Biden Must Start Getting Creative to Protect Abortion Rights

There will be no deus ex machina from the federal government when the Supreme Court strikes down Roe v. Wade, as it is now virtually guaranteed to do since Justice Samuel Alito’s draft opinion in a Mississippi abortion case was leaked on Monday. President Joe Biden won’t be able to stop the 22 states that are certain to ban abortion immediately—many of them using laws still on the books from before Roe was decided in 1973. Four more states will likely move fast to pass their own bans, according to the Guttmacher Institute. In total, about half of Americans are expected to live in places without legal access to the extremely common, life–saving, liberty-ensuring medical procedure.

Congress, too, looks like a dead end for attempts to undo the Supreme Court decision. Passing a federal law guaranteeing the right to abortion would require overcoming a Senate filibuster (Democrats don’t have the votes) or eliminating the filibuster entirely (Democrats don’t have the votes—thanks, Senators Kyrsten Sinema and Joe Manchin). 

But that doesn’t mean the White House can do nothing. This week, Biden directed his team to protect abortion rights “at every aspect, in every creative way, every aspect of federal law, to try to do all that’s possible,” an anonymous senior administration official told the New York Times. So what are their options? I called up reproductive rights legal experts and advocates to brainstorm.

Use FDA powers to ease abortion pill access

The Food and Drug Administration allows the use of two medications, taken in combination, to end pregnancies in the first 10 weeks. One, misoprostol, is a common anti-ulcer drug. The other, mifepristone, has been approved for use in the United States for 22 years and has an excellent safety record. Yet “the FDA has over-regulated mifepristone from day one,” says Elisa Wells, a veteran public health expert and the co-director of Plan C, an online information clearinghouse about abortion pills. “When they did approve it, they attached special restrictions only used for a handful of drugs thought to be dangerous.”

For instance, the FDA restricts which medical providers can prescribe mifepristone. “You can only go to a doctor that’s specially certified and registered with one of the [mifepristone] distributors,” Wells explains. “They have to have a special account with one of the two online pharmacies that will supply the pills.” For most primary care doctors, she explains, all those extra steps are too inconvenient.

Over the years, the FDA eased some of those restrictions; last winter, for instance, it decided to permanently allow patients to receive mifepristone by mail rather than requiring them to pick it up in person from a specially certified medical provider. Experts say the agency could continue eliminating extra hoops for patients and prescribers to jump through. For example, the agency is currently deciding what special steps pharmacies must take to be certified to give out mifepristone—a prime opportunity to make sure places like CVS and Walgeens can stock it, says Rachel Rebouché, interim dean of Temple University’s law school. The agency could even eliminate its certification process for prescribers, Rebouché adds, to treat mifepristone “more like other drugs that have a very similar safety profile.”

Of course, making the abortion pill easier to come by won’t do much if states ban its use altogether. Abortion pill manufacturer GenBioPro is currently suing the state of Mississippi, arguing that the state cannot impose extra restrictions on mifepristone beyond what the FDA has determined to be appropriate. GenBioPro’s argument relies on the principle that federal law overrides state law, Rebouché says: “The FDA is required by Congress, by statute, to weigh the safety and risk of any drug.” So there’s an argument to be made that by prohibiting medication abortions that the FDA allows, states are stepping on the federal agency’s toes, legally speaking.

The FDA could take this stance publicly, telling states “Your ban is preempted by our determination of the drug’s safety,” Rebouché suggests.

Expand telemedicine infrastructure

Since the FDA’s decision last year to allow mifepristone to be prescribed by telehealth and sent by mail, online services to get abortion pills are proliferating. But those services are less accessible to low-income people, who currently make up about half of all abortion patients. “A lot of those people don’t have smartphones, broadband access,” Rebouché says. “And so anything that helps strengthen the infrastructure generally for telehealth is going to help those people.” 

As of February, 19 states required abortion pills to be taken in the physical presence of the clinician who prescribed it—effectively banning telemedicine. (On Thursday, Tennessee Gov. Bill Lee signed a bill adding criminal penalties for people who prescribe the pills using telemedicine, or who send them by mail.) Yet people are already working around those bans. “People are getting pills in the states that restrict access [by] accessing the telemedicine services that are in California, Washington, New York—all the all the states that allow it—and they are using mail forwarding,” Wells says. It might not be legal by the standards of restrictive state laws, but the United States Postal Service is a federal agency, and without federal cooperation, pills in the mail would likely be hard to track. “I don’t think that state governments could rifle through a post office’s set of deliveries,” Rebouché says. “It’s going to be very hard to surveil how abortion pills show up and where they show up.” 

In other words, White House support for any policy that makes it easier to talk to a medical provider online—from expanding rural broadband to interstate compacts allowing doctors to treat patients in another state—could help, even in states that have banned virtual abortion care.

Ensure federal funding isn’t being used to support anti-choice groups

One Christian medical chain, known as Obria, received millions of federal Title X dollars from the Department of Health and Human Services during the Trump years to provide family planning services. Yet they do not offer contraception and instead counseled patients to use “natural” family planning techniques, as my colleague Stephanie Mencimer reported in 2020. To make matters worse, the Trump administration instituted a “gag rule” on recipients of Title X grants, barring recipients from referring clients to abortion services. Other federal funding has also flown to “crisis pregnancy centers”—fake clinics, often run by religious organizations, that lure in patients considering abortion and steer them to other options. 

Biden has rescinded the gag rule, but Erin Matson, cofounder and executive director of activist group Reproaction, says there is more work to be done to identify federal money that is still flowing to anti-abortion groups. “It’s impossible to overstate how much damage was done during the four years of the Trump administration, throughout all levels of the administration in terms of carving more anti-abortion wishlist items into either funding priorities or into rules,” Matson says. “So I think a top-to-bottom audit of what happened and to unravel it, whether it’s related to funding or policies, would be very important.”

Perform abortions on federal land

Could the federal government lease federal lands in abortion-hostile states to providers to set up practices or dispense abortion pills? Could they use post offices? National parks? Courthouses? It’s an intriguing proposal that Rebouché and her colleagues advanced in a paper this year on “creative” steps the executive branch could take if Roe v. Wade were to be overturned. “The idea is that there are some federal enclaves where you could plausibly make the argument that state law does not apply,” Rebouché tells me. “Never been tried, have no idea if it works, totally novel.” Theoretically, this solution gets around the Hyde Amendment—which blocks federal funds from being used to pay for abortion, with exceptions for rape, incest, and pregnancies that endanger the mother’s life—because providers in this case would be paying the federal government, not the other way around.

While states perceive that they have “total power” over abortion regulation, “there is still federal power to regulate abortion, through federal programs,” Rebouché points out. “Not just federal land, but through the prison system, through immigration, through various other means.”

Educate prosecutors

Matson of Reproaction argues that the Department of Justice should hold a summit and provide guidance to prosecutors around the charging decisions they may soon have to make when faced with people in their states who have gotten an abortion, or even miscarried. (Even before Roe falls, it’s a pressing issue: Enterprising prosecutors already use an array of statutes to send people to jail for getting an abortion or miscarrying, and Louisiana has a bill in the works to charge people who get abortions with murder.)

State and local prosecutors aren’t beholden to the Justice Department, but it could influence their thinking when they’re faced with the choice of whether to charge someone or not, Matson says. “It’s up to individual districts attorneys what they do, but there hasn’t been any guidance coming,” she says. “In this moment, when people desperately need leadership from the White House, that’s something tangible that the White House could do that has the potential to actually make a very serious difference in individual people’s lives. Who knows if that guidance could actually prevent someone from being prosecuted?”