The high court, which shifted in a more conservative direction under former President Donald Trump, has recently signaled a willingness to support certain abortion restrictions. The justices could soon consider cases threatening Roe v. Wade, the landmark high court case legalizing abortion nationwide.
Experts and advocates on both sides of the aisle suggest that Biden’s recourse is largely limited to backing federal abortion legislation, appointing federal judges supportive of abortion rights and vocally endorsing abortion access.
South Carolina’s heartbeat law — SB1, the first of the session — bans abortions at the detection of a fetal heartbeat, which can occur as early as six weeks into a pregnancy and before many people know they are pregnant. It includes exceptions for instances of rape, incest — both of which physicians must report to the county sheriff within 24 hours — medical emergencies, and fetal anomalies. It also requires abortion providers to perform an ultrasound and display the image to the pregnant individual, and to “ask the woman if she would like to hear the heartbeat” if audible — a medically unnecessary requirement that the Supreme Court has previously allowed to take effect in other states.
In many ways, the South Carolina measure could preview court battles potentially awaiting the Biden administration. With one lawsuit already filed seeking to block the new law, the impending legal fight exposes what limited options the administration has to oppose state level restrictions that could threaten Roe. Bioreports has repeatedly reached out to the Biden administration for comment on the South Carolina bill and its potential avenues for combating such legislation.
Compared to those in 2019, newer heartbeat bans such as South Carolina’s mark “sort of a normalization of what would have once seemed to be kind of extreme antiabortion strategies,” 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.” They serve “not just as a strategy to get to a conservative Supreme Court, but maybe also possibly a preview of what conservative lawmakers would do if Roe v. Wade is gone,” she added.
Limited options for intervention
Passing a federal abortion law is an option for federal Democrats, but “that doesn’t seem to be a priority,” Ziegler added, noting that “would be difficult because (of) the slim majority that the Democrats have in the Senate, and it would also be difficult because there are a lot of competing priorities for Congress right now, given the pandemic and the state of the economy and lots of other things.”
One such bill is the Women’s Health Protection Act of 2019, which would create a standard for abortion access including the right to a pre-viability abortion — a provision that would counteract heartbeat laws like South Carolina’s — and has gained dozens of co-sponsors in the House and Senate.
“That is legislation that we are hoping and calling on the Biden administration to champion,” said Jackie Blank, a federal legislative strategist for the Center for Reproductive Rights, adding that “this really is an area for Congress to intervene” with pro-active guidelines as opposed to efforts to combat abortion restrictions through litigation.
In terms of getting actively involved in a case before the Supreme Court that could threaten Roe, the attorney general could instruct the solicitor general to file a court brief in support of the abortion rights supporters bringing the case, or the solicitor general could be invited to present the administration’s position at oral arguments, said Steven Aden, chief legal officer and general counsel at the anti-abortion group Americans United for Life.
“There really are few options in the constitutional system for the President and his administration to force their position on this issue,” Aden said.
Some Democrats, furious over Senate Republicans’ decision to seat Trump’s third conservative Supreme Court justice, Amy Coney Barrett, so close to the November election, have floated the idea of court expansion — adding more seats to the nine-member bench to offset current conservative dominance.
Biden told CBS’s 60 Minutes in October that if elected, he would form a bipartisan commission to recommend changes to the Supreme Court, noting that “it’s not about court packing.” Moderate Democratic Sen. Joe Manchin has already said he would not support expanding the Supreme Court, dampening such hopes of countering the court’s conservative tilt.
A lower priority — for now
Regardless of Senate logistics, there may not be support for court packing as a means to protect Roe until the precedent has already been overturned — a dynamic the justices may take into account in considering such bills, Ziegler said.
Should the court overturn Roe, “the Democrats would totally have the willingness to pack the court because there would be a backlash — lots of voters would be upset, people would be angry at the Supreme Court and it would put abortion at the top of the agenda,” she said. “But I think that’s not lost on the Supreme Court’s conservatives either. So I think the threat of court packing is not likely to be one that’s realized, but it is one that probably hangs pretty heavily over the Supreme court and may actually shape what they’re doing.”
