Just hours after the Supreme Court decision ending 50 years of abortion rights, President Biden outlined his ideal response: Elect more Democrats. “This fall, Roe is on the ballot,” Biden said at the White House. “Personal freedoms are on the ballot. The right to privacy, liberty, equality — they’re all on the ballot.”
A short distance away, House Democrats gathered on the steps of the U.S. Capitol to sing a heartfelt rendition of “God Bless America” to celebrate the passage of a modest gun control bill — a moment that felt tone-deaf to many Democrats given the judicial bombshell that had just landed.
To an increasingly vocal group of frustrated Democrats, activists and even members of Congress, such responses by party leaders have been strikingly inadequate to meet a moment of crisis. They criticize the notion that it is on voters to turn out in November when they say Democrats are unwilling to push boundaries and upend the system in defense of hard-won civil liberties.
“We have Democrats that are doing the opposite, you know? They just aren’t fighting,” Rep. Cori Bush (D-Mo.) said. “When people see that, what’s going to make them show up to vote? We can’t just tell people, ‘Well, just vote — vote your problems away.’ Because they’re looking at us and saying, ‘Well, we already voted for you.’ ”
Liberal lawmakers, including Sen. Elizabeth Warren (D-Mass.) and Rep. Alexandria Ocasio-Cortez (D-N.Y.), have outlined several actions they want to see Democrats embrace: Building abortion clinics on federal land. Funding people to seek abortions out of state. Limiting the Supreme Court’s jurisdiction or expanding its membership. Ending the filibuster.
“We can do it!” Ocasio-Cortez tweeted recently after listing some of these measures. “We can at least TRY.”
Warren called on Biden to declare a national medical emergency, and she said the administration could establish Planned Parenthood outposts on the edge of national parks. “The point is the acknowledgment of the emergency situation and the urgency of getting help out,” she said in an interview. “People need help immediately.”
Biden and his team have signaled discomfort with many of these ideas, particularly any far-reaching overhaul of the Supreme Court. Asked by reporters recently if he thinks the Supreme Court is “broken,” Biden said only, “I think the Supreme Court has made some terrible decisions.”
A senior White House official said Biden is simply being honest with the public about what he can do unilaterally, adding that the president is “taking major actions under executive authority as he fights this extreme decision very hard — but being clear and honest that only Congress can fix the situation.”
White House officials note that the administration has moved to protect access to the abortion pill, even in states that try to ban it, and that the president has pledged to protect people who seek to travel across state lines to get an abortion.
The official said that while the proposal to set up abortion clinics on federal lands was “well-intentioned,” it could put pregnant people and providers at risk, and that in states where abortion is illegal, women and providers who are not federal employees could be prosecuted. Some legal experts have also raised questions about whether such a proposal would stand up in court, and White House officials worry it would violate the Hyde Amendment, which prohibits the use of federal funds for abortion except if a pregnant person’s life is in danger or if the pregnancy results from rape or incest.
Some activists acknowledge Biden’s ability to act is limited. Only Congress can codify abortion rights nationwide, and the Senate, where the filibuster requires 60 votes to pass almost all legislation, is split 50-50 between the parties.
But many abortion rights supporters say that Republicans have routinely broken the rules in recent years and benefited enormously from it — for example, by blocking one of President Barack Obama’s Supreme Court picks — and that for Democrats to continue observing the niceties amounts to unilateral disarmament.
“We are dealing with one side that is undermining the very essence of what it means to be a country that roots itself in this philosophy of equal protection under the law. You cannot battle that if folks on the other side are always moderating, modulating and compromising. It’s not the age we’re in,” said the Rev. William Barber, a North Carolina preacher who is co-chair of the Poor People’s Campaign.
“You fight a crisis until the crisis is over,” Barber added. “You can’t overreach when you’re at the bottom, and these folks have taken us to the bottom.”
If Biden were to pursue aggressive executive actions to expand abortion access, even if those moves were ultimately overturned by a court, it would energize supporters and signal to voters that Democrats are putting up a fight, advocates said.
