As we await a final decision in Dobbs v. Jackson Women’s Health Organization, the case that will almost certainly overturn Roe v. Wade, there are some actions the Biden–Harris administration can take to expand and protect abortion access. Although the administration’s power will be limited after the Supreme Court rules, the executive branch can take action to mitigate the harm of the fall of Roe. Administrative actions should be included in the “whole-of-government” approach to protecting abortion access that President Biden called for last fall. Earlier this month, Senators Patty Murray (D-WA) and Elizabeth Warren (D-MA) reiterated this need in a public letter to the president, asking for an executive order that directs the federal government to develop a national plan to address this crisis.
The list below is not exhaustive, but includes a few key avenues that the administration should explore to help lessen the devastating impact that this upcoming decision will cause—and the crisis that has been brewing even under Roe.
1. Declare a Public Health Emergency
The abortion access crisis is a public health emergency, and should be treated as such. The COVID-19 public health emergency (PHE) has allowed the administration and states to use additional resources and authority to address the pandemic—and the same could be done for the abortion access crisis. The Biden administration should explore declaring a PHE for abortion access to free up funds and take advantage of additional flexibility with Medicaid requirements.
2. Combat Disinformation and Stigma around Abortion Care
With disinformation about abortion care rampant, the administration should take an active role in providing accurate information about abortion care, including self-managed abortion care. As the U.S. Department of Health and Human Services (HHS) has prioritized with the COVID-19 pandemic in particular, the administration can act as public health messenger in providing accurate, timely information for abortion patients and providers. This can include HHS guidance for providers on comprehensive pregnancy counseling that includes referrals to abortion care. In order to address the criminalization of pregnancy outcomes, materials should also emphasize confidentiality and make clear that providers are not required to report to law enforcement patients presenting after self-managed abortion care.
The administration must also actively combat abortion stigma and use its bully pulpit to raise awareness of the crisis—and that includes saying the word abortion in oral addresses, White House statements, and materials.
3. Ensure Coverage of Abortion Care under Medicaid and Private Insurance, to the Fullest Extent Allowed
Although federal funds are restricted from covering abortion care outside of limited circumstances (because of the continual application of the Hyde Amendment and other harmful abortion riders), there is more to be done to ensure that abortion coverage is provided when allowable. The administration should address violations of federal abortion coverage requirements that were identified by a 2019 report by the U.S. Government Accountability Office. HHS should also encourage states that do cover abortion care with state Medicaid funds to reimburse those services at an adequate rate.
The administration should also revoke Executive Order 13535, which restricts abortion coverage in marketplace plans. In addition, the administration should continue to introduce presidential budgets without the Hyde Amendment and other funding restrictions, as was first done in President Biden’s FY 2022 budget proposal.
4. Ensure That Medicaid Is Not Further Marginalizing Abortion Care and Providers
The Centers for Medicare and Medicaid Services (CMS) should ensure that abortion care and providers are not being further marginalized. First, CMS should enforce the Free Choice of Provider protections to ensure that states are not excluding Planned Parenthood and other family planning providers from their Medicaid programs in violation of federal law. Further, CMS should not approve waivers that stigmatize abortion care and encourage the surveillance of pregnancy outcomes—as is the case with an 1115 waiver submitted by Texas that would limit extended postpartum Medicaid coverage to individuals experiencing only certain pregnancy outcomes, discounting people who had an abortion.
5. Providing Resources and Support to Individuals Seeking Care, Providers, and Others
As pregnant people are forced to travel increasingly long distances to access abortion care, the administration should explore all possible avenues for suppporting patients, including vouchers for travel, child care, and other related expenses that may prohibit people from accessing abortion care. To the extent possible, the administration should explore making funds available to individuals seeking care, providers, and abortion funds, as well as states receiving an influx of patients. Additionally, through the U.S. Department of Labor, the administration can clarify that travel for abortion care is considered a qualifying event for leave under the Family and Medical Leave Act.
The Biden–Harris administration alone cannot solve the abortion access crisis that will worsen once Roe is officially overturned—but it is not without options to act. By exploring the five avenues discussed here, the administration can help mitigate the harm that is sure to come.