Barely two weeks have passed since the Supreme Court overthrown Roe v. Wade, and chaos is already reigning. Several states are working to almost completely ban abortion, abortion rights advocates are challenging those banned in court, and in some cases judges have been asked to issue bans that could, for a time, prevent the bans from taking effect.
Doctors across the country, including in places where abortion is legal, are confused about what is and isn’t allowed, even when a patient’s life is at stake. Patients are equally confused and panicked, and in some cases their health is endangered.
President Biden, responding to harsh criticism from his own party that his administration has not done enough to defend abortion rights, signed an executive order Friday to help protect access to reproductive health care. In his remarks, Mr. Biden made a case for Americans to elect a Congress that would vote to codify the rights once guaranteed by Roe v. Wade. He is right that it will be a long political battle to restore the constitutional right that the Supreme Court took away with its decision in Dobbs v. Jackson Women’s Health Organization.
At the same time, the Biden administration has an immediate duty to protect public health and the rights that Americans still have. There are several steps the federal government can take now, with laws already on the books, to bolster abortion services in states where they are legal, support physicians facing legal and logistical challenges, and help women who may be have to cross state lines or have abortion pills online. The executive order signed Friday does little more than instruct the secretary of health and human services to find ways to better enforce and report on these existing laws.
The need for action is clear from years of research into the impact of abortion access on women’s health. A recent study estimated that abortion denial in the United States would increase the deaths of pregnant women by more than 20 percent overall, and by more than 30 percent for black women — and that’s not yet the number. deaths that may result from unsafe abortions. While not all abortions will be banned in the new landscape, and the way abortion pills are regulated may play an important role, the public health consequences of overthrowing Roe could be serious.
According to preliminary data from the Guttmacher Institute, the most urgent step the federal government must take is to ensure access to drug abortion, the most common method of abortion. In a strong public statement in defense of abortion rights, Attorney General Merrick Garland underlined his commitment to “work with other branches of the federal government that wish to use their lawful authorities to protect and maintain access to reproductive care.” In particular, he pointed to the Food and Drug Administration’s authority on abortion drugs. States may not ban these drugs “on the basis of disagreement with the FDA’s expert judgment,” he said.
The FDA should follow the attorney general’s lead and state unequivocally that the agency’s approval and regulatory decisions on prescription drugs, including abortion pills, prejudge any state-level regulations or statutes. That argument will almost certainly be challenged in court, but there is precedent to back it up. When Massachusetts tried to ban Zohydro, an FDA-approved prescription painkiller, in 2014, the move was rejected in a federal court based on the FDA’s preventive powers.
The FDA’s preventive authority must be recognized by states that also support abortion rights. At least 30 states, including some Democrat-led states, have chosen to regulate abortion pills more strictly than the FDA. Some require a doctor to dispense the pills, although the FDA allows other qualified health professionals to do so. Others require in-person appointments, even though the FDA allows telephone consultations. The FDA should push for those restrictions to be removed and guidelines consistent with federal ones.
The agency must also take immediate steps to release restrictions on drug abortion, which experts have long said are not necessary. For example, the two-drug cocktail commonly used for drug abortion is approved for up to 10 weeks of pregnancy in the United States, but the World Health Organization has deemed it safe for up to 12 weeks. And as the report by The Atlantic pointed out, the pills have been used safely even later.
Likewise, the FDA requires pharmacies to obtain certification to dispense either of the two pills, a policy not used in other states and hindering access. To that end, federal officials should also support drug maker GenBioPro in its Mississippi lawsuit to challenge other restrictions; the FDA’s public support would help, as would the Justice Department’s involvement in the case.
The Centers for Medicare and Medicaid Services must also make it publicly clear that all hospitals that receive federal funds for Medicare and Medicaid (that is, nearly all hospitals and clinics) are required to dispense all FDA-approved medications and that emergency departments are bound to the Emergency Medical Treatment and Labor Act, which requires medical professionals to provide necessary treatment in a medical emergency.
Both the Medicaid Bureau and Health and Human Services must make it clear — again, unequivocally — that the emergency treatment law applies to abortion when a pregnancy is life-threatening and they will enforce it. (The Hyde Amendment, a legal provision that prohibits the use of federal funds for abortion, also has a rape, incest, and emergency medical provision that still applies to federally funded health centers.) Doctors Facing With an ectopic pregnancy or miscarriage – which can turn deadly if fetal tissue remains in the body too long – may be less afraid to act if they are reminded that doing nothing is still a crime, and if they knew the federal government was giving them would support.
Other federal agencies also have a role to play. The Centers for Disease Control and Prevention can aggressively monitor and publish the illnesses and deaths in states where abortion is no longer available. As America’s leading public health agency, the CDC has a duty not only to continue studying the harm to public health caused by restrictions on abortion access, but also to speak publicly about its intention to do so. The Federal Trade Commission can make it clear that anyone who tries to sell fake abortion drugs, online or anywhere, will be prosecuted.
It is true, as government officials have said, that there are no easy solutions to the abortion rights struggle that Americans are now engaged in; even among those in favor of reproductive rights, there is little consensus on the best solution. It is also true that any action taken by the administration could lead to lawsuits. But given the serious threat to public health, failing is not an option.
