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Biden Faces Challenges in Federalizing Roe v. Wade, but Could Implement Policies to Facilitate Access to Abortion

President Joe Biden (Credits: The Washington Post)

President Joe Biden made a promise during his State of the Union address on March 7, 2024, pledging to establish the right to obtain an abortion as federal law. Biden’s commitment to restoring Roe v. Wade, contingent upon a supportive Congress, raises questions regarding its feasibility.

While signing a bill to enshrine abortion rights would fulfill his promise, the current Republican majority in the House makes this scenario unlikely. Additionally, given its composition, the prospect of such legislation being upheld by the Supreme Court poses further challenges.

President Biden (Credits: Stump & Associates)

Despite these hurdles, Biden’s administration and Congress can mitigate the impact of the Dobbs v. Jackson Women’s Health Organization ruling, which decentralized abortion regulation to states and eliminated federal constitutional protections.

As experts in constitutional law and reproductive health, we’re exploring avenues for the federal government to safeguard abortion access. Contrary to popular belief, presidential authority is limited despite powers granted by the Constitution, including issuing executive orders.

Biden’s post-Dobbs executive order aimed at promoting reproductive care exemplifies this authority. However, executive actions can be overridden by Congress, reversed by successors, or invalidated by courts.

Congress faces constraints, too. While it can pass laws, its jurisdiction is limited. Congress can regulate interstate commerce, but the Supreme Court has restricted this power to economic activities.

Biden (Credits: NBC News)

Nevertheless, there are alternative strategies to protect abortion rights. Congress could amend federal laws to provide economic assistance for abortion, such as repealing the Hyde Amendment. Additionally, legislative measures could safeguard interstate travel for abortion and prevent interference with this right.

The FDA’s approval of mifepristone availability for medication abortions presents an opportunity, albeit vulnerable to changes in presidential administration. Legislative action to ensure continued access to mifepristone and legalize mailing abortion pills could preempt such risks.

Biden’s explicit codification of Roe may face obstacles, but he can advocate for legal reforms and undertake limited actions within his authority to facilitate abortion access.

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