Democratic inaction at the federal level could complicate the party’s efforts to run this fall as champions of reproductive rights, and the internal strife comes at a moment when party strategists are hoping to gin up enthusiasm for congressional candidates.
The long odds against sweeping federal action before November are forcing members of Congress and national reproductive-rights groups to concede that state and local action is their best and possibly only option — even if it means tens of millions of people could be left without access to abortion.
“At this juncture, the state is going to be the lead,” Michigan Democratic Gov. Gretchen Whitmer told POLITICO. “We’re not waiting for someone else to solve this. We’re moving forward.”
Whitmer, who last month filed a lawsuit challenging the state’s 1931 abortion ban, added that national-level Democrats have “perhaps not taken every opportunity to solidify” abortion rights over the last 50 years.
California, New York and Massachusetts plan to spend millions to help people come to their states if they need abortions, while Washington and Connecticut have moved to protect providers from lawsuits or penalties arising from states where abortion will be illegal.
“There’s no question that ideally you wouldn’t have to have people’s ability to make fundamental decisions about their lives dictated by ZIP code,” said Andrea Miller, the president of the National Institute for Reproductive Health. “There should be a universal standard. It’s exceedingly frustrating that states have to do it all. It would be far better if states could instead do innovation on top of a baseline that wasn’t hideous and horrible.”
Even with the Senate deadlocked, advocates like Miller say there is more the Biden administration could be doing to support access to abortion, including new FDA guidance preventing states from restricting access to abortion pills, stronger HIPAA protections to shield the medical information of abortion patients and stronger enforcement of Obamacare’s contraception mandate.
The White House has repeatedly said President Biden is waiting for the final Supreme Court ruling before making major policy announcements.
A White House official told POLITICO on Friday that while the administration is “looking at what we can do if Roe is overturned,” officials are aware “that nothing we can do would fill the gap that Roe leaves, which is why the president believes we need to pass legislation. And in order to pass legislation, we need pro-choice elected officials, and so we will be highlighting the stakes there this November.”
For their part, Democrats on Capitol Hill have pledged to try to advance bills that would codify Roe and provide a national right to abortion, though their signature legislation has twice failed to pass in the Senate this year.
Since the release of the Supreme Court’s draft opinion, congressional Democrats have blasted their GOP counterparts for enacting state bans and other restrictions on abortion, warned that Republicans may pursue a federal prohibition on the procedure and vowed to keep fighting for “legislation at every level of government to protect women’s health.”
But they lack a cohesive strategy for preventing as many as half of states from moving swiftly to ban the procedure should the Supreme Court eliminate Roe’s protections.
“A lot of the battles are going to have to happen at the state level, there’s no question about that,” Sen. Mazie Hirono (D-Hawaii) told POLITICO. “That doesn’t mean that there’s nothing we can do, but I’m still trying to figure that part out.”
Stymied on the Senate floor, some are looking for non-legislative ways to have an impact.
This week, more than a dozen Democratic senators signed letters to the data brokers SafeGraph and Placer.ai warning them to stop collecting and selling the cell phone location information of people visiting abortion clinics, and separately pushed the Federal Trade Commission to crack down on these companies’ privacy violations.
The chairs of the Senate’s two leading health care committees — Patty Murray (D-Wash.) and Ron Wyden (D-Ore.) — are also demanding information from the country’s largest pharmacy benefit managers on their documented violations of the Affordable Care Act’s requirements for insurance coverage of birth control. And members of the caucus are also lobbying the Pentagon to allow servicemembers stationed in states likely to ban abortion to give them leave to travel for the procedure.
Yet those narrower policy efforts would have a fraction of the effect of comprehensive legislation to protect abortion rights nationwide, which lawmakers say they can’t pass without the party pulling off a huge upset in November and expanding their majorities.
State-level advocates counter that the midterms can’t be the only focus.
“Far too many Democrats are still treating this like politics as usual and a political fundraising and mobilization tool and not the human rights crisis that it is. And I understand how important it is to win elections, believe me,” said Kellie Copeland, executive director of Pro-Choice Ohio. “I also understand that it’s not politics alone that’s going to save us.”
Elected officials and activists who support abortion rights in red and purple states are trying to fill the vacuum — hoping to block the restrictions already imposed and under consideration by petitioning their states’ supreme courts to recognize a constitutional right to abortion, putting the issue before voters, or both.
“We were frustrated and disappointed that very recently that Congress failed to codify [abortion protections] into federal law given that a vast majority of Americans support the holdings in Roe v. Wade, and so it is now left up to municipal and local leaders to do all that we can,” said Cincinnati Mayor Aftab Pureval.
In Michigan, a lower court judge on Tuesday ruled against the state’s 1931 abortion ban, meaning it won’t immediately take effect if Roe is overturned, though that could change on appeal. Abortion-rights proponents are also backing Whitmer’s effort to have the state Supreme Court find a constitutional right to abortion, and collecting signatures ahead of a July deadline to put the question of whether the state Constitution should protect abortion access to voters in November.
In Ohio, advocates are considering similar strategies, including asking courts to continue blocking their six-week ban on abortion after a decision on Roe comes down, putting forward a ballot measure and taking the issue to their state Supreme Court.
And in St. Louis, Mayor Tishaura Jones is exploring ways to financially support residents seeking abortions, a model that Austin, Tex. has employed since 2020.
“Local government has had to act in the face of federal inaction for at least the last five years, since 2017, when [President Donald] Trump took office,” Jones said. “It has been up to mayors, up to local elected officials to protect their citizens from government overreach, and here we are again trying to protect our women from government overreach on our bodies.”
While these officials and abortion-rights groups remain committed to defeating GOP candidates at the ballot box, resentment around Democratic inaction in Washington could undermine the party’s efforts to ride the Supreme Court’s ruling to victory this fall.
“The number of people that are going to continue to be harmed over the subsequent months between now and August or now and November is going to be innumerable, and there are actions they can take now,” Schwarz said. “I’m not sure what the holdup is.”