The court had yet to verify the authenticity of the document. Its disclosure reflected a seismic breach in the body’s traditions. And its contents, if true, were extraordinary: A sweeping of the right to abortion that had been guaranteed rejection to American women for nearly half-a-century.
“If this decision holds, it’s really quite a radical decision,” he said on the tarmac at Joint Base Andrews. He recited a litany of “basic rights” he said could now be undercut should the draft ruling be ordered: “Who you marry, whether or not you decide to conceive a child or not, whether or not you can have an abortion” were all now at stake, he warned.
Coming weeks before a formal decision from the court had been expected, the leak dramatically accelerated plans to confront the issue through executive actions and on the campaign trail. For the millions of women who supported Biden during his presidential campaign in part based on his vow to protect their reproductive rights, it will be a decisive moment for the President to prove his willingness to fight for those protections.
‘A seismic thing’
As he orders his staff to prepare options for when the ruling is made official, Biden’s team is looking ahead to what this news will mean for Democrats heading into November’s midterms elections, when both chambers of Congress could revert to Republican control.
One Biden adviser said they expect and hope the news will result in many people channeling their “energy and rage” into voting for candidates in November who are supporters of legal abortion rights.
“This will have an extraordinary galvanizing force with some of the very Americans who don’t always turn out or weren’t really looking to the midterms yet,” the adviser said. “This is a seismic thing coming out of the Supreme Court, and it’s going to take a seismic movement in response … to elect more pro-choice elected officials.”
The adviser pointed to young people, people of color, women, independents and suburban women as groups that they expect the opinion draft to galvanize. If social issues have largely been “abstract” so far, “this is no longer going to be abstract,” the adviser said. “This is going to be real.”
They cautioned that the development doesn’t alter the significant headwinds Democrats face heading into November. But this Supreme Court draft ruling will now be one of the several issues Biden and other top officials discuss publicly as they increasingly attempt to draw a contrast between Democrats and a Republican Party that Biden has recently begun describing as moving into extreme territory.
“I think that in some ways the Republican Party is like the dog that caught the bus here, because they have been campaigning for decades an overturning Roe,” Sen. Tina Smith, a Minnesota Democrat, said Tuesday on CNN. “Now they’re on the verge of realizing their goal, and they are dramatically out of step with the American public. And I believe there will be consequences for that.”
A complicated issue for Biden
He said early on in his career that while he supported individuals’ right to an abortion, he opposed federal funds paying for them. Later, he backed Republican efforts to ban so-called “partial-birth abortions,” a non-medical term describing rare late-term procedures, and said he would have liked to go further in restricting them.
In 2006, two years before he was elected vice president, he told an interviewer he did “not view abortion as a choice and a right.” A year later, he spelled out his internal conflict in an appearance on NBC’s “Meet the Press.”
“I was 29 years old when I came to the United States Senate, and I have learned a lot,” he said. “I’m a practicing Catholic, and it is the biggest dilemma for me in terms of behaving my religious and cultural views with my political responsibility.”
He still mostly avoids using the word “abortion” in public, preferring vaguer terms like “a woman’s right to choose” instead. When he used the word Tuesday, it was the first time he’d said it out loud since becoming president last year — even though the right to have one had come under increasingly dire threat in the months since he took office.
At the same time, his public positions have moved significantly over time, a shift that mirrors a Democratic Party that has mostly stopped shying away from abortion as a galvanizing political issue. As a candidate in 2019, Biden reversed his long-held support for an amendment preventing federal funds from being used for abortions after being confronted by campaign advisers, who felt the view wasn’t politically tenable.
As president, 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’s also removed anti-abortion restrictions on federal funding going toward health services for low-income Americans.
‘We have been saying the sky is falling’
“We have been saying the sky is falling, and I think what happened with this opinion being leaked last night — if it indeed is the close to the final opinion — was finally a demonstration that we were closing what we have been calling the believability gap,” said Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America.
She said as supporters of abortion rights begin to realize those protections are now threatened, they will look to elected officials, including Biden and members of Congress, to take action.
“We will be holding everybody accountable for what is within their purview to do right now,” she said. “I think that the administration, both the President and the vice president, issued strong statements today condemning what this draft opinion indicated and calling for a federal solution.”
Behind the scenes, Biden’s advisers have been developing plans for the day Roe is overturned, including convening roundtables with state lawmakers to discuss the issue and solicit ideas in recent weeks.
The options include executive action that could make it easier for women to travel to receive abortions in states where they are still legal or expanding access to abortion medication through the mail. Some advocates have also suggested leasing federal land for abortion clinics, bypassing state laws that restrict them.
Biden’s administration has been working for months in preparation for the expected decision by the Supreme Court overturning Roe v. Wade, though he hasn’t spelled out in any detail what options could be taken to mitigate the effects of such a ruling.
The work has occurred through the White House Gender Policy Council and the White House Counsel’s office, and Biden said in his statement Tuesday that his administration “will be ready when any ruling is issued.” Biden also warned that the draft opinion could suggest that “a whole range of rights” — not just access to abortion — could ultimately be weakened.
In public, the White House has focused primarily on urging Congress to write the right to abortion into law, a strategy that has little likelihood of succeeding in an evenly split Senate. Biden was non-committal Tuesday when asked whether he would support scrapping the legislative filibuster to allow for easier passage.
“I’m not prepared to make those judgments now,” he said.
Other Democrats say there is little time or space for such deliberation as millions of women face the growing likelihood they won’t have access to abortion.
“I think this is where all Democrats should be,” Warren said on CNN. “I’ve made this argument; I’ve been making this argument for years. In a democracy, it makes no sense, it is antidemocratic to let a minority continue to control the United States Senate.”