After the Supreme Court overturned Roe v. Wade in June, the prevailing message from President Joe Biden was that people needed to get out and vote hard. Vote enough Democrats into the House and Senate, Biden said, and he’d sign a bill to codify abortion protections into federal law. This was always a gamble, because the party in power usually loses control of Congress in its first midterm election, but Democrats managed to hang on to the Senate, though it seems likely that they’ll lose the House.
On Monday, reporters asked Biden what Americans could expect Congress to do about abortion access following this midterm result. He said: “I don’t think they can expect much of anything other than we’re going to maintain our positions...I don’t think there’s enough votes to codify [Roe] unless something happens unusual in the House.”
While it is true that Democrats’ hands are tied in Congress because they don’t control both chambers, Biden’s executive branch can act—and should, ASAP: Abortion is currently banned at or before six weeks of pregnancy in 14 states, and more states will pursue bans and restrictions when their new legislative sessions start in January.
Plus, exit polls showed that, nationwide, abortion was voters’ number two issue, and in crucial swing states like Pennsylvania and Michigan, it was their first priority.
Here are three things the Biden administration could do—and frankly should have already done:
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Sue states over telemedicine abortion bans
The day the Supreme Court overturned Roe, Attorney General Merrick Garland said states can’t ban the abortion drug mifepristone, because it’s an FDA-approved medication. State abortion bans, of course, include medication abortion, but neither the Food and Drug Administration nor the Department of Justice have filed any lawsuits about this.
The Biden administration also reportedly considered declaring a limited public health emergency in July that would have allowed providers in blue states to prescribe abortion pills to people in red states via telemedicine. It still has not done so.
If such efforts were successful, the White House could immediately restore access to medication abortion in states where the procedure is otherwise banned, which could reduce the number of people who are seeking abortions out of state, which has led to increased wait times.
Review current limits on mifepristone
Mifepristone, the first drug used in medication abortion, is FDA-approved for use through 10 weeks of pregnancy, despite data from the World Health Organization and others showing it’s safe and effective through at least 12 weeks. Biden should direct the FDA to review its guidance, and remove other remaining restrictions on the drug that make it difficult for providers to prescribe.
On the day Roe fell, Biden said that his administration would protect access to both mifepristone and birth control: “Today I’m directing the Department of Health and Human Services to take steps to ensure these critical medications are available to the fullest extent possible.” There hasn’t been any evidence that HHS has moved to make mifepristone available longer in pregnancy.
Lease federal land to abortion providers
The Hyde Amendment prevents the federal government from directly funding abortions that aren’t the result of rape or incest or don’t threaten the life of the pregnant person, so unless Biden somehow ends Hyde right now (which would be an applause-worthy move), his administration cannot, for example, give grants to abortion providers to open new clinics. But it could lease federal land to clinics, which would help with the wait times problem.
This one is a bit more complex and risky. As David Cohen, a professor at Drexel University’s Kline School of Law, told The 19th in February: “It is possible that clinics can operate on federal lands without having to follow state law. That has to be explored. The federal government needs to push the envelope. It’s not a slam-dunk legal argument, but these are the kinds of things that need to be tried.”
Perhaps the overly cautious administration would only try this in blue states, not red ones, but it’s a creative solution that is worth giving a go.