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Biden launches federal effort to respond to Texas law as he faces pressure to protect abortion, but has few options

He used it again in a statement Thursday in which the President called the Texas law an “unprecedented assault on a woman’s constitutional rights under Roe v. Wade, which has been the law of the land for almost fifty years.”

He said he was launching a “whole of government” effort to respond to the law, tasking the Department of Health and Human Services and the Justice Department “to see what steps the Federal Government can take to ensure that women in Texas have access to safe and legal abortions.”

Now, as the Texas law that prohibits abortions after six weeks takes effect, Biden is facing pressure to defend abortion rights more aggressively. It’s an issue the President has shifted on over the course of his long career, including as a candidate for the Democratic presidential nomination, when he reversed his stance on a measure allowing federal funds to pay for abortion.

Biden said in a statement earlier Wednesday that the Texas law “blatantly violates” a constitutional right to abortion established by Roe vs. Wade, the 1973 decision that established a right to the procedure.

The law allows private citizens to bring civil suits against anyone who assists a pregnant person seeking an abortion in violation of the ban.

He wrote it was “outrageous” the law “deputizes private citizens to bring lawsuits against anyone who they believe has helped another person get an abortion” — the first instance of the word in any of his public statements as president.

“My administration is deeply committed to the constitutional right established in Roe v. Wade nearly five decades ago and will protect and defend that right,” Biden wrote.

His statement was less clear in how that might be achieved. Asked about that later by reporters, White House press secretary Jen Psaki said Biden would push Congress to codify Roe v. Wade as law.

“That is a specific course of action that can be taken to help protect from these type of lawsuits in the future,” she said.

The prospect of Congress enshrining a right to abortion in law remains a long shot; doing so would require 60 votes in the Senate to overcome a certain Republican filibuster, and even passage in the House is unclear given Democrats’ narrowest of majorities.

Biden had already faced calls to support changes to filibuster rules for issues like voting rights but has stopped short of supporting getting rid of the filibuster altogether. In 2018, Democrats successfully used the filibuster to prevent a law banning abortion after 20 weeks when Republicans controlled the House, Senate and White House — a reminder of how changes to the rules could haunt them down the road if the GOP returns to the majority.

Since taking office, Biden has taken some steps to reverse restrictive abortion rules from the Trump era, including the “Mexico City Policy” banning US funding of international organizations that perform abortions. He also tasked the Department of Health and Human Services to replace a Trump-era rule barring certain federally funded health care providers from referring patients for abortions, a step long demanded by abortion rights groups.

Yet the issue has been far from a driving agenda item for his administration. As a senator, Biden had been among the more moderate Democrats on abortion, including supporting the Hyde Amendment that banned federal abortion funding.

In 2019, as he was vying for the Democratic presidential nomination, Biden said he’d changed his mind, even as he declared he made “no apologies for my last position.” Instead, he said he’d reversed his position because largely Republican-led states had enacted strict new abortion laws.

Biden, a Catholic, has also faced criticism from conservative US bishops, who earlier this year sought to enact rules that would deny communion to public figures who support abortion rights.

Biden has shrugged off those attempts, calling it a “private matter” that he did not think would gain traction.

Now, as the issue returns to the fore with Texas’s new law, Biden is facing renewed calls to endorse an expansion of the Supreme Court after it allowed Texas’s restrictive new abortion law to take effect. Biden as a candidate punted on the question, and instead established a commission of experts to weigh that and other ideas for reforming the Supreme Court. 

The panel has met three times since it was established in April — once each in May, June and July. The meetings have occurred virtually, and mostly entail the members and witnesses reading from prepared testimony. They are all available on the White House website.

More meetings are scheduled in the fall, and a report is due by November 15, which is 180 days since the panel’s first public meeting.

Officials say the report will not contain recommendations for or against expanding the court or other potential changes. Instead, it will analyze various arguments for and against Supreme Court reform. Officials say it could inform further debate among lawmakers.

Aside from court expansion, the panel has heard arguments over limiting the court’s power of judicial review; changing how the court decides which cases to hear; and debated the idea of term limits for justices.

The panel has also engaged on the so-called “shadow docket,” which allows the court to make decisions without full public arguments or briefings — a practice that has come under new scrutiny following the use of the tactic in the Texas case.

The panel, led by former White House counsel Bob Bauer, was established in April and is comprised of 36 members across an ideological spectrum. Most are professors at elite law schools.

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