Now that Roe v. Wade has been overturned, many people have asked what President Biden can do about it. His one, consistent exhortation—to vote—has felt cheap, considering the President’s party currently controls the White House and both chambers of Congress.
It’s not that simple, of course. Voting is important: the Senate, as currently constituted, does not have the votes to overcome the filibuster and without the filibuster, Congress can’t pass a federal law creating a right to abortion.
But even with everything gridlocked thanks to the structure of the Senate, the fact that Biden is in office right now is critically important. He still has executive powers, and that means he can actually do quite a bit to help the country maintain access to abortion care. Here we survey some of the most promising proposals for executive action, many of which we proposed in a forthcoming law review article.
With this many options, the Biden Administration cannot claim it has no power to act right now.
Call for a “whole of government” response
On his first day in office, President Biden issued an executive order calling for a whole government response to “Advancing Racial Equity and Support for Underserved Communities.” The order required the heads of every agency to evaluate what they can do to promote racial and economic justice. President Biden can now issue the same order but with respect to abortion access.
There are numerous federal agencies, each with their own complicated domains that directly or indirectly touch on abortion law and access. By demanding that the head of each agency explore options for action, President Biden can deploy the expertise of those who understand various, complicated areas of the administrative state best, and he could receive fresh ideas that might help in big and small ways. For example, what can the Federal Trade Commission do to thwart misinformation about abortion law and services? What can the Department of Defense do to promote abortion access for members of the military who are stationed in states with bans? What can the Commerce Department do to protect interstate travel for commercial purposes? Though it will take time to implement agency actions, generating novel ideas and approaches is relatively costless and sends a strong signal that this issue is a top priority. And it is clearly lawful and within the President’s authority.
Remove remaining FDA restrictions on abortion pills
The FDA has approved mifepristone, one of two drugs used in medication abortion, through ten weeks of pregnancy. But it still maintains restrictive requirements on the medication far beyond what is medically indicated as necessary. The requirements limit which providers and pharmacies can dispense mifepristone—a move that isolates, stigmatizes, and burdens abortion care—and imposes extra paperwork to document informed consent.
Mifepristone is safer than many drugs that have no extra requirements from the FDA. Though the FDA has loosened its extra restrictions in the past—including most recently in December when it permanently allowed abortion to be prescribed and dispensed through telehealth appointments—it maintained the other medically unnecessary requirements, restricting abortion access. It is clearly within the FDA’s purview to follow the science, lift these remaining restrictions, and make abortion medication as accessible as other safe and effective drugs.
Preempt bans on abortion pills
The FDA has approved mifepristone as a safe and effective method for terminating a pregnancy up to ten weeks, but many state abortion bans (or other restrictions on abortion pills) contradict these FDA regulations. Federal regulation may preempt these laws, however, by prohibiting a state from banning or overregulating medication abortion.
The supremacy of federal law over state law is a bedrock principle of U.S. jurisprudence. The FDA could issue a statement to this effect, and the Department of Justice could initiate its own lawsuits or participate in ongoing lawsuits to enjoin these bans as they apply to medication abortion.
For the preemption theory to work, federal courts would need to agree. Though the principle of federal supremacy is unquestioned, how it applies in particular cases is complicated and contested. But if this strategy were to be successful, it would create a major hole in state abortion bans. Though the case might not win, there is little downside to trying and losing. And the upside is substantial because, without a doubt, access to abortion pills will be one of the most significant ways abortion will remain safe and available even without Roe.
Declare a public health emergency
The President could declare a public health emergency, which would grant the federal government powers on a broader scale, including the redirecting of federal funds and implementation of more concrete actions, like granting civil immunity to licensed medical providers practicing in states in which they do not hold a license. Given the dire impact abortion bans are going to have on people across the country and in particular, the most marginalized and vulnerable people, a health emergency is not hyperbolic. Declaring one could, among other things, free up funds to assist patients traveling out of state, relax rules around licensing, and give the federal government leeway to protect abortion access in other ways.
The risk here is that the conservative federal courts may not agree that a health emergency declaration is warranted and could limit the President’s authority, like they have with the COVID response, in ways that could harm future public health efforts. But again, this risk might be worth taking given the scale of the crisis.
Permit abortion provision on federal lands and in federal healthcare centers
The Hyde Amendment prohibits federal dollars from funding abortions, but it doesn’t say anything about private entities using their own money to perform abortions on federal lands. So if the Biden Administration leased property to private abortion clinics, could they operate on federal lands in states where abortion is banned? There’s a good argument they could.
This argument is based on an obscure federal law known as the Assimilative Crimes Act that adopts some state criminal law on federal land, but only when there’s no federal policy to the contrary. With the FDA’s approval of medication abortion, there’s a strong argument that state abortion bans, at least as applied to medication abortion, do not apply on federal land. And even if state law applied, federal prosecutors control prosecutions on federal land, so the Biden Administration could choose not to prosecute them. Then, at the end of his term, Biden could pardon those who provided abortions on federal land during his time in office.
This strategy has big payoffs, but also big risks. Providers, helpers, and patients could be targeted going to and from the federal land, and even if there are constitutional defenses to prosecution, a loss could mean that people go to prison. But federal lands are in every state, and strategic decisions about where to establish test sites could provide a point of abortion access that might otherwise not exist.
Moreover, there are many places where the federal government already provides health care—Veterans Administration hospitals and federally qualified health centers, in particular. The Hyde Amendment blocks federal dollars from being used to perform abortions except when the patient’s life is at risk or if the patient was the victim of rape or incest, so these locations could only perform a small sliver of abortions that fit within these exceptions. But like the federal lands idea, the federal provision of this subset of abortions could avoid state abortion bans.
Others—not us—have floated the idea of abortion providers working on Native lands as a possible solution based on the theory that state governments cannot interfere there. We have intentionally avoided this theory because it ignores the reality that health services for indigenous communities are already poorly funded and that indigenous people already struggle to access reproductive care. It also problematically suggests that indigenous people have an obligation to fix a problem they did not create. Moreover, the Supreme Court ruled last week that states have concurrent jurisdiction over Native land criminal prosecutions, and many Native tribes have different views on abortion, including many that are against it.
Protect abortion travel
Immediately after the decision last week, President Biden stated that “women must remain free to travel safely to another state to seek the care they need. And my administration will defend that bedrock right.” Travel from a state where abortion is banned to a state where abortion remains legal is a key part of the future of abortion access in this country. Anti-abortion legislators are already talking about trying to prevent abortion-related travel, so the President’s promise is an important one, especially since current law is unclear about whether states with abortion bans can restrict travel to another state to get an abortion. The federal government plays an important role in controlling interstate travel, and if it requires travel to be open across state lines for the purpose of obtaining an abortion, states may not be able to contradict that. This would ease a major concern of abortion travelers as well as abortion providers treating them. Though Biden has made clear he supports this, we haven’t yet seen concrete ideas from his administration on how it will accomplish this goal.
The truth is there is no clear presidential solution to the problem of the Supreme Court discarding a national right to abortion. President Biden cannot restore Roe or create a federal right to abortion. But he could mitigate the damage of the coming crisis. The question now is how bold he wants to be and how much risk he and others want to assume. There are risks to acting, but doing nothing also carries risks. How President Biden assesses this balance in an attempt to meet the moment is one of the biggest challenges of his presidency.