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What are Biden's options if the Supreme Court throws out the right to abortion?


Legislation to enshrine the right to an abortion in law failed in the U.S. Senate yesterday. The bill couldn't overcome a filibuster and didn't even have the support of every single Democrat. For those who support abortion access, this vote took on added urgency after the leak last week of a draft Supreme Court opinion that would overturn Roe vs. Wade. Vice President Kamala Harris spoke to reporters just after the failed vote.


VICE PRESIDENT KAMALA HARRIS: This vote clearly suggests that the Senate is not where the majority of Americans are on this issue. A priority should be to elect pro-choice leaders at the local, the state and the federal level.

MARTÍNEZ: Attention now turns to the executive branch and what the president and his administration might be able to do, if anything. NPR White House correspondent Tamara Keith has been looking into all of this. Tam, so what sort of political pressure is the White House facing?

TAMARA KEITH, BYLINE: Abortion rights advocates are encouraging the administration to do whatever it can to make it easier for people to get abortion services. And advocates I've spoken to also want the president to use his bully pulpit to raise alarms about the consequences of overturning Roe and what options remain if it falls. But there's also an acknowledgement that, if this draft opinion becomes final, it's not like the president can sign an executive order and just bring Roe back. As Morgan Hopkins, interim executive director of the abortion rights group All* Above All, put it to me, they want the administration to get creative and try actions even if they aren't guaranteed to hold up in court.

MORGAN HOPKINS: We've seen in the pandemic what is possible and what the federal government can do in a public health crisis, and we want to see that same kind of energy for people who are going to need abortion care.

MARTÍNEZ: All right. So what's the White House considering?

KEITH: Jen Psaki, the press secretary, said that the president has been in meetings with people from across the government, working through possibilities.


JEN PSAKI: Having the Gender Policy Council, our Counsel's Office and the Department of Health and Human Services come up with options and proposals for what we would do were this opinion issued to be final or a version of it to be final. So those are ongoing internal meetings.

KEITH: Psaki said the goal is making sure those who become pregnant in states that severely restrict or ban abortions are still able to get access to these services. But she really didn't get into specifics, and a White House official told me some of the ideas being floated by advocates aren't even being considered by the White House. So with that big grain of salt, some outside the administration I've spoken to say Medicaid could provide funding to patients to travel from states that don't allow abortions to states that do. The federal government could also potentially provide grants to states that still allow abortions to help them deal with an expected influx of patients. But these ideas aren't a sure thing because, in every federal budget, there is a rule added known as the Hyde Amendment that prevents federal funds from being spent on abortion services.

MARTÍNEZ: So then is there anything else that's being discussed?

KEITH: Well, the FDA has already changed its rules to allow abortion pills to be prescribed through telemedicine appointments, which could help with access issues. Lawrence Gostin, professor of global health at Georgetown University, says that some states are already moving to ban medication abortions, but the Justice Department could try to step in.

LAWRENCE GOSTIN: To challenge any states that ban medication abortions because it's preempted by the Food and Drug Administration - and you shouldn't have 50 states with different rules about access to any medication, including abortion medications.

MARTÍNEZ: All right. So the options sound limited, Tamara. So why is the White House, then, under so much pressure to do something?

KEITH: Plain and simple, this is an issue that matters to a lot of Democratic voters. Just like that failed Senate vote yesterday, Democratic politicians have to demonstrate that they are doing everything they can, even, as Gostin said, the options are just very limited and amount to nibbling around the edges.

MARTÍNEZ: NPR White House correspondent Tamara Keith. Tam, thanks a lot.

KEITH: You're welcome. Transcript provided by NPR, Copyright NPR.