HEALTH CARE BRIEFING: Biden, Harris Spotlight Abortion Access

By Brandon Lee

Bloomberg Government subscribers get the stories like this first. Act now and gain unlimited access to everything you need to know. Learn more.

Vice President Kamala Harris, in a fiery speech Tuesday night, accused Republicans of attacking women’s rights and called for Americans who support “self-determination” to stand with Democrats, following news that the Supreme Court is poised to strike down Roe v. Wade.

In her address, which was just over nine minutes long, Harris argued that a court decision to end the national right to abortion would open the door to the justices stripping away other rights, including same-sex marriage. She drew sharp contrasts with Republicans, who she said sought to limit the freedom of women and other Americans.

Senator Maggie Hassan, a New Hampshire Democrat who Republicans are targeting for defeat in November, called the midterms “the most important election of our lifetimes” in her own speech Tuesday to the Emily’s List conference.

“On the ballot will be a woman’s fundamental right to be a full and equal citizen in our democracy,” Hassan said, according to prepared remarks. “The Republican men — and yes, they are all men — running against me are all pushing an extreme, anti-choice agenda. If elected to the Senate, they would ban abortion with no exceptions for rape or incest.” Read more from Josh Wingrove and Emma Kinery.

Biden Urges Uphill Battle to Codify Roe: President Joe Biden urged the election of more lawmakers who support abortion rights and said he will seek to enshrine the protections of Roe v. Wade into U.S. law, following a report that the Supreme Court is poised to strike down the landmark ruling. “At the federal level, we will need more pro-choice senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law,” Biden said in a statement Tuesday.

But that’s an unlikely outcome. Writing the protections of the Roe v. Wade decision into U.S. statute would be one of the most difficult legislative battles of the modern era. Under current rules, abortion rights-supporting Democrats and the few Republicans who ally with them would need to hold at least 60 seats in the Senate to pass the bill over a filibuster.

At the moment, Democrats lack the votes to pass Roe legislation even by a simple majority. A House-passed bill to codify Roe was blocked in February in the Senate on a 46-48 vote. Sen. Joe Manchin (D-W.Va.), a centrist Democrat who has obstructed much of Biden’s agenda, voted with Republicans to filibuster the measure.

Senate Majority Leader Charles Schumer (D-N.Y.) said in floor remarks on Tuesday that he’ll soon force another vote on codifying Roe. Jenny Leonard, Steven T. Dennis, Jennifer Jacobs, and Josh Wingrove have more.

  • Rep. Alexandria Ocasio-Cortez and Sen. Bernie Sanders on Tuesday called on Democrats to challenge one of their own, Sen. Kyrsten Sinema (D-Ariz.), when she is up for re-election in 2024 because of her resistance to ending the Senate’s 60-vote threshold to protect abortion rights. Read more from Megan Scully.

Conservative Justices Long Played Up Roe Ambiguity: The Supreme Court draft opinion overturning Roe v. Wade follows decades of deliberate ambiguity cultivated by the conservative justices about the legal status of U.S. abortion rights. Justice Samuel Alito wrote in the draft that the landmark 1973 ruling was “egregiously wrong from the start” and “must be overturned.” Politico reports Justices Clarence Thomas, Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett, all Republican nominees, also voted with Alito.

But Alito and the other conservative justices said during their respective Senate confirmation hearings that Roe v. Wade was entitled to respect as a legal precedent that’s been the law of the land for decades. It’s a doctrine known as “stare decisis,” which is Latin for “to stand by things decided.”

In his 2006 confirmation hearings, Alito called Roe v. Wade a “very important precedent,” noting that it had been reaffirmed a number of times. “I think stare decisis reflects the view that there is wisdom embedded in decisions that have been made by prior justices who take the same oath and are scholars and are conscientious, and when they examine a question and they reach a conclusion,” Alito said to Sen. Dick Durbin (D-Ill.) at the time. “That’s entitled to considerable respect.” Read more from Anthony Lin.

