- A leaked draft opinion shows the Supreme Court appears likely to overturn Roe v. Wade.
- Biden and Democrats voiced outrage at the potential loss of nationwide abortion protections.
- But they are not yet offering specific policy ideas or viable legislation for ensuring access.
With the US Supreme Court seemingly poised to strike down Roe v. Wade, all eyes are on President Joe Biden and Democrats to somehow preserve abortion access for the tens of millions of women who would be barred from getting the procedure in their state, should federal protections disappear.
But despite having known for several years that this moment could arrive, Democrats have offered few specifics this week for how they'd handle a post-Roe landscape.
On Capitol Hill this week, Democratic lawmakers made vows to fight for abortion access. Yet they'd unveiled no actionable legislation or policy changes since Monday night, when POLITICO published a leaked Supreme Court draft opinion in the pending abortion rights case, Dobbs vs. Jackson Women's Health Organization. The Supreme Court's ruling on the major case is expected by late June, but if the draft opinion is adopted, it would strike down Roe v. Wade, triggering automatic bans on abortion in 13 states.
"I think you are correct in sensing or intuiting that there is not a firm plan," one senior Democratic Senate aide told Insider, when asked about the lack of details from Democrats.
"The reason we're not seeing a whole lot of specificity is that it's sped up the timeline," said the aide, who requested anonymity to speak about the party's reaction to the draft opinion. "I don't think anyone was super surprised by the outcome, but they were kinda caught off guard … People are still brushing themselves off and standing back up."
Immediately after the leak, Democrats implored people to vote for lawmakers who support abortion rights in the midterms and began fundraising blitzes over email and text.
Biden this week called for Congress to codify the provisions of Roe v. Wade into federal law. But the proposal faces a dead end.
Senate Majority Leader Chuck Schumer announced the Senate would vote on such a bill, the Women's Health Protection Act, next week, yet it will almost certainly fail due to Republicans' ability to filibuster such legislation. Some progressives, like Sen. Bernie Sanders of Vermont, have argued for abolishing the Senate's filibuster rule to allow a simple majority vote on federal abortion protections — but two Democratic senators, Kyrsten Sinema and Joe Manchin, remain opposed to the idea.
Schumer, when asked during a press briefing on Thursday about additional legislative steps that Democrats plan to take to protect abortion access, said, "We'll look at the best way to get things done."
"We're starting off here. But you will hear plenty from us. This is not just one vote and then this issue goes away. You will hear a lot from us in the next months, all the way through November," he told reporters.
In the hours after the draft leaked, Biden said in a statement that he had already "directed my Gender Policy Council and White House Counsel's Office to prepare options for an Administration response" and that "we will be ready when any ruling is issued." The statement did not elaborate on specific options his team had prepared.
The senior Democratic Senate aide said they were "frustrated" by Biden's initial statement.
"Part of the president's power is his empathy, and ability to speak to people in moments of grief or trouble," the aide said. "And I think this was a moment of grief and dread. People did not feel him being the consoler-in-chief that he is so often referred to as."
Senate Democrats offer outrage, but not policy
Biden's Secretary of Health and Human Services, Xavier Becerra, appeared before a Senate committee on Wednesday and did not offer new specifics for how his agency — which oversees programs like Title IX and can issue policies on coverage for reproductive care — would act if the Supreme Court strikes down Roe v. Wade in the coming weeks.
He told lawmakers that the Department of Health and Human Services would "double down on our authority" to protect reproductive healthcare, but did not say how.
Democratic Sen. Patty Murray of Washington, chairwoman of the Senate Committee on Health, Education, Labor and Pensions (HELP), had quizzed Becerra about options for preserving abortion rights.
Pressed for specific actions she wanted the agency to take, Murray told Insider, "We are asking them. We are exploring things."
Democratic Sen. Jacky Rosen of Nevada, another member of the Senate HELP Committee, said, "I'm not sure what the president will want to do. We haven't had those discussions yet."
Insider asked 14 Democratic senators this week about the party's plans to protect some level of abortion access for women in states where the procedure would be banned if Roe falls. Most affirmed their support for abortion rights and condemned the position in the leaked draft opinion, but did not provide specific policy proposals.
"Women of reproductive age right now don't know a world that doesn't give them choice," said Democratic Sen. Raphael Warnock of Georgia, who is facing a challenge from Trump-endorsed, first-time candidate Herschel Walker. "Politics shouldn't get in the way of a constitutional right."
Democratic Sen. Bob Menendez of New Jersey said, "If this ends up being the opinion of the court, then it affects every American — not just women in our society, for which the clock will be rolled back over half a century to a time and place nobody wants to go to."
Democrats had time to prepare for the end of Roe v. Wade
The party, which is made up almost entirely of politicians in favor of abortion rights, has had at least five years to prepare for this scenario. President Donald Trump appointed three conservative justices over the course of his term, with the latest, Justice Amy Coney Barrett, replacing the liberal jurist Ruth Bader Ginsburg after her death in 2020.
On the Supreme Court, the six conservative justices now outnumber its three liberals, creating an opening for anti-abortion challengers to Roe v. Wade to win after years of failed attempts.
"How the hell is there no plan? I just don't understand," said China Dickerson, a Democratic strategist who has worked on congressional races. "My question with reproductive freedom is: What are we doing — the verb. What are we doing?"
Before the draft of conservative Justice Samuel Alito's opinion leaked on Monday night, the Biden administration had taken some increased steps to expand abortion access through federal policies.
In December, the Food and Drug Administration changed its rules for abortion pills, allowing patients to receive the drug by mail instead of requiring them to pick it up from a medical provider or pharmacy in person.
"The FDA could do much more on making certain that women have access to medicated abortions," Sen. Elizabeth Warren told Insider on Thursday. "The FDA has already been through all the testing, knows that this is a safe way to terminate a pregnancy in the early months and that option should be available to more people."
In 2021, the Department of Health and Human Services issued new rules that allowed organizations that referred patients for abortion care or shared space with an abortion provider to once again receive federal Title IX funding for women's healthcare. The Trump administration had banned organizations like Planned Parenthood from receiving these funds in 2019. Under the Biden administration's new rules, abortions would still need to be paid for with private, not federal, funds.
Last year, HHS also said it would reinforce the Emergency Medical Treatment and Labor Act (EMTALA), underscoring the requirement for medical providers to treat patients who are experiencing pregnancy loss.
Democratic Sen. Chris Murphy of Connecticut, who also serves on the HELP committee, said states like his that allow abortions will have to shoulder the additional burden if Roe falls. Connecticut's Democratic governor signed a bill on Tuesday that will protect medical professionals who treat out-of-state patients who are forced to travel for abortions.
"We're going to have to step up and continue to make sure that we are a place that welcomes women from all over the country that are seeking to have access to a full range of reproductive health care services," Murphy told Insider.
"Unfortunately, many of us said this sky was gonna fall. And it did," he added, before ducking into a Senate subway car.