Biden Needs to Do More Than Just Rescind Trump-Era Policies on Abortion and Trans Health

Before the end of the month, the Biden administration will rescind a Trump-era Health and Human Services rule allowing health care workers to legally discriminate against trans people and people seeking abortion services. The policy, popularly called the “conscience” rule, allowed medical workers to refuse to perform gender-affirming health care, and not just refuse to perform abortions, but also deny patients information about abortion care, altogether. (Abortion and gender-affirming care are notably both health care; anyone who takes issue with these services could simply follow their “conscience” and not become health care workers, but alas.)

This move by the Biden administration is a relief—and it would be an even bigger relief if the policy, proposed in 2018 and enacted in 2019, had ever been allowed to take effect. But it was blocked by federal courts after dozens of states and reproductive rights advocates sued, and was never implemented.

Thus, while the announcement this week by the Biden administration is an important gesture—particularly as the ideological makeup of the courts is constantly shifting based on who’s in the White House—it’s just that: a gesture. At a time when state-level attacks on abortion and trans health care are skyrocketing, Biden needs to do more than just rescind Trump era policies in order to actually, meaningfully protect pregnant and trans people’s human rights. The administration needs to start playing offense.

Texans have effectively been living without the right to abortion for eight months now under the terror of SB8, a law that deputizes citizens to surveil each other, and threatens abortion clinics with lawsuits costly enough to shut them down. Mutations of SB8 have since spread to dozens of state legislatures, recently being signed into law in Idaho, and on the verge of being passed in Oklahoma—a state neighboring Texas that’s absorbed thousands of Texans seeking abortion since last year. The situation around abortion access has become so grave that 15-week bans, which have recently been signed into law in Florida, Arizona, and Kentucky, are now being marketed by anti-abortion politicians as “generous,” as if these laws—like the one in Texas—aren’t also forcing people to be pregnant and give birth against their will. Abortion bans notably carry the most impact for low-income people of color, who are more likely to lack the resources to travel to get care.

As early as this summer, the Supreme Court and its 6-3 anti-abortion majority are poised to rule on a case involving a 15-week ban in Mississippi that could effectively end Roe v. Wade.

At the same time as all of that, trans people, and particularly trans youth, have also been on Republican state lawmakers’ chopping block. Heartless bans on trans youth participating in school sports have recently been signed into law in states like Alabama and South Dakota, while vetoes on similar bills from the governors of Utah and Kentucky were overridden by their legislatures. Alabama and Texas have gone so far as to move toward criminalizing parents and doctors who help kids transition and access life-saving, gender-affirming care, charging them with child abuse.

And it’s not just trans health care that’s being criminalized. Earlier this month, Lizelle Herrera, a 26-year-old Latinx woman in Texas, was jailed and charged with homicide for allegedly self-inducing an abortion. As Herrera’s alarming, heartbreaking experience shows, when state laws stigmatize abortion and reduce pregnant people to state-controlled ovens, their bodies are inevitably transformed into crime scenes, contributing to an ever-increasing trend of people being criminalized and incarcerated for the outcomes of their pregnancies.

It’s not a coincidence that reproductive rights and trans rights are both facing a barrage of political attacks right now. These attacks are rooted in decades of conservative disdain for the bodily autonomy and dignity of pregnant and LGBTQ people, and it certainly doesn’t hurt that these laws galvanize the most depraved, active members of their base ahead of the midterm elections.

Yet, despite the overwhelming popularity of these issues among Democratic voters—if not most voters, of all political affiliations—President Biden has yet to say the word “abortion” aloud, let alone take substantive action beyond repealing a Trump-era policy that never took effect. The administration has taken some action, including Biden’s nominations of federal judges supportive of reproductive rights, and restoration of funding for Title X, a program that funds family planning resources for low-income people. But of course, due to the Hyde Amendment, a budget rider that prohibits federal funding for most abortion services, Title X funding can’t directly fund abortion services. And while vitally important, access to contraception can never replace abortion care.

Biden’s expressed support for “women’s right to choose” has primarily been limited to platitudes, and calls on Congress to codify Roe v. Wade—a demand rendered virtually meaningless so long as the filibuster remains in effect. Put gently, it’s a disgrace that the president of the United States is deferring solely to Congress, rather than wielding the full power of the executive branch to help people. As Jezebel’s Susan Rinkunas has previously pointed out, he could be hiring Texas abortion clinic workers as federal workers to grant them qualified immunity; he could be sending out “abortion boats”—or, you know, navy hospital ships deployed for medical emergencies that could offer abortion care to Texans and others in affected states, because lack of access to abortion is a medical emergency. As for the equally urgent medical emergency of inaccessible gender-affirming care, surely the president could be taking more action than sharing kind but mostly symbolic video messages of support to trans kids.

If we’re being honest with ourselves, the time for urgent action around abortion and trans rights, and the time to listen to organizers of color, people who have had abortions, and trans people, was decades ago. We’re now witnessing a terrifying, arguably deadly game of catch-up with marginalized people’s human rights—and however many supportive video messages the president shares, he simply isn’t treating this situation with the urgency it requires.