by Jennifer Shutt, Georgia Recorder [This article first appeared in the Georgia Recorder and States Newsroom, republished with permission]
July 8, 2022

WASHINGTON — Frustrated abortion rights advocates are imploring President Joe Biden to make sweeping moves to protect abortion access, saying now is the time for Democrats to be bold as Republican-led states rapidly implement restrictions and outright bans.

Stymied in the U.S. Senate by the filibuster, congressional Democrats are highly unlikely to approve legislation that would enshrine Roe v. Wade in federal law.

But advocates say Biden could declare a public health emergency, require the federal government pay for patients’ travel to out-of-state clinics and study the creation of federal enclaves for abortion in deeply Republican states.

Georgia does not have a trigger law like some other states that would immediately ban abortions, but it does have an anti-abortion law on hold that could soon take effect.

To draw public attention to the crisis, they’d like to see him hold meetings with patients who have had abortions or are seeking them in red states, or visit clinics that are being forced to move out of states that have banned abortions.

All of the plans being suggested have drawbacks or complications. But advocates say the chaos in abortion access spreading across the United States demands a stronger response, two months after a preliminary draft of the court’s abortion ruling was leaked to Politico and the likely outcome became clear.

“It is unconscionable to me that there was not more of a concrete plan, the hour after that decision came down,” said Morgan Hopkins, interim executive director of campaigns and strategies at All* Above All, of the slow response from the White House following the June 24 ruling.

Biden on Friday signed an executive order protecting access to reproductive health services, including directing the Department of Health and Human Services to ensure medication abortion is widely accessible, and asking the Federal Trade Commission to take steps to protect personal information related to reproductive care.

Biden and congressional Democrats also have stressed that abortion rights supporters must go to the polls in this fall’s midterm elections and elect Democrats who back codifying Roe v. Wade.

“These are good, important steps but this fight is far from over,” Senate Health, Education, Labor and Pensions Chair Patty Murray said after Biden signed the executive order Friday. “As we continue living through a post-Roe health care crisis, I urge the President to continue doing everything he can to fight back — and I’ll continue the fight here in Congress and work to make clear to voters what’s at stake this November.”

Public health emergency

Nancy Northup, president and chief executive of the Center for Reproductive Rights, has urged the White House to declare a public health emergency for abortion under the Public Readiness and Emergency Preparedness Act, saying it “could have an enormous impact.”

The move would allow HHS to protect providers, pharmacists and patients who want to access medication abortion via telemedicine from other states, she said.

“It would give HHS the power to address what are the well-known adverse health consequences of banning abortion,” Northup said earlier this week.

The federal government, she added, would then be able to supersede “state laws that have bans on abortion with respect to medication abortion, because these bans are frustrating the administration of a drug that mitigates this public health emergency.”

Medication abortion, consisting of mifepristone and misoprostol, is approved by the Food and Drug Administration for patients through 10 weeks into pregnancy.

Leila Abolfazli, director of federal reproductive rights at the National Women’s Law Center, said a public health emergency is needed, given the confusion circulating in states with conflicting or older laws taking effect, some of which pre-date the Civil War.

“It is clearly an emergency in that the chaos is so far-reaching and immediate in its impact,” Abolfazli said before the Biden administration announced executive actions Friday morning.

Jen Klein, director of the White House Gender Policy Council, said Friday afternoon that the public health emergency hasn’t been taken off the table, though she seemed skeptical Biden would use it.

“When we looked at the public health emergency, we learned a couple things,” she said. “One is that it doesn’t free very many resources. It’s what’s in the public health emergency fund, and there’s very little money, tens of thousands of dollars in it. So that didn’t seem like a great option. And it also doesn’t release a significant amount of legal authority. And so that’s why we haven’t taken that action yet.”

The federal government could also use some of its existing funding to pay for travel for patients who no longer have access in their home states, a decision Abolfazli says wouldn’t run afoul of decades-old provisions that bar federal funding for the vast majority of abortions.

“We are encouraging the administration to support people who need to travel for the care,” she said. “So both protecting the right to travel, but also paying for that travel and associated cost that people have to take on now that they are being forced out of their state.”

Klein said during the White House briefing Friday afternoon that the administration is “looking at all options to figure out how to best effectuate that right to travel” for abortion access.

