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How the White House is responding to Roe v. Wade


The Supreme Court's decision to overturn Roe v. Wade has created a legal mess in this country. The latest example is in Texas. The attorney general there, Ken Paxton, is suing the Biden administration over federal rules that say abortions are legal if the life of the mother is in jeopardy. Before that suit came down, I talked with Jennifer Klein. She's the executive director of the White House Gender Policy Council. The Biden administration is feeling pressure from two sides - Republican states trying to further restrict abortion and progressive Democrats who say that the administration's response has been too little too late, despite an executive order the president signed that tries to shore up protections for abortion providers and access to reproductive health care.

You knew this was coming. The White House knew that this moment was coming, especially after the leaked decision. Why didn't the president have the executive order at hand, ready to sign the very same date that the Dobbs decision came down? Why did it take 14 days?

JENNIFER KLEIN: When the decision came down, the president immediately gave a speech with two particular actions in mind. The first was to preserve access to medication abortion and contraception, vitally needed reproductive health services. And the second was to ensure that we are protecting people's fundamental right to travel to seek reproductive health services. So...

MARTIN: And I want to get into some of the specifics of the executive order, but why wasn't it just ready to go?

KLEIN: Well, you know, we had a leaked opinion, and we all assumed that the leaked opinion was the opinion. But we didn't know that, and we wanted to be sure that we were responding to the actual decision in the Supreme Court. And we also didn't know exactly what states were going to do. Again, we anticipated that they would begin immediately, as they did, to pass restrictions and bans on abortion services, and in fact, that's exactly what happened.

So, first of all, I always take issue with the insinuation that two weeks was a long time. I think two weeks is actually a very short time. And the president really said this himself. But I understand the frustration. I feel it myself. I understand the fury at the Supreme Court for taking away women's fundamental rights to abortion. But here's what we all need to keep in mind, which is that you can't replace the overturning of nearly 50 years of precedent with executive action.

And really, the longer-term effective solution, which, again, the president laid out very quickly and, again, you know, days later spoke to the need to - for an exemption to the filibuster rule to make sure this happens. What we need is national legislation. That legislation exists. It's passed the House. We need it to pass the Senate. It's called the Women's Health Protection Act, and it would effectively restore the protections that are in Roe. And we need members of Congress who reflect the will of the - of their constituents, the will of the majority, who disagree with the Supreme Court's decision to overturn Roe and feel that abortion should be legal nationwide.

MARTIN: Let me ask, though - half of U.S. states had trigger laws or other abortion bans that were already in place before the Dobbs decision. So more than a dozen had passed laws specifically designed to take effect if Roe was overturned. So was there really any doubt about what states were going to do?

KLEIN: I didn't mean to suggest there is doubt about what states are going to do. But let me be clear - what has ensued is legal chaos. I mean, not only do states have trigger laws; they also had what are called zombie laws, laws that were on the books that - you know, nobody knew whether they would, in fact, go back into place. And, of course, as we've seen, states have either already held special sessions to enact restrictive laws or they're planning to go ahead and do that in their next legislative session.

So, you know, anybody who suggests that what has happened is clarity in the law is really missing the point. You know, I'm talking to governors, state and local officials, legislators across the country, all of whom are trying to figure out, as cases wind their way through the courts, exactly what law does control and what risk patients have, providers have and they as state and local officials have.

MARTIN: So let's talk about that. The White House has been trying to reassure abortion providers that, in an emergency, if a woman's health is in question, they are still legally permitted to carry out abortions. But if you're an abortion doctor in Texas, there's a real risk that in doing so, you're going to risk state prosecution, and the case is going to wind up in the courts. Is your message to these doctors just do the procedure anyway, and we'll deal with the legal stuff on the other end?

KLEIN: No, our message to providers is, you know, what you are experiencing is real and deeply concerning, and that's why the Department of Health and Human Services issued guidance affirming that the Emergency Medical Treatment Active Labor Act - what people refer to as EMTALA - protects providers that offer abortion services in emergency situations. Secretary Becerra also, as I'm sure you've seen, issued a letter to providers making clear that federal law preempts state law restricting access to abortion in emergency situations.

MARTIN: But if a state or local prosecutor tries to charge a doctor for providing care in an emergency or prosecute someone for helping a friend who's trying to get an abortion across state lines, what assurances can the Biden administration offer these people?

