- In August, President Biden encouraged states to use Medicaid funds to expand abortion access.
- But no states have taken him up on it due to logistics challenges and a daunting legal challenge.
The Biden administration is scrambling to expand abortion access as it becomes precarious for millions of Americans. But not all of its strategies have taken hold.
As midterm elections approach, even a Democratic majority in the House and Senate might not be enough to preserve abortion access.
In the meantime, Biden took a swing at it. An August executive order sought to encourage states with more permissive abortion laws to use Medicaid to fund travel for people from states where abortion is prohibited. But many states view the approach as too complicated to attempt and legally dubious — if they're interested in expanding access at all — according to a report by Politico after the publication contacted Medicaid agencies in 24 states where abortion is legal.
Agencies in ten states said they haven't decided whether to apply, two are waiting for additional federal guidance, one is not pursuing the policy, and 11 states did not respond to requests for comment, Politico said.
In addition to the Medicaid policy, the Biden administration has made several other efforts to expand abortion access across the country since the Supreme Court overturned Roe v. Wade in June. The White House challenged Idaho's near-total abortion ban, for instance, arguing that it violates federal law by preventing medical providers from offering emergency treatment.
The administration has also called upon pharmacists to continue prescribing medications that might be used to cause an abortion even in states that have banned the procedure, and has warned tech companies against the misuse of personal data that could expose abortion seekers. But ultimately, a substantial expansion of abortion access would have to be achieved by Congressional action — or happen at the state level.
A strong performance by Democrats in the midterms this fall might make it possible for the party to maneuver around the Senate's filibuster rule and get a law passed. But even if this happens, the Supreme Court could strike it down, Mary Ziegler, a law professor at UC Davis, told Insider.
Biden's Medicaid path to abortion access is cumbersome and legally fraught
The key word in Biden's plan to use Medicaid funds to expand access to abortion is "travel." According to the Hyde Amendment, federal funds cannot be used for abortion procedures, so the Biden administration's workaround is to have it help out with the cost of crossing state lines.
The reluctance of states to take advantage of the executive order represents a strategic disconnect between the federal government and pro-abortion-rights states. In many cases, states are unwilling to test legally murky waters.
"We've said, 'Open door, you've got an idea, come to us,' because we're trying to help everyone we can in any way we can," a senior health official anonymously told Politico. "But the reality is there is no silver bullet here."
Instead, some states are finding it more straightforward, or at least safer, to use their own funds to help out-of-state residents obtain abortions rather than pursuing a complicated and slow Medicaid application, Politico reported.
It's also possible that some states will eventually pursue the administration's proposal, but are currently still reviewing it, as is the case for ten of the state Medicaid agencies Politico spoke with.
When the executive order was signed in August, White House press secretary Karine Jean-Pierre said it would "not violate" the Hyde Amendment, which has previously stymied attempts to use programs like Medicaid to fund abortions. The Biden administration struck the Hyde Amendment from its budget last year in a historic if symbolic and non-legally-binding move, as Congress would need to act to repeal the law. The potential for legal challenges are among the reasons states are hesitant to take the administration up on its offer.
"There's no question that part of the challenge here is there are real limits to executive-branch authority," Andrea Miller, the president of the National Institute for Reproductive Health, told Politico. "They continue to try to find creative solutions, and they also continue to butt up against the limits of their authority, and that's frustrating for everyone."
For this reason, passing a law that codifies abortion access is regarded as the most effective way to enshrine the right to choose.
By Ziegler's estimation, the midterms are about Democrats "preventing things from getting worse" on the abortion front — which could happen if Republicans took control of Congress and passed a national abortion ban, she said.
In terms of expanding abortion access, Ziegler thinks state and local elections will matter just as much as the national election.
"If you look at how we got to where we are, a lot of it is states like Mississippi passing bans and experimenting," she said. "It's not really from the anti-abortion movement dominating in Congress and getting lots of abortion bans passed, right?"