Photo: Adam Bettcher/AP
Last month, Kamala Harris made a last-minute change to her travel plans and flew to Atlanta to highlight devastating new reporting from ProPublica about a pair of Georgia mothers who died as a result of the state’s near-total abortion ban. They are the nation’s first officially documented “preventable” deaths related to abortion since the Supreme Court overturned Roe v. Wade. Amber Thurman and Candi Miller both died in 2022 — leaving young children behind — because they couldn’t get proper follow-up care after they took abortion pills and didn’t expel all the fetal tissue.
“Say her name: Amber Nicole Thurman,” Harris prompted the crowd in a powerful call-and-response moment, adding, “Good policy, logical policy, moral policy, humane policy is about saying a health-care provider will only start providing that care when you’re about to die?”
Harris was right to drop everything and pivot to highlighting these women’s tragic deaths as soon as she learned about them. She has run a particularly strong campaign on abortion rights in general and absolutely eviscerated Donald Trump on the topic during their first (and likely only) debate. But the question remains as to what a potential Harris administration could actually do about abortion, especially given the unlikelihood of Democrats winning a filibusterproof majority in Congress this November. Even without control of both chambers, though, she has some options. Here, a guide to what would be within (and without) Harris’s power as president.
Could Harris restore abortion access nationwide?
Potentially. One of Harris’s biggest policy promises on abortion is that she supports eliminating the filibuster to lower the voting threshold so that Congress can codify Roe into federal law. To accomplish this, however, she would need a Democratic majority in both the House and the Senate — and Democrats are unlikely to gain control of both chambers, at least in Harris’s first two years, if she’s elected.
So what could Harris do to protect abortion rights with a divided Congress?
One action that progressives have called for the Biden administration to take is to declare that the Food and Drug Administration’s rules governing the abortion pill mifepristone preempt contradictory state laws that ban or limit access to the medication. But that kind of move could backfire, according to Mary Ziegler, a law professor and abortion-rights expert at the University of California, Davis. “My guess is that the Biden administration thought it was too much of a reach legally and that the current Supreme Court isn’t a friendly forum,” she told me. “If it’s not a slam-dunk argument to begin with, maybe you’ll do more harm than good by landing there. Harris would have to decide if it’s worth the squeeze.”
A Harris administration would likely continue defending access to emergency care, even under state abortion bans, through enforcing the Emergency Medical Treatment and Active Labor Act. There’s also the matter of the Comstock Act, a dormant, 19th-century obscenity law that conservatives say Trump could direct the Department of Justice to enforce, if he were elected, as a backdoor national ban on abortion without exceptions for life of the pregnant person. Harris, at the very least, could instruct her DOJ not to enforce Comstock. She may also be able to convince some moderate Republicans who claim to support abortion rights, like senators Lisa Murkowski (Alaska) and Susan Collins (Maine), to support a full repeal of the law.
“It may be easier for Harris to go to Collins and Murkowski and say, ‘This law is completely bananas, right? This is a bridge too far for you, right?’” Ziegler said. “That would potentially be more doable with a closely divided Congress.”
Harris could also declare a public-health emergency under the Stafford Act, as Democratic lawmakers urged Biden to do in the wake of Roe being overturned. This move would free up federal resources to support safe-haven states and give the administration more power to accelerate access to new medications approved for abortions. And Harris has promised to repeal the Hyde Amendment, which prevents federal funds from covering the costs of abortions for people in need.
Could Harris pack the Supreme Court?
The most important and far-reaching impact a Harris administration could have on abortion rights is through the judiciary. The Supreme Court punted on two major abortion cases this past summer — one dealing with access to mifepristone and the other with emergency medical care for women who need abortions — without weighing in on the merits. Those cases will almost surely come back around after the election. And while Joe Biden didn’t have three SCOTUS vacancies fall into his lap the way Trump did, it’s possible that the situation may improve for the next president, as Clarence Thomas and Sam Alito are both in their 70s.
Progressive advocates have been calling on Democrats to expand the Supreme Court since before it overturned Roe, and on Monday, Senator Ron Wyden introduced a bill that would add six justices in addition to a host of other reforms. That bill certainly can’t pass in the current Senate, and Harris herself has stopped short of calling for SCOTUS expansion. But her stance could change down the line should Democrats manage to get the votes.
Meanwhile, Harris could continue to pack the lower federal courts with judges who are friendly to abortion rights. While Trump nominated more federal judges than Barack Obama had, Biden is on pace to nominate more federal judges than Trump. A Harris administration directly following could make a massive impact down the road on how these cases are handled in the courts. Ziegler pointed out that if states are fighting about whose law applies in a situation where a woman traveled from a red state to a blue state to get abortion care, for instance, the makeup of lower federal courts could decide the outcome of that fight.
In an ideal world, Democrats would win the majorities they need in the House and Senate to enshrine aggressive abortion protections into federal law. Barring that opportunity, Harris’s powers on the issue would largely be defensive. But the bottom line is this: Women are literally dying as a result of the policies enabled by the other candidate on the ballot this fall. Having any kind of fire wall in the White House that tries to defend against and potentially reverse the situation we’re in is the far better alternative.