KLEIN: Yeah, I think the problem you've pointed to is real. The risks are falling to patients, and the risks are falling to providers. You know, providers are even concerned about offering, for example, mifepristone in the case of miscarriage management because they're not sure whether they're going to be prosecuted in a state which now has restrictions on mifepristone or on bans. The Biden administration is very clear about what we can do within executive action to protect patients, providers and this right, this fundamental right that has been ripped away by the Supreme Court. But I think we all have to be realistic that it's going to be, you know, not months but years before there is a deeper understanding of what the impact is on human beings across this country.

MARTIN: The president has said it's time to eliminate the filibuster as a result of the Dobbs decision. How's he going to make that happen?

KLEIN: I'm not going to speak to the conversations that the president has, but, you know, he is working to make that happen.

MARTIN: Before she left her position last week, White House Communications Director Kate Bedingfield gave a statement to The Washington Post, pushing back against critics of the administration who have complained of a lackluster response. And I'm going to read part of this here. Quote, "Joe Biden's goal in responding to Dobbs is not to satisfy some activists who've been consistently out of step with the mainstream of the Democratic Party; it's to deliver help to women who are in danger and assemble a broad-based coalition to defend a woman's right to choose." NPR/PBS/Marist did a poll recently showing that roughly two-thirds of Americans did not want Roe overturned. So how are abortion rights activists out of step with the mainstream of the party?

KLEIN: They're not out of step, and that was not what was intended by Kate's statement. The point we want to make is that we are doing everything we can as quickly as we can to address, you know, an issue that is now in front of all of us. We are considering every option, and we will continue to do that to make sure that we can protect reproductive rights, health and justice.

MARTIN: She may not have meant to say that, but that's what she said, and it's caused a big rift with progressives in the party. Rebecca Traister wrote a piece for New York magazine, and this is what it says in particular about Bedingfield's remark. Quote, "Democratic leadership reflexively treats its activist flank - very often, people advocating for more humane policies for more people - as the enemy." Do you want to respond to that?

KLEIN: I think what we really need to do is focus on the real enemy here. And, you know, I wouldn't even use that term. But I think the stakes are really clear and the contrast is really clear between those who want to protect reproductive rights and health and those who - you know, by the way, Republicans have been quite clear on the Hill that if given the chance, they would pass a nationwide ban. So I think we all should just keep our eye on the ball that what has just happened is that the Supreme Court has acted to take away a constitutional right that has been protected for nearly 50 years, and what we need to do is pass national federal legislation to protect that because it takes all of us. It is going to continue to take all of us to actually address this issue.

MARTIN: What exactly is the legislative approach here, though? Because it would take a monumental win by Democrats in the fall that would defy patterns of American politics to get the votes needed to codify Roe? Would the White House accept a compromise bill that doesn't go as far?

KLEIN: I certainly don't think we are there yet. I mean, the Women's Health Protection Act is going to be voted on again very soon. So I really think that what we need to focus on is trying to pass that piece of legislation. It exists. It passed the House. And we need just a few more votes in the Senate for it to pass the Senate.

MARTIN: But is that realistic? I mean, are you close to getting those votes at all?

KLEIN: We're going to keep trying. And we are doing everything we can, and we'll continue to, to work with whoever on the Hill is willing to work with us to make that happen.

MARTIN: You've noted a strong majority of American voters oppose overturning Roe v. Wade - we talked about that - and support access to abortion in many or most situations. Why have Democrats had a hard time effectively harnessing public opinion to protect abortion rights? What's missing from a national strategy here?

KLEIN: I don't think anything's missing. And I think that what we have seen is a very determined, intense minority determining policy. And I think that moment is over because the Supreme Court has acted to overturn Roe. And, you know, as people who maybe didn't even realize what was going to happen, maybe didn't even believe that this was going to happen, are now shocked into realizing that is exactly what did happen. And I think, you know, what you're seeing is the majority of people who have long supported reproductive rights are now even more motivated to ensure that the people who represent them respect those rights and will fight for those rights.

MARTIN: Jennifer Klein is executive director of the White House Gender Policy Council. She heads the Biden administration's effort responding to the overturning of Roe v. Wade. We so appreciate your time. Thank you very much.

KLEIN: Thanks for having me. Transcript provided by NPR, Copyright NPR.

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