Inside Biden’s struggle to respond to abortion ruling

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Three days after the Supreme Court overturned Roe v. Wade, President Biden used a break between Group of Seven summit meetings at the luxury Schloss Elmau resort in Germany to get an update on the stunning and sudden loss of abortion rights for millions of Americans back home.

Huddling with top aides, including some who dialed in from the White House, Biden declared at the outset of the call that he wanted to endorse ending the Senate filibuster to codify Roe into law, a position he so far had refused to take, angering many Democrats in the process.

But Biden kept his decision private until three days later when, during a news conference in Madrid, he deployed the carefully crafted language he and his team had perfected just moments before, denouncing the “outrageous behavior of the Supreme Court” and calling for “an exception to the filibuster for this action to deal with the Supreme Court decision.”

President Biden on July 8 said the Supreme Court and Republicans underestimate the voting power of American women. (Video: The Washington Post, Photo: Bill O’Leary/The Washington Post)

Other voices emerge as some Democrats grow impatient with Biden

For many Democrats, however, it was too little and too late, just one more example over the two weeks in which Biden and his team struggled to come up with a muscular plan of action on abortion rights, even though the Supreme Court ruling had been presaged two months earlier with the leak of a draft opinion.

Biden and his team were also caught off guard by the timing of the decision and, in the immediate hours afterward, failed to channel the raw and visceral anger felt by many Americans over the decision.

To many increasingly frustrated Democrats, Biden’s slow-footed response on abortion was just the latest example of a failure to meet the moment on a wave of conservative rollbacks, from gun control to environmental protections to voting rights. Some aspects of the White House reaction have felt to some Democrats like a routine response, including stakeholder calls and the creation of a task force, to an existential crisis.

“Leadership right now is coming from the streets, and we would love to be met in that effort by the White House and the Democrats more broadly,” said Rachel Carmona, the executive director of the Women’s March, on Thursday. “I think that Biden has an opportunity to step forward in a leadership role in a way that he has not.”

This account of the administration’s 14-day struggle to craft a message and policy plan after the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization is based on interviews with 26 senior White House officials, Democratic lawmakers, abortion rights activists, Democratic strategists and other Biden allies, many of whom spoke on the condition of anonymity to share candid details.

White House officials defend the urgency of Biden’s response and the actions he has taken on abortion, which they argue are in step with mainstream opinion. “The president has been showing his deep outrage as an American and executing his bold plan — which is the product of months of hard work — ever since this decision was handed down,” White House communications director Kate Bedingfield said in a statement Saturday.

“Joe Biden’s goal in responding to Dobbs is not to satisfy some activists who have been consistently out of step with the mainstream of the Democratic Party. It’s to deliver help to women who are in danger and assemble a broad-based coalition to defend a woman’s right to choose now, just as he assembled such a coalition to win during the 2020 campaign,” she said.

While many exasperated Democrats and activists argue the administration could do much more, others say they understand the White House view that its options are limited and that most major steps would need to come from Congress or the states.

“The reason this one feels different is because the decision we have feared for nearly 50 years finally happened,” said Scott Mulhauser, a Democratic strategist who previously served as a senior adviser to Biden’s commerce secretary. “This moment, as the country takes a giant step backward, and moments like it are too often laid on the White House, as if they had a magic wand to fix it all, rather just insufficient votes in Congress and a regressive Supreme Court majority.”

Abortion is banned in these states. See where laws have changed.

On Friday, Biden gave an emotional speech that cheered many Democrats with its tone of outrage and a call to combat, while signing an executive order bolstering abortion rights and access to contraceptives. He railed against the Supreme Court ruling, calling it “wrongheaded” and “an exercise in raw political power,” and urged women to “turn out in record numbers to reclaim the rights that have been taken from them by the court.”

Yet Biden’s genteel tendencies were still in evidence, as he referred to “my Republican friends” even while calling them “extremist” and deriding them for “talking about getting the Congress to pass a national ban” on abortion.

“One of the reasons he was elected was that he is a decent, temperate person, and there is no doubt that he can raise his voice, but it doesn’t come naturally to him and it doesn’t land well,” said David Axelrod, a former senior adviser to President Barack Obama. “People got the president they voted for, and I think those are good qualities that he has, but they may not be the qualities that some people, particularly activist Democrats, are looking for right now.”

About four hours after the decision overturning Roe v. Wade was handed down on June 24, the White House emailed numerous abortion rights allies asking them to join a call with top officials that afternoon to “hear more about the Supreme Court ruling and the fight ahead.” Those invited expected a fiery call to action and a detailed plan from the White House, a road map not just for the immediate aftermath but for the weeks and months ahead.

