After Texas’ six-week abortion ban took effect in September, President Joe Biden promised a “whole of government effort” to fight the law. That response so far appears to include more money for birth control (not a solution!) and a Department of Justice lawsuit against the state.
On Friday, the Supreme Court dismissed the DOJ’s lawsuit, and while it said that a challenge by abortion providers could move forward, they can only do so on very narrow grounds, and the court let the law stay in effect. There is another challenge to the law in state court, but there is no relief in sight for pregnant people in the second biggest state in the country. Amy Hagstrom Miller, the CEO of Whole Woman’s Health, the clinic group challenging the law, told the Texas Tribune: “Staying open is not sustainable if this ban stays in effect much longer...We are grateful for the donors and foundations and folks who have been supporting us in the interim...but the future looks bleak if we can’t get some justice here.”
The combination of the Supreme Court letting the law stay in effect and the Biden administration doing next to nothing about it so far will continue to endanger people’s lives and embolden other states to copy the law. Four states have already introduced Texas-style “sue thy neighbor” bans, two of which would ban abortion not at six weeks, but at fertilization, before someone even misses a period. In the meantime, Texas patients who are able to travel are filling up clinics in neighboring states, creating backlogs for those residents and patient overflow into even more states.
It’s an unsustainable crisis, and the Biden administration needs to act immediately. Some ideas:
Abolish the filibuster and codify abortion as a right in federal law (lol)
Yes, the Senate needs to pass the Women’s Health Protection Act, a House-passed bill that would codify the right to abortion until fetal viability in federal law rather than just in Supreme Court opinions. But to do it, they’d either need to abolish the filibuster, a rule that says most bills need 60 votes to pass, or try to pass it through the simple majority reconciliation process and overrule or fire the current Senate parliamentarian who would object to that. While Congress fights about all that, there are other steps to take, below.
Create or protect mobile abortion clinics
Biden could, as Elie Mystal argued in The Nation, issue an executive order establishing a privacy commission and hire abortion providers as “privacy protectors” who could work out of federally owned mobile clinics. They could counsel pregnant people on their options and, to get around federal rules, provide free abortions offset by donations or other private funding. Mystal said that abortion providers couldn’t be sued under SB8 because they’d have qualified immunity, you know, like cops have. It’s possible that simply hiring these privacy protectors would violate the Hyde Amendment—a racist and classist budget rider that bans federal funds from being used for abortions outside of cases of rape, incest, and threat to the pregnant person’s life—but the White House has good lawyers, figure it out. (There are barely enough votes to pass WHPA, so repealing Hyde seems even less likely at the moment.)
A group called Abortion Delivered has two mobile clinics serving the upper Midwest (Minnesota, Montana, and Wyoming) and is working on sending its clinics to the borders of states with abortion bans. The Biden administration could offer this group and others enhanced legal protection or DOJ representation or something—anything!
Hire Texas clinic workers as federal employees
Similar concept as above, but hire any willing Texas clinic workers (providers, nurses, support staff, etc) as federal employees and have them offer care in their clinics. Federal powers trump state powers thanks to the Constitution’s Supremacy Clause and, again, they’d have qualified immunity from lawsuits. Abortions would still probably have to be free and paid for via donations, thanks to the Hyde Amendment, but hiring clinic staff could maybe help Texas clinics stay open. They’ve been at risk of closure ever since this law has been in effect, and have already been losing staff.
Send in abortion boats, plural
The Navy has a hospital ship, the USNS Comfort, that it deploys for medical emergencies, foreign and domestic. What is happening in Texas is indeed an emergency, especially for Black and Indigenous women who are several times more likely than white women to die as a result of pregnancy and childbirth. Send the ship to the Gulf Coast, fill it with Texas abortion providers and patients, and sail out to sea where state laws—like the six-week ban and mandatory 24-hour waiting period—don’t apply. There could be multiple sailings a day offering both medication and procedural abortions. Some lawyers may argue that just sending the boat to Texas is using federal funds for abortion and thus violates Hyde, but I don’t know, figure it out!!
There’s another ship that could come provide abortions, and it’s owned by Dutch doctor and activist Rebecca Gomperts. She’s taken the boat to countries including Ireland, Poland, and Morocco, then sailed to international waters and provided abortion pills on board. She has also operated pill-dispensing drones and robots. In a recent interview, Gomperts criticized Texas abortion providers for not breaking the law and opening themselves up to tens of thousands of dollars in legal fees and possible loss of their medical licenses. She could come over in the boat as an apology to Texas providers and patients! (Gomperts also operates a web site, Aid Access, that ships abortion pills from an international pharmacy, even before people are pregnant, but some people are understandably worried about the legal risks of ordering abortion pills online in a state where abortion is banned after six weeks.)
Boats wouldn’t solve the entire problem. Importantly, Texas is a huge state and not everyone who needs an abortion could travel to the Gulf Coast, which could be as far or farther than traveling out of state, a trip that is prohibitively expensive or just unfeasible for some, especially people who are already parents. That’s why, in an ideal world, abortion boats would be just one of the many options the Biden administration would pursue to restore abortion access in the state.
Less “concerned” statements and more “whole of government effort” now, please.