HEALTH CARE BRIEFING: Biden, Blue States Weigh Abortion Options

Bloomberg Government subscribers get the stories like this first. Act now and gain unlimited access to everything you need to know. Learn more.

President Joe Biden and congressional Democrats are under pressure to enact new policies to ensure US women retain access to abortions, but their options are sorely limited and risk generating new court challenges.

Biden said on Friday that his administration will fight to make sure women can travel from states where abortion is outlawed to obtain the procedure in states where it’s legal. He said he also ordered the Health and Human Services Department to ensure medication abortion is available “to the fullest extent possible.”

Both moves may wind up in court, as some Republican lawmakers have vowed to try to prevent women from traveling out-of-state for abortions and stop abortion drugs from being prescribed or sold within their states.

But despite controlling the White House and both chambers of Congress, there’s little more Democrats can do via executive action or legislation, legal experts say, after the high court wiped out the constitutional right to abortion in a historic ruling. Senate Republicans can easily filibuster any bill to replace the rights once secured by Roe, while Biden lacks the authority to unilaterally ensure abortion is available nationwide.

The White House has held daily calls on the subject since the ruling first leaked, plotting out its options, and met regularly with groups like Planned Parenthood and Emily’s List, an official familiar with the process said, speaking on condition of anonymity. Read more from Jordan Fabian.

“We’re going to continue to see what else we can do,” Press Secretary Karine Jean-Pierre said. “But I guess what I’m trying to say about the executive actions, is that nothing could fill the hole that this decision has made”—other than Congress passing legislation, she added. Josh Wingrove and Kate Queram have more.
The HHS is considering transportation services for women seeking to terminate their pregnancy in another state, an unprecedented move for the federal health department following the ruling. “We’re looking at every option, and among those is transportation,” Secretary Xavier Becerra said Saturday. Read more from Jeannie Baumann.
The decision puts immediate pressure on the Pentagon, which has struggled to clarify how it might address the health-care expectations of female troops, and female spouses of troops. Read more from Roxana Tiron and Bill Faries.

Abortion Funds Key Fight After Roe Verdict: The House Appropriations Committee is set to mark up its Labor-HHS-Education spending bill for fiscal 2023 on Thursday. The bill plays host to the debate over the Hyde amendment, a decades-old restriction on federal funding for abortion with some exceptions. Democrats eliminated the ban in their bills last year, but agreed to add them back for the final fiscal 2022 legislation. They may be more motivated to eliminate it this year following the ruling. Read more from Jack Fitzpatrick.

State, Local Abortion Moves

Blue Strongholds Plot Abortion Strategy: California, Washington and Oregon formed an alliance to ensure abortion access on the West Coast. Michigan’s leader asked the state’s top court to rule quickly on her suit seeking to codify rights to the procedure. And in Illinois, the governor demanded a special legislative session. Only 14 states have a Democratic governor along with legislative bodies controlled by the party, while 23 have Republicans in control. In liberal strongholds, the reaction to the ruling was swift and fierce. Read more from Brendan Walsh, Ngai Yeung, and Michael Sasso.

Local Prosecutors Say They Won’t Enforce Bans: District attorneys and other local prosecutors from 85 jurisdictions across the US said Friday they won’t prosecute abortions sought in their jurisdictions. Catarina Saraiva has more.

Women’s advocates have filed suits in Michigan and Florida to retain abortion rights, while another is planned in Ohio. Hours after the ruling, Ohio Gov. Mike DeWine (R) got a judge to lift a pause on a state law that barred abortions after six weeks. The groups plan to file a lawsuit “on behalf of Ohio’s abortion providers to protect the continuity of abortion care in our state under the Ohio Constitution,” they said in the statement. Chris Strohm and Evan Peng have more.
Washington Gov. Jay Inslee pledged to block anti-abortion jurisdictions from learning who travels to the state for the procedure. Inslee said he’ll work to “plug any gaps” in privacy laws so women can get abortions without concern for their information being shared. Read more from Spencer Soper.
In Louisiana, doctors providing abortions face up to 15 years in prison under a trigger law designed explicitly to take effect under the fall of Roe. And in Texas and Oklahoma, those who help someone receive an abortion are vulnerable to lawsuits from citizens deputized by bounty laws. Though most states with restrictive abortion laws have so far abstained from criminalizing those seeking abortions, that often doesn’t stop them from targeting them. Ella Ceron has more.
California will refuse to enforce out-of-state court orders against those who seek or help those seeking abortions under legislation Gov. Gavin Newsom signed Friday. The legislation says a law of another state authorizing a person to bring a civil action against a person or entity that seeks, performs or aids the performance of an abortion is contrary to California policy, setting up a cross-border fight with states that have enacted restrictions on abortion. Joyce E. Cutler have more.
Planned Parenthood Association of Utah filed a lawsuit seeking to block Utah’s new law banning all elective abortions that went into effect late Friday. The group said it also plans to ask the court for a preliminary as well as permanent court order against the state’s new law blocking abortions at any point in pregnancy, according to the suit filed in Salt Lake City County’s Third Judicial District on Saturday. Read more from Patricia Hurtado.
Related: Abortion Patients Have a Limited Privacy Shield: HIPAA Explained

Ruling’s Other Implications

Court Tees Up Fight Over Abortion Pills: Legal scholars say the move could spur states to go after mifepristone, a medication that’s used for the majority of US abortions. HHS’s Becerra has said he’s directing his agency to “do any and everything we can” to ensure “the right to safe and legal abortion” through medication. Attorney General Merrick Garland also joined the fray, asserting that states can’t ban mifepristone based on disagreement with the Food and Drug Administration’s “judgment about its safety and efficacy.” That, however, doesn’t mean that states won’t try to find other means to block access to the drugs. Read more from Ian Lopez.

