Biden stays mum on state abortion laws with major test ahead for Roe

By Caroline Kelly, CNN

As more Republican-led states pass abortion bans with the easing of the Covid-19 pandemic, a heated debate has returned to center stage with abortion rights supporters warning of a looming threat to access and anti-abortion activists determined to keep up the momentum.

But one key person has been noticeably quiet on the issue: President Joe Biden.

Irked advocates want the President to make more noise, but historians tell CNN that he’s facing a unique moment at the intersection of history and day-to-day politics that helps explain the relative silence from 1600 Pennsylvania Avenue. It may cause consternation within his party, but the Democratic President is likely to stay mum on the new laws unless he’s forced to take a stand because of a potentially momentous decision out of a staunchly conservative Supreme Court that has expressed an interest in addressing abortion rights.

Despite expressing vocal support for reproductive rights on the 2020 campaign trail and making a series of federal policy changes advancing abortion access in his first few months in office, Biden has stayed notably quiet on the state-level bills that seek to ban abortion at 20 weeks, as early as six weeks, or nearly entirely.

The legislation coming out of conservative state legislatures targets Roe v. Wade, the 1973 landmark Supreme Court decision legalizing abortion nationwide prior to viability, which can occur at around 24 weeks of pregnancy.

The high court, with a 6-3 conservative majority, in May agreed to take up a key abortion case next term concerning a controversial 2018 Mississippi law that banned most abortions after 15 weeks. A federal judge in Mississippi struck down the law in November 2018, and the 5th US Circuit Court of Appeals upheld that ruling in December 2019.

Experts told CNN that Biden has a stake in pleasing activists and progressive Democrats urging him to champion abortion rights, as well as moderate Democrats or independents who may not agree with expanding access to the procedure.

With Roe in place for now, federal legislation to protect abortion access appears unlikely with the Democratic Party holding a narrow Senate majority to advance legislation and the White House remaining focused on maintaining a broad coalition to advance other lofty policy goals.

“Biden has clearly not made abortion a priority, period,” said Mary Ziegler, a law professor at Florida State University and the author of “Abortion and the Law in America: Roe v. Wade to the Present.”

“For Biden to talk about abortion, he either risks alienating Democratic primary voters who he needs to turn out in 2024 if he runs again — he needs those people to be excited and to show up — or he risks alienating independents and moderate Democrats who really kind of were the ones who propelled him successfully through the primary,” Ziegler said, adding that “it’s hard for him to strike a tone on abortion that would please all of those people.”

Douglas Brinkley, a CNN presidential historian and a professor of history at Rice University, characterized Biden during the campaign as having been “very brazen about (how he was) going to be the greatest president on women’s rights and the protection of Roe v. Wade that one could imagine. He spoke a very big game about it, but since he’s become president, he’s been mute.”

“But the problem with his strategy now is that states are running over Roe v. Wade,” Brinkley continued.

The White House said Biden opposes those laws but did not provide examples when pressed for instances of Biden articulating his opposition.

“President Biden continues to support the robust agenda he put forward during the campaign to protect women’s rights, including by codifying Roe v. Wade,” a White House spokesperson told CNN in a statement. “The President has also made clear his opposition to state laws that so blatantly violate Roe v. Wade, and he will continue to do so.”

Bumper year for state-level bans

Republican-led states this year have leapt at the chance to pass laws that could set up a Supreme Court challenge to Roe. Arkansas and Oklahoma have enacted near-total abortion bans this year, and Montana banned the procedure at 20 weeks. Texas, South Carolina, Idaho and Oklahoma — in a second abortion bill from the state — banned the procedure at the onset of a fetal heartbeat, which can occur as early as six weeks into pregnancy.

None of the bills have gone into effect, either because of court actions or later effective dates, but they have stacked up at a new pace. As of mid-May, there have been 549 abortion restrictions, including 165 abortion bans, introduced across 47 states, according to the abortion rights think tank the Guttmacher Institute.

Carol Tobias, president of the National Right to Life Committee, said that while Biden’s federal moves on abortion to date have prompted anti-abortion groups to dub him the most “pro-abortion” president, his silence on the state bans likely stems from his inability to act on them.

