‘No Magic Bullet’ for Preserving Abortion Access, Biden’s Health Secretary Says

WASHINGTON — President Biden’s health secretary, facing criticism from other Democrats that the administration is not doing enough to counter the Supreme Court’s decision overturning Roe v. Wade, said on Tuesday that there was “no magic bullet” to preserve access to abortion — even as he outlined a series of steps his department will take in an effort to do so.

Xavier Becerra, the secretary of health and human services, told reporters that at Mr. Biden’s direction, he had instructed his agency to take a number of actions, including making sure that federal programs cover medication abortion in cases of rape or incest or when the life of the mother is at risk.

At a morning news conference, Mr. Becerra said his department would work with the Justice Department to ensure that women have access to abortion pills — two different drugs, taken 24 to 48 hours apart and authorized for the first 10 weeks of pregnancy — in places where state law conflicts with the judgment of the Food and Drug Administration, which has approved the drugs for use and determined that they are safe and effective.

It will 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 necessary. And it will take steps to ensure that patients’ records are private, to keep state or local officials from identifying women who have had abortions.

Progressive Democrats and other advocates of reproductive rights may not find these steps sufficient. Representative Alexandria Ocasio-Cortez (New York) and Senator Elizabeth Warren (Massachusetts) have pressed the administration for abortion clinics to be built on federal land. They also asked for money to allow people to travel outside of their state to obtain abortions.

These were not measures Mr. Becerra announced on Tuesday. However, he cautioned that the administration cannot do certain things. There are still complex legal issues to sort out, he said, to ensure the administration does not violate the court’s ruling in Dobbs v. Jackson Women’s Health Organization.

“It was a long decision and it did upend 50 years of precedent, and so you want to make sure that what you do is within the confines of the law,” Mr. Becerra said. “We’re not interested in going rogue.”

He called the court’s decision “despicable,” and at one point said he wanted to offer “my apologies” that the administration could not do more. “There is no magic bullet,” he said, “but if there is something we can do, we will find it and we will do it.”

The administration has studied, but remains skeptical about, the idea of hosting abortion clinics on federal enclaves like military bases and national parks — where state prosecutors lack jurisdiction — in states where abortion is now a crime.

The problem, according to officials familiar with internal deliberations, is that the federal government could not ensure that doctors who are not federal employees performing official duties — and potentially patients — would not be at risk of prosecution. The White House press secretary, Karine Jean-Pierre, dismissed the idea on Tuesday, telling reporters aboard Air Force One that it could have “dangerous ramifications” for women and doctors.

If a Republican were to win the presidency in 2024, his or her Justice Department could charge people with state-law abortion crimes — and the statute of limitations for charging conduct dating back to 2022 will not have run out. States could suspend doctors from their medical licenses. And state prosecutors could try to charge people with related conduct that took place outside the enclave — like helping women get there — under a theory of aiding and abetting or conspiracy.

The administration might find it difficult to offer financial assistance to women who want to have an abortion outside of state lines. This is because it could violate the Hyde Amendment. Federal funds cannot be used to pay for abortions except in cases of rape, incest, or where the mother’s life is at risk. On Tuesday, Mr. Becerra received a question from the Department of Health and Human Services asking if such financial help might be available.

Once officials know “exactly what we believe we are able to do, and have the money to do, we will let you know,” he said. “But until then, what I could simply say to you is: Every option is on the table.”

One area where the administration can act is to ensure that women have access to emergency contraception — the so-called morning-after pill, also known as Plan B — and intrauterine devices. Both are common methods of contraception, but abortion opponents regard them as “abortifacients” and have tried in some states to restrict access to them.

Some family-planning clinics in states that are banning abortion say their supplies of Plan B are now running short, because women — fearful that the pills will 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 was grappling with soaring demand and that the pills had been back-ordered since a draft of the opinion overturning Roe was leaked last month.

He also stated that he had directed the Centers for Medicare & Medicaid Services to take action against Missouri and other states that have excluded Planned Parenthood (a major provider) from Medicaid family planning programs that reimburse for such services.

“We will make clear that family planning providers are able to participate in the Medicaid program,” he said.