  • Susan Collins suggested Justices Neil Gorsuch and Brett Kavanaugh misled the Senate on whether they would support overturning Roe. If the report on the draft is true, “it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office,” wrote Collins (R-Maine) in a statement Tuesday. Sen. Lisa Murkowski (R-Alaska), another GOP supporter of Roe, said she also was surprised by the draft. Steven T. Dennis and Laura Litvan have more.

Door Ajar for Long-Dormant State Abortion Bans: Some abortion opponents argue 175-year-old abortion bans would come back into effect if the court officially strikes down or severely limits Roe v. Wade. If the court scuttles Roe as described in the draft opinion, it is expected to send the battle to the statehouses by giving each state the right to determine if abortion should be legal inside its borders in a way reviving the exact problem Roe sought to solve with a national law to replace a patchwork of state laws. David Welch and Francesca Maglione have more.

  • Rachel Rebouché, interim dean of Temple University Beasley School of Law in Philadelphia, said she disagreed with what she views as the draft’s assumption that litigation will stop when the issue is returned to the states. “I don’t think that what we’re approaching is this kind of simple world in which states legislate and that’s that. I think there are going to be continuing questions about what are the parameters for state legislation,” Rebouché said. Read more from Madison Alder and Lydia Wheeler.
  • What’s not clear is whether states can enforce their laws beyond their own borders—in particular, by trying to stop their residents from traveling across state lines to terminate a pregnancy. Trying to impose their abortion policies upon other states is what one legal expert calls “the next frontier in anti-abortion legislation.” Read more from Lydia Wheeler.
  • Earlier: Where Abortion Disappears If the U.S. Supreme Court Guts Roe

Texas Defends Six-Week Ban in Appeal: The U.S. has no reason to wade into a dispute over a Texas law that bans abortions after six weeks because no evidence of harm to the federal government exists, the state claims in urging the Fifth Circuit to dismiss the U.S. suit. Texas wants the Fifth Circuit to overturn a lower court’s verdict that blocked enforcement. The U.S. government’s case is partially based on the argument that the law incompatible with federal programs in Texas that impose abortion-related obligations on federal officials. Mary Anne Pazanowski has more.

Abortion Pill Access Will Remain Post-Roe: FDA Rules Explained: If the high court strikes down a person’s right to an abortion, pregnant individuals would still be able to access the pill mifepristone in states that don’t restrict it. The FDA’s regulation of the pill wouldn’t change, but a patchwork of abortion laws could raise questions over states’ authority to impose restrictions that go beyond what the agency recommends. Read more from Celine Castronuovo.

Anti-Abortion Rights Democrat Hit by Rival After Leaked Draft: The primary challenger to Rep. Henry Cuellar, the lone House Democrat to oppose abortion rights, quickly seized on the leaked draft opinion that would overturn Roe v. Wade to boost turnout and bolster her case to unseat him in a May 24 runoff election in Texas. In a fundraising email Tuesday, Jessica Cisneros said Cuellar “could very much be the deciding vote on the future of our reproductive rights in this country.” Emily Wilks has more on how it could impact the race.

Democrats Limited in Abortion Case Response — BGOV OnPoint: Democrats were quick to denounce the leaked draft opinion, but they have few potential tools in Congress to respond. This presentation covers past legislative attempts to codify Roe, lawmakers to watch, state abortion laws, and next steps in Congress. Download the BGOV OnPoint for more.

Alarm Raised Over Privacy, LGBTQ Rights: The draft verdict has progressives fearing the conservative majority could use the same reasoning to target LGBTQ, contraceptive and other rights. Other protections grounded in a constitutional right to privacy could be vulnerable to the same argument that they are not “deeply rooted in this Nation’s history and tradition,” the draft says. Its disapproval of a broad understanding right to privacy implicates sexual relations to marriage, legal scholars said. Kimberly Strawbridge Robinson and Jordan S. Rubin have more.

States Forming ‘Rainbow Wall’ for Transgender Youth, Families: Lawmakers and civil rights advocates announced Tuesday a 19-state coalition to create “a rainbow wall” of transgender refuges and pass laws to provide safe havens for trans youth and their families.

