In the days since a leaked advisory showed the Supreme Court appears to be on track Roe to Wade, there seems to be a sort of acceptance among government officials.
Democrats are limited in Congress due to both their slim Senate majority and the disagreement within their caucus over abortion rights, so any federal legislation is likely to be off the table for now. The White House is also beginning to signal that options are limited, with: outside advisers tell the Washington Post about the obstacles ahead.
This response talks about real challenges lawmakers face, and the legal backlash the White House could face from executive action. But it’s still disappointing for proponents who want the Biden administration to do that take more creative approaches which could continue the fight against access to abortion.
There are no silver bullets here. Something the administration tries would almost certainly be challenged, often in courts full of Republican appointees. And while they may help on the margins, none of the available actions would fully restore abortion rights in states where they are under threat.
“I think what comes next is a new legal tactic. I would be really pessimistic that the courts, stacked up as they are, would be admissible, but that doesn’t mean we shouldn’t try,” said Khiara Bridges, a law professor from UC Berkeley and faculty director of the Center on Reproductive Rights and Justice.
In a press statement on Tuesday, Biden said he had called on the White House Gender Policy Council and White House counsel to “prepare options for a government response.” He also noted that the government would have its plans ready when a Supreme Court decision is final. “We will be ready when a ruling is made,” Biden stressed. A White House spokesperson did not respond to a request for comment on this story.
According to experts and advocates who spoke with cafemadrid, here are a few avenues the administration could consider.
Increase access to drug abortion by challenging state laws
The government could pass state laws limiting people’s access to drug-induced abortion, also known as the abortion pill. This “pill”, which actually contains two drugs — mifepristone and misoprostol — was first approved by the FDA in 2000 and used in 54 percent of abortions in 2020†
If successful, it could allow people in all states, even places that have abortion bans, to have a drug-induced abortion up to 10 weeks into a pregnancy.
The FDA has already enacted regulations that make it easier to get a drug-induced abortion. In April 2021, it approved changes that would allow people to receive a prescription via telemedicine and receive medicines by mail, an arrangement the agency made permanent in December.
nineteen states, however, have passed laws that directly contradict FDA regulations requiring people to consume abortion pills in the presence of a doctor.
Legal experts argue that the Department of Justice could challenge these laws, as federal regulation supersedes state policy. If roe falls, it would also mean that such challenges could try to maintain access to drug abortion in all states, even those that are trying to implement wholesale bans.
“A similar argument has worked for another drug before,” write University of Pittsburgh law professor David Cohen and University of Pittsburgh law professor Rachel Rebouché, and Rachel Rebouché. a New York Times opinion piece outline possible executive actions. In 2014, a drug company contested Massachusetts’ attempt to regulate an opioid drug differently from the federal government, and won.
In this scenario, the legal challenge could be filed by the Department of Justice, an abortion drug manufacturer, or abortion providers. When asked about this option, An adviser to Biden told the New York Times that the president wouldn’t tell the DOJ what to do.
This approach, like any that Biden is taking through executive action, is about to meet significant opposition. A gray area, says Boston University law professor Nicole Huberfeld, is the jurisdiction states have over what doctors and health care providers can do, since the FDA’s authority doesn’t address the restrictions a state places on doctors and pharmacists.
However, if the challenge were to succeed, it could mean that people in all 50 states would have access to drug abortion.
“We are well aware that these can be challenged and they can lose, but there is no need to close options until you’ve tried them and let the other side win before you’ve even fought the battle” , Cohen told cafemadrid.
Allowing Clinics to Settle on Federal Lands
In states that have banned abortions, the federal government could also try to lease federal lands and allow clinics to operate on them.
Because federal lands are not subject to the civil laws of the state, and there is room to interpret criminal laws, clinics could theoretically settle in places such as military bases and tribal lands, without having to deal with a state’s prohibitions. “Even if the country is within a state’s border, it would not be governed by the laws of a state,” Bridges said.
Any activity on these lands would instead be governed by federal law, meaning providers operating there and people traveling there for abortions would not face state penalties. Cohen notes that there have been instances in the past where a state’s right to work laws did not apply to the way companies approach unionization when they are on federal lands.
However, the exact approach has not been tested and is also about to face legal backlash from those who oppose it.
Enforce Medicaid Coverage in States Trying to Enact an Outright Ban
Because of the Hyde Amendment, federal funds cannot be used for most abortions, although there are exceptions for rape, incest, and cases where a pregnant woman’s life is at risk. In practice, this has left Medicaid unable to cover many abortions, although it can still be used in rare cases. (States can also use their own Medicaid money to cover abortions, but the federal government has little say in how these funds are applied.)
some states, including Arkansas, Kentucky and Louisiana, have trigger laws that would go into effect if: roe is tipped over. These laws would ban abortion even under some of the exceptions set out in the Hyde amendment. Arkansas law, for example, makes no exceptions for rape or incest cases.
For such bans, the government could argue that federal Medicaid funds should still be used to cover abortions in the narrow areas where they apply. The Department of Health and Human Services could encourage states to continue paying attention to abortion, as well as abortion services, in these specific cases.
“The states are supposed to cover abortion services allowed by the Hyde Amendment under Medicaid,” said Allison Hoffman, a law professor at the University of Pennsylvania. “HHS could encourage them to do so. HHS could also seek to enforce a state’s violation of federal law by not addressing it.”
This policy would not apply to many abortions and could also face legal problems, but it could allow some people to retain access.
Such enforcement would likely come in the form of a warning issued by HHS to states, said Nicole Huberfeld, a law professor at Boston University. The agency is unlikely to withhold Medicaid funding because of the harm providers and recipients would cause, she notes.
Lawyers want more from the White House
Proponents have long reprimanded the White House because they don’t do enough about abortion rights, both in the pulpit and in the implementation of the policy. Biden for example first said the word ‘abortion’ in public since he took office this week.
In addition to executive actions, activists have urged the president to be more outspoken about his support for the issue in general. “If he doesn’t even talk about abortion (no votes or budget needed) or give us a plan, he won’t go bold to protect us,” We Testify Executive Director Renee Bracey Sherman posted on Twitter on Wednesday.
Biden hesitated for much of his career to embrace abortion rights. He questioned the Supreme Court’s initial decision: roe and once voted for an amendment that would have allowed states to nullify it, change course in 1983. Similarly, on the Hyde amendment, he previously preferred to keep it and relented after a serious backlash from his party.
Biden’s reluctance to use the term “abortion” is also linked to what he sees as politically tenable. “Long-term advisers said Mr Biden’s stance on the matter was clear and he preferred to use words like ‘privacy’ rather than ‘abortion’ as it appealed to a wider audience,” said Peter Baker of the New York Times.
Proponents note that they are only urging the administration to consider all available channels, even when the outlook looks bleak.
“We’ve seen in recent years and the pandemic what the federal government could do,” said Morgan Hopkins, the executive director of campaigns at advocacy group All Above All. “People who need abortions deserve that kind of energy.”