Two days after President Biden’s inauguration, on the 48th anniversary of Roe v. Wade, the White House released a boilerplate statement on abortion rights. Mostly overlooked, because it was expected, the brief press release was an unmistakable mile marker in the transition from a Republican administration that fancied itself the most anti-abortion in history and a Democratic replacement that could become the most pro-abortion yet.
Biden quickly reversed the so-called Mexico City policy, barring U.S. tax dollars from funding nongovernment organizations that provide abortions overseas. He also signaled his opposition to the Hyde Amendment, a longstanding policy that prohibits federal funding of abortion.
But at a moment when individual states are moving to limit abortion accessibility, will Biden go further? Does he support an abortion rights law modeled after the Voting Rights Act of 1965, a statute empowering the Department of Justice to root out abortion restrictions the way the department rooted out Jim Crow?
Vice President Kamala Harris proposed just such an approach as a presidential primary season candidate, and while White House Press Secretary Jen Psaki didn’t have an update on that policy last week, she told RealClearPolitics, “Obviously, her policies are the policies of the Biden-Harris administration.”
Symone Sanders, chief spokesperson and a senior adviser to Harris, said the same: “The Vice President’s policies are the policies of the Biden-Harris Administration and the statements today speak and accurately reflect those policies.”
The Jan. 22 statement reads: “In the past four years, reproductive health, including the right to choose, has been under relentless and extreme attack. We are deeply committed to making sure everyone has access to care – including reproductive health care – regardless of income, race, ZIP code, health insurance status, or immigration status.”
According to three separate Biden-Harris officials, that commitment now includes support for a legislative approach more far-reaching than anything put forward by the last two Democratic administrations – including the one in which Biden served as vice president.
By proposing legislation modeled after the Voting Rights Act while on the campaign trail, Harris married civil rights and abortion rights. The California candidate described her approach this way:
“We are living through an all-out assault being waged on women’s health and reproductive rights. From Alabama to Ohio, and Missouri to Georgia, the goal of Republican politicians is clear: Overturn Roe v. Wade and end safe and legal abortion in America. States have mandated that women submit to invasive ultrasounds, passed laws requiring survivors of sexual assault to carry their rapist’s child to term, and placed onerous and medically unnecessary restrictions on health clinics. These restrictions do nothing to make people healthier or safer. Their sole purpose is limiting access to abortion.”
The proposal was seen at the time as a creative solution to what liberals view as a persistent problem.
“This is undoubtedly a bold, creative plan to employ Congress’s expressed constitutional powers to prevent states from thwarting women’s right to an abortion,” David Gans, director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center, told the Washington Post. “Obviously, there are differences between the Jim Crow South and voting rights in the 1960s and abortion, but they’re both situations where we’re seeing a number of states targeting a constitutional right and flouting it in a number of different ways. There’s differences, but there’s also similarities.”
Such a bill would also be dead on arrival in Congress. The Senate is deadlocked 50-50, and Republicans are already signaling to the new White House that even repealing the Hyde Amendment is a step too far. “It is a creative way to try to protect abortion rights from restrictive state laws,” Richard Hasen told RCP, but the law professor at the University of California-Irvine added, “I do not believe it has any realistic path of being enacted into law at the present time.”
Still, support for this kind of legislation, even without an immediate future, sent a signal to groups on both sides of the abortion issue. A spokeswoman for NARAL Pro-Choice America told RCP that her organization and the White House “share a commitment to reproductive freedom that includes not only rolling back the extreme anti-choice policies of the Trump era, but also taking meaningful steps to advance reproductive freedom and safeguard access to abortion in the face of unyielding attacks.”
Marjorie Dannenfelser, president of the Susan B. Anthony List, told RCP that she “was not surprised” by the remarks from the White House because Biden and Harris “are the most pro-abortion team yet.”
“While religious rhetoric was thrown about, there was never concrete evidence of daylight between the two during the campaign,” she added. “His conversion to abortion absolutism was complete long before he received the nomination. It was of course required.”
Anti-abortion advocates enjoyed something of a boom time during the Trump administration. But like Republicans, they are now out of power at the federal level and place their hopes in a conservative majority on the Supreme Court. They still see opportunities for reform at the state level where the GOP controls a majority of legislatures across the country.
A majority of Americans, 53%, describe themselves as pro-choice as the Biden era begins, according to new polling by Marist and the Knights of Columbus. At the same time, nearly six-in-10 Americans, 58%, oppose using tax dollars to pay for abortion and 70% oppose abortion of unborn children because of a Down syndrome diagnosis.
In South Dakota, Gov. Kristi Noem introduced a bill just recently that would ban abortion based on such a diagnosis. Republican legislators are moving to ratchet up restrictions in other states. In Kansas, the House voted to overturn a state Supreme Court decision that declared access to abortion “a fundamental right,” while Montana Republicans are advancing legislation to ban abortion in most cases after 20 weeks of gestation.
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