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In a 6 to 3 decision on June 24, 2022, the U.S. Supreme Court voted to overturn Roe v. Wade, reversing the court's 50-year-old decision that guaranteed a woman's right to obtain an abortion. The court's action also set off trigger laws that banned or severely restricted abortions in some states and prompted protests across the country.

Biden administration officials offer few details on medication abortion protections

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Sonya N. Hebert
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Official White House Photo

Originally published by The 19th

Despite President Joe Biden’s recent vows to use his presidential power to protect abortion rights, a top administration official declined to clarify when or how the executive branch would respond to growing enforcement of state laws that ban access to the procedure.

When the Supreme Court ruled to overturn Roe v. Wade Friday, Biden indicated he had directed his top health official, Health and Human Services Secretary Xavier Becerra, to explore all available options to preserve abortion access. 

Six states are now enforcing laws that ban all abortions. Three other states’ bans have been temporarily blocked. Both Biden and Attorney General Merrick Garland indicated last week that they believed the states’ bans on all abortions violate federal law. In particular, they cited efforts to ban access to mifepristone — one of the pills used to induce an abortion via medication, a safe and effective regimen used through the first trimester of pregnancy. 

Mifepristone for abortion has been approved by the federal Food and Drug Administration, and many legal scholars have argued that the federal approval could preempt state laws banning access to at least this particular method of abortion, which accounts for the majority of abortions done in America. A federal lawsuit challenging state-based medication abortion bans — and one that cites the FDA approval in particular — could, they argue restore some access in states that have begun to enforce abortion bans.

But at Tuesday briefing, Becerra would not say if or when the government plans to challenge those state laws banning medication abortion. 

“We will absolutely protect Americans’ rights to care under federal law and we will do everything we get to make sure Americans understand what their rights are,” Becerra said. “What exactly that translates into depends on what a state tries to do.”

The Department of Health and Human Services (HHS) has received “reports and complaints” about states already acting to ban access to mifepristone, Becerra said. The agency will work with the Department of Justice to make sure states don’t ban access to medication abortion “based on a disagreement with the FDA expert judgment about the drugs’ safety and efficacy.” 

He offered little insight into whether that might translate into government efforts to challenge state laws that could contradict federal authority or when that might happen.

“We are going to move as aggressively as we can under the law to both investigate and then enforce,” he said. “We have to be able to enforce based on the law.”

Some legal scholars have argued that the government should pursue bold action even if it is unclear whether their arguments will succeed in court. But Becerra struck a more measured tone, suggesting that the administration will not move on any policies or actions unless they are sure there is a strong chance of success.

The agency announced its new website Tuesday, ReproductiveRights.gov, marketed as a government center to clarify what rights are still available to Americans. 

Beyond medication abortion, Becerra would not confirm whether the agency is looking at opening abortion clinics on federal lands, such as national parks or health facilities run by the Veterans Health Administration. Those facilities are not necessarily subject to state laws, and could thus be opened and operated in or near states that have banned abortion. Congressional Democrats have been urging the government to open such facilities. 

At this point, HHS is actively looking into whether to open such centers, but it hasn’t yet made a decision, he said.

“Every option is on the table,” he said. “We will take a look at everything we can and everything we do will be in compliance with the law.”

The nuances and logistics of opening such clinics would be complicated at best, Rachel Rebouche, interim dean at the Temple University School of Law, told The 19th.

“There are logistical problems getting providers on land. Medication abortion eases that, but it’s not risk-free, and it’s logistically complicated and it’s unsettled,” she said.