Biden reportedly caught off guard by Supreme Court leak; here's how the administration can catch up

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If the Washington Post is to be believed, we’ve got a big problem, because if the White House wasn’t prepared for the news that the Supreme Court is poised to end federal abortion rights start, they have a serious lack of understanding of the reality in which we live.

“Biden officials spent much of Tuesday panicked as they realized how few tools they had at their disposal, according to one outside adviser briefed on several meetings,” the Post reports. “While officials have spent months planning for the possibility the court would overturn the landmark ruling,” the Post reports, “the leaked document caught the White House off guard.” It shouldn’t have. A leak is unusual, yes, but the only surprise in the contents is just how bloodthirsty Justice Samuel Alito is in coming after abortion, and ultimately all the other 20th century rights the court established.

“We will be ready when any ruling is issued,” Biden said in a statement Tuesday. Will they? Because they really should have seen this coming, and been prepared with some ideas by now. The fact that they pivoted to deficit reduction, of all things, as the message for Wednesday doesn’t inspire a whole lot of confidence that they’ll be ferocious in this fight. That they’ll be creative and that they will try everything to fix this, to tell the majority of Americans who support abortion rights that we’ve got a powerful ally in the fight.

Back in February, Shefali Luthra of The 19th News reported on the executive actions Biden can take. First, expand access to medication abortion, something the Food and Drug Administration can do. “The most significant thing the Biden administration has done is through the FDA, and the most significant things the Biden administration will be able to do going forward are through the FDA,” Mary Ziegler, a law professor at Florida State University who studies abortion, told Luthra.

Christine Pelosi talks about the Supreme Court’s leaked decision on Roe v. Wade, and what Democrats are doing now, on Daily Kos’ The Brief podcast

The FDA has already acted to expand the availability of medication abortion. In response to the COVID-19 pandemic, it allowed for the pills to be prescribed virtually, via telemedicine, and provided through the mail. It also allowed online-only providers to mail the pills to patients in other states, including those with restrictive abortion laws. Those rules have been made permanent.

The two-pill regimen for medication abortion has been safely used for two decades, and now accounts for more than half of all abortions in the U.S., according to the Guttmacher Institute. It’s approved for use up to 10 weeks, though it’s been demonstrated safe to use beyond 10 weeks, up to 20. In Great Britain, it’s used up to nearly 24 weeks.

“There is some support for the idea that states cannot ban FDA-approved medication,” Greer Donley, an assistant professor at the University of Pittsburgh Law School, told the 19ths Luthra. “This is a novel legal argument. Maybe it would mean states cannot ban the sale of medication abortion, which would mean states must allow abortion up to 10 weeks.”

Forced birth groups are of course focusing on getting states to enact restrictions on medication abortion, and while there’s no precedent for FDA guidance to supersede state restrictions, it’s worth forcing the challenge.

The EMAA [Exanding Medication Abortion Access] Project has been having preliminary conversations with the administration, its director Kirsten Moore told the LA Times Jennifer Haberkorn. One thing they’re considering is pressing insurers to cover the drugs. “There is no obvious, one, two, three things to solve the problem,” she said. “We’re going to have to be really creative. And it may only be helpful on the margins—which may be important margins.”

Online providers of the medication are also getting creative. Aid Access, one of the sites, uses European healthcare providers and a pharmacy in India to provide the pills. It’s a relatively inexpensive option at $110, but takes up to four weeks. Another provider, has been gaming out the options for people in every state.

For instance, a patient in Texas—where abortion is banned after fetal cardiac activity is detected, or about 6 weeks of pregnancy—could – – drive across the border –  into New Mexico and conduct a telehealth appointment with a doctor there. The pills can be shipped to a friend in New Mexico or a temporary mailbox the patient has set up in the state and forwarded to Texas. Or a patient could stay in Texas and directly buy the drugs from an online pharmacy at a cost of $200 to $500.

Another option for the federal government: federally-sponsored clinics or leases to abortion clinics on public lands. Located on federal lands, the clinics could be exempt from state laws. They could also be located on tribal lands, where tribal leaders would allow them.

“It is possible that clinics can operate on federal lands without having to follow state law. That has to be explored. The federal government needs to push the envelope,” David Cohen, a professor at Drexel University’s Kline School of Law, told Luthra. “It’s not a slam-dunk legal argument, but these are the kinds of things that need to be tried.”