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Abortion Rights Tops Biden To-Do List Even Without Congress

Nov. 14, 2022, 6:48 PM

President Joe Biden will need to leverage his already limited power as the nation’s chief executive to broaden access to abortion in the coming months, even as he lacks enough support in the new Congress to guarantee availability of the procedure.

Health law attorneys and abortion advocates say his efforts will be especially crucial after a midterm election that didn’t dramatically shift the balance of power in Washington. Republicans, the majority of whom oppose abortion, are poised to take control of the House. Senate Democrats lack enough votes to pass a measure.

Americans “can’t expect much of anything,” on codifying abortion access, Biden said this week at the G-20 Summit in Bali, reflecting on the recent midterm election. “Other than we’re going to maintain our positions.”

Biden’s team, led by Vice President Kamala Harris, is looking at how state-level restrictions limit training for future OB-GYNs and convening volunteer lawyers to counsel health providers. He’ll continue enforcing laws that dictate how hospitals treat patients in medical emergencies and weighing travel options for those seeking out-of-state abortion.

The outcome of last week’s midterms suggest the administration has the public’s support on reproductive rights, advocates said.

That “should give the administration everything they need to push ahead with a bold agenda that protects abortion access,” said Shaina Goodman, director for reproductive health and rights at the National Partnership for Women & Families.

Education

The White House’s reproductive health team is looking at how it can help future obstetricians learn how to perform surgical abortions despite state-level restrictions on the procedure, a White House official told Bloomberg Law.

Academics and legislators have highlighted for Harris repeatedly that future OB-GYNs in abortion-restrictive states, such as Texas or Georgia, won’t get enough practice with the procedure to become proficient. To make up for that, the White House is weighing how to help them get that experience, including by temporarily transferring future OB-GYNs to abortion-friendly states for more education.

The effort to send so-called “exchange students” to other states for abortion practice isn’t new, though the need for it has grown since the fall of Roe v. Wade.

The White House counsel’s office is also bringing together volunteer attorneys to help abortion clinics and organizations navigate new state-level laws.

“It wasn’t just about the denials of reproductive services for the survivor, it was then binding the advocate with exposure and liability,” said Deb Vagins of the National Network to End Domestic Violence. Vagins met with the White House’s reproductive health team in July.

Vocal Support

The president and his agency chiefs have been vocal in their support of federal abortion protections.

In September Health and Human Services Secretary Xavier Becerra said the administration “won’t hesitate to enforce the law” to protect “women’s rights to essential health care.”

Among the existing tools at the federal government’s disposal is the Emergency Medical Treatment & Labor Act, or EMTALA.

Passed in 1986 to ensure patients are treated in emergency situations, EMTALA “does specifically state it preempts state laws that conflict with it,” said Nicole Huberfeld, a professor at the Boston University School of Law and School of Public Health, and could be used to ensure hospitals perform abortions when the life of the mother is in danger.

In July, the Centers for Medicare & Medicaid Services issued guidance proclaiming this view. It’s already been met with opposition. In August, the US District Court for the Northern District of Texas blocked the government from enforcing its view that its guidance preempts Texas abortion law.

The administration has other “strategic opportunities,” to “diffuse the work that Republicans in Congress are going to engage in legislatively, Liz Kukura, a Drexel University law professor specializing in reproductive health, said. Those include “using the existing policy focus on the maternal health crisis and its disproportionate impact” on people of color.

“The federal government can help reconnect the dots between abortion access and health outcomes for women,” she said.

Creative Measures

Supporting travel for abortion is among the maneuvers legal experts say the Biden administration should exercise as more conservative state legislatures limit abortions and Republicans take a stronger hold over Congress.

GOP lawmakers have put forth over a dozen bills aiming to criminally prosecute nurses and doctors for abortion services, according to an analysis by House Oversight Committee Democrats. At least four measures focus on travel for abortions

After Roe’s overturn, Becerra said the administration was weighing support of transportation for those seeking abortion services. In August, Biden signed an executive order directing Becerra to consider ways to help patients travel between states for abortions using Medicaid funds.

There should be “some creative way not just to defend the right of women to travel, but to support their travel for abortion,” said Lawrence Gostin, director of the O’Neill Institute for National and Global Health Law at Georgetown University. “Creatively it should be possible to have federal dollars to support travel for medical purposes, including an abortion.”

For example, the administration could use federal health funding like Medicaid to support travel for poor Americans seeking abortion and reproductive health treatment, Gostin said. This approach “would certainly invite litigation,” but “has a reasonable legal footing.”

Pill Problem

Legal experts say medication abortion should remain a top priority for the Biden administration with Republican gains in Congress, and that the Justice Department could explicitly state it will litigate against state restrictions.

A legal battle had been playing out in Mississippi over whether Food and Drug Administration drug rules preempted state restrictions. However, the plaintiff, abortion pill maker GenBioPro, dropped the case and said it planned to file in another forum.

Huberfeld, however, noted that it isn’t “clear cut” that FDA regulations will always trump state laws, given states regulate medical licensure, “though they probably cannot compete with the FDA to regulate prescription medicines.”

What’s more, Greer Donley, a law professor at the University of Pittsburgh, noted that before Dobbs, advocates alleged that “the way the FDA regulates medication abortion is overly strict.”

While the administration last year loosened some rules on prescribers, it added new hurdles for pharmacies to dispense abortion pills.

In seeking to ensure access, the administration could cut down on “onerous restrictions,” Donley said.

To contact the reporters on this story: Ian Lopez in Washington at ilopez@bloomberglaw.com; Courtney Rozen in Washington at crozen@bgov.com

To contact the editors responsible for this story: Brent Bierman at bbierman@bloomberglaw.com; Cheryl Saenz at csaenz@bloombergindustry.com