Hyde amendment

Much of what the federal government could do on abortion access is restricted by the so-called Hyde amendment, a policy rider in the annual government funding bills that bars the federal government from spending money on abortion, with limited exceptions for rape, incest or the life of the patient.

The proposal, named for former Illinois Republican Congressman Henry Hyde, was first added to the annual spending bill that addresses Medicaid in 1976. But similar language now exists throughout many of the dozen annual government spending bills.

The provisions bar the federal government from covering abortion with those three exceptions for Medicaid patients, the federal prison system, foreign aid, military health care and the federal employees health benefit program. The U.S. Veterans Affairs Department is prohibited from providing abortions under a 1992 law.

Democrats in the U.S. House and Senate removed the various policy provisions from last year’s original batch of bills. But in order to pass the final package through the Senate’s legislative filibuster, Democrats reluctantly agreed to add the spending restrictions back.

Democrats in the U.S. House have excised the language from throughout the spending bills for the upcoming fiscal year that begins Oct. 1, though Republicans have warned the bills won’t become law unless the amendments are added back.

Rep. Jaime Herrera Beutler, a Washington state Republican, argued during debate in the Appropriations Committee late last month that U.S. lawmakers “don’t have the right to take taxpayer dollars and use” the money for abortions.

Committee Chair Rosa DeLauro, a Connecticut Democrat, sharply disagreed, saying the Supreme Court’s decision to end a nationwide right to abortion makes it more important than ever that Congress get rid of the Hyde amendment.

“Arguing that these riders have been law for decades and therefore we are prevented from making changes is disingenuous,” DeLauro said.

Hopkins said she wants to see the Biden administration and congressional Democrats redouble their efforts to permanently remove the Hyde amendment and similar provisions from the annual funding bills.

“We know that the Hyde amendment has been a barrier for decades, and we are now seeing it as a barrier to solutions,” she said earlier this week.

The Biden administration, Hopkins said, should also declare a public health emergency and release concrete steps to guarantee access to medication abortion as well as safety for people who travel for abortion access.

A public health emergency, Hopkins said, would allow the federal government to partner with states and hospitals where abortion remains legal or less restricted to address the uptick in patients they are likely to see as an increasing number of states implement bans or significant restrictions.

Biden should also meet with people who have had abortions or who are trying to get abortion care right now as well as visit a clinic that’s being forced to move out of state, Hopkins said.

“Whole Woman’s Health right now is moving from Texas to New Mexico,” she said. “I would love to see the president himself talking to those health care providers the way that he did with health care workers during COVID. I think that is so important.”

Coordination across departments

Abolfazli from the National Women’s Law Center said she’d like to see coordination across various departments of the federal government to protect a patient’s ability to travel to access abortion and to get access to medication abortion throughout the country.

Biden announced something similar Friday, setting up an interagency task force consisting of HHS, the White House Gender Policy Council and the attorney general to coordinate “interagency policymaking and program development.”

One proposal from some abortion rights advocates that Abolfazli isn’t so sure about would set up clinics on federal lands or in federal buildings in states where abortion is now banned or severely restricted.

Leah Litman, assistant professor of law at the University of Michigan, told PBS NewsHour that those plans might not actually protect abortion providers from facing criminal charges in states that outlaw the procedure.

“There’s a federal statute called the Assimilative Crimes Act that actually incorporates the law of every state on to where the federal property and federal land is located,” she said. “So what that would mean is in a state that prohibits abortions, and imposes criminal penalties on abortion providers, doctors who perform abortions on federal lands would still technically face federal criminal liability under that federal law.”

While the Biden administration might opt not to prosecute abortion providers using federal land, the five-year statute of limitations means a future Republican administration could, Litman said.

White House press secretary Karine Jean-Pierre rejected the idea of trying to set up abortion clinics on federal land or in federal buildings last week, saying while “well-intentioned” it would likely put patients and providers at risk.

“In states where abortion is now illegal, women and providers who are not federal employees … could be potentially be prosecuted,” Jean-Pierre said. “As we understand why they would put forward this proposal, there’s actually dangerous ramifications to doing this.”

Georgia Recorder is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Georgia Recorder maintains editorial independence. Contact Editor John McCosh for questions: info@georgiarecorder.com. Follow Georgia Recorder on Facebook and Twitter.