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Will Biden and Democrats be able to protect abortion rights through legislation?

Photo by Evan Vucci/AP

President Joe Biden signed an executive order on Friday aimed at protecting access to abortion and other reproductive healthcare services nationwide. 

The order that seeks to safeguard access to emergency contraception, long-acting reversible contraception, medication abortions, and emergency medical care for pregnant people comes after Biden realized that Democrats might not be able to pass a federal legislation to preserve the right to safe and legal abortions across the U.S. regardless of their majority in Congress.

“The executive order is [Biden’s] attempt to send a message to the country that whatever he can do, whatever steps he can take, in order to preserve access to abortion, he will take them,” says Jeremy Paul, professor of law at Northeastern University.

Paul says that the order offers a limited protection, “nowhere near” the protection that the overturned Roe v. Wade or Planned Parenthood v. Casey provided, because Biden’s presidential authority rests on the existing federal rules and statutes. For example, shipping abortion medication can be protected because it is an FDA approved drug; contaception is covered in the Affordable Care Act; but there is no federal legislation protecting abortion rights to restore them to pre-Roe scale.

The order delegates to the Secretary of Health and Human Services the responsibility to determine specific actions and ways in which abortion protection can be expanded in the next 30 days. The next president, Congress or the court can overturn an executive order if it is found to be beyond the president’s constitutional authority, but, Paul says, there is nothing readily challengeable in the Friday order.

Costas Panagopoulos, chair of the Department of Political Science at Northeastern. Photo by Matthew Modoono/Northeastern University

Reacting to the Supreme Court’s decision to overturn Roe v. Wade ruling, which protected a person’s right to have an abortion nationwide since 1973, President Joe Biden stated on June 24 that the only way to secure a woman’s right to choose is for Congress to restore the protections of Roe as federal law. 

Later, Biden, who has been previously skeptical of filibuster reform, suggested that Democrats might need to use an exception to the filibuster rule to enact such legislation. Filibuster is a Senate rule that allows unlimited debate and gives the opposing side an opportunity to prevent action on legislation. Sixty, or three-fifths of all votes are required to break the filibuster in the Senate, which is currently split 50-50, with Democratic Vice President Kamala Harris casting the deciding vote in the case of a tie. 

“Democrats are up against the wall right now. They are falling behind on delivering on key constituent priorities,” says Costas Panagopoulos, chair of the Department of Political Science at Northeastern University, as protection of abortion rights has been a central issue for the Democratic Party for years.

The overturning of Roe is viewed by many as a big step backwards for Democrats, who need to start taking bold steps to push against Republican opposition as Democratic voters are becoming increasingly frustrated, Panagopoulos says.

“Democrats may not have enough votes to invoke cloture [end of discussion with a three-fifths vote] but they have to try something,” Panagopoulos says. “It seems to me that the voters would appreciate any action.”

The public outcry surrounding the overturning of Roe might mobilize some Democratic voters, Panagopoulos says, but that may not happen if the fractured Democratic coalition doesn’t not come together, demonstrate its determination and perhaps start acting like Republicans would have. Failure to act now is risky as Democrats may lose their congressional majorities in the November elections, perhaps partially as a result of inaction, Panagopoulos says.

Nick Beauchamp, associate professor of political science at Northeastern, says that a one-time exception to the filibuster would be a very narrowly targeted strategy.

Nicholas Beauchamp, associate professor of political science at Northeastern. Photo by Matthew Modoono/Northeastern University

“Which, I guess, is pragmatic in the sense that it is probably more likely to happen,” Beauchamp says.

However, Democrats might not be able to exercise an exception to the filibuster if Sen. Joe Manchin III (D-West Virginia) and Sen. Kyrsten Sinema (D-Arizona) do not support the rule change, which requires a simple majority vote—a favorable vote from all Senate democrats, Beauchamp says. In that case, Democrats will especially need to move and inspire the public to go out and vote to preserve the majority in the U.S. House of Representatives and gain at least two more additional seats in the Senate to have enough votes and be able to pass an exception to the filibuster rule.

As of now, it is unlikely that Democrats will be able to hold the House and gain two seats in the Senate this fall, Beauchamp says, which means that there may not be national abortion legislation until late 2024 or early 2025.

Codifying abortion rights protection may not even be the end of the story, Panagopoulos says. The issue can easily find its way back to the Supreme Court, which can again declare new legislation unconstitutional.

It can also be risky to dismantle the filibuster completely, Panagopoulos says, as it exists for a reason and has served Democrats well in some cases.

“It doesn’t mean that it can’t be harmful in other instances,” he says. “There’s always another election around the corner that can shake up the composition of the Senate in a way that advantages the other side without protections for the minority party.”

Panagopoulos noted that eliminating the filibuster for judicial nominations—a move by Senate Democrats in 2013—surely helped Trump’s three appointees to the Supreme Court sail through to confirmation with only simple majority votes. With a filibuster in place, Democrats could have made a stronger push for more moderate candidates, Panagopoulos says. 

Beauchamp suggests that Democrats could choose a strategy of incremental changes, utilizing exceptions to the filibuster for important bills and holding votes on important matters to galvanize the public.

“The prevailing view, particularly among Democrats these days, is that politically, if you are in power, you don’t want to hold votes that you lose,” Beauchamp says. “The view is every time you hold the vote and you lose, you lose a little bit of power.”

However, having a vote on guns or abortions and failing would normalize the idea that important legislations should have filibuster exceptions, Beauchamp says. 

“Once you’ve done it one, two, three times, it becomes a lot harder to say, ‘No, we can’t do that in the future,’” Beauchamp says. “So it sort of builds this long-term erosion of the filibuster.”

It is possible to build long-term momentum by having votes and having public hearings with experts and members of Congress on important issues, even if they don’t actually manage to pass anything, Beauchamp says. The Republican party initiated numerous failed votes to repeal Obamacare, building up momentum, getting air time on Fox News and energizing the public.  

“None of these things are likely to produce results in the next year, but they might produce results in the next three years,” Beauchamp says. “Trying and failing can affect public opinion, even if it may be reducing political capital at the elite level.”

For media inquiries, please contact media@northeastern.edu.

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