Joe Biden’s re-election campaign has made a big bet that outrage over abortion will keep the president in the White House come November.
Over the last several days, the Biden administration has unleashed a blitz of ads and events to spotlight the devastation wrought by the overturning of Roe v Wade. Biden met with a reproductive health task force, while his vice-president, Kamala Harris – who he has entrusted to lead this effort – embarked on a national tour to talk about abortion. They even devoted their first joint campaign stop of 2024 to the issue.
From the podium, Biden promised to sign any bill that would codify Roe’s protections into law and to fight back efforts by Congress to diminish abortion access.
“Donald Trump and Maga Republicans, including the speaker of the House, are hellbent on going even further,” Biden said, a reference to the hard-right Republican speaker, Mike Johnson. “As long as I have power of the presidency, if Congress were to pass a national abortion ban, I would veto it.”
Congress is unlikely to ban or protect abortion anytime soon. Not only is Congress largely frozen – it passed just 27 bills last year – but both political parties seem wary of tackling national legislation around a third-rail topic like abortion.
Now that Roe is gone, the question of if and how to regulate abortion access is largely up to state governments to answer. But the executive branch of the US government still maintains several powers to protect abortion access – and undermine it.
What has Biden done to protect abortion access?
The Biden administration’s ability to enforce remaining federal laws that touch on abortion is perhaps its greatest weapon in the fight over the procedure. Shortly after Roe’s demise, the Biden administration announced that it believed a 1986 federal law that protects people’s access to emergency care at hospitals also applies to emergency abortions. The administration later sued Idaho, arguing that the state’s near-total abortion ban flew in the face of that law, the Emergency Medical Treatment and Labor Act (Emtala).
That case has now made its way to the US supreme court. The supreme court justices are also set to hear arguments in a case involving the availability of a major abortion pill – a case in which the Biden administration is, once again, arguing in favor of abortion access.
“Being a check on the supreme court is pretty significant,” said Mary Ziegler, a University of California Davis school of law professor who studies the legal history of reproduction. The US supreme court is dominated 6-3 by conservatives. “If the supreme court says that you can or should enforce rules against abortion providers, I don’t think a Biden administration is going to do that.”
Since Roe fell, anti-abortion activists have also begun to argue that the federal government could enforce a de facto national abortion ban through the Comstock Act, a 19th-century anti-obscenity law that bans the mailing of abortion-related materials.
However, the Biden administration has issued guidance declaring that they do not believe the Comstock Act can or should be used to enforce a national abortion ban. According to the Biden administration, as long as someone does not intend to break the law when they mail abortion-related materials, they are not violating the Comstock Act.
What more could Biden be doing?
The answer depends on who you ask. Abortion rights advocates have long been dissatisfied with Biden’s approach to the procedure; Biden has supported Roe’s protections but also said that, as a Catholic, he is personally not “big on abortion”. During his campaign and the first several months of his presidency, he seemed wary of even saying the word “abortion”, leading reproductive justice advocates to launch a website devoted to answering the question “Did Biden Say Abortion Yet?” (He has now said it multiple times.)
The Biden administration has pursued several cases under the Freedom of Access to Clinic Entrances Act, or Face Act, a federal law that penalizes people for threatening, obstructing, or injuring someone who is trying to access a reproductive health clinic, or for vandalizing a clinic. But abortion providers have long complained that the law is not being enforced enough.
Abortion rights supporters have also proposed a litany of other, experimental ways to protect abortion access, such as by leasing federal land to abortion providers or advocating for the repeal of the Comstock Act. Biden could also loosen regulations around abortion pills, although Ziegler cautioned that such actions run the risk of politicizing the US Food and Drug Administration (FDA) to a dangerous degree.
Abortion rights advocates have also said that the Biden administration could take steps to lessen the impact of the Helms Amendment, a decades-old law that has been used to block the use of federal funding to pay for abortions. Advocates have accused Biden of inappropriately over-enforcing the Helms Amendment, to the point that the US Agency for International Development in 2021 cancelled a conference session on the provision of safe telemedicine abortion.
However, in Ziegler’s view, the threat of the supreme court tamps down on Biden’s ability to innovate. Rather than pursuing novel, national ways to protect abortion access and run the risk of litigation, the administration may want to stay out of federal court entirely.
“I think Biden has been really cautious,” Ziegler said. “But I do also think that had he not been as cautious, it could have ended up the same or worse anyway, just because the supreme court is so conservative.”
What could Donald Trump do to further restrict abortion?
If Trump wins the presidency in November 2024, he may reverse course on many of the Biden administration’s decisions around how and if to enforce federal abortion law. He could try to implement the Comstock Act to ban abortion in some form, including in states that haven’t passed bans. He could also decrease Face Act prosecutions, or tighten regulations on mifepristone.
Unlike Biden, he likely wouldn’t worry about politicizing the FDA, Ziegler said. “There’s a lot of asymmetry that hurts Democrats, but also Democrats do value some of these institutional separations that Republicans don’t.”
Trump’s first four years in the White House also offer a blueprint for how he may further dismantle access to both abortion and contraception if he returns to power.
Since the 1980s, whenever a Republican becomes president, he has implemented what is known as “the Mexico City policy” or the “global gag rule”, as abortion rights supporters call it. This policy typically blocks foreign NGOs that receive US family planning funding from providing abortion-related services or even advocating for increased access to the procedure. (Historically, whenever a Democrat replaces a Republican as president, he has rescinded the Mexico City policy.)
Trump, however, turbocharged the Mexico City policy during his presidency. Rather than stripping funding only from family planning assistance, in 2017 his administration expanded it to apply to all US global health assistance. Rather than impacting $600m worth of funding, by 2018 it impacted $12bn, according to estimates by the Guttmacher Institute, which supports abortion rights.
As president, Trump also implemented a “domestic gag rule”, which blocked members of Title X, the nation’s largest family planning program, from even referring people for abortions. Rather than comply with this rule, a quarter of Title X-funded health centers simply left the program. Six states were left with zero Title X providers, who offer low-cost access to family planning services like birth control.
If Trump wins in 2024, he will likely reinstate this rule, said Robin Summers, vice-president and senior counsel for the National Family Planning and Reproductive Health Association. And that’s just the beginning of Summers thinks he might do.
“I think it only gets worse,” Summers said.
Trump could, Summers suggested, legally label certain forms of hormonal birth control – such as IUDS – as abortifacients, suggesting that they cause abortions. (Medical experts widely believe that they do not.) The US supreme court has previously supported a similar move. In a 2014 decision, issued when the court’s makeup was far less conservative, the justices ruled that a corporation did not have to cover certain forms of birth control for employees because the corporation’s religious owners believed them to be abortifacients.
“The bottom line here is that advocates sounded the alarm for years that Roe was at significant risk of being overturned. And we were dismissed by many as catastrophizing the whole thing,” Summers said. “And look where we are.”