Instead, top White House and administration officials stressed the issue was important to Biden and reiterated the actions the president had already outlined earlier that day, including expanding access to the abortion pill and protecting women who travel across state lines to get an abortion. The call lasted about 20 minutes and officials took no questions, according to an outside adviser who was on the call. Afterward, multiple attendees complained to each other that the call was a waste of time, the outside adviser said, and left deflated.

The sentiment was similar after the draft opinion leaked nearly two months prior. At the time, Democratic activists quickly contacted the White House asking for ways to organize a response. But many of the groups felt they were met with vague platitudes, a handful of listening sessions and promises the administration was working on a plan, said a Democratic strategist who works with some of the groups. After the official decision came out, some Democrats felt the administration had wasted valuable time in organizing the party apparatus to respond, the strategist added.

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Decision day did not unfold as White House officials had expected, or as Democrats had hoped. White House aides had expected the Supreme Court to release the ruling as its final decision of the term on June 30, the day Biden was set to return from Madrid. It is not clear why they believed that. The court announces expected release dates shortly ahead of time but does not say which opinions will be dropped on a specific day.

Still, the president had already signed off on his prepared remarks. Had the decision been released on June 30, Biden would have given his speech upon returning to Washington, one White House official said.

Biden had been planning to nominate a conservative opponent of abortion rights to a lifetime federal judgeship in Kentucky on the very day that Roe was overturned, according to emails first reported by the Louisville Courier Journal. The White House appears to have abandoned that idea after the abortion ruling, according to those emails.

After the decision dropped, the White House scrambled to accelerate its timeline. In an Oval Office meeting that morning, Biden gathered with top advisers to fine-tune his remarks. The group focused on what actions he quickly could take to protect women’s rights, as well as the impact the ruling would have on the lives of millions of Americans and the nearly 50-year effort by Republicans to restrict abortion access, two senior administration officials said.

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Then, they sent the president out to deliver his speech. “Make no mistake: This decision is the culmination of a deliberate effort over decades to upset the balance of our law,” Biden said at the time. “It’s a realization of an extreme ideology and a tragic error by the Supreme Court.”

But Biden’s delivery lacked the urgent tone that many Democrats felt was required, and even some White House officials later said they wished the president had been more fiery, another senior administration official said. The official added that they felt Biden had missed the mark in part because he and his team had been unprepared for the timing of the decision, and the reality of the ruling had not fully set in.

Vice President Harris was on her way to a previously scheduled speech in Illinois when the ruling came down. Her team printed it out for her aboard Air Force Two, and she pored over it on the plane as her motorcade sped to her first event, where she and her aides overhauled her remarks to reflect the sudden crisis. “This is the first time in the history of our nation that a constitutional right has been taken from the people of America,” Harris said.

The White House also canceled the previously scheduled briefing by press secretary Karine Jean-Pierre. Although she did an MSNBC interview, the canceled briefing dismayed some White House allies, who felt the administration should have used all available opportunities to drive its message and attack Republicans in the immediate aftermath of the decision. A White House official, however, said the decision was made to let the remarks from Biden and Harris carry the day.

Meanwhile, some progressive lawmakers began calling on the administration to declare a public health emergency, a mostly symbolic gesture that would signal how seriously the administration viewed the issue but that would make limited difference in terms of policies or actions Biden could take.

Some in the White House and Department of Health and Human Services supported the idea, believing it would bring more attention to the issue, according to a person familiar with the discussions. But White House aides and agency officials became uncomfortable declaring the Supreme Court decision a public health emergency, the person said.

They worried that declaring an emergency without the ability to fundamentally change things would backfire and argued that such a declaration would not necessarily unlock many new authorities or funds for the White House to deploy, this person and another familiar with the discussions said. Still, the second person added that the White House has not yet ruled out such a declaration.

White House officials have also been reluctant to put forward policy proposals that are likely to be struck down in court. The administration’s most ambitious policies on the coronavirus response, for instance, have almost all been overruled in court, including a vaccine mandate for businesses with more than 100 employees and a federal mask mandate on public transportation.

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But some Democrats and advocates have called on the administration and Democratic lawmakers more broadly to adopt the Republican playbook and put forward more creative policies and proposals, even if they may ultimately get struck down, as a signal to voters that they are fighting for them.

Rep. Judy Chu (D-Calif.), who is among a group of Democratic women who have consulted with White House officials on possible actions since May, applauded Biden on Friday for finally taking action after weeks of consultation. But she said the moment demands more.

“I do think that he is working overtime with his administration to figure out ways that can protect women,” she said. “I do have to say, though, I myself favor a public health emergency. And I think there are others that do as well.” She added, “I think it is worth being bold, and then deal with the legal challenges in court. The issue is that there is suffering right now.”

Young Democrats have been particularly disappointed with their party’s response to the Supreme Court ruling. In a focus group of 10 Democratic base voters between the ages of 25 and 39 convened Wednesday evening by Democratic consulting firm HIT Strategies, participants reported feeling disappointed and discouraged.