Kurt Bardella, a former Republican who now consults for Democrats, said party leaders cannot be afraid of bold actions because of potential legal challenges.
“Democrats start with the question of, ‘Are we allowed to do this or not?’ And I think Democratic voters will forgive you if you try and later on it turns out a court strikes it down,” Bardella said. “But at least you tried in the meantime to keep things in place and head toward the next election. What they won’t forgive is if you keep asking them to keep you in power but you don’t do anything with it or at least try to do something with it.”
The divisions about how to respond to the Supreme Court ruling exposed fractures among the Democratic Party that often fall along familiar generational, ideological and strategic fault lines.
At one end is Biden, who has long been tethered to the traditions and institutions of the federal government. He has shown a reluctance to dismantle the Senate filibuster, even when it comes to issues as basic to his party as voting rights. He has said he believes increasing the total number of Supreme Court justices, while tempting to a party in power, is ultimately perilous and could lead to the erosion of other norms if Republicans regain control of Washington.
But a growing number of liberals say that unless Democratic leaders show a willingness to adopt more creative ways of pushing through their agenda, their most loyal voters will have little reason to turn out in the midterm congressional elections.
“It’s really important right now that they show they’re fighting for people, so people have a reason to go vote for them in November. The goodwill of voters is not going to last that long — it’s lasted for years,” said Nelini Stamp, director of strategy and partnerships for the Working Families Party, a prominent left-leaning group. “People don’t want to hear, ‘Vote for Democrats.’ They want to hear what folks are going to do. We want Biden to use the full power of his administration, even if he might get the court’s pushback. We want to see people fighting for us.”
Bush said she remembers the “gut punch” she felt when she heard about the Supreme Court ruling. An activist before she was elected to Congress during the protests over George Floyd’s 2020 killing at the hands of police, Bush said she immediately began to consider what actions to take.
She and 19 other Black congresswomen had already sent Biden a letter last week ahead of the ruling, urging the president to “use any and all executive authorities to address the public health crisis our nation will face if Roe v. Wade is dismantled.” She said she and her liberal colleagues will continue to push leaders in the House to vote on myriad bills protecting abortion rights, to back up their election message that Democrats are the party that delivers.
Some Democrats note that any such bills would immediately die in the Senate. But others say it’s critical to show voters what the party would do if it had even slightly bigger majorities.
In a letter to colleagues Monday, House Speaker Nancy Pelosi (D-Calif.) outlined specific legislation that leaders are considering in the coming months. They include shielding women from criminal prosecution if they travel out of state to seek an abortion and protecting personal data stored in reproductive health apps, in case state lawmakers try to access that information to determine if a woman has gotten an abortion.
Pelosi kept the door open for more provisions upon lawmakers’ return to Washington in July, but put the onus on the Senate to eliminate the filibuster and pass legislation codifying Roe v. Wade, which the House passed last year. Sens. Joe Manchin III (W.Va.) and Kyrsten Sinema (Ariz.) have been the Democrats most resistant to eliminating the filibuster, and some Democrats say electing additional senators from states such as Pennsylvania and Wisconsin could establish a majority that would enact such a move.
More than 30 Senate Democrats, led by Warren and Sen. Patty Murray (Wash.), signed a letter to Biden that called for “bold action,” adding: “You have the power to fight back and lead a national response to this devastating decision.”
Some activists said Democratic leaders’ exhortation to vote for them to save abortion rights echoes the refrain activists heard on police reform in the wake of Floyd’s killing and on protecting voting rights — two major initiatives that have fallen short despite the narrow Democratic majorities in Washington.
“It’s very similar to what happened in 2020: ‘Go back to the voting booths.’ … It always comes back to ‘Now you, the individual, do something,’” said Paris Hatcher, executive director for Black Feminist Future. “But we’ve elected these people who are in office at this very moment to take action on things like this. It becomes a very passive way to pass the buck when we have elected them to make things happen that center on the well-being of the people.”
Caroline Kitchener contributed to this report.