The department will “work with the attorney general and the Department of Justice as they work to ensure that states may not ban medication abortion,” he told reporters, echoing a statement by Attorney General Merrick Garland on Friday.
But Becerra’s Tuesday announcement may not be enough to stem building criticism from abortion advocates and progressive who argue the Biden administration did little to prepare for the fall of Roe even after POLITICO’s report of the draft opinion in May. Congressional Democrats are publicly pressing the president for more aggressive tactics to protect abortion rights.
Changing landscape
In the days since the Supreme Court’s decision permitted the states to regulate abortion, 11 have banned or significantly restricted the procedure. Eight others could follow shortly.
Many of the laws ban abortion except if the pregnant person’s life is at risk, which abortion advocates argue can be difficult and take time to prove. That can jeopardize the parent’s life further. Others ban abortion past six weeks.
Abortion advocates have called on the Biden administration to ensure access to abortion pills and issue protections for personal medical information as people from states that have criminalized the procedure seek abortions.
President Joe Biden on Friday said he had directed Becerra to “take steps to ensure that these critical medications are available to the fullest extent possible.”
However, legal experts and abortion rights advocates say there are many others ways to limit access to the pills, including mail and pharmacy restrictions or by criminalizing possession. The pill, mifepristone, is also FDA-approved only up to 10 weeks of pregnancy.
It is also unclear how the Biden administration will boost access to the pills. Asked at a press conference if HHS would direct the FDA to speed up certifications for pharmacies dispensing mifepristone, Becerra said he was working with the FDA “to make sure that they have every opportunity to continue to provide Americans with access to safe and effective treatments.”
Lawrence Gostin, a Georgetown University law professor specializing in public health, called on the FDA to clearly state that its scientific review of the abortion drugs trumps any state actions that restrict their use, “and that states don’t get to pick and choose which FDA-approved medications it will or won’t allow.”
But Becerra did not specify Tuesday what actions the agency could take.
“Patients should have access to medications that are safe and effective for their FDA-approved use,” the FDA said Friday in an email statement unattributed to any specific agency official. “In this area, as in all others the FDA regulates, the best available science will continue to guide Agency decision-making.”
Lawmakers decry lack of urgency
Meanwhile, some progressive Democrats in Congress seem unswayed by fresh rounds of fundraising efforts, propelled by the Supreme Court decision, from the Democratic National Committee and party leadership, including House Speaker Nancy Pelosi.
“If you are a lawmaker who, in the time between the leak [and] ruling, spent more manpower on a fundraising plan than a policy response, then I highly recommend rethinking your priorities,” New York Rep. Alexandria Ocasio-Cortez wrote on Twitter. “Our job right now is to protect people. Doing so will drive the vote more than browbeating.”
More than half of voters think the Supreme Court decision is “a step backward” according to a CBS News poll this weekend, and it appears to be motivating advocates of abortion rights to vote. Fifty percent of Democrats said they were more likely to cast a ballot in November, up from 40 percent in May.
Biden and party leaders have repeatedly harkened to the midterms as the test on protecting abortion rights.
“This fall, Roe is on the ballot. Personal freedoms are on the ballot. The right to privacy, liberty, equality, they’re all on the ballot,” the president said Friday, emphasizing that Congress, not the White House, holds the power to restore abortion protections. “No executive actions … can do that.”
Becerra and Labor Secretary Marty Walsh met with major insurers Monday to extract promises that they would cover multiple forms of contraception without cost to patients, a requirement mandated under the Affordable Care Act but unevenly enforced.
