WASHINGTON – President Biden’s health secretary is facing criticism from other Democrats that the administration is not doing enough to counter the Supreme Court’s decision overturning Roe v. Wade said on Tuesday that there was “no magic bullet” to abortion access to preserve – even as he outlined a series of steps his department would take to make an effort.
Xavier Becerra, Secretary of Health and Human Services, told reporters that Mr. Biden’s direction, he had instructed his agency to take a number of actions, including making sure that federal programs cover drug abortion in cases of rape or incest or when the life of his mother is at risk.
At a morning news conference, Mr. Becerra said his department would work with the Justice Department to ensure women have access to abortion pills – two different drugs, taken 24 to 48 hours apart and authorized for the first 10 weeks of pregnancy – in places where state law conflicts with the decision. the Food and Drug Administration, which has approved the use of drugs and determined that they are safe and effective.
It will also require hospital emergency rooms to comply with a federal law mandating that they stabilize patients experiencing a medical emergency – including by performing abortions if necessary. And it will take steps to ensure that patients’ records are private, to keep state or local officials from identifying women who have abortions.
But those steps may not go far enough for progressive Democrats and other advocates of reproductive rights. Some lawmakers, including Representative Alexandria Ocasio-Cortez of New York and Senator Elizabeth Warren of Massachusetts, have called on the administration to build abortion clinics on federal land and pay people to travel out of state.
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Those were not among the measures that Mr. Becerra announced on Tuesday, and he voiced a note of what the administration can and cannot do. There are still complex legal issues to sort out, he said, to ensure the administration does not violate the court’s ruling in Dobbs v. Jackson Women’s Health Organization.
“It was a long decision and it did upend 50 years of precedent, and so you want to make sure what you do within the confines of the law,” Mr. Becerra said. “We are not interested in going rogue.”
He called the court’s decision “despicable,” and at one point said he wanted to offer “my apologies” that the administration could not do more. “There is no magic bullet,” he said, “but if there is something we can do, we will find it and we will do it.”
The administration has studied, but is still skeptical about, the idea of hosting abortion clinics on federal enclaves like military bases and national parks – where state prosecutors lack jurisdiction – in states where abortion is now a crime.
The problem, according to officials familiar with internal deliberations, is that the federal government could not ensure that doctors who are not federal employees performing official duties – and potentially patients – would not be at risk of prosecution. The White House press secretary, Karine Jean-Pierre, dismissed the idea on Tuesday, telling reporters aboard Air Force One that it could have “dangerous ramifications” for women and doctors.
If a Republican were to win the presidency in 2024, his or her Justice Department could charge people with state-law abortion offenses – and charting conduct for statute of limitations would not run out until 2022. States could strip doctors of their medical licenses. And state prosecutors could try to charge people with related conduct that took place outside the enclave – like helping women get there – under a theory of abiding and abetting or conspiracy.
Offering financial help to women to get cross-state lines on an abortion could also be problematic for the administration, as it may violate the so-called Hyde Amendment, which is sometimes used by federal funds to pay for abortion in cases of rape or incest. , or where the life of the mother is at risk. Mr. Becerra was asked on Tuesday if the Department of Health and Human Services might provide such financial help.
Once officials know “exactly what we believe we are able to do, and have money to do, we will let you know,” he said. “But until then, what I could simply say is you: every option is on the table.”
One area where the administration can act is to ensure that women have access to emergency contraception – the so-called morning-after pill, also known as Plan B – and intrauterine devices. Both are common methods of contraception, but abortion opponents regard them as “abortifacients” and have tried to restrict access to some states.
Some family-planning clinics in states that are banning abortion say their supply of Plan B is now running short, because women – fearful that the pills will be outlawed – are stocking up. Hailey Kramer, a nurse practitioner at Tri-Rivers Family Planning in Rolla, Mo., said Monday that the clinic’s supplier was grappling with soaring demand and that the pills had been back-ordered since a draft overturning of Roe was leaked last month.
Mr. Becerra also said he has directed the Centers for Medicare and Medicaid Services to take action against states, including Missouri, that have excluded Planned Parenthood, a leading provider of birth control, from Medicaid family planning programs that reimburse for such services.
“We will make it clear that family planning providers are able to make the Medicaid program,” he said.