'Major hurdles': The reality check behind Biden's big abortion promise

President Joe Biden has repeatedly said that if re-elected, he would reverse the Trump-era actions that transformed abortion rights in America and make Roe v. Wade protections the law of the land.

“Donald Trump is the reason Roe v. Wade has ended," Biden's X account posted Monday. "If you reelect me and @KamalaHarris, we’ll be the reason it’s restored.”

In reality, Biden and Democrats nationally would have to defy a litany of challenges to make that happen.

A long, complicated path to that legislation landing on Biden's desk in the first place starts with the 2024 election.

Biden would have to not only win the White House again in November, but Democrats would also have to simultaneously reclaim the House and hold the Senate to pass that legislation in the first place. That would mean sweeping victories across the country and across the ballot.

“There are major hurdles,” said Naomi Cahn, a law expert in family planning with the University of Virginia Law School.

Biden acknowledged as much in his State of the Union address in March.

“If you, the American people, send me a Congress that supports the right to choose, I promise you I will restore Roe v. Wade as the law of the land again,” he said, acknowledging that Congress must first be reconstituted.

It's a big caveat.

Even if Democrats did sweep in November, there are additional hurdles at play in the Senate. They'll need either 60 Democratic votes to overcome a Republican filibuster or 50 Democrats willing to vote to make an exception to the rule.

And if Biden signed abortion protections into law, legal challenges would most likely arise, including whether "Congress has the authority under the Constitution to guarantee access to abortion," Cahn said.

There are still other ways a Biden administration could protect abortion rights, including through the Department of Health and Human Services and the Department of Justice. The DOJ, for instance, has said that the U.S. Postal Service could legally deliver abortion pills to states that banned or restricted the procedure. And the Biden administration is defending federal approval of the abortion pill mifepristone before the Supreme Court.

Biden’s promises on abortion are coming into focus as the campaign moves into the general election and the president has increasingly made the issue central to his re-election argument.

On Monday, Trump released a video statement saying he supported a state's ability to legislate reproductive rights. He did not say how he'd handle a federal abortion ban should it land on his desk if he's elected president.

Biden's campaign held a media call Monday in response to the statement, casting Trump as dangerous and warning of his past support for a national abortion ban and conflicting rhetoric on the issue.

And Monday evening, the president addressed the issue at a Chicago fundraiser.

“For 50 years, women didn’t have to worry about a fundamental right … and Trump took it away. Now, women today have fewer rights than their mothers and grandmothers," Biden told supporters, adding, “Mark my word … it's going to move millions of voters."

Trump campaign spokeswoman Karoline Leavitt called Biden "radically out of touch with the majority of Americans on the issue of abortion."

Now locked in a closely contested race against Trump, the Biden campaign believes abortion is an issue that will mobilize voters to turn out to vote for the Democratic ticket.

Michigan Gov. Gretchen Whitmer, a Democrat, appeared at an event in Arizona last week promoting a ballot measure that would chisel abortion rights into the state constitution.

“I know that it has mobilized people here and in Ohio, Kansas, Kentucky and Wisconsin,” Whitmer said of abortion rights in an interview with NBC News. “So, we have to talk about what’s really at risk here. Not just in Arizona, it’s all 50 states. The prospect of a national ban is real and would undo all the progress we’ve made in a state like Michigan or rights that have always been in existence in places like California or New York.”

Congress reality check

If Biden has any hope of restoring federal abortion rights, he will need a Democratic trifecta, highlighting the stakes of the congressional races. Should Republicans control either the House or the Senate next year, the cause is all but dead.

A Biden campaign spokesperson said Monday that the White House has endorsed the Women’s Health Protection Act, which would restore Roe v. Wade and add new federal protections for legal abortion. The spokesperson added that the president “will continue to call on Congress to pass a federal law that restores the protections of Roe.”

In the House, a small Democratic majority would be sufficient. In the Senate, getting around the filibuster will require 50 Democrats willing to vote to make an exception to the rule.

It's a tall order. Democrats currently have 51 Senate votes. They are expected to lose Sen. Joe Manchin’s seat in West Virginia, which puts them at 50. And Sen. Kyrsten Sinema, I-Ariz., is retiring, with Democratic Rep. Ruben Gallego vying for her seat. Gallego’s campaign told NBC News that he supports a filibuster carveout to codify abortion rights, meaning that it would need just a majority of votes.

If Gallego replaces Sinema and Democrats hold the rest of their seats, they’ll have 50 Senate votes, all of which are in play to support the filibuster carveout to codify abortion rights.

That's a steep hill to climb as it requires Democrats to defend Senate seats in competitive states such as Nevada, Wisconsin, Michigan and Pennsylvania — with their best chances to flip Republican-held seats coming in the red-leaning states of Texas and Florida.

Rep. Colin Allred, the Democrat facing Sen. Ted Cruz, R-Texas, is a co-sponsor of the Women’s Health Protection Act, and “he supports passing it with a carveout to the filibuster,” a spokesman said.

Florida Democratic Senate hopeful Debbie Mucarsel-Powell would also support a filibuster carveout to pass the Women's Health Protection Act, a campaign spokeswoman said.

Apart from Manchin and Sinema, the current slate of Senate Democrats has been supportive of piercing the filibuster. All of them voted to ditch it in 2022 in order to pass a federal voting rights law. And they have since added to their ranks Sen. John Fetterman, D-Pa., an outspoken proponent of nixing the filibuster.

The nitty-gritty of moving it through Congress

Also in 2022, the Women’s Health Protection Act won 49 Democratic votes in the Senate; the lone defector was Manchin. It failed 49-51, with all Republicans voting to block it.

In the House, the Women's Health Protection Act passed by a vote of 218-211 in September 2021. Just one Democrat defected: Rep. Henry Cuellar of Texas, who joined every Republican to vote against it.

Still, there are quiet divisions among Democrats about how far to go on legal abortion, which could come to the fore if they win control. Biden says he simply wants to restore the rights that existed before Dobbs, but many abortion rights advocates believe those rights were too narrow and allowed for state-based restrictions. The Women's Health Protection Act establishes a set of rights beyond what the Supreme Court had allowed prior to the Dobbs ruling, including establishing a broad set of protections for legal abortion that will make it difficult for states to impose restrictions.

However it would be resolved on the left, the White House argues that it would be a marked improvement from that of a Trump administration, which led to a wave of more stringent abortion laws in states across the country.

“When the President’s predecessor handpicked three Supreme Court justices to overturn Roe v. Wade, it paved the way for the chaos and confusion we’re seeing play out across the country today. As a result, there are 21 state abortion bans in effect — in nearly all of these states, women are being denied the care they need and doctors can be charged with a felony for simply doing their jobs," Jennifer Klein, director of the White House Gender Policy Council, said in a statement. "To ensure the right to choose for women in every state, Congress must restore the protections of Roe v. Wade. Only Congress can pass that law, which President Biden will sign.”