Abortion rights top Biden’s to-do list even without Congress

President Joe Biden will need to leverage his already limited power as the country’s chief executive to expand abortion access in the coming months, even if he lacks sufficient support in the new Congress to ensure the availability of abortion. the procedure.

Health-law attorneys and abortion advocates say his efforts will be especially crucial after a midterm election that hasn’t drastically shifted the balance of power in Washington. Republicans, the majority of whom oppose abortion, are poised to take control of the House. Senate Democrats don’t have enough votes to pass a measure.

Americans ‘can’t expect much,’ on codifying abortion access, Biden said this week at the G-20 summit in Bali, reflecting on the recent midterm elections. . “Otherwise we are going to maintain our positions.”

Biden’s team, led by Vice President Kamala Harris, is examining how state-level restrictions are limiting the training of future OB-GYNs and convening pro bono attorneys to advise health providers. He will continue to enforce laws that dictate how hospitals treat patients in medical emergencies and weigh travel options for those seeking out-of-state abortions.

The outcome of last week’s midterm elections suggests the administration has public support on reproductive rights, advocates said.

This “should give the administration everything it needs to push forward a bold agenda that protects access to abortion,” said Shaina Goodman, director of reproductive health and rights at the National Partnership for Women. and families.


The White House reproductive health team is studying how it can help future obstetricians learn to perform surgical abortions despite state restrictions on the procedure, a White House official told Bloomberg Law.

Scholars and lawmakers have repeatedly pointed out to Harris that prospective OB-GYNs in abortion-restricting states, such as Texas or Georgia, will not get enough practice with the procedure to become competent. To compensate for this, the White House is considering how to help them gain this experience, including temporarily relocating prospective OB-GYNs to abortion-friendly states for more education.

The effort to send so-called “exchange students” to other states to perform abortions is not newalthough the need for it has increased since the fall of Roe v. Wade.

The White House Attorney’s Office also brings together pro bono attorneys to help abortion clinics and organizations navigate new state-level laws.

“It wasn’t just about denying reproductive services for the survivor, it then tied the attorney in with exposure and liability,” said Deb Vagins of the National Network to End Domestic Violence. Vagins met with the White House reproductive health team in July.

Voice support

The president and his agency heads have expressed support for federal abortion protections.

In September Secretary of Health and Social Services Xavier Becerra said the administration “will not hesitate to uphold the law” to protect “women’s right to essential health care.”

Among the existing tools available to the federal government is the Emergency Medical Treatment and Labor Act, or EMTALA.

Passed in 1986 to ensure that patients are treated in emergency situations, EMTALA “specifically states that it warns of state laws that conflict with it,” said Nicole Huberfeld, a professor at the University College of Law and School of Public Health. Boston University, and could be used to ensure hospitals perform abortions when the mother’s life is in danger.

In July, the Centers for Medicare & Medicaid Services issued directives proclaiming this point of view. It has already been ran into opposition. In August, the U.S. District Court for the Northern District of Texas blocked the government to enforce his view that his guidelines take precedence over Texas abortion law.

The administration has other “strategic opportunities” to “spread the work that congressional Republicans are going to engage in on the legislative front,” said Liz Kukura, a Drexel University law professor who specializes in reproductive health. . These include “the use of existing policy focused on the maternal health crisis and its disproportionate impact” on people of color.

“The federal government can help reconnect the dots between abortion access and women’s health outcomes,” she said.

Creative measures

Supporting abortion travel is among the maneuvers legal experts say the Biden administration should exercise as more conservative state legislatures limit abortions and Republicans gain a greater grip on Congress.

GOP lawmakers have introduced more than a dozen bills to criminally prosecute nurses and doctors for abortion services, according to a analysis by Democrats on the House Oversight Committee. At least four measures focus on travel for abortions

After deerreversal, Becerra said the administration was weighing rack transportation for those seeking abortion services. In August, Biden signed a decree directing Becerra to consider ways to help patients travel interstate for abortions using Medicaid funds.

There should be “a creative way to not only advocate for women’s right to travel, but to support their abortion travel,” said Lawrence Gostin, director of the O’Neill Institute for National and Global Abortion Law. health at Georgetown University. “Creatively, it should be possible to have federal dollars to support travel for medical purposes, including abortion.”

For example, the administration could use federal health funding like Medicaid to support trips by impoverished Americans seeking abortion and reproductive health treatment, Gostin said. This approach “would certainly lead to litigation”, but “has a reasonable legal basis”.

pill problem

Legal experts say medical abortion should remain a top priority for the Biden administration with Republican gains in Congress, and that the Justice Department could explicitly say it will sue state restrictions.

A legal battle had unfolded in Mississippi over whether Food and Drug Administration drug rules prevailed over state restrictions. However, the plaintiff, abortion pill maker GenBioPro, dropped the case and said planned to file in another forum.

Huberfeld, however, noted that it’s not “settled” that FDA regulations will always trump state laws, given that states regulate medical licensing, “although they probably can’t. not compete with the FDA to regulate prescription drugs”.

Additionally, Greer Donley, a law professor at the University of Pittsburgh, noted that before Dobbs, advocates alleged that “the way the FDA regulates medical abortion is too strict.”

While the administration last year relax some rules on prescribers, he added new barriers for pharmacies to dispense abortion pills.

By seeking to ensure access, the administration could reduce “onerous restrictions,” Donley said.

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