WASHINGTON — President Joe Biden faces increased pressure from abortion rights groups to support expanding the size of the Supreme Court and federal legislation to ensure abortion access after the conservative-controlled court allowed a controversial Texas law to take effect this week.
The Texas law prohibits abortions when a fetal heartbeat is detected, roughly six weeks into a pregnancy. Advocates say it represents the most expansive state-level restriction to abortion access since the procedure was legalized by the 1973 Roe v. Wade decision.
In a statement, Biden hammered the Supreme Court’s 5-4 decision on the Texas law, a move he said “unleashes constitutional chaos.” He promised a “whole-of-government” response to what he called an “unprecedented assault” on women’s rights.
But abortion rights activists say Biden needs to go further and back institutional changes to the Senate and Supreme Court, while also making greater use of the presidential bully pulpit, to protect abortion access. And they say doing so will become increasingly urgent as other GOP-controlled state legislatures are expected to introduce measures similar to the Texas law.
“The break-glass moment is here,” said Brian Fallon, co-founder of the liberal group Demand Justice, which supports adding seats to the Supreme Court. “The consequences of the Republicans’ takeover of the Supreme Court is no longer theoretical.”
The rising pressure is yet another challenge to a White House that has resisted backing major changes to the lawmaking and judicial processes.
Biden has declined to support ending the legislative filibuster in the Senate even as key parts of his agenda, including a bill to expand voting rights nationally, are stymied. Nixing the filibuster would allow the Democratic-controlled Senate to pass major bills on party-line votes without Republican support.
“We can’t trust the courts. That’s been clear for years, for the record,” said Sonja Spoo, director of reproductive rights campaigns at UltraViolet, a national feminist organization.
She called on Biden to embrace the elimination of filibuster to enable the passage of legislation to strengthen abortion rights nationally and to support the expansion of the Supreme Court, where conservatives hold a 6-3 majority.
Biden created a bipartisan commission of 36 lawyers and legal experts in April to study potential reforms for the nation’s highest court, including whether to expand its size beyond nine justices.
The commission’s recommendations, which are due Oct. 6, will help Biden decide what to do next, White House press secretary Jen Psaki told reporters Thursday.
“I don’t know where he’s going to land,” she said. “I’ll leave the space for him to determine that.”
Expanding the Supreme Court, a move Congress has not made since shortly after the Civil War, could cause blowback from moderate voters who backed Biden over former President Donald Trump to restore a sense of normalcy to Washington. Biden has previously expressed skepticism about expanding the court, saying last year he was “not a fan” of the measure.
But abortion rights advocates dispute that the change would be politically harmful, arguing that Biden is at greater risk if he doesn’t back the reforms that progressives embrace.
“It’s not a drastic step. It’s a necessary step in the way that the court has been politicized,” Spoo said of court expansion. “The court has already been politicized. This is how you give the court the ability back to do its job.”
The Constitution does not specify a number of justices for the Supreme Court. The proposed expansion has provoked strong opposition from Senate Republicans.
“Just last week, Democrats were calling for the expansion of the court as a result of a ruling over the eviction moratorium that did not go in their favor. This week it’s because the court came down on the opposite side of their radical, pro-abortion agenda,” said Sen. Roger Marshall, R-Kan., who made maintaining the conservative majority on the court a central issue of his 2020 campaign.
Psaki said Thursday that Biden would be eager to sign legislation that codifies the abortion protections under Roe v. Wade as federal law. House Speaker Nancy Pelosi has already indicated plans to take up one such proposal when the House returns next month: The Women’s Health Protection Act, which would block state-level restrictions.
But such legislation is likely to run into the same procedural hurdles in the Senate that have blocked other progressive agenda items.
Destiny Lopez, co-president of the abortion rights group All Above All, said advocates are clear-eyed about challenge the Senate poses, and want Biden to exert his pressure there.
“It can’t just be the advocates doing that work. We need the president. … We need him and his administration in helping those senators really see that this is a crisis,” she said.
“I do think we need something significant that is not just a statement,” Lopez, contending that Biden is uniquely positioned to deliver the message as a Catholic who has undergone his own public shift on the issue.
Abortion opponents, who celebrated the ruling as a major victory, are optimistic Republican-led states will try to move forward with their own versions of the Texas law.
For instance, Florida Republicans have repeatedly failed to pass legislation similar to the Texas law in recent years, but it could receive a renewed push now.
Florida Senate President Wilton Simpson, a Republican, issued a statement Thursday saying that “it’s worthwhile to take a look at the Texas law and see if there is more we can do here in Florida.”
Florida State Rep. Anna Eskamani, a Democrat, said Biden and congressional leaders need to take immediate action in anticipation of the likely deluge of coming restrictions in red states.
“You literally have control of Congress right now. Are you just going to roll over?” said Eskamani. “He needs to set the agenda for Congress. We don’t need words. We appreciate statements of solidarity absolutely, but we need action. He has the bully pulpit. He can set the agenda.”
Jacqueline Ayers, the vice president for government relations and public policy for the Planned Parenthood Federation of America, praised Biden’s announcement that he was directing the Department of Justice and the Department of Health and Human Services to investigate steps they can take to ensure access.
But she agreed that changes to the Supreme Court should be part of the conversation.
“This will be an opportunity to look again at all the systems. I think that also includes the Supreme Court. And last night, I think it shows that it’s not working. It’s not working for reproductive health care and we rolled back the clock 50 years,” Ayers said.
Ayers said that 26 states could potentially consider legislation similar to the Texas law. In the meantime, additional abortion cases are working their way through the federal court system.
The Eighth Circuit Court of Appeals will later this month hold a hearing on whether to lift an injunction on a 2019 Missouri law that would ban abortion after eight weeks.
As that case remains pending, state Rep. Mary Elizabeth Coleman, an eastern Missouri Republican, said state lawmakers may pursue additional restrictions, including potentially matching the Texas law’s private enforcement provision that allows citizens to file lawsuits against anyone suspect of “aiding and abetting” an abortion in violation of the state restrictions.
“I think Missouri will pursue any and every valid method to try to eliminate access to abortion in this state,” Coleman said. “We’ll do it in any way we can. This is what voters sent us to do.”
(The Miami Herald’s Ana Ceballos and The Kansas City Star’s Jeanne Kuang contributed to this report.)
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