HHS Secretary Xavier Becerra: Feds working to maintain abortion pill access, other protections

Amid growing criticism of the Biden administration for its lack of forceful action on behalf of abortion rights, Health Secretary Xavier Becerra said Tuesday that the federal government will work to ensure access to abortion pills and take other steps but insisted that “there is no magic bullet” to counter last week’s U.S. Supreme Court decision overturning Roe v. Wade.

“Friday’s Supreme Court decision was despicable, but it was also predictable,” Becerra, the former Attorney General for California, said at a press conference, adding that his Department of Health and Human Services “has been preparing for this for some time.”

Despite that preparation, Becerra said that it is unclear how far the federal government can go in providing abortion access in states that move to restrict it. His remarks — the most detailed from a Biden administration official since the Friday ruling — underscored the new and uncertain legal landscape around the country as federal and state governments explore how to preserve or restrict abortion.

In California, which has adopted some of the country’s most expansive abortion rights, Gov. Gavin Newsom and state lawmakers have moved quickly to further bolster them. Newsom has proposed a $125 million Reproductive Health Package to expand access for women and help prepare for a possible influx of abortion seekers from other states.

The governor signed a bill aiming to protect those in California from civil liability for providing, aiding or receiving abortions in the state. And Californians in November will vote on a state constitutional amendment to include a right to abortion.

But the Biden administration has come under pressure from fellow Democrats to be more aggressive in finding ways to protect access to abortions. The New York Times reported that Massachusetts Sen. Elizabeth Warren and New York Rep. Alexandria Ocasio-Cortez suggested opening abortion clinics on federal land in states that restrict the procedure, but White House Press Secretary Karine Jean-Pierre said such a move would not ensure legal protection of doctors who provide the services and patients who seek services there.

Becerra said he is following President Biden’s directive that the administration ensure medical abortion pills are available “to the fullest extent possible” and that women can travel safely from states where abortion is banned to those where it is legal. To that end, he said his department is:

• Increasing access to “medication abortion” — abortion pills — in the limited circumstances where federal law allows public funds to be spent on abortion, in cases of rape, incest or risk to the mother’s life.
• Working with the Office of Civil Rights “to ensure patient privacy and nondiscrimination for patients seeking reproductive health care, as well as for providers who offer reproductive health care,” in order to protect them from legal liability.
• Exploring its authority under the Emergency Medical Treatment Act to ensure the clinical judgment of doctors and hospitals is supported in treating pregnant patients, including those experiencing pregnancy loss or complications, and “reaffirming that abortion care can be appropriate to stabilize patients.”
• Ensuring that all providers — doctors, pharmacists and clinics — have training and resources to handle family planning needs and refer patients for care.
• Directing the Centers for Medicare and Medicaid Services to protect emergency contraceptives and long acting reversible contraceptives, such as IUDs, and make clear that family planning providers are able to participate in the Medicaid program.

“We will also work with the Attorney General and the Justice Department as they work to ensure that states may not ban medication abortion, based on a disagreement with the FDA’s expert judgment about the drug’s safety and efficacy,” Becerra said. “There is no magic bullet, but if there is something we can do, we will find it and we will do it.”

Andrew Torrez, a lawyer who hosts the Opening Arguments podcast, said in an interview that supporting the availability of abortion pills is the most legally viable approach for the federal government to maintain abortion access in states aiming to restrict the procedure.

Anti-abortion states are seeking to block access to pills as well, but Torrez said there is sound argument that Congress, through the Food and Drug Act, aimed to provide uniform standards of access to federally approved medication, so additional legislation would not be required to establish that authority.

“My belief based on case law is that a fair review of the relevant legislation is that they did intend to create uniform standards, and that federal government’s regulations override,” Torrez said. But he also said it’s sure to be challenged in court in a “protracted fight.”

He said that setting up telehealth sites on national parks or other federal lands to prescribe abortion medication, instead of establishing brick and mortar clinics there, could be tried. It too would face court battles, but the approach would be less vulnerable to challenge than establishing physical abortion clinics, he said.

Still, resistance may prove to be more fruitful at the state level. If California or other states pass constitutional amendments protecting abortion rights, it would be very difficult for the federal government to override that, Torrez said.