Abortion ruling testing the limits of Biden's executive powers

WASHINGTON — President Joe Biden has started taking steps aimed at protecting access to abortions following the U.S. Supreme Court’s recent overturning of Roe v. Wade. But as the president fields calls from Democrats and advocates to do more, White House officials have cautioned there are limits to his executive powers on the issue.

After the conservatives on the Supreme Court revoked federal abortion protections in a ruling handed down June 24, Biden announced two actions his administration will take to protect access to abortions — promising to legally challenge states that look to ban federally approved abortion drugs and pledging to use the Department of Justice to fight any efforts from anti-abortion states to prosecute women who travel across state lines for an abortion.

“This is not over,” Biden said at a Friday meeting with Democratic governors, including Gov. Kathy Hochul. “If extremist governors try to block a woman from traveling from her state that prohibits her from seeking medical help she needs to a state that provides that care, the federal government will act to protect her bedrock right through the attorney general’s office.”

The Biden administration also is taking steps to protect the medical privacy of women who use health-tracking apps and digital period trackers, as abortion advocates raise concerns the data could be used against those seeking abortions in anti-abortion states.

On Wednesday, the Department of Health and Human Services issued new guidance to medical providers advising them they are not required to turn over private health records related to abortion and reproductive health to law enforcement officials.

The White House is also reportedly drafting a letter urging the Federal Trade Commission to protect women’s privacy when they search for abortion information online, including taking steps such as barring app-tracking devices from collecting or sharing data from women who visit an abortion clinic, according to Bloomberg News.

For weeks, top White House officials have huddled with abortion advocacy groups, women’s rights groups, physicians and other stakeholders looking to explore possible executive actions Biden can take on the issue. But the president himself has acknowledged the limits of his powers given the Supreme Court ruling in favor of giving states ultimate discretion over abortions.

White House officials, speaking to reporters on background, have said any proposals Biden decides to move forward with must not run afoul of the federal Hyde Amendment, which bans the use of federal funding for abortions, except for cases of rape and incest or of the mother’s life being in danger.

Biden has focused much of his response message on urging voters to elect lawmakers to Congress who are willing to codify the protections of Roe. v. Wade into law.

“Let me be very clear and unambiguous — the only way we can secure a woman’s right to choose and the balance that existed, is for Congress to restore the protections of Roe v. Wade as federal law. No executive action from the president can do that,” Biden said in a speech delivered after the Supreme Court ruling. “If Congress, as it appears, lacks the vote — votes to do that now, voters need to make their voices heard.”

Biden has said his administration will roll out more executive actions, but several prominent Democrats have publicly voiced frustrations that the administration is not acting swiftly enough and have called on Biden to consider more sweeping ideas.

A letter to Biden signed by 23 Senate Democrats, including Sen. Kirsten Gillibrand (D-N.Y.), called on Biden to use “the entirety of the federal government” in responding to the court’s decision and urged him to “act as swiftly as possible.”

The coalition of Democrats proposed Biden consider a range of options, including increasing access to abortion medication, allowing abortion providers and counselors to operate on federal property in states that currently ban abortion, and guaranteeing military personnel access to an abortion even if they are stationed in an anti-abortion state.

Asked about the possibility of the proposal of using federal land for abortion services, White House press secretary Karine Jean-Pierre told reporters last Monday that while the idea was “well intentioned,” there could be “dangerous ramifications” involved. The White House has raised concerns that those providing abortion services on federal property could still be subject to local prosecution.

“We understand the proposal is well intentioned, but here’s the thing: It could actually put women and providers at risk,” Jean-Pierre said. “In states where abortion is now illegal, women and providers who are not federal employees … could potentially be prosecuted.”

Greer Donley, a professor at the University of Pittsburgh School of Law who focuses on abortion law, in an email to Newsday said that while the idea of using federal land to provide abortion services is untested, it could ultimately hold up to legal scrutiny because “only a small set of state civil laws apply on federal land.”

Vice President Kamala Harris, in an interview with CNN, said the proposal was not among the ideas that the White House is seriously weighing, noting that the administration was taking a closer look at addressing the patchwork of state bans.

“I think that what is most important right now is that we ensure that the restrictions that the states are trying to put up that would prohibit a woman from exercising what we still maintain is her right, that we do everything we can to empower women to not only seek but to receive the care where it is available,” Harris said.

By Laura Figueroa Hernandez

laura.figueroa@newsday.com@Laura_Figueroa

Laura Figueroa Hernandez is the White House correspondent and previously covered New York City politics and government. She joined Newsday in 2012 after covering state and local politics for The Miami Herald.