Most of the voters said they wanted elected officials like Biden to demonstrate and clearly articulate how lawmakers are fighting for them, and said they wanted to see a specific plan. Some pointed to tweets from Rep. Alexandria Ocasio-Cortez (D-N.Y.) shortly after the decision that clearly outlined steps Democrats could take.

“They still concluded at the end that, ‘Yes, I’m going to vote no matter what,’ but they’re craving Democrats” being “active in the way they are being active,” said Ashley Aylward, who moderated the group, noting that young voters engage by donating to women’s funds, volunteering for abortion rights groups and helping to transport friends in states with restrictive abortion laws. “They’re looking for many more specifics in the plan to react to the overturning of Roe and protecting their abortion rights.”

‘Went into overdrive’

On Friday, exactly two weeks after the abortion ruling, Biden again stood in the White House and addressed the nation. He excoriated the Supreme Court ruling and railed against the “extreme” laws in some states that do not allow abortion even in the cases of rape and incest.

And he became visibly moved as he recounted the story of a young girl, pregnant by rape, who was reportedly forced to travel out of her home state of Ohio to seek an abortion in Indiana. The case, described by a doctor to the Indianapolis Star, has not been corroborated.

“Ten years old. 10 years old! Raped, six weeks pregnant, already traumatized, was forced to travel to another state,” Biden said. “Imagine being a little girl.”

It took two weeks but, in the view of many Democrats, Biden had finally hit the right tone. “I was glad to see him come out today with some specific responses,” said Rep. Dina Titus (D-Nev.) after his remarks Friday, adding that it likely “put some of that criticism to rest” from Democrats who have been eager for the president to mount a more aggressive response to the overturning of Roe.

The White House began planning for a possible overturning of Roe last summer, when the Supreme Court did not stop a Texas law that banned abortions at around six weeks, two senior White House officials said. Biden appointed Jennifer Klein, director of the Gender Policy Council, and White House counsel Dana Remus to run a response team “on the anticipated wholesale assault on women’s rights,” one of the White House officials said.

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That work “went into overdrive” after the leak of the draft decision in May, culminating in an effort that involved the White House Counsel’s Office, the Justice Department and Health and Human Services Department, along with outside allies and advocacy groups, the White House official said. Biden began receiving regular briefings on potential policy responses, and White House officials held calls and meetings with stakeholders ranging from abortion providers and doctors to patients and faith leaders.

On the day the Supreme Court decision came down, White House aides argue that not only did Biden and Harris speak forcefully on the issue, but the administration held several calls with roughly 2,000 individuals in the abortions rights community.

Still, some Democrats and activists felt Biden’s tone and the White House response more broadly failed to capture the anger, betrayal and fear that many of them felt. Progressive lawmakers, including Ocasio-Cortez and Sen. Elizabeth Warren (D-Mass.), began calling on the administration to do more, such as opening up abortion clinics on federal lands in states that had banned or would soon ban abortion.

The White House was intrigued by the proposal, one senior White House official said, and began evaluating it. But while they found they could protect federal employees who used that option, they could not protect other women or providers once they stepped off federal land, putting them at legal risk, an assessment echoed by outside legal experts.

A White House official also pointed to an NPR/PBS NewsHour/Marist poll that found Biden’s approval ratings rising from 77 percent to 84 percent among Democrats in the wake of the Supreme Court decision.

But other polls show differing results. A Monmouth University poll that overlapped with the decision found 74 percent of Democrats approved of Biden, down from 81 percent in May. An Economist/YouGov poll in early July found 59 percent of Democrats said they approve of the way Biden is handling the abortion issue, which is 18 points lower than his overall approval rating among Democrats, at 77 percent. About 1 in 4 Democrats disapproved of his handling of the issue, at 26 percent, while a sizable 16 percent had no opinion.

Several Democrats who were critical of Biden’s initial response welcomed the more forceful spirit of his speech on Friday. “The tone was right, the political symbolism was right, all of the values and deepest concerns that advocates have raised were addressed,” said Lawrence Gostin, a professor of medicine at Georgetown University and faculty director of its Institute for National and Global Health Law. “The one thing that was missing was tangible concrete action.”

For Jennifer Palmieri, a White House communications director under Obama, the criticism was never fair to begin with. “Republicans gamed the system, and they got two Supreme Court justices they shouldn’t have, and those people had a 40-year plan to overturn Roe and they did it. And to continue to blame Biden for the fact that more Americans didn’t vote for Democrats is an epic example of missing the forest,” she said.

“We are in such a bigger fight than what the president of the United States can deliver, and if you’re thinking that it can be solved by a president taking any action in the course of the two weeks after the decision, then you’re not appreciating what a big fight it is and what a precarious moment it is,” Palmieri added.

Scott Clement and Mike DeBonis contributed to this report.

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