In the post-Roe fight for reproductive rights, preserving federal control over broad access to the abortion pill is the Biden administration’s best chance to protect reproductive rights at the federal level.
With the GOP-controlled House, codifying Roe v. Wade is not likely to happen anytime soon, and red states are moving quickly to restrict abortions — enough to accelerate the White House’s fears that a national abortion ban could be coming.
Less than a week after a federal judge acted to roll back access to an abortion drug, the administration has launched a legal fight to uphold all parts of the Food and Drug Administration’s (FDA) decades-old approval of mifepristone, as well as shored up other health care privacy protections.
Vice President Harris, who has been spearheading the White House’s work to protect abortion access since the Supreme Court overturned Roe v. Wade in June, warned this week that the mifepristone lawsuit “is the next step to a nationwide abortion ban.” White House press secretary Karine Jean-Pierre echoed that warning, saying the Texas-based judge’s ruling on the abortion pill is part of the Republicans’ overall plan to ban abortions.
The Biden administration’s “hands really are tied in many ways at the moment” because bringing back abortion rights is going to take winning elections and appointing new judges and justices, argued John LaBombard, former communications director to Sen. Kyrsten Sinema (D-Ariz.).
“The White House is doing much of what they can do and should do in the moment and in the short term because, by focusing on the pill and this most recent court ruling, they are doing what they can to actually protect womens’ access to health care,” said LaBomard, a senior vice president at Rokk. “And, they’re also keeping the contrast with Republican opponents of abortion rights front and center for voters.”
White House prepped for this
While the White House was prepared for this fight and had mapped out a response to every kind of court decision on mifepristone, officials stepped into high gear this week.
“This entire week, the team, led by the Gender Policy Council, has been in touch with stakeholders, reproductive rights groups, lawmakers, state and local elected officials” to check in and coordinate, a White House official said.
But efforts began months ago. Harris brought health care providers and advocates at the White House in February to talk specifically about attacks on the abortion pill. She has watched the situation closely since then and was prepared for the decision when it came out on April 7, according to her office.
The White House plans to keep up the pressure on Congress to codify Roe, although legislation appears to be a non-starter with Republican control in the House. The push to codify Roe is expected to be a leading topic in the 2024 election, and Democrats will try to appeal to voters who want to see that happen.
Within days of the judge’s ruling on mifepristone Florida Gov. Ron DeSantis (R), a presidential hopeful and possibly Biden’s challenger in 2024, signed a six-week abortion ban in Florida, making the state one of the strictest on abortions access. The White House called the ban “dangerous” and said Biden will keep fighting for women’s reproductive rights.
Fight for abortion pill could be ‘consequential’
Strategists said the White House putting its muscle behind the abortion pill is the best thing the administration could focus on at this point.
“I’m not sure I would say this is the ‘last thing’ to fight for, but it is certainly the most consequential thing they can fight for at this moment,” said Cristina Antelo, a Democratic strategist and founder and CEO of Ferox Strategies.
“This medication is essential. Having taken it myself during my own miscarriage, I am thankful for its availability and implore the president and his team to keep up the fight so other women can survive those terrible moments safely,” she said.
After the Biden administration and manufacturer of mifepristone appealed the U.S. District Court Judge Matthew Kacsmaryk’s ruling last week to halt FDA’s approval of the drug, the Supreme Court on Friday halted Kacsmaryk’s order and temporarily preserved access to the pill while it weighs the issue.
The 5th U.S. Circuit Court of Appeals also ruled that mifepristone can stay on the market as the federal government’s appeal proceeds. That, though, allowed portions of Kacsmaryk’s ruling to stand, rolling back a series of actions the FDA has taken since 2016 to ease access to the pill, such as allowing it to be sent through the mail.
The Justice Department is also reviewing another ruling from a federal judge in Washington state that prevents the FDA from altering the status quo as it relates to the availability of the drug.
The conflicting rulings could lead to a higher court, and perhaps eventually the Supreme Court, stepping in.
New privacy protections
Also in response to the ruling, the Biden administration acted to protect patient privacy and strengthen protections under the Health Insurance Portability and Accountability Act, commonly known as HIPAA. A new rule would prevent individual information from being disclosed to investigate someone for facilitating health care like an abortion.
It also includes guidance to thousands of schools to remind them that they are obligated to protect student privacy. The federal government also plans to launch a consumer guide with best practices for protecting personal data on phones.
Harris also conveyed the Task Force on Reproductive Health Care Access for its third meeting on Wednesday, following the Texas judge’s initial ruling. She will travel to Reno, Nev., next week to participate in a conversation on protecting reproductive freedom.
“Our administration is fighting on every front to do what we can and what we must to protect the American people and the integrity of the healthcare system in our country,” Harris said on Wednesday.