“He probably realizes he can’t do a lot about it in his position — these are state laws,” Tobias said. “Some of them will be challenged and they will go through the court system, but that’s not something the federal government is really going to impact, because the courts do allow the states to place some limits on abortion. But he’s using the federal government as much as he can.”

During his first month in office, Biden issued a memorandum reversing the so-called Mexico City Policy, a ban on US government funding for foreign nonprofits that perform or promote abortions or related services. He also directed the Health and Human Services Department to immediately consider rescinding the Trump administration rule blocking health care providers in the federally funded Title X family planning program from referring patients for abortions.

HHS unveiled a proposed replacement to the rule in April, just after the FDA suspended the in-person dispensing requirement for one of the drugs used for medication abortion during the pandemic.

Biden’s presidential budget released in late May also included a win for abortion rights supporters with the omission of the Hyde amendment, a four-decade-old ban on federal dollars being used for abortions except in cases of rape, incest or when the person’s life is in danger. Biden previously supported the measure before reversing course and denouncing it during the Democratic primary. Abortion rights supporters had long called for Biden to drop it, citing its impacts on low-income earners and people of color.

But the move may prove largely symbolic, as several moderate Senate Democrats have opposed dropping the amendment, suggesting that Biden may not be the largest Democratic obstacle to federal abortion rights advances. In March, Democratic Sens. Bob Casey of Pennsylvania, Tim Kaine of Virginia and Joe Manchin of West Virginia all voted in support of a failed amendment to add Hyde to the American Rescue Plan.

White House press secretary Jen Psaki has been pressed on the Texas “heartbeat” abortion ban, which she characterized as “the most restrictive measure yet in the nation” and the Supreme Court case on the Mississippi law, on which she said she did not have a comment. She said both times that the President was committed to codifying Roe and that Biden and Vice President Kamala Harris were “devoted to ensuring that every American has access to health care.”

Different factions and competing interests

But abortion rights activists want Biden to go the extra mile on abortion access. Like other interest groups lobbying for gun control and immigration reform, they’re coming to collect after helping him win the White House.

In a call with reporters in January, Planned Parenthood President and CEO Alexis McGill Johnson called rolling back the Mexico City Policy and the Title X abortion referral restriction “a great start, one that will increase access and meaningfully impact people’s lives. But I’ll emphasize again, this is a start.”

From a policy perspective, Planned Parenthood Action Fund Executive Director Kelley Robinson told CNN that Biden “has made some important strides and he’s done them early.”

“I will also say that in this particular moment, when we are seeing the worst attacks in a generation on sexual reproductive health and rights, particularly at the state level, there’s still more that we have to call him to do,” Robinson added, asserting that “at this point, he’s been an excellent supporter, but we need him to be a champion right now.”

Public views on abortion have become increasingly polarized over the past 15 years, in large part because of growing support for legalized abortion among Democrats. Between 2007 and 2021, according to an April survey by the Pew Research Center, the share of Democrats and Democratic-leaning independents supporting broadly legalized abortion rose 17 percentage points, to 80%, while the share of Republicans and Republican-leaners saying the same dipped by 4 points, falling to 35%.

It’s likely that the President will get no rest from abortion rights advocates within his own party.

“This is the role of supporters and advocacy organizations like ours, to make sure that he steps up to the plate and uses that bully pulpit to be as vocal as possible,” Robinson said.

But experts say Biden’s push to get his massive jobs package through Congress with bipartisan support could take priority over abortion rights.

“Not assailing state legislatures that are promoting this assault on Roe v. Wade is not a sign that he supports them at all, but that he’s picking his fights,” said Timothy Naftali, a clinical associate professor of public service at New York University and a CNN presidential historian. “And he’s trying not to make it any easier for culture warriors to distract people from the gains they could get from Biden’s broad-based policies, economic and social policies.”

