WASHINGTON — Congressional Democrats are pressuring President Biden to take aggressive steps to protect abortion rights after the Supreme Court overturned Roe v. Wade, pinning their hopes for now on executive action because of the near impossibility of passing national legislation to stop bans in Republican-controlled states.
But despite a push that began weeks ago after a leaked draft court opinion, Biden has taken only limited steps since the decision was released Friday to preserve women’s access to abortion. He vowed to protect the rights of women to travel to another state to seek an abortion and to access federally approved abortion medication through the mail, but has stopped short of issuing executive actions that would put him in direct conflict with GOP-led states and potentially the Supreme Court, such as offering abortions on federal property.
White House officials said he’s continuing to consider his options. But Democratic lawmakers are frustrated, even though experts said Biden administration officials are limited in how much they can do legally and that any step will draw instant litigation.
“There’s a lot of steps they can take that are in the direction of supporting reproductive care, but he doesn’t have a lot of major actions he can take by his executive authority in my view,” said Nicole Huberfeld, a professor of Health Law, Ethics & Human Rights at Boston University’s School of Public Health.
Biden is hemmed in by state authority in medical licensing, as well as court precedents and existing legal restrictions such as the prohibition on using federal money to pay for abortions in most cases.
“The only way we can secure a woman’s right to choose and the balance that existed is for Congress to restore the protections of Roe v. Wade as federal law,” Biden said Friday, urging voters to elect more abortion rights supporters this fall. “No executive action from the president can do that.”
Still, the White House seemed unprepared to address the issue on Friday with a series of even limited steps, despite knowing for weeks a decision was coming that likely would overturn Roe v. Wade, said Lawrence O. Gostin, director of Georgetown University’s O’Neill Institute for National & Global Health Law.
“Right now, it looks like he’s leading from behind and the White House can’t sit back and be a spectator,” he said. “Women in America really have no place to turn other than to the president of the United States because if they live in a red state the politics are hopeless for them and if they go to Congress, the politics are even more hopeless.”
Gostin said Biden has other things he could do with his authority, such as asking the Food and Drug Administration to make abortion medication available over the counter or from a pharmacist instead of the current requirement to be prescribed by a doctor.
Many Democrats agree there are additional steps Biden can take and are publicly pushing him to do more. Although the party holds narrow congressional majorities, it’s been unable to protect abortion rights because of Republican opposition and the need for 60 votes to pass most legislation in the Senate.
“Now is the time for bold action to protect the right to an abortion,” a group of 34 Senate Democrats, led by Patty Murray of Washington and including Elizabeth Warren and Ed Markey of Massachusetts, wrote to Biden on Saturday. They said they appreciated his acknowledgment in his Friday speech that the “health and life of women across this nation are now at risk.”
But the senators emphasized there was no time to waste and told Biden he has “the power to fight back and lead a national response to this devastating decision.”
“There’s a lot that the administration can do right now,” Warren told the Globe. Warren and other senators have urged him to, among other things, increase access to abortion medication, provide low-income federal employees who live in states banning abortion with child care and travel vouchers if they need to go to another state for an abortion, and explore offering reproductive health services on federal property, particularly in states where abortion access is restricted or ended.
“I want the administration to look at all of its options here,” Senator Maggie Hassan, a New Hampshire Democrat, said Monday.
Representative Ayanna Pressley of Boston led a group of Black congresswomen in the House on Friday in urging Biden to “use all applicable executive authorities,” including declaring a public health and national emergency. Such a move would expand presidential powers to respond to a crisis as it did during the pandemic.
But Huberfeld said declaring an emergency might not change much, given rulings by the Supreme Court during the pandemic that blocked the administration’s mandate for vaccinations or testing of employees at large companies and ended an eviction moratorium last year.
The White House said Biden, who is in Europe for a summit of leaders from the world’s top democracies this week, is considering additional steps. But Vice President Kamala Harris on Monday appeared to reject the idea of offering abortions on federal property in states where it is banned, telling CNN that “it’s not right now what we are discussing.”
Still, the administration sought to show it was taking action. On Monday, three Cabinet secretaries, Xavier Becerra of Health and Human Services, Martin Walsh of Labor, and Janet Yellen of Treasury, wrote to health insurers reiterating that federal law requires them to provide contraceptive coverage at no additional cost.
Access to abortion medication is more complicated. The FDA last year eased restrictions on the two-pill regimen, which is authorized to end pregnancies up to 10 weeks of gestation. Women now can receive the medication through the mail after a virtual visit with a doctor instead of having to obtain the pills in person.
Nineteen states have laws banning abortion pills from being prescribed during a telehealth visit, according to the Guttmacher Institute, an abortion rights research organization. Some states want to ban them entirely while abortion rights advocates want to increase access.
Attorney General Merrick Garland said that states are not allowed to ban the medication “based on disagreement with the FDA’s expert judgment about its safety and efficacy.” Court cases have upheld that principle, Huberfeld said.
“States that try to specifically outlaw medication abortion directly are probably treading on thin ice,” she said.
But any steps the administration takes to expand abortion access through executive action is likely to be challenged in court. Still, Gostin said Biden has options that are worth trying.
“He can do a lot more than he’s doing, but he can’t do everything,” Gostin said. “He can’t order states to allow abortions. Only Congress can do that. But short of that, he’s got a lot of options.”
Jess Bidgood of the Globe staff contributed to this report.