Bills advancing in California, New York, and Minnesota and being introduced in 16 other states are part of a national legislative campaign to protect trans youth and their families seeking gender-affirming care in response to laws passed in Texas and elsewhere. The bills, if enacted, would prevent enforcement of out-of-state orders restricting parental rights based on the parent approving care such as surgeries or drugs used to help individuals transition from their gender assigned at birth. Read more from Joyce E. Cutler.

More Headlines:

Also Happening on the Hill

Hearings on the Hill:

  • The Senate Appropriations Labor-HHS-Education Subcommittee will hear testimony on Wednesday from Health and Human Services Secretary Xavier Becerra on the department’s fiscal 2023 budget request.
  • The Senate Veterans’ Affairs Committee plans a hearing on Wednesday to consider the nomination of Shereef Elnahal, president and CEO of University Hospital in Newark, N.J., to be under secretary for health at the Veterans Affairs Department.
  • The Senate Foreign Relations Committee Wednesday will consider the nomination of John Nkengasong to be ambassador-at-large and coordinator of U.S. Government Activities to Combat HIV/AIDS Globally.
  • Stay up to date on all of the week’s hearings with BGOV’s Calendar and Events.

Senate Floor: Senators Tuesday by a 55-41 vote passed S.J. Res. 39, which would end the Health and Human Services Department’s interim fine rule generally requiring children age 2 and older in the Head Start program to wear a mask. The rule, which was published on Nov. 30, 2021, also generally required all Head Start employees, contractors, and volunteers to wear masks and be fully vaccinated by Jan. 31 to mitigate the spread of Covid-19. The measure is expected to be blocked by Democrats in the House.

What Else to Know Today

Califf Laments Science Being Hindered by Politics: U.S. science leaders are struggling with cultural and political tensions that are hampering use of Covid vaccines and treatments and acknowledging they need help from social scientists to send a clear, accurate message. “The application of the science is deeply political in the environment that we’re currently in,” FDA Commissioner Robert Califf said Tuesday. “It’s inappropriate to say you shouldn’t take into account culture and politics. Somehow we’ve got to protect the science part of it.” Jeannie Baumann has more.

Pfizer Says Paxlovid Takers Who Relapse Can Take More: Pfizer executives said patients who suffer a relapse in Covid-19 symptoms after taking a full course of Paxlovid should take more of the treatment, although current U.S. guidelines limit use to five consecutive days. “Paxlovid does what has to do: it reduces the viral load,” Pfizer’s Chief Executive Officer Albert Bourla said. “Then your body is supposed to do the job.” But for unknown reasons, Bourla said, some can’t clear the virus with just one course. Riley Griffin, Madison Muller, and Robert Langreth have more.

Biogen Walks From Alzheimer’s Flop With CEO Departing: Biogen’s CEO will depart and the biotechnology firm is planning more deep cost cuts as it tries to move beyond a disastrous rollout of its controversial Alzheimer’s disease drug Aduhelm. Michel Vounatsos plans to step down from the top job once a successor is appointed, Biogen said in a statement Tuesday. At the same time, Biogen said it’ll shed virtually all its commercial infrastructure for Aduhelm, resulting in $500 million in cuts beyond the $500 million it previously announced. Read more from Robert Langreth.

Vaccine Mandates at Work Part of ‘New Normal,’ Employers Say: About four in 10 employers have some type of Covid-19 vaccine mandate for their workers, according to a survey by Littler Mendelson P.C., marking a huge increase from the last time the management-side law firm polled companies on the issue. Read more from Robert Iafolla.

More Headlines:

To contact the reporter on this story: Brandon Lee in Washington at blee@bgov.com

To contact the editors responsible for this story: Giuseppe Macri at gmacri@bgov.com; Michaela Ross at mross@bgov.com

Stay informed with more news like this – from the largest team of reporters on Capitol Hill – subscribe to Bloomberg Government today. Learn more.

Top