“There’s a feeling now that Biden doesn’t want the fight over Roe v. Wade right now, that it’s something to be kicked down the road that he can only lead on,” historian Brinkley said. “He’s having to deal with the Covid-19 crisis, getting the economy going and passing a $1.7 trillion jobs package, and those cultural issues like guns and women’s rights create havoc for a sitting president.”

Then and now

If the high court overhauls Roe with its decision in the Mississippi case next summer, Biden’s hand may be forced.

“If the Supreme Court goes there and Roe becomes front page news, Biden will have to take a very strong stance, but he doesn’t want to trip wire that issue over the summer of 2021 — he feels his dance card is too full,” historian Brinkley said, adding that “he’s betting that he has enough credentials in 2021 to stay out of that issue and see it as maybe a 2022 issue.”

A key element of that involvement rests in timing.

“I think there’s a fear (the Biden Administration has) that if they talk about expanding the Supreme Court or doing anything really bold on abortion rights, people will sort of see that as extreme and unnecessary as nothing has really happened yet,” Ziegler, the FSU law professor, said. “But if the Supreme Court were to do something out there on abortion, then I could definitely see the Biden administration using more political capital because they would see it as less risky to do so.”

But abortion rights advocates say that waiting to act until a direct attack on Roe would be too late, pointing to the litany of existing restrictions that already restrict access to pre-viability abortions in many states.

“We can’t wait until Roe is undermined and gutted,” Robinson said. “We have to have action now, and I don’t think it would be the calculus to wait until that point, because it’s now that we can do interventions that can actually stop or slow down this tide of attacks.”

Biden is in a unique position compared to his Democratic predecessors. Another major Supreme Court challenge, Planned Parenthood v. Casey, upheld Roe in 1992 with a majority conservative bench just before President Bill Clinton was elected.

“There was no chance of Roe v. Wade being overturned in the 1990’s with Bill Clinton, and even during 2000 and 2009 with Obama,” Brinkley said.

Ziegler pointed to how Clinton’s famous stance of “safe, legal and rare” came at a time when “a lot of people in the party agreed with that, a lot of people in the social movements were framing things that way, and the debate kind of lent itself to that because the court was talking about reversing Roe.”

While Barack Obama established himself as vocally pro-choice, garnering an endorsement from abortion rights group NARAL over Hillary Clinton, “once he was in office, it was not a priority,” Ziegler said.

“I remember one of the things that the Obama administration would say is, ‘We’re here, now make us do it,’ ” Robinson said. “And we in the advocacy movement really had to do some reflecting on how to make sure we were pushing that ally that we had in the Obama administration hard enough to be bold and make needed changes.”

A complicated personal stance

Biden’s shift on the Hyde amendment and his stance on abortion overall is also informed by his faith.

Biden, America’s second Catholic president, was first sworn in to the Senate in 1973, the same year the Supreme Court decided Roe v. Wade. He’s a devout Catholic and has personally opposed abortion on religious grounds. But he’s also a Democrat and doesn’t want to force his opinion on others.

“Biden is remaining faithful to a typically 20th century political Catholic way of looking at this issue, which is, ‘There’s a distinction between what I personally believe and what I as a politician can do in politics for a multicultural multi-religious country,’ ” said Massimo Faggioli, a historical theology professor at Villanova University and author of “Joe Biden and Catholicism in the United States.”

He added that Biden is “navigating a middle road, which is very lonely right now. It’s not typical to see people in public life making that argument, because it is complicated, but this is a very specifically Catholic and 20th century way to look at that.”

There are also questions over whether Biden has proverbially spent his progressive political capital on other issues already.

“He’s chosen to speak out on the John Lewis voting rights bill, he’s put his progressive capital on voting rights,” Brinkley said. “But he, I think, is hesitating on becoming a Bernie Sanders, Elizabeth Warren Democrat — that he still sees that the sort of White Catholic communities in Ohio and Michigan, Pennsylvania, that many of the people that voted for him are following Catholic doctrine.”

Robinson said she was optimistic seeing Biden “make positive statements, really kind of coming down on Texas and their attacks on voting rights — that was important. We need to see the same thing when it comes to essential health care.”

CNN’s Zachary B. Wolf and Ariel Edwards-Levy contributed to this report.