Biden administration frustrated in efforts to protect abortion: ‘No executive action can replace a precedent of nearly 50 years’

Looking to seize on momentum following a midterm election where voters widely rebuked tougher abortion restrictions, there’s a renewed push at the White House to find ways to help women in states that have virtually outlawed or limited the treatment, and to keep the issue top of mind for voters.

In reality, though, the administration is shackled by a ban on federal funding for most abortions, a conservative-leaning Supreme Court inclined to rule against abortion rights and a split Congress unwilling to pass legislation on the matter.

Meanwhile, frustration on the ground in the most abortion-restricted states is mounting.

“This is not going away anytime soon,” said Jen Klein of the Biden administration’s Gender Policy Council. “Tens of millions of Americans are living under bans of various sorts, many of them quite extreme, and even in states where abortion is legal, we’re all seeing the impact on providers and on systems being loaded by people who are coming across state lines.”

Since the U.S. Supreme Court decision in June, roughly half the states have some type of abortion restrictions in place, with at least 11 states essentially banning the procedure.

Administration officials are meeting Tuesday and Wednesday with state lawmakers ahead of their 2023 sessions, including in states with more extreme bans on the table, and will discuss safeguarding rights and helping women access care as top issues. The meetings follow sit-downs with roughly nine governors, attorneys general and Democratic state legislators from more than 30 states.

The administration, meanwhile, is implementing Biden’s executive orders signed in July and August that directed federal agencies to push back on abortion restrictions and protect women traveling out of their state to seek one, though some women’s rights advocates say it doesn’t go far enough.

And there are still other avenues left for the administration to explore, said Kathleen Sebelius, a former U.S. health and human services secretary.

HHS might look to wield its power around federal protections for health care providers, life-saving abortions, abortion pills and travel for women in abortion-restricted states, she said. During her tenure, for example, the agency did some policy maneuvering to expand rights for same-sex couples, including a requirement that any hospitals receiving federal funds allow their patients to select a same-sex partner as a visitor, years before gay marriage was legalized.

“It’s amazing how broad a lot of the agency’s authorities are and how much creative thinking can go on,” Sebelius said.

Already, the Justice Department has sued Idaho over its restrictive abortion policy and indicted at least 20 people who have been accused of obstructing access to abortion clinics. Attorney General Merrick Garland has said he would protect the right for women to travel between states for medical care.

Veterans and their beneficiaries are able to access abortion, even in states that have outlawed it, through the Department of Veteran Affairs in cases where the woman’s life or health is at risk or in cases of rape or incest. The Defense Department will cover leave and travel costs for troops seeking abortions if they are not available in their state.

The Federal Trade Commission has sued at least one data broker for selling information that tracks people at reproductive health care clinics, while the Federal Communication Commission reminded 15 mobile carriers of privacy laws in a recent letter.

Perhaps most consequentially, the Department of Health and Human Services told hospitals they “must” provide abortions if a mother’s life is at risk. The agency cited federal law, called the Emergency Medical Treatment and Labor Act, or EMTALA, that requires medical facilities to provide treatment if a person may be in labor or faces an emergency health situation.

But “no executive action can replace a precedent of nearly 50 years,” Klein said. “The most important thing is to fight for national legislation.”

None is upcoming in the lame-duck session before Republicans take control of the House. And Biden is limited in what else he can do.

Indeed, the administration’s moves so far have made little difference in Ohio, said Kellie Copeland, the executive director at Pro-Choice Ohio. A law that would essentially ban abortion once fetal cardiac activity is detected is awaiting a court ruling. Currently, abortion is banned at 22 weeks, state Medicaid funds can’t be used for abortion and parental consent is required for a minor to receive care.

“I can say as an advocate in Ohio, no one is saying, ‘Oh wow, this has made a difference,’” Copeland said. “The impact has not been felt.”

Copeland’s organization is one of about 50 local advocacy groups and abortion clinics entrenched in states and cities that asked the president in an August letter to offer federal travel and childcare vouchers for people living in states where abortion is banned, introduce federal protections for mailing abortion pills, and gather hospital attorneys to reiterate that doctors must give abortions in life-saving situations.

Chaos has ensued at hospitals located in the country’s most restrictive states, where doctors treating critically ill pregnant patients must weigh their medical recommendations against potential punishments like prison time. Reports of sick pregnant women turned away by doctors or facing unsafe delays in medical care are pouring in.

“It’s made it incredibly dangerous for patients, it’s put physicians in a terrible position,” American Medical Association President Jack Resneck, Jr. said during a meeting with reporters Tuesday. “And yet, when we go and talk about it, we’re seeing purveyors of disinformation say, ‘oh those stories are exaggerated or that’s not true.”

Resneck said for physicians it feels as though “state’s attorneys general or governors or law enforcement officers” are standing over their shoulders in the exam room. He worries it could drive an already problematic health care worker shortage to worsen in those states.

“I’m worried about … whether we’re going to have the workforce in those states in the future to take care of pregnant patients,” he said.

HHS is investigating at least one hospital in Missouri after officials there refused to let doctors perform an abortion on a woman during a medical emergency, but won’t say how many complaints it has received against providers or hospital system for failing to provide life-saving care.

In August, HHS also invited states to apply for Medicaid waivers that would unlock federal funds to pay for travel costs for women who live in states where abortion procedures have been severely restricted.

Not a single state has applied, although the agency said it is in talks with officials in some states about applications.

In Louisiana, where abortion is banned except in certain cases where a mother’s life is at stake, federal policies around travel are likely to have the most impact, said Michelle Erenberg of the New Orleans-based abortion rights advocacy group Lift Louisiana.

She’s not hopeful that other federal proposals will ease how women access abortion directly in the state.

“It’s a little frustrating,” Erenberg said. “Also, we understand there’s only so much the administration is going to be able to do when a state like Louisiana has decided to enact a near total ban on abortion care.”