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There Is Only One Way for Biden To Fulfill His Promise To “Restore Roe”

If the president truly wants to protect reproductive rights, he’s going to have to do what he’s so far refused even to consider: expand the Supreme Court.

President Joe Biden speaks during a campaign rally to “Restore Roe” in Manassas, Va,, on January 23, 2024.,Saul Loeb / AFP via Getty Images

At a campaign rally in Manassas, Va., on the night that Donald Trump effectively locked up the Republican Party’s nomination by winning the New Hampshire primary, President Joe Biden and Vice President Kamala Harris kicked off their reelection campaign. They focused on a single issue: abortion rights. The two incumbents, and their spouses, gave speeches about the need to “restore Roe” and put the blame for its revocation squarely at Trump’s feet. “Let there be no mistake,” Biden said. “The person most responsible for taking away this freedom in America is Donald Trump. The reason women are being forced to travel across state lines for healthcare is Donald Trump…. The reason their fundamental right has been stripped away is Donald Trump.”

Biden’s decision to make abortion rights central to his campaign is unquestionably right. Trump, who can’t help putting his name on things like a boy pissing his initials in the snow, is happy to claim responsibility for the tragedies and human rights violations we’ve seen since the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization. If he’s elected, Trump might sign a national abortion ban passed by a Republican Congress. Biden would not. That is all the information I need to secure my vote for Biden this November.

Yet Biden’s insistence on blaming Trump for Dobbs, while empirically true, is also fundamentally misleading. The actual reason we’ve lost access to reproductive healthcare in this country is the Supreme Court. Yes, Trump nominated three of the six justices who voted to overturn Roe v. Wade, but literally any Republican who was president during the past 30 years would have done the same. I can prove that easily, because the three justices who joined the Trump ones in Dobbs were, in fact, appointed by different Republican presidents—and that includes the one who actually wrote the decision overturning Roe: Samuel Alito, a George W. Bush appointee.

Crediting Trump with taking away abortion rights is like saying George H.W. Bush “won the cold war.” Trump’s not the guy who orchestrated this: he’s just the simpleton who was in charge when the wall came down.

Blaming Trump as the one true villain may feel satisfying—and it probably makes political sense—but it also allows Biden to avoid talking about the real problem and lets him and the senators running on his coattails sidestep the only real solution: expanding the Supreme Court. There is simply nothing the elected branches of government—the president and Congress—can do to “restore Roe” without expanding the Supreme Court. Legislation and executive orders are of no use in the face of an extremist Republican judiciary willing to prohibit care and let people who are pregnant die.

You cannot be for abortion rights but against the Supreme Court’s expansion anymore. The two are now inextricably linked. Biden and other establishment Democrats are essentially lying to you when they pretend that they can restore through legislation what the court took by fiat. Either we expand the Supreme Court and break the conservative supermajority, or we accept that women and pregnant people are second-class citizens who will lack equal access to healthcare for a generation. That is the world we live in, and the people who deny it are selling you a fantasy.

The Biden administration’s new “actions” to protect reproductive rights—offered on the 51st anniversary of the Roe decision—show just how useless executive power is on this issue as long as conservatives control the courts. The administration announced plans to expand access to contraceptives under the Affordable Care Act, which is good. But the announcement didn’t include plans to expand access to mifepristone, one of the key drugs in the most widely used method for terminating pregnancies. And that’s because the Supreme Court is poised to make a major ruling on this pill, which would supersede any access to the medication that Biden might like to provide.

Biden also announced a plan to “educate” patients and healthcare providers about their rights under the Emergency Medical Treatment and Labor Act, which mandates that hospitals and emergency rooms provide lifesaving care regardless of a person’s insurance or ability to pay. Biden says that EMTALA covers abortions in situations where the mother’s life is at risk, but states like Idaho and Texas say it doesn’t. The two states have sued the Biden administration, and the Supreme Court recently agreed to hear Idaho’s case.

Biden can “educate” patients and doctors all he wants, but who is going to tell Idaho and Texas that they’re wrong—Congress, which wrote the law? The president, who enforces it? No, the Supreme Court will decide whether Idaho and Texas can jail doctors who attempt to provide lifesaving care in emergency rooms, while the Biden administration sits back and accepts the ruling of six conservative extremists that nobody voted for.

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Both the mifepristone case and the EMTALA case will likely be decided by the Supreme Court in June, before the presidential election. If the court moves to further restrict reproductive rights, you’ll probably hear a lot about it at the Democratic National Convention in Chicago this August. But what you won’t hear are promises from the Democratic candidates to actually fix the problem. They’ll cry and moan and blame Trump and the MAGA Republicans, and they’ll promise “action” if they’re elected to office. But they will avoid talking about expanding the Supreme Court, which is the one action that can be taken to stop the torrent of anti-abortion rulings being issued by this court.

Look, I get that Trump is the easier target. He’s the perfect poster boy for the misogyny and filth that animate conservative rulings against reproductive rights. And I get that in our low-information, attention-deficient, celebrity-obsessed society, pretending that a president can single-handedly “restore Roe” is perhaps a necessary fiction. But abortion rights and access to lifesaving reproductive care will never again be allowed in the United States as long as conservative justices are allowed to control the Supreme Court.

And conservative justices will control the court, for the rest of my life and yours, as long as the Democrats refuse to commit to a platform of court expansion. There are simply no other options. The electoral binary is not “Biden” or “Trump”; it’s “expand the court” or “let pregnant people die.”

Elie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed @ElieNYC.

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