Joe Biden wants to marshal the full power of the federal government to fight back against a ban on most abortions in Texas.
But the president’s efforts may end the same way as so many other elements of his ambitious agenda: with success proving elusive. The White House is heavily reliant on Congress for action to preserve abortion rights, just as he is on voting protections, gun safety and virtually every other domestic policy goal. But with razor-thin Democratic majorities and the need for 60 votes to pass relevant legislation in the Senate, Biden’s opportunities for meaningful victories are dimming.
Indeed, priority legislation for critical Democratic constituencies is falling by the wayside as Congress gears up for a fall packed with spending and budget fights. And it’s leaving party members fearful that they’ll enter the 2022 campaign season with a slew of broken promises as Biden backslides in polls, Covid-19 cases rise, job numbers fluctuate and a crisis of confidence unfolds over the administration’s handling of foreign policy — most symbolically, the Afghanistan drawdown.
Texas’ abortion law adds to the growing number of issues Biden is being pushed to prioritize, including reforming police departments, rewriting immigraton laws and raising the federal minimum wage. They’re all issues he promised to tackle with speed. And it’s raising the pressure on him to support a fundamental restructuring of the other two branches of government, including eliminating the Senate filibuster and expanding the Supreme Court.
“If you think about what’s happened in Texas just over the last week on both voting rights and [abortion], that is the same set of challenges we will have in Congress right now,” said Destiny Lopez, co-president of reproductive justice organization All* Above All. “The Senate is a challenge on a range of progressive issues. We’re going to need some help from the White House on moving the Senate to where it needs to be.”
The Biden administration has renewed its calls for Congress to codify Roe v. Wade, the nearly 50-year-old decision that legalized abortion nationally. The House is expected to take up a bill that would enshrine in federal law the right to access abortion, but it doesn’t have 60 votes in the Senate, and may not even have all 50 Democrats.
For now, Biden has focused on places he can act immediately, though on certain fronts it’s unclear what action the White House can legally take. He’s launched a so-called “whole of government” effort to respond to the Texas law, leaning on Justice Department officials and the Department of Health and Human Services to help determine what the federal government can do to ensure women in Texas and other states contemplating similar laws have access to safe and legal abortions.
White House officials pointed to those efforts — along with Biden’s and Attorney General Merrick Garland’s comments that the Justice Department was looking at limiting the Texas law — as demonstrations of their resolve. Jen Klein, deputy assistant to the president and a co-chair and executive director of the White House Gender Policy Council, is helping to coordinate the response. Klein said the administration would continue to work with advocates, allies and Congress to find ways to “protect people’s constitutional rights under Roe v. Wade.”
“The administration has been open to ideas and they are looking carefully at what can actually be done,” said Jacqueline Ayers, vice president for government relations and public policy for the Planned Parenthood Action Fund.
Among the ideas Ayers would like to see put into action is the Food and Drug Administration removing restrictions on medication abortion. Another possible step is having the Justice Department immediately enforce safety protocols spelled out in a 1994 law barring threats and the obstruction of people at clinics, which Garland also pledged to do. “The department will provide support from federal law enforcement when an abortion clinic or reproductive health center is under attack,” he said in a statement Monday.
But no grand plan of attack in response to the Texas law has emerged. Still, Ayers said, “I am encouraged and I think they are very much in it to figure it out,” Ayers said.
The biggest strides Biden could make on abortion rights have to come with the help of Congress. But on this front, a massive bottleneck is forming.
Biden and fellow Democrats are currently trying to move a $3.5 trillion reconciliation package that would fund paid leave, child care and education, along with climate change initiatives. They’re also pushing a $1 trillion bipartisan infrastructure bill to repair crumbling roads, bridges and sewer systems. The hope is that if Democrats push through those reforms, they can build momentum for other agenda items and the midterms beyond that.
“When you look at what’s been accomplished so far and what is almost inevitably going to be passed in reconciliation, it’s a huge accomplishment,” said Democratic strategist Adrienne Elrod, who worked on Biden’s campaign. “Once we get past reconciliation, then I think that some of the other top priorities that the president has talked about consistently from the campaign trail to now … will become front and center.”
But whatever momentum existed for the reconciliation and infrastructure bills has become zapped in recent weeks. Biden faces the lowest approval ratings of his presidency so far, following the botched withdrawal of troops from Afghanistan. The calendar is working against the party too. Congress is already consumed with passing Biden’s two major spending bills and soon will need to tackle efforts to keep the government funded and raise the federal borrowing limit. And by the end of the year, members of Congress will turn their attention to campaigning — first the midterms and then the next presidential race.
With the legislative windows closing, angst from many corners of the progressive ecosystem has grown louder.
Already, some gun violence survivors and activists have complained that Biden’s actions to curb gun violence “fall significantly short” of his campaign promises and urged him to use his political capital to press lawmakers to pass new gun laws.
“This is a president who, as a candidate, argued that his experience in D.C. allows him to bring all these people together and get things done,” said Igor Volsky, executive director of the advocacy group Guns Down America. “Doing something about what 90-plus percent of Americans want to see action on is a great way for him to again live up to what he promised.”
Democrats also want Congress to pass a pair of voting rights bills following a spate of new laws signed in Republican-run states after the 2020 election and sweeping changes to policing policies in the wake of the killing of George Floyd at the hands of Minneapolis police.
“Criminal justice is important to me and, of course, I want him to go in and devote his whole presidency to criminal justice. That’s not reality,” said DeAnna Hoskins, president of JustLeadershipUSA, an advocacy group. “Everybody has an agenda. Everybody has something they’re passionate about … everybody has their issues, and he has to try to please every damn body. That’s crazy. It’s not going to happen.”
Then there are the issues Biden’s already pushed before and promised to return to. Democrats, for example, scrapped a federal minimum wage hike (from $7.25 an hour to $15) because of a parliamentarian ruling on Biden’s coronavirus relief bill.
Mary Kay Henry, international president of the Service Employees International Union, said Biden is speaking to Senate leaders about the issue but there is no path to move forward yet. She praised Biden for an executive order raising the minimum wage for federal workers and contractors and speaking out about an increase but said she remains “incredibly frustrated” by congressional inaction.
“We’ve been talking to both Senate, House and White House leadership about when we get through this chunk of work — the bipartisan [infrastructure bill], the Build Back Better reconciliation, voting rights, immigration and police reform — we want to come back and return to this debate,” she said.
On his first day in office, Biden also sent a bill to Congress that included a pathway to citizenship for 11 million undocumented immigrants, expanded refugee resettlement and mandated more technology to be deployed to the border. It hasn’t gone anywhere as the administration faces a record number of migrants crossing the southern border.
“They have been, I think, challenged by what’s happening at the border with an increase in arrivals,” said Frank Sharry, executive director of America’s Voice, an immigrant advocacy group. “That has been so politicized that it has, at times, I think, put them, made them more cautious that they need to be.”
But Sharry said immigrant advocates are closer than they have been in three decades to success since it is believed that the reconciliation package will include a pathway to legal status for migrants who came to the U.S. as children, those who fled countries in the midst of natural or manmade disasters and essential workers.
“This is our moment to get it done right,” said Marielena Hincapie, executive director of National Immigration Law Center, “and so I think the question is will he use his central power to ensure that Congress does.”