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Barely two weeks have passed since the Supreme Court overturned Roe v. Wade, and already chaos reigns. Several states are moving to ban abortion almost completely, abortion-rights proponents are challenging those bans in court and in some cases, judges have been asked to issue injunctions that could, for a time, prevent the bans from going into effect.
Doctors across the country, including in places where abortion is legal, are confused about what is and isn’t allowed — even when the life of a patient may be at stake. Patients are equally confused and panicked, and in some cases, their health is being put in danger.
President Biden, responding to harsh criticism from his own party that his administration has not done enough to defend abortion rights, on Friday signed an executive order to help protect access to reproductive health care. In his remarks, Mr. Biden made a plea for Americans to elect a Congress that would vote to codify the rights once guaranteed by Roe v. Wade. He is correct that it will be a long political fight 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 Americans still have. There are several steps the federal government can take now, with laws that are already on the books, to fortify abortion services in states where they are legal, support doctors facing legal and logistical quandaries and help women who may need to cross state lines or secure abortion pills online. The executive order signed Friday does little more than direct the health and human services secretary to look for ways to better enforce these existing laws, and report back.
The need for action is clear, from years of research on how abortion access affects women’s health. One recent study estimated that denying abortions in the United States would lead to an increase in deaths of pregnant women by more than 20 percent overall, and by more than 30 percent for Black women — and that’s not counting the deaths that can result from unsafe abortions. While not all abortions will be denied in the new landscape, and how abortion pills will be regulated could play an important role, the public health consequences of overturning Roe could be severe.
The most urgent step for the federal government to take is to ensure access to medication abortion, the most common method of abortion, according to preliminary data from the Guttmacher Institute. In a strong public statement in defense of abortion rights, Attorney General Merrick Garland underlined his commitment to “work with other arms of the federal government that seek to use their lawful authorities to protect and preserve access to reproductive care.” He noted, in particular, the Food and Drug Administration’s authority over abortion drugs. States may not ban these drugs “based on disagreement with the F.D.A.’s expert judgment,” he said.
The F.D.A. should follow the attorney general’s lead and say, unequivocally, that the agency’s approval of and regulatory decisions around prescription drugs, including abortion pills, pre-empt any state-level regulations or statutes. That argument will almost certainly be challenged in court, but there is precedent to support it. When Massachusetts tried in 2014 to ban Zohydro, an F.D.A.-approved prescription painkiller, the move was struck down in a federal district court based on the F.D.A.’s pre-emptive powers.
The F.D.A.’s pre-emptive authority should be acknowledged by states that support abortion rights as well. At least 30 states, including some Democratic-led ones, have chosen to regulate abortion pills more tightly than the F.D.A. does. Some require a physician to dispense the pills, even though the F.D.A. allows other qualified health professionals to do so. Others require in-person appointments, even though the F.D.A. allows telehealth consultations. The F.D.A. should insist that those strictures be removed, and that guidelines be consistent with federal ones.
The agency should also take immediate steps to loosen constraints on medication abortion that experts have long said are unnecessary. For example, the two-drug cocktail commonly used for a medication 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 reporting by The Atlantic has noted, the pills have been used safely even later than that.
Likewise, the F.D.A. requires pharmacies to obtain certification to dispense one of the two pills, a policy that isn’t used in other countries and impedes access. To this end, federal officials should also support the drugmaker GenBioPro in its Mississippi lawsuit challenging other restrictions; the F.D.A.’s public support would help, as would the Justice Department’s involvement in the case.
The Centers for Medicare and Medicaid Services should also make clear, publicly, that all hospitals receiving federal funds for Medicare and Medicaid (meaning nearly all hospitals and clinics) are required to provide all F.D.A.-approved drugs and that emergency departments are bound by the Emergency Medical Treatment and Labor Act, which requires medical professionals to provide the necessary treatment in a medical emergency.
Both the Medicaid agency and Health and Human Services should make clear — again, unequivocally — that the emergency treatment law applies to abortion when a pregnancy is life-threatening and that they will enforce it. (The Hyde Amendment, a legal provision that prohibits the use of federal funds for abortion, also has a provision for rape, incest and medical emergencies that still applies to federally funded health centers.) Doctors faced with an ectopic pregnancy or miscarriage — which can turn deadly if fetal tissue remains in the body for too long — might be less afraid to act if they were reminded that inaction is still a crime, and if they knew that the federal government would support them.
Other federal agencies also have roles to play. The Centers for Disease Control and Prevention can aggressively monitor and publicize the illnesses and deaths in states where abortion is no longer available. As America’s leading public health agency, the C.D.C. has an obligation not only to continue studying the harm to public health caused by limits on abortion access but also to speak publicly about the intention to do so. The Federal Trade Commission can make clear that anyone who tries to sell fake abortion medications, online or anywhere else, will be prosecuted.
It’s true, as administration officials have said, that there are no easy solutions to the fight over abortion rights that Americans are now engaged in; even among those who favor reproductive rights, there is little consensus about the best solution. It’s also true that any action the administration takes may prompt litigation. But given the grave threat to public health, failing to act is not an option.
