When it comes to restoring abortion rights in red states after the fall of Roe v. Wade, Democrats don’t have many options other than to urge people who support those rights to vote in November. They have passed a bill in the House protecting abortion rights, but Senate Republicans have blocked the legislation.
And President Biden can’t do much on his own. Of codifying abortion rights into federal law, he said: “No executive action from the president can do that.” On Wednesday Biden did say that he supported carving out an abortion exception to the filibuster; it’s still an unlikely path.
But is there anything he can do around the edges? This month, the White House met with abortion rights and reproductive rights groups to brainstorm possible actions the executive branch can take.
Some possibilities that abortion rights supporters are floating include:
Enable abortions to be performed on federal land in red states: The legal consensus is that it’s theoretically possible to set up an abortion clinic on a military base in, for example, Arkansas. (The Hyde Amendment does prohibits federal funding for most abortions, but it doesn’t necessarily come into play here; the federal government could simply open up its land and invite private doctors to perform the procedures and administer the medication.)
But doing this would be very difficult, and could put women or people who help them or the health care providers at legal risk, including jail time. That’s not a risk the federal government wants to take, according to legal experts.
The main sticking point is that state law can apply in the absence of federal law — and there is no federal law protecting abortion.
That means that a woman who travels to a certain part of Arkansas to get an abortion could later be prosecuted for it by the federal government. (In this scenario, since states don’t have jurisdiction over federal lands, it’s the federal government that would prosecute the abortion seekers and providers for violating state law.) The Biden administration obviously wouldn’t do this, but if a Republican administration takes over in 2025, women could retroactively face punishment for getting an abortion this way.
“You can’t do something unless you can promise doctors and patients that they are not going to face criminal liability,” said Leah Litman, a law professor at the University of Michigan who supports abortion rights and is host of the Supreme Courtpodcast “Strict Scrutiny.”
There’s no indication the White House is considering this option. Instead, they are focused on safeguarding a woman’s right to travel from state to state — Mississippi to Michigan, for example — to get an abortion. They’re also focused on ensuring access to federal government-approved pills for medicated abortion that a doctor can prescribe by telemedicine. (More on both those later.)
Declare a public health emergency: This could help government agencies prioritize research around abortion or help put together resources to help people seeking abortions — especially when paired with other authorities they have during emergencies and disasters, said Marya Torrez, the senior policy director at Planned Parenthood Federation of America. “The White House also plays a critical role in framing the narrative and treating this like the public health emergency that it is,” she said.
“There is no magic bullet,” said Health and Human Services Secretary Xavier Becerra at a recent news conference. “But if there is something we can do, we will find it and we will do it.”
Becerra said he’s already directing agencies he oversees to find more ways to protect patients’ privacy, and for the federal government to take more of an active role in training doctors and other health-care providers to help women seek abortion care.
Make abortion medication easier to access: The federal government has already made it easier for women to get abortion pills by mail or prescribed by telemedicine. And the government doesn’t require that women take them only in clinical settings. But only certain providers can prescribe mifepristone, one of two pills necessary for a medical abortion.
The federal government could change the guidelines to allow any medical provider to write a prescription for this medication and could expand the pharmacies where it can be picked up, said Elizabeth Nash, an abortion law expert with the Guttmacher Institute, a nonprofit research organization that supports abortion rights.
Mailed abortion pills became more popular even before the fall of Roe. As The Post’s Caroline Kitchener reports, an Austria-based group that mails abortion pills to all 50 U.S. states said orders from Texas increased by 1,000 percent when that state enacted its six-week ban in the fall. (Overseas pharmacies aren’t beholden to U.S. law.)
The Post reports that some abortion rights advocates are pushing the government to make abortion pills available over the counter but that such a move is unlikely because in some cases, the pills can cause heavy bleeding that requires medical assistance.
Currently, some states are considering banning these pills outright. And the Supreme Court could limit the federal government’s ability to override those state bans, said Litman.
Another problem is that medical abortions usually require several days to terminate a pregnancy. For many women in states that ban abortion, it’s difficult to impossible for them to take that time off work, figure out child care and travel to another state where they can access the medication.
Help with travel to get an abortion: America will be starkly divided between red states that restrict or outlaw abortion and blue states that move to codify abortion protections. The Biden administration could provide grants to those needing an abortion so they can travel to a state where the procedure is legal, or they can help parents with child care. That cost is often a major impediment for women left with only out-of-state options.
Already, the corporate world is considering this. Almost immediately after the Supreme Court announced its decision, Disney said it will cover the cost of employees traveling out of state to get abortions.
But the Biden administration would have to ensure that any such travel grant didn’t violate the Hyde Amendment, which prohibits the use of federal funds for abortion. (The military provides abortions for pregnancy resulting from rape or incest or that would endanger the mother’s life. On Friday, Defense Secretary Lloyd Austin said he was reviewing the decision and what it meant for military families stationed in states that restrict abortion rights even further.)
Help people understand abortion law in their states: The post-Roe landscape is confusing. State by state, the rules on where abortion is available and at what stage of a pregnancy are changing. The Biden administration has set up a website to help people navigate all this. But that’s probably as far as the administration can go in helping people obtain abortions, Litman said. She thinks anything further would violate the Hyde Amendment.
A reproductive rights activist — speaking on the condition of anonymity to discuss conversations with the White House — said she has urged White House to do a full-court press on how women can access abortion care, like it did while giving advice on covid-19. “There is a huge amount of misinformation out there,” she said, “and the federal government and executive branch can play a critical role in making sure people know how to access care.”
Clarify existing law on when someone can get reported for having an abortion: Nash said that as more people try to perform abortions under the radar, more people may end up in emergency rooms. Federal law does not require medical providers to call police when a patient violates state law by attempting an abortion when it is banned. Health-care workers don’t have to report that, she said, and the Biden administration could make that clear — to both health-care workers and women who might seek medical care after attempting an abortion.
On the other end of the spectrum, the administration is considering warning Americans who use apps to track their menstrual cycles that their data can be used to determine when someone is in the early stages of pregnancy, the New York Times reports.
Consider ways to expand access to other reproductive health care: Specifically, Nash said, the federal government — and state governments — could find ways to expand access to contraception, pregnancy care and sex education, so that women in conservative states who aren’t allowed to have an abortion have more resources.
Here, there could be some room for bipartisan action. Sen. Marco Rubio (Fla.), who, like most Republicans, celebrated the fall of Roe, is introducing legislation focused on this. He said in a statement that the government needs to expand the child tax credit for working families. And he wants more federal support to help mothers carry a pregnancy to term: “Expectant mothers — especially those who are surprised by, and unprepared for, pregnancy — require additional support in the form of mentorship, counseling, medical care and more,” he said.
Nominate federal judges that support abortion rights: Along with the confusing legal landscape will come lawsuits — lots of them — and abortion rights activists want judges that will lean their way. Already, you can see the legal debate over state laws bubbling up. In Florida, a judge just blocked the state’s 15-week ban. In Michigan, Gov. Gretchen Whitmer (D) has asked the state’s Supreme Court to invalidate a 1930s law banning abortion in the state. In Ohio, the state’s Republican attorney general is working with the courts to try to reinstate a 2019 law banning abortion at six weeks of pregnancy; liberal groups are challenging it, report The Post’s Annie Linskey and Colby Itkowitz.
Biden doesn’t have much room to maneuver with his appointments, though. There are only about 70 vacancies, most of them in district courts.
This story has been updated with the latest news.