WASHINGTON — As Democrats and reproductive rights advocates clamored for President Biden to forcefully counter the Supreme Court’s decision overturning Roe v. Wade, his health secretary, Xavier Becerra, stepped as much as a lectern here on Tuesday to list the steps his department would take to preserve and expand access to abortion.
The list, for now anyway, is brief.
“There isn’t a magic bullet,” Mr. Becerra said at a morning news conference, “but when there’s something we will do, we’ll find it and we’ll do it.”
The Supreme Court’s decision on Friday eliminating the constitutional right to abortion was not unexpected, yet neither the White House nor Mr. Becerra’s agency had immediate policy responses on the ready. Officials contained in the administration say they’re still wrestling with the prospect of a mainstream area of girls’s health care suddenly becoming illegal in roughly half the country, and can need time to sort through their options.
Yet Mr. Biden is under intense political pressure to act, and after his news conference some advocates accused Mr. Becerra of sounding tepid. Some Democrats, akin to Senator Elizabeth Warren of Massachusetts and Representative Alexandria Ocasio-Cortez, have been pushing the Biden administration to explore the prospect of constructing abortion clinics on federal land and paying for people from out of state to travel there for the procedure.
Those weren’t among the many measures that Mr. Becerra announced. As a substitute, he said that at Mr. Biden’s direction he had instructed his agency to take steps akin to ensuring that federal insurance programs cover medication abortion in cases of rape or incest or when the lifetime of the mother is in danger. Although the Hyde Amendment bars taxpayer funding for abortion, it includes exceptions for those three instances.
“We will’t meet scorched earth with milquetoast,” said Andrea Miller, president of the National Institute for Reproductive Health, an advocacy organization. “I’m not asking for scorched earth, but I’m saying it’s essential be willing to stop drawing throughout the lines. It’s worthwhile to be willing to take some risks.”
Along with establishing abortion clinics on federal lands, Ms. Miller said the administration should determine ways to support abortion clinics which can be on the verge of closing, perhaps by repurposing them into logistical hubs to assist women who must cross state lines. About half the states are expected to permit bans or other limits on the procedure to take effect within the wake of the ruling, or have already got.
Ms. Miller acknowledged that the administration does have limitations, and said she sympathized with Biden officials. However the nation is in a crisis, she said, adding, “Why not push the envelope?”
Mr. Becerra said his agency would work with the Justice Department to be sure that women have access to abortion pills — a pair of two different drugs, taken 24 to 48 hours apart and authorized for the primary 10 weeks of pregnancy — in places where state law conflicts with the judgment of the Food and Drug Administration, which has approved the drugs to be used and determined that they’re protected and effective.
The secretary didn’t go into detail. But in December, the F.D.A. approved a regulation allowing abortion pills to be prescribed during telemedicine visits and distributed by mail. Some advocates also want the F.D.A. to declare that its regulations pre-empt state laws banning abortion — a move that the Justice Department may need to defend in court.
From Opinion: The End of Roe v. Wade
Commentary by Times Opinion writers and columnists on the Supreme Court’s decision to finish the constitutional right to abortion.
It’ll also require hospital emergency rooms to comply with a federal law mandating that they stabilize patients experiencing a medical emergency — including by performing abortions, if mandatory. And the agency will take steps to be sure that patients’ records are private, to maintain state or local officials from identifying women who’ve had abortions.
In sounding a note of caution about what the administration can and can’t do, Mr. Becerra said there have been still complex legal issues it needed to sort out to make sure it doesn’t violate the court’s ruling in Dobbs v. Jackson Women’s Health Organization.
“It was an extended decision and it did upend 50 years of precedent, and so you should be certain that that what you do is throughout the confines of the law,” Mr. Becerra said. “We’re not concerned about going rogue.”
He called the ruling “despicable,” and at one point said he desired to offer “my apologies” that the administration cannot do more.
The administration has studied, but stays skeptical about, the thought of allowing abortion clinics on federal enclaves like military bases and national parks — where state prosecutors lack jurisdiction — in states where abortion is now or can be a criminal offense.
The White House press secretary, Karine Jean-Pierre, dismissed the thought on Tuesday, telling reporters aboard Air Force One which it could have “dangerous ramifications” for ladies and doctors.
The issue, in accordance with officials accustomed to internal deliberations, is that the federal government couldn’t be sure that doctors who aren’t federal employees performing official duties — and potentially patients — wouldn’t be vulnerable to prosecution.
If a Republican were to win the presidency in 2024, his or her Justice Department could charge individuals with state-law abortion crimes — and the statute of limitations for charging over conduct dating back to 2022 is not going to have run out. States could strip doctors of their medical licenses. And state prosecutors could attempt to charge individuals with related conduct that took place outside the enclave — like that of helping women get there — under a theory of aiding and abetting or conspiracy.
Offering financial help to women to cross state lines to get an abortion is also problematic for the administration, because it would violate the Hyde Amendment, which bars federal funds from getting used to pay for abortion except in cases of rape, incest or where the lifetime of the mother is in danger.
When asked on Tuesday if the Department of Health and Human Services might provide such financial help, Mr. Becerra said that after officials know “exactly what we consider we’re capable of do, and have the cash to do, we’ll let .” He added, “But until then, what I could simply say to you is every option is on the table.”
Within the wake of Friday’s ruling, members of Mr. Biden’s own party have develop into increasingly vocal in demanding that he take motion. On Saturday, greater than 30 Democratic members of the Senate sent him a letter telling him there was “no time to waste” and pressing him to make use of the “full force of the federal government” to guard access to abortion care.
“Now could be the time for daring motion to guard the suitable to an abortion,” they wrote, adding, “You could have the facility to fight back and lead a national response to this devastating decision.”
One area where the administration can act is in ensuring that girls have access to emergency contraception — including the so-called morning-after pill, also generally known as Plan B — and intrauterine devices. Each are common methods of contraception, but abortion opponents regard them as “abortifacients” and have tried in some states to limit access to them.
Some family-planning clinics in states which can be banning abortion say their supplies of Plan B at the moment are running short, because women — fearful that the pills can be outlawed — are stocking up. Hailey Kramer, a nurse practitioner at Tri-Rivers Family Planning in Rolla, Mo., said on Monday that the clinic’s supplier is grappling with soaring demand and the pills have been back-ordered since a draft of the opinion overturning Roe was leaked last month.
Missouri is one in every of 13 states that had “trigger” laws banning abortion after Roe was overturned; Mr. Becerra was visiting a Planned Parenthood clinic within the state when abortion suddenly became illegal there. Missouri can also be one in every of 4 states that has excluded Planned Parenthood, a serious provider of contraception, from Medicaid family planning programs that reimburse for such services.
Planned Parenthood has said the move violates federal law. Mr. Becerra said on Tuesday that he had directed the Centers for Medicaid and Medicare Services to “clarify that family planning providers are capable of take part in the Medicaid program.”