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Biden administration announces actions to protect abortion rights

Reacting to the Supreme Court, HHS to take steps to increase the availability of medication abortion

The Biden administration is taking a series of steps aimed at minimizing the impact of the Supreme Court's Dobbs v. Jackson Women's Health Organization decision.
The Biden administration is taking a series of steps aimed at minimizing the impact of the Supreme Court's Dobbs v. Jackson Women's Health Organization decision. (Tom Williams/CQ Roll Call file photo)

The Biden administration is launching a multipronged effort to respond to the Supreme Court decision overturning the 1973 ruling establishing a right to an abortion, with Health and Human Services, the Defense Department and the Office of Personnel Management among the agencies to weigh in.

HHS Secretary Xavier Becerra, reacting Tuesday to the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, said the department will take steps to increase the availability of medication abortion, which involves a combination of mifepristone and misoprostol. 

HHS loosened some requirements related to one of the drugs, mifepristone, in December, allowing the medication to be dispensed by a certified pharmacy rather than only by a provider in a clinic or hospital. The Food and Drug Administration has special requirements for how mifepristone and some other drugs are dispensed safely, known as Risk Evaluation and Mitigation Strategy.

Restrictions to medication abortions have been layered onto other barriers in many states, and Becerra said the department will work with the attorney general and the Justice Department to prevent state bans on the drug. HHS also plans to issue guidance to providers with additional information about the drug.

Becerra said he will also direct the department’s Office for Civil Rights to protect patient privacy and nondiscrimination protections for patients and providers seeking or offering reproductive health care. 

“We don’t want anyone’s private health information, for example, to be leaked in ways that violate federal law,” Becerra said. He did not clarify what enforcement mechanisms could look like.

Becerra said he will also ask HHS to examine its authority under a law known as the Emergency Medical Treatment Act to make sure providers and facilities are supported in treating pregnancy loss and complications, which may require the use of abortions. He’ll direct the Centers for Medicare and Medicaid Services to take steps to protect all forms of contraception including IUDs.

HHS was one of several Cabinet agencies to announce a response to the Friday decision.

The Pentagon issued a memo on Tuesday that clarified that the Supreme Court decision does not prevent DOD from providing abortions when consistent with federal law and does not prevent active duty service members from traveling to seek abortion care.

And the Office of Personnel Management on Monday announced that federal workers can use sick leave to cover travel to seek abortion access.

“While such travel will generally be short distances — for example, to and from a local doctor’s office or hospital — an employee may find it necessary to travel longer distances, including out of state, to obtain medical care,” the OPM policy reads. “In such instances, sick leave may be used to cover necessary travel time.”

The White House has been exploring how it can intervene to increase abortion access in light of the Supreme Court decision. But the administration is still limited in what it can do.

White House Press Secretary Karine Jean-Pierre said Tuesday that there could be “dangerous ramifications” to a proposal to open clinics providing abortion services on federal lands, particularly for providers who are not federal employees. Rep. Alexandria Ocasio-Cortez, D-N.Y., and Sen. Elizabeth Warren, D-Mass., are among those to float the idea.

Becerra said HHS has not yet made a decision on if this would be a possibility.

“We certainly want to have conversations with the president to make sure we implement his directives to us in trying to protect women’s reproductive health care services,” he said. “We will take a look at everything we can and everything we do will be in compliance with the law.”

Congressional asks

With a narrow majority in the Senate, congressional Democrats are also limited in how they can respond.

Speaker Nancy Pelosi, D-Calif., wrote in a “Dear Colleague” letter Monday that the House will consider legislation to protect reproductive health app data to prevent it being used against women in states that criminalize abortion. She also called for the House to again pass its abortion rights bill and ensure that Americans are not penalized for traveling out of state for an abortion.

The House passed the bill in September 2021, but the Senate has twice fallen short of votes to invoke cloture on the bill since then.

“It is essential that we protect and expand our pro-choice majorities in the House and Senate in November so that we can eliminate the filibuster so that we can restore women’s fundamental rights – and freedom for every American,” Pelosi wrote.

A national abortion ban, meanwhile, would also face the same hurdles to passage as the Democrats’ abortion rights bills.

Sen. Marco Rubio, R-Fla. released last week a framework of policies that would expand the federal child tax credit, strengthen the child support enforcement rule, and fund crisis pregnancy centers. He said the policies are necessary as the next step to support women and families.

Without a large enough majority to codify Roe v. Wade, Democrats have pointed to the midterms as their way to pass abortion protections. 

The Democratic National Committee, Democratic Senatorial Campaign Committee, and Democratic Congressional Campaign Committee spearheaded a joint organizing website seeking donations and volunteers to support abortion access ahead of the midterms. 

While Congress has become increasingly split along party lines on abortion politics, at least one candidate this fall bucks the national trend.

Allan Fung, who is running to replace retiring Rep. Jim Langevin, D-R.I., has positioned himself as a Republican who supports abortion rights. In a SUPRC/Boston Globe poll released this week, Fung led every Democrat, though the poll was taken June 19-22, before the Supreme Court had ruled.