "panicked" at lack of tools to keep abortion legal

AP Photo/Alex Brandon

How do you end up caught off-guard, as WaPo says Team Biden was, by a Supreme Court ruling?

Did they somehow miss the news that hearings were held in the Dobbs case six months ago? Did they … not anticipate that a 6-3 conservative Court might seize the opportunity to overturn Roe?


The Biden White House seems forever late in responding to events. They were still pushing Build Back Better last fall after public anxiety over inflation had begun to rise. Stephen Breyer’s retirement seemed all but assured this year given the electoral reality of the midterms yet it still took Biden and his crew weeks to interview candidates before settling on Ketanji Brown Jackson. Why didn’t they have someone in mind and ready to go for the likely vacancy?

And let’s not speak of Afghanistan, where a withdrawal that was supposed to take months had to be crammed into a few weeks because the Pentagon didn’t see the Taliban’s advance coming.

Still, all of those pale by comparison to being somehow surprised by the likely outcome of a SCOTUS case that the entire country has been waiting on for half a year.

But in marathon meetings and phone calls among White House officials, government lawyers, outside advisers and federal agency officials, a sobering reality settled in: There’s little the White House can do that will fundamentally alter a post-Roe landscape. While officials have spent months planning for the possibility the court would overturn the landmark ruling, the leaked document caught the White House off guard.

Biden officials spent much of Tuesday panicked as they realized how few tools they had at their disposal, according to one outside adviser briefed on several meetings. Now officials are fervently debating a number of executive and regulatory actions the administration could take to make it easier for women in red states — particularly poor women — to access abortion care, according to three outside advisers…

The agency with the most power to increase access to abortion is the Department of Health and Human Services, which oversees the Medicaid program. One option under discussion is whether the administration could provide funding through Medicaid or another mechanism that would make money available to women to travel to other states for an abortion, the outside advisers said.


If they were planning for the possibility that Roe might be overturned, how could they be suddenly panicked by the dearth of executive options?

The subject of countermeasures never came up in conversation until this past Tuesday?

The Medicaid option mentioned in the excerpt has numerous flaws, starting with the fact that HHS will be sued six ways to Sunday over it by Republican AGs. An executive policy is also easily ended when the White House changes hands, of course. The next Republican president will cut the money for travel to pro-choice states on day one in office. It’s an open question how many lower-class women would even avail themselves of the option until then, frankly. It’ll be cheaper and more convenient, albeit legally risky, for them to stay home and arrange to have abortifacients sent to them there.

The reason Team Joe has no good options here is that, uh, they’re not supposed to. It’s not how American law works. If Roe goes, abortion becomes a legislative matter; if Dems lack 50 votes in the Senate to codify Roe, and they do, then it’ll fall to the states to set their own policies. It’s no more complicated than that.

Although some progressives are really mad about it:


That’s part of the wave of recriminations between the left and the center-left that Roe’s apparent demise touched off a few days ago. Pro-choicers demand to know why, why the Democratic Party never thought to codify Roe until now, when Joe Manchin is an insuperable obstacle. Why didn’t they do this 10 years ago?

Serious question: Have they ever actually had the votes to codify Roe? They had 60 seats in 2009 but I don’t know that they had 60 pro-choice votes. To do it, they would have had to nuke the legislative filibuster. But the filibuster wars really didn’t begin until 2013, when Harry Reid nuked it for non-SCOTUS judicial nominees and other executive nominations. Reid didn’t go full nuclear because he knew that his party would land in the minority eventually and would want the legislative filibuster intact when it did. Which means, to codify abortion rights, Dems needed 60 pro-choice votes. I suspect they’ve never ever had that.

And frankly, given the fraught politics of abortion, I don’t know that either party truly wants to legislate on it:


Better to be purists and keep the base happy than enact something and disappoint some meaningful constituency in the process.

Congressional Republicans are also considering the looming prospect of having to legislate on abortion. Some are more than happy to let the states handle the matter:

“It’s kind of an academic point because I don’t think you’re going to get 60 votes to do either one,” Braun said after a closed-door GOP lunch meeting Tuesday. “They talked about codifying something along the lines of what we’d like, or the other way, but unless you breach the filibuster, I don’t think that’s going to happen.”…

“I would rather have it be done in the states,” Sen. Cynthia Lummis, R-Wyo., said. “Chances are there will be some people who want to federalize it just because they strongly believe that there’s no justification for states to take different approaches. I just disagree with that.”…

Sen. Bill Cassidy, R-La., said when asked whether there should be federal legislation restricting or banning abortions: “Do I think states, which are closer to the people being governed, would actually pay attention to the people being governed as regards these issues? And I think by and large, just in general, the closer someone is to those being governed, the better.”

I won’t bore you again with my thoughts about that. Suffice it to say, I wouldn’t bet heavily on Republicans in Congress resisting the demands of the base on federalism grounds if the GOP suddenly were to gain total control of government. A nationwide ban would be a supreme own-the-libs moment for righties. “But the filibuster!” ain’t gonna hack it as an excuse not to act.


Here’s a little more of Kasparian melting down via the Blaze.

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