The ruling could fragment the country’s medical education system and slash the number of new OB-GYNs trained to perform abortions. That may be felt nationwide as universities grapple with how to reconcile new laws with accreditation. “We need to train about 650 residents each year in abortion care” at the programs in US states likely to ban abortion, said Jody Steinauer of the University of California. Read more from Christopher Brown.
The ruling is also putting other hard-won rights at risk, including contraception. But the threat level depends on which opinion you read. Justice Clarence Thomas made it clear that other rights based on due process need to be reassessed “in future cases.” Read more from Erik Larson and Emma Kinery.

Democrats See Abortion as Leverage Ahead of Midterms: The court pushed abortion firmly to the forefront of elections this year, with Democrats hoping outrage over the end of Roe will trump other issues weighing on the party’s fortunes. “Where I see it coming into play is in a lot of governor’s races,” a Democratic strategist, Lis Smith, said. Josh Wingrove, Gregory Korte and Emily Wilkins have more.

A CBS News poll suggested a majority of Americans disapprove of the US Supreme Court’s decision overturning the constitutional right to an abortion. The poll, conducted Friday and Saturday, found that 59% disapproved of the ruling—including 67% of women. Ian Fisher and Victoria Cavliere have more.
The historic reverberations of Donald Trump’s single term were evidenced Friday when the three justices he appointed to the Supreme Court tipped the scales to overturn the constitutional right to an abortion. The landmark verdict has made the long-held dream of one of Trump’s core constituencies, evangelical Christians, come true. Read more from Laura Litvan.
Vice President Kamala Harris said voters will have “the final word” on whether federally guaranteed access to abortion is reinstated. Even before the ruling, Harris had established herself as the Biden administration’s most prominent voice on abortion rights. Read more from Jenny Leonard and Akayla Gardner.
The ruling quickly drew responses from the corporate world, with dozens of major employers—from Biogen to CVS Health—committing to cover travel expenses for employees in states where the medical procedure will be banned. Read more.

On Lawmakers’ Radars

This Week’s Hearings:

The House Oversight and Reform Committee holds a Monday hearing on the federal government’s drug control strategy and response to the drug overdose crisis. Biden’s drug czar, Rahul Gupta, is scheduled to testify.
The House Energy and Commerce Oversight and Investigations Subcommittee holds a Tuesday hearing on oversight of private sector Medicare Advantage plans. HHS Assistant Inspector General Erin Bliss is scheduled to testify.
The House Appropriations Committee holds a Thursday markup of the fiscal 2023 Labor-HHS-Education appropriations bill.
BGOV Calendar: See the full week of events.

Covid-Era Border Restrictions Kept in House Bill: A pandemic-related immigration restriction called Title 42 would effectively stay in place until after the Covid public health emergency is over under an annual Homeland Security funding bill. The House Appropriations Committee advanced its fiscal 2023 Homeland Security spending bill in a 32-25 vote on Friday, after adding an amendment to ban the processing of migrants who would’ve been expelled under Title 42 authority. Jack Fitzpatrick has more.

For more on appropriations action, read the BGOV OnPoint and visit the status of appropriations page.

Biden Signs Bipartisan Gun-Safety Bill: Biden signed gun-safety legislation into law that he called the most significant of its kind in decades, restricting firearms access for young buyers and offering incentives for states to set up “red flag” laws. Read more from Jennifer Jacobs and Kate Queram.

What Else to Know Today

Justices Keep Medicare Changes for Low-Income Hospitals: The Supreme Court on Friday upheld a 2005 rule that decreased the amount of additional Medicare payments hospitals get for serving a larger share of poor patients. The decision means some providers may not be able to recoup the higher costs they say they spend treating low-income patients. In a split 5-4 verdict, the court said the HHS rule is consistent with the text and structure of the DSH provisions. Lydia Wheeler and Allie Reed have more.

Juul Wins Emergency Order Halting FDA Ban: Juul Labs persuaded a federal court to grant an emergency order blocking the Food and Drug Administration’s decision to ban its e-cigarette products from the US market. The US Circuit Court of Appeals in Washington on Friday said the ban ought to be “administratively stayed” while Juul’s attorneys prepare a full appeal of the FDA’s finding it must stop selling its products. Read more from Anthony Lin and Jef Feeley.

The FDA’s move is a stinging rebuke to the Silicon Valley startup, which vowed to transform smoking but instead helped spark a new generation of young nicotine addicts. Read more from Lauren Etter.

Moderna Shot Gets CDC Support for Kids, Teens: Children and teens across the US are now eligible to receive Moderna’s Covid shots after the head of the Centers for Disease Control and Prevention granted the final clearance needed for injections to begin. The recommendation by CDC Director Rochelle Walensky allows the use of two doses Moderna’s 50-microgram shot for children from 6 to 11 years old and two doses of its 100-microgram shot for children 12 to 17. Read more from Fiona Rutherford.

Meanwhile, Pfizer’s experimental omicron-targeting vaccines prompted strong immune responses in a study that may pave the way for the use of next-generation Covid-19 shots better tailored to fight new variants. Read more from Riley Griffin.

Employers Hope Pharmacy Benefits Probe Eases Prices: Large companies that spend billions a year on prescription drugs for their employees are hoping the Federal Trade Commission’s inquiry into pharmaceutical benefit manager business practices will yield information that spurs changes to lower drug prices. Sara Hansard has more.

More Headlines:

To contact the reporter on this story: Brandon Lee in Washington at blee@bgov.com

To contact the editors responsible for this story: Giuseppe Macri at gmacri@bgov.com; Michaela Ross at mross@bgov.com

Stay informed with more news like this – from the largest team of reporters on Capitol Hill – subscribe to Bloomberg Government today. Learn more.