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White House faces legal hurdles in weighing abortion response

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The White House is navigating legal minefields as it considers ways the federal government could move to protect abortion access following the historic Supreme Court decision overturning Roe v. Wade that reversed nearly 50 years of precedent. 

The administration is under pressure to take a more aggressive response, but the White House has cautioned that steps like using federal land for abortion services could have adverse consequences. It’s also poised to face roadblocks from certain parts of the conservative-leaning judicial system if it takes actions that end up being legally disputed.

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Advocates, state officials and experts say there is more the administration can do, though they too acknowledge that steps need to be thoroughly reviewed in order to understand the legal implications.

“Every creative legal strategy is going to have some obstacles but all of these measures are still worth trying,” said Maya Manian, an American University law professor who focuses on reproductive healthcare access. “We don’t want to let the perfect stand in the way of the good here.” 

The idea of providing access to abortion on federal lands has gained traction among some Democratic lawmakers on Capitol Hill, but the White House seemed to pour cold water on it earlier this week by arguing it could put women and providers at risk, particularly in states that are expected to ban abortion as a result of the Supreme Court ruling.

Still, Health and Human Services Secretary Xavier Becerra seemed to leave the door open to that and other ideas, telling reporters in an exchange on Tuesday that “every option is on the table.”

Mandie Landry, a Democratic state representative in Louisiana, a state with a strict trigger law banning abortions, said the idea seemed compelling but noted that local doctors are worried about losing their licenses if they perform abortion services on federal property, like local Veterans Affairs hospitals.

“I think there’s a lot to vet there, but we need to move this quickly,” Landry said.

There is also the matter of the high court’s conservative supermajority, which could lead to further delays and disruption of President Biden’s executive actions, should he take any that would allow some form of access to the procedure.

The court’s conservative bend has already disrupted implementation of Biden’s access to COVID-19 vaccines as well as on other fronts. Conservative groups or GOP attorneys general could mount legal challenges against Biden’s moves on abortion.

The court’s conservative bend has already disrupted implementation of Biden’s access to COVID-19 vaccines as well as on other fronts. The administration could also face challenges from conservative groups or GOP attorneys general.

“There is a hostile judiciary out there for the president, but right now is not the time to be shy,” said Lawrence Gostin, a public health law professor at Georgetown University. 

Gostin, however, argued that the use of federal lands for abortion services wasn’t feasible, in part because physicians who perform abortions could be subject to civil or criminal penalties. He also said such a move could be interpreted as the federal government subsidizing abortion, which would be unlawful under the Hyde Amendment, which bars the use of federal funds for abortion.

Manian, the American University professor, said one way around that would be leasing space on federal property out to private providers to get around the Hyde Amendment.  

Some have also suggested that the Biden administration partner with reservations to offer abortion services on tribal lands. The idea came up during a meeting between White House officials and state legislatures at the beginning of June, according to officials who participated. 

“I think tribal land would be a really good thing,” said Gostin. “Many of these independent reservations are right in the heart of very red states.” 

Sen. Elizabeth Warren (D-Mass.), who has been a leading voice on calling for access on federal lands, called on Biden to declare a public health emergency to protect abortion access. Warren, along with Sen. Tina Smith (D-Minn.), argued in an op-ed on Saturday that a public health emergency would unlock resources to meet the surge in demand for reproductive health services.

Democratic senators also outlined executive actions Biden could take weeks before the Supreme Court officially struck down Roe, including increasing access to abortion medication, providing federal resources for individuals seeking abortion care, and using federal property for services. The letter was led by Sen. Patty Murray (D-Wash.) and signed by half the Senate Democratic Caucus.

“This is an all-hands-on-deck moment. I’ve been pushing President Biden to do everything in his power to protect abortion access in America—and to really push the envelope, because people across our country are scared, in need of guidance, and in need of care,” Murray told The Hill in a statement.

There is also debate about HHS potentially paying for women to travel to receive an abortion in a state where the service is still legal, though officials would need to implement such an idea carefully to avoid running afoul of the Hyde Amendment. 

And the administration has faced some calls to file lawsuits to prevent states from blocking access to abortion medication, though officials have stopped short of making such a commitment thus far.

Manian said that there is a “very strong argument” that Food and Drug Administration (FDA) regulations on abortion pills trump any state laws, citing the Constitution’s supremacy clause, which establishes that federal law generally takes precedence over state laws.

Still, Carl Tobias, a law professor at the University of Richmond, cautioned that Justice Department lawyers could run into difficulty if any decisions in their favor get appealed given the conservative tilt of the appellate courts.

“Those are going to be difficult to win on appeal,” Tobias said.

Some Democrats have expressed disappointment and impatience with the White House’s initial reaction to the ruling, particularly after the leaked draft ruling in early May gave the administration advanced notice on what was expected.

Becerra announced some modest steps this week aimed at protecting access to abortion pills and ensuring pregnant patients can receive emergency care, and his department launched a new website to inform Americans of their rights.

The White House has consulted with Democratic attorney generals on abortion rights, including hosting a meeting this week with Democratic attorneys general Dana Nessel of Michigan and Keith Ellison of Minnesota. 

Nessel’s office told The Hill following the meeting that she will continue to work with state and federal partners on the impacts of the Supreme Court ruling. She has pledged not to deploy state resources to enforce Michigan’s abortion ban from 1931 in the wake of Roe.

The White House also maintains officials are looking at an array of executive actions.

“A wide range of options are on the table in addition to the actions the President announced under his executive authority Friday, and the announcements made by Secretary Becerra yesterday, after weeks of preparation and collaboration with experts and advocates,” a White House official said.

Becerra repeatedly underscored the importance of operating within the law during the press conference earlier this week and acknowledged that there is no “magic bullet.” 

“We’re not interested in going rogue and doing things just because,” he told reporters.