Here's What the Biden Administration Can Do About Abortion Before Trump Takes Office

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Here’s What the Biden Administration Can Do About Abortion Before Trump Takes Office
PUBLISHED 11/25/2024 by Shefali Luthra, The 19th
The outgoing administration worked to secure abortion access, but it can do little to maintain those protections beyond Jan. 20.



President Joe Biden speaks at a campaign rally at George Mason University on Jan. 23, 2024, in Manassas, Va., on threats to reproductive rights. (Anna Moneymaker / Getty Images)

This story was originally published by The 19th.

Though President-elect Donald Trump has waffled on how his administration might handle abortion policy, antiabortion activists are already exerting a pressure campaign for the incoming Trump administration to take a hardline approach and undo many of the policies set in place by the Biden administration. Still, with two months left before Biden leaves office, there are some areas where legal scholars and attorneys suggest the outgoing administration could still take action, even if the impact may be narrow or short-lived. “There were a bunch of things that the Biden administration did do,” said Jennifer Dalven, head of the ACLU’s Reproductive Freedom Project. “The question is what will be undone, and how quickly and can we fight it.”

The outgoing administration has leveraged its authority to secure abortion access in some cases and pressed state governments to do the same. But it can do little to maintain those protections beyond Trump’s Jan. 20 inauguration. Many policies—for instance, supporting military members who need to travel for abortion—could be quickly rescinded. Abortion opponents have called for, at a minimum, a reprisal of Trump’s first term, in which he appointed antiabortion judges, barred Planned Parenthood from participating in the federal family planning known as Title X, and directed his Department of Justice to challenge guidance from the Food and Drug Administration that expanded availability of medication abortion drug mifepristone. They have also pushed for the undoing of Biden policies that supported abortion access.

“Anything that the federal or state governments can do to support both abortion providers and funds—be it financially or otherwise—to get through the transition to an administration that will be hostile to abortion and reproductive rights in general, they absolutely should,” said Molly Duane, an attorney at the Center for Reproductive Rights, a legal advocacy group. One way, many legal scholars said, could be by enforcing existing policies. In one of its most high-profile efforts to protect abortion, the Department of Health and Human Services has argued that the Emergency Medical Treatment and Labor Act—known as EMTALA—requires that most hospitals provide abortions if they constitute the appropriate stabilizing care in an emergency. Hospitals in violation of EMTALA can face financial penalties. Abortion opponents have challenged that argument, with multiple cases still making their way through the courts. But even over the past two years,********* the federal government has levied only a few penalties against hospitals, despite receiving numerous complaints of alleged violations.********* The government announced a streamlined complaint process this past May to address cases more quickly.

The Center for Reproductive Rights is waiting for federal responses regarding multiple complaints. Two were filed in August by women in Texas who could not get timely care for their ectopic pregnancies—which are life-threatening, nonviable and only treatable with abortion—until the pregnancies ruptured, putting them at risk of death. Another, filed on Oct. 30, is on behalf of a woman whose water broke prematurely and who did not receive hospital care until she was septic. The typical timeline to address an EMTALA complaint is a few months. “The big thing we are wanting for our clients is some accountability for the harms that they’ve suffered,” Duane said. All three, she said, are straightforward cases. A spokesperson for the Department of Health and Human Services (HHS) declined to comment about how the department might approach outstanding EMTALA complaints, which are handled by its subsidiary, the Centers for Medicare & Medicaid Services (CMS).

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https://msmagazine.com/2024/11/25/biden-abortion-before-trump-takes-office/