Marjorie Dannenfelser, president of the anti-abortion group Susan B. Anthony List, said that the administration is “only a factor into the extent that they are going to continue to fight to end the filibuster and pack the Supreme Court,” or to act on then-candidate Kamala Harris’ promise during the campaign to require Department of Justice approval for state abortion restrictions.
“You didn’t see this President or even Kamala Harris in the thick of their campaign, making this a priority,” Dannenfelser said of the administration’s stance on abortion. “So I’m not saying they’re not going to follow through on it. They’re just not loud and proud on it. And they’re not, and it’s not to the level of the other pieces of legislation that they really want to pass.”
Biden signed a presidential memorandum last month reversing the so-called Mexico City Policy, a ban on US government funding for foreign nonprofits that perform or promote abortions, and directing the Health and Human Services Department to immediately move to consider rescinding the Trump administration rule blocking health care providers in the federally funded Title X family planning program from referring patients for abortions.
But his promises during the campaign and since have extended further, to codifying Roe and directing the Justice Department “do everything in its power to stop” such abortion restrictions. And many abortion rights advocates have called on the Biden administration to go farther in its efforts to date protecting reproductive rights, demanding the repeal of the Hyde Amendment — which bars federal funding from covering abortions, except in cases of rape, incest or when the woman’s life is at risk — and requirements surrounding medication abortion drugs that were recently reinstated by the Supreme Court.
The Biden administration could still work to stop state levels bans before the Supreme Court, since many abortion bills do not make it to the justices but are decided by federal judges, Ziegler said.
“I think the Biden administration is going to be doing its level best to shape who trial judges are, what kinds of priorities they have and who on the circuit courts of appeal, which are often the last stop for abortion legislation,” she said.
Court battles wage on
Of the nine so-called gestational bans — which bar abortions past a certain point in pregnancy — passed in 2019, none have gone into effect after most of them have been blocked by judges. South Carolina’s bill has already elicited a similar response to its predecessors from abortion rights advocates.
Planned Parenthood and the Center for Reproductive Rights challenged the bill on behalf of several South Carolina abortion providers on Thursday after the House passed it but before the governor signed it, asking a federal judge to block the law.
Planned Parenthood President and CEO Alexis McGill Johnson told Bioreports prior to the lawsuit that despite support from federal partners, “abortion access is going to face its greatest threats in the states,” urging the Biden administration to make concrete steps on the Hyde Amendment, medication abortion requirements and federal abortion legislation, but also take a vocal stance on the issue overall.
“To the extent the administration leans into using the bully pulpit to essentially locate abortion in health care where it should be, and putting a stop to it being a bargaining chip in negotiation, I think that actually does more for helping us engage in legislative fights on the state level, as well as the federal level,” McGill Johnson said.
This overarching state of play is not lost on advocates in the Palmetto State. South Carolina Rep. John McCravy, a Republican who sponsored the bill in the House and first introduced it last year before Covid hit, cited what Biden has already done on abortion as a motivator to advance the bill.
“I think you see outrage in my area that, that we’ve gone from moderate to — which we don’t agree with — to absolute leftist abortion at any cost, anywhere, anytime,” he said. “And so this has really inflamed the masses, I think they now see their eyes have been opened as to what this administration is trying to do. And it makes it all the more urgent for us to push back on that.”
Ann Warner — chief executive officer of the Women’s Rights and Empowerment Network in South Carolina, which has campaigned against the measure — accused many of the proponents of this bill of being willing to “put not only people’s lives on the line, but also just spend resources that we don’t have, and can’t afford to spend defending an unconstitutional bill like this.”
“We are seeing certainly an administration that is much more in favor of reproductive rights, reproductive justice, reproductive freedom at the national level,” she said. “But here in South Carolina and in some other southern states we’re seeing a real pushback to that.”