Despite President-elect Donald Trump’s wavering stance on abortion policy, anti-abortion activists are already pushing for the incoming Trump administration to take a hardline approach and reverse many of the policies implemented by the Biden administration, according to The 19th. As Biden’s term winds down, legal scholars and attorneys believe there are still opportunities for the outgoing administration to take action, although the impact may be limited.
“The Biden administration did enact several measures,” noted Jennifer Dalven, who heads the ACLU’s Reproductive Freedom Project. “The question now is what will be rolled back, how swiftly, and how we can push back against it.”
While the current administration has used its authority to ensure abortion access in certain cases and urged state governments to do the same, these protections may not extend beyond Trump’s inauguration on January 20. Policies supporting military members seeking abortion services, for instance, could be swiftly revoked.
Anti-abortion advocates are advocating for a return to Trump’s initial term, during which he appointed anti-abortion judges, excluded Planned Parenthood from Title X family planning funding, and instructed the Department of Justice to challenge FDA guidance on the abortion drug mifepristone. They also seek to reverse Biden’s supportive abortion access policies.
Molly Duane, an attorney at the Center for Reproductive Rights, emphasized the importance of federal and state governments providing financial or other support to abortion providers as they navigate the transition to an administration less friendly to reproductive rights. Legal experts suggest that enforcing existing policies, such as the EMTALA requirement for hospitals to offer abortions in emergency care situations, could be a strategy.
Despite ongoing legal challenges from abortion opponents, the Department of Health and Human Services has enforced EMTALA sparingly, even with numerous complaints filed against hospitals. The Center for Reproductive Rights is eagerly awaiting federal responses to multiple complaints, including cases in Texas where women faced life-threatening ectopic pregnancies without timely care. The organization hopes for accountability and justice for these individuals who have suffered harm due to delayed treatment.
The Department of Health and Human Services (HHS) declined to provide a comment on how they intend to address outstanding EMTALA complaints, which are typically handled by their subsidiary, the Centers for Medicare & Medicaid Services (CMS). However, time is of the essence, as legal experts and public policy observers predict that the new administration may reverse the Biden administration’s interpretation of EMTALA, potentially arguing against its protection of abortion even in medical emergencies.
Dr. Mehmet Oz, who is Donald Trump’s nominee to lead CMS, has stated his opposition to abortion at any stage of pregnancy. On the other hand, Robert F. Kennedy, Jr., Trump’s pick for HHS secretary, has displayed varying views on abortion but has been willing to engage with anti-abortion organizations and legislators.
Marjorie Dannenfelser, the leader of the anti-abortion group SBA Pro-Life America, emphasized that pro-life laws do not prohibit emergency interventions or necessary abortions to save a mother’s life.
Legal scholars have highlighted additional policy options available to the Biden administration that could potentially enhance access to abortion services in certain states and strengthen reproductive rights more broadly.
In August 2022, HHS and CMS jointly encouraged states to explore creating Medicaid programs that could assist individuals in covering expenses related to traveling for abortions. While federal funds cannot be used directly for abortion procedures, state funds may sometimes be utilized. Traveling for abortion services can be financially burdensome for individuals who are unable to access the procedure in their home states.
Professor Elizabeth Sepper from the University of Texas School of Law suggested that such initiatives could help offset costs for individuals seeking abortions, providing a window of opportunity before potential policy reversals by the Trump administration.
Despite these efforts, there has been limited interest from states in pursuing Medicaid funding for abortion-related travel, even amidst other Medicaid program developments. The National Association of Medicaid Directors confirmed no knowledge of state applications for such funding, and HHS did not respond to inquiries about potential state proposals.
Although some reproductive rights policies may face challenges under a less supportive administration, certain regulations will remain intact for the time being. Abortion opponents have urged the repeal of a recent rule ensuring that patient privacy laws, specifically the Health Insurance Portability and Accountability Act, extend to records of abortion procedures. The process of reversing federal regulations is complex and time-consuming, taking several months.
Another proposed federal rule aims to enhance insurance coverage for contraceptives, including over-the-counter birth control, as required by the Affordable Care Act. This rule must undergo a public comment period before finalization, with comments closing on December 27—narrowing the timeframe for approval before the presidential transition.
This report was created by The 19th and reviewed and disseminated by Stacker.
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