Opinion | A Bold Plan to Preserve Access to Abortion

President Joe Biden has vowed his administration would use “all of its appropriate lawful powers” to counter the Supreme Court’s decision overturning Roe v. Wade. But so far, he’s done little with his executive authority to preserve access to abortion — a posture that has disappointed many who are clamoring for action. Biden can’t fully restore the protections of Roe alone. He’s right that supporters of abortion rights must vote to take back power from reactionary judges and legislators. But there are concrete tools at the president’s disposal that he has yet to deploy in this fight.

We present four of them here. These proposals are unorthodox and some will inevitably generate legal challenges. They will not undo the the devastation wrought by overturning Roe. They will, however, significantly mitigate the human suffering unleashed by the Supreme Court while signaling the White House takes this crisis seriously.

First, Biden should sharpen his administration’s defense of medication abortion, which is used in just over half of all abortions but will become singularly important post-Roe. For over 20 years, the FDA has approved this common and safe way of ending pregnancies, which involves taking two medicines (mifepristone and misoprostol) within 10 weeks of pregnancy.

The Federal Food, Drug and Cosmetic Act grants FDA power to ensure drugs and devices are safe and effective for their intended use. The administration should assert that the agency’s scientific determination that these drugs are safe and effective preempts any state ban or restriction on these medications under the Constitution’s Supremacy Clause. States cannot be permitted to pick and choose which approved drugs they will and won’t allow.

When the FDA uses the best scientific evidence to determine a drug is effective, states cannot be permitted to block their residents from accessing essential medication, period. Science must trump politics. Imagine if a state chose to restrict cancer patients from getting a life-saving drug for partisan reasons. Or, as is the case here, hard-right ideologues force unwanted and potentially dangerous pregnancies on women for political and religious reasons.

The FDA should also set into motion the regulatory and rigorous scientific review needed to expand the availability of medication abortion. Specifically, the agency should study whether medication abortion can be made available over the counter, whether it can be prescribed via telemedicine from a provider outside a state that bans or restricts access, whether it can be safely used up until 12 weeks of pregnancy, and whether women can import these medicines from abroad for their personal use. While the FDA must follow the science wherever it leads, other countries have pursued these policies and found them to be safe. If adopted here, these steps would aid millions of American women whose only realistic access to abortion services now comes through FDA approved medications.

Likewise, Attorney General Merrick Garland should state in categorical terms that the Department of Justice will sue states that ban medication abortion. On Friday, Garland said that “states may not ban Mifepristone based on disagreement with the FDA’s expert judgment,” but declined to spell out the specific enforcement actions his department will take against recalcitrant states. Being more direct is important. It puts red states with existing bans on medication abortion on legal notice about their violations of federal law. And it could discourage other states with less extreme legislators from following suit in upcoming special legislative sessions.

In addition, DOJ should file statements of interest in legal challenges brought by drug manufacturers and other parties against medication abortion bans. These influential amicus filings put the weight of the federal government behind private plaintiffs seeking to vindicate civil rights. To date, the department has not used this tool to attack medication abortion restrictions, even as private parties have gone to court. With Roe overturned, many more drug manufacturers are expected to sue. On Wednesday, GenBioPro, a generic manufacturer of a key abortion medication, announced it plans to file multiple lawsuits.

Second, Biden should instruct the Department of Health and Human Services and other federal agencies to pay for out-of-state travel for abortions if abortion is banned or inaccessible in the patient’s home state. This will require a creative interpretation of the Hyde Amendment, a legislative measure that bans federal funding for abortion. There’s a compelling, but by no means foolproof, legal argument that this regressive rider wouldn’t apply to expenses associated with travel to an out-of-state abortion clinic, as long as that funding isn’t used for abortion services themselves.

Even if a court determined the Hyde Amendment applies to travel for an abortion, the provision contains exceptions for abortions in cases of rape, incest or dangers to the life of the woman. Almost none of the post-Roe abortion bans have rape, incest or health exceptions. Federal intervention can lessen the grievous cruelty these laws impose on people who can’t afford to travel.

Third, the Biden administration should invite independent, international investigations into states that have draconian abortion laws and high rates of maternal mortality, especially for Black women. Just as the Biden State Department has invited United Nations racism investigators to visit the U.S., the State Department should welcome U.N. investigators and special rapporteurs on women’s rights and human rights to visit illiberal states like Texas and Oklahoma.

These investigations won’t lead to immediate change, but they will bear witness to grave human rights violations and lay the foundation for future accountability. International law protects access to abortion, and many of the recently enacted state abortion bans conflict with the United States’ obligations under agreements it has signed. As the United Nations High Commissioner for Human Rights wrote on Friday, overturning Roe is a “huge blow to women’s human rights and gender equality.”

Fourth, Biden should charge his surgeon general and CDC director to issue science-based reports on the physical and mental harms of abortion criminalization. For too long, public health agencies have shied away from fully studying the damage of abortion restrictions. That must end.

Restricting abortion access does more than take away a woman’s right to bodily integrity. It disrupts the entire public health system and curtails the provision of other medical procedures. Miscarriage management and abortion rely on overlapping, and often identical, treatments. Faced with harsh civil and criminal punishments, doctors may hesitate to treat miscarriages, or even outright refuse to do so — tragedies that have played out in other countries with abortion bans. Doctors will also be chilled in honestly counseling pregnant people. They will be faced with a Hobson’s choice between honoring their oath as physicians and violating state law. Science-based joint reports from the surgeon general and CDC can educate the public about these harms.

None of these proposals will undo the catastrophic damage to women’s bodily integrity, health and safety from overturning Roe. Building lasting political power will. But that takes time, and America needs immediate action to alleviate some of the direst consequences.

To be sure, there are unsettled legal questions that will arise from these proposals, especially in the first two. But with Roe in ruins, the president has no choice but to test audacious and uncharted strategies to preserve as much abortion access as possible. For decades, the anti-abortion movement has pushed the legal envelope to deny women autonomy over their bodies and lives. Supporters of abortion rights must be equally resourceful to reduce harm from their constitutional coup.

Biden’s presidency will be defined by how he responds to this constitutional, moral and health crisis. He should leave nothing on the table. As the Supreme Court robs people of their dignity and equality, the world’s most powerful person can’t be a passive spectator. His administration must do more to fight, take risks and lead.