If you had any doubts about the newly reconstituted Supreme Court’s view of abortion, its decision barely preserving the challenge to Texas’s six-week ban on abortions should make it clear that Roe v. Wade is dead, likely as soon as this year. Facing this reality, it is time to figure out what the federal government can do to counteract what many states have already done, and will do, to make abortions difficult, if not impossible, to obtain. One branch of Congress has already acted by passing a law seeking to codify Roe, but given the realities of this court and the Senate filibuster, it is clear that a different course is necessary. The situation, though, is not hopeless.
The U.S. House of Representatives recently passed H.R. 3755, the Women’s Health Protection Act of 2021, which is designed to save the right to abortion in every state. Appealing as that law may be, we fear it will not only fail, but will also backfire. First, there is no chance that it will survive a filibuster in the Senate, which the Democrats have been unable to end or even curtail. Second, it is almost certain that the Supreme Court would rule that Congress lacked the power to enact that law. Critically, Congress cannot base its authority to enact H.R. 3755 on its power to protect constitutional rights like abortion because, once Roe falls, that power goes with it. A claim of Congressional authority rooted in the commerce clause will fare just as poorly with the federal judiciary; in 2012, a far less conservative Supreme Court rejected that basis for the Affordable Care Act, which has a much firmer commerce basis than do abortion protections.
The most significant risk in pursuing H.R. 3755 is that it would become a very dangerous two-edged sword if upheld by the court. If Congress can legislate to protect abortion rights, it certainly can outlaw abortions, even in states that fully protect the right to an abortion now. The risk of passing H.R. 3755 is that Republicans will do just that the next time they control the White House and both branches of Congress.
This doesn’t mean, however, that Congress and the Biden administration are powerless to preserve the ability of patients to obtain lawful abortions. Even if Congress cannot make abortions accessible everywhere or without difficulty, several important steps can be taken to preserve much greater access than many Republican-controlled states are likely to allow.
First, states with abortion bans are likely to try to criminalize efforts by women, with the advice of their health professionals, to obtain abortions in jurisdictions where they are still legal. In our judgment, the courts should rely on the right to travel and the prohibition against states burdening interstate commerce to strike down any efforts to criminalize abortions obtained out of state. Congress should not wait, however, or expect the courts to come to the rescue. Instead, it should enact a law spelling out the right to seek an out-of-state abortion and provide corresponding protections for doctors and others who assist those traveling to obtain abortions where they remain legal.
For many women, however, the “right” to travel to another state is wholly theoretical because they cannot afford to make the trip, let alone pay for childcare or lose wages in leaving home for a day or more. Private parties can offer donations, but much more money is needed. As a result, we urge Congress to create a multi-million-dollar abortion expense fund, to be awarded to non-profit organizations that will provide the funds directly to women who require such support.
One barrier to this approach—and to abortion access generally for more than 40 years—has been the Hyde amendment to the federal Medicaid law, which prohibits the use of federal money for abortions. Now, more than ever, it is urgent to repeal the amendment permanently, as H.R. 2234 proposes, which would evade the filibuster if included as part of the budget reconciliation process. Moreover, Congress should make the provision of abortion services, which professional organizations consider an “essential component of women’s health care,” available to all Medicaid eligible patients. Thus, even if a state banned all abortions, federal funding would be made available to all Medicaid patients to pay for an abortion that would be performed in a state where it is legal.
Congress should also re-affirm that women in the military, as well as the spouses and dependents of service members, can continue to have abortions paid for as part of their health insurance. The same should apply to women who receive abortion services through federal agencies such as the Department of Veterans Affairs, the Bureau of Prisons, and the Indian Health Service.
Meanwhile, many federal employees have health insurance covering abortions, but live in states where abortions will soon be banned, or at least severely restricted. In order to assure that those federal employees and their families can retain that benefit, Congress should pass a law preempting any state law to the contrary. Similarly, Congress should require employment-based health insurance plans, which are governed by a federal law known as ERISA, to cover abortion, thereby assuring abortions can be performed in anti-abortion states.
Recently, the Food & Drug Administration removed its longstanding and medically unnecessary restriction on the ability of pregnant patients to obtain mifepristone—one of two drugs used for medication abortions—directly from pharmacies or by mail, without visiting a doctor. The FDA should also make clear, with an express authorization from Congress, that states may not interfere with the use of mifepristone, a federally-approved drug, whether for abortion or other purposes.
There are likely to be many more ways in which the federal government, operating within the limits of federalism, can protect its legitimate interests and help preserve access to abortion. These and other creative efforts will be required until states remove harsh restrictions on abortions, or a more sympathetic Supreme Court recognizes that Roe was properly decided and that the Constitution does protect a women’s right to an abortion.
