WASHINGTON — As Democrats and reproductive rights advocates demanded that President Biden overturn the Supreme Court’s Roe v. Wade, his Health Secretary Xavier Becerra, took to the podium here Tuesday to list the steps his department would take to preserve and expand access to abortion.
In any case, the list is short for now.
“There is no magic bullet,” Mr Becerra said at a morning news conference, “but if we can do something, we will find it and we will do it.”
Friday’s Supreme Court decision to abolish the constitutional right to abortion was not unexpected, but neither the White House nor Mr. Becerra’s agency had immediate policy answers. Officials within the administration say they are still grappling with the prospect of a mainstream area of women’s health suddenly becoming illegal in about half the country and will need time to sort through their options.
However, Mr. Biden is under strong political pressure to act, and following his press conference, some supporters accused Mr. Becerra of sounding lukewarm. Some Democrats, like Massachusetts Sen. Elizabeth Warren and Rep. Alexandria Ocasio-Cortez, have pushed the Biden administration to explore the prospect of building abortion clinics on federal land and paying people from abroad to travel there.
That was not among the measures announced by Mr Becerra. Instead, he said that at the direction of Mr. Biden, he directed his agency to take steps to ensure federal insurance programs cover medical abortion in cases of rape or incest, or when the mother’s life is in danger. Although the Hyde Amendment bans taxpayer funding for abortions, it includes exceptions for these three cases.
“We can’t meet scorched earth with milquetoast,” said Andrea Miller, president of the National Institute for Reproductive Health, an advocacy group. “I’m not asking for scorched earth, but I’m saying that you must be willing to stop moving within the limits. You have to be willing to take some risk.”
In addition to establishing abortion clinics in states, Ms Miller said the administration should find ways to support abortion clinics that are about to close, perhaps by turning them into logistical hubs to help women who need to cross state lines. Around half of the federal states are expected to introduce or already have bans or other restrictions on the procedure after the judgement.
Ms. Miller acknowledged the administration has limitations and said she sympathizes with Biden officials. But the nation is in crisis, she said, adding, “Why not push the limits?”
Mr Becerra said his agency will work with the Justice Department to ensure women have access to abortion pills – a pair of two different drugs taken 24 to 48 hours apart and approved for the first 10 weeks of pregnancy – in places where state laws apply, contradicts the judgment of the Food and Drug Administration, which approved the drugs for use and determined them to be safe and effective.
The secretary didn’t go into detail. But in December, the FDA approved a regulation allowing abortion pills to be prescribed and distributed through the mail during telemedicine visits. Some proponents also want the FDA to say its regulations pre-empt state laws prohibiting abortion — a move the Justice Department may have to defend in court.
From Opinion: The End of Roe v. Wade
Times Opinion writers and columnists comment on the Supreme Court’s decision to end constitutional abortion rights.
It will also require hospital emergency departments to comply with a federal law mandating that they must stabilize patients experiencing a medical emergency — including performing abortions if necessary. And the agency will take steps to ensure patient records are private to prevent state or local officials from identifying women who have had abortions.
Mr Becerra warned of what the administration can and cannot do, saying there are still complex legal issues it needs to sort out to ensure it does not overturn the court’s ruling in Dobbs v. Jackson Women’s Health Organization.
“It was a long decision and it turned 50 years of precedent on its head and that’s why you want to make sure what you’re doing is within the law,” Mr Becerra said. “We’re not interested in going rogue.”
He called the ruling “despicable” and once said he wanted to “apologize” that the government could not do more.
The administration has investigated the idea but remains skeptical Allowing abortion clinics in federal enclaves like military bases and national parks — where prosecutors have no jurisdiction — in states where abortion is now, or will be, a crime.
White House Press Secretary Karine Jean-Pierre dismissed the idea Tuesday, telling reporters aboard Air Force One that it could have “dangerous consequences” for women and doctors.
The problem, according to officials familiar with internal consultations, is that the federal government cannot ensure that doctors who are not federal employees on duty – and potentially patients – are not prosecuted.
Because the Justice Department has the power to prosecute certain state crimes. If a Republican won the presidency in 2024, his or her Justice Department could indict people for 2022 abortion-related crimes because the statute of limitations had not yet expired. States could revoke doctors’ license to practice medicine. And prosecutors could seek to charge people under an abetting or conspiracy theory for related behaviors that took place outside the enclave — like helping women get there.
Offering financial assistance to women crossing state lines for an abortion could also be problematic for the administration, as it could violate the Hyde Amendment, which prohibits federal funds from being used to pay for abortions except in cases of rape , incest or where the mother’s life is in danger.
Asked Tuesday whether the Department of Health and Human Services could provide such financial assistance, Mr Becerra said once officials “know exactly what we think we can do and have the money to do it, we will give you.” let know. He added, “But until then, all I can tell you is that all options are on the table.”
Following Friday’s verdict, members of Biden’s own party increasingly called for action. On Saturday, more than 30 Democratic members of the Senate sent him a letter telling him there was “no time to lose” and urging him to use the “full force of the federal government” to protect access to abortion treatments.
“Now is the time to act boldly to protect abortion rights,” they wrote, adding, “You have the power to stand up and lead a national response to this devastating decision.”
One area where the administration can act is to ensure women have access to emergency contraception – including the so-called “morning after pill” like Plan B – and intrauterine devices. Both are common birth control methods, but anti-abortion advocates consider them “abortifacients” and have attempted to restrict access to them in some states.
Some family planning clinics in states that ban abortion say their supplies of Plan B are now running low as women — fearing the pills will be banned — stock up. Hailey Kramer, a nurse at Tri-Rivers Family Planning in Rolla, Missouri, said Monday that the clinic’s supplier has been struggling to cope with rising demand and the pills have been backordered since a draft opinion on Roe’s fall last month was leaked .
Missouri is one of 13 states that had “trigger” laws banning abortion after Roe was overthrown; Mr. Becerra was attending a Planned Parenthood clinic in the state when abortion suddenly became illegal there. Missouri is also one of four states that has banned Planned Parenthood, a major birth control provider, from Medicaid family planning programs that reimburse for such services.
Planned Parenthood said the move violated federal law. Mr. Becerra said Tuesday he directed the Centers for Medicaid and Medicare Services to “make it clear that family planning providers can participate in the Medicaid program.”