After four years of the Trump administration, the future of abortion in the U.S. has never been more uncertain.
President Donald Trump gutted Title X, the only federal program dedicated to funding family planning, by banning abortion referrals. He stocked the federal judiciary and the Supreme Court with deeply conservative justices. And lawmakers in statehouses across the country passed draconian restrictions, including outright bans on the procedure, that were once believed too toxic to ever succeed.
Because most abortion law is crafted at the state level, President Joe Biden’s ability to protect abortion access and undo attacks from Trump and Republicans is limited. But some of his campaign pledges—like bringing back the dozens of providers who fled Title X—are within reach. Others, like ending the Hyde Amendment, which blocks federal funding for most abortions, are possible only if Congress decides to act.
“It would require both that the Democrats prioritize that issue, when there’s lots and lots of stuff that the Democrats would want to do,” said Mary Ziegler, a professor at Florida State University College of Law who specializes in the legal history of reproduction. Even with Democrats in charge of both houses of Congress, she said, “There would still be a lot of ‘devils in the details’ debating to go.”
Now in its second week, the Biden administration has already taken some action on rolling back abortion rules enacted by Trump. On January 21, Anthony Fauci, the director of the National Institute of Allergy and Infectious Diseases, announced that Biden’s administration would revoke the Mexico City policy, known as the “global gag rule,” which blocks NGOs that perform or promote abortion abroad from receiving U.S. family planning aid. This week, Biden is reportedly set to order a review of Title X’s “domestic gag rule,” which would clear the way for his administration to reverse changes the Trump administration made to the program. Both of these moves are possible for him to do without Congress.
Before Trump came to power, about 4 million low-income people relied on Title X funding to pay for services like STI tests, cancer screenings, and birth control. But in July 2019, the administration announced that providers who received that money could no longer refer people for abortions—a decision that reproductive health advocates said stifled their ability to speak freely with patients. At least 40 Title X grant recipients, scattered across 34 states, chose to leave the program rather than comply with the new rules, including Planned Parenthood. Because of that exodus, about 1.5 million people lost access to a Title X-funded health provider, according to the National Family Planning and Reproductive Health Association (NFPRHA). Six states now have no Title X providers at all.
But even if Biden reverses all of the Trump administration’s changes to Title X, there’s no telling how long it may take to truly revive the ravaged program.
“The actual mechanics of rescinding the rule and getting providers back into the program is one thing. The actual process of getting providers to be able to return to their needed focus of caring for their patients and doing the necessary work that needs to be done is gonna take more time,” said Mindy McGrath, NFPRHA’s senior director of advocacy and communications. “This change has impacted every single entity involved in this program in some way, and it will take time to recover from that.”
Biden doesn’t need Congress’ help with Title X, but if he wants to terminate the Hyde Amendment, he needs legislators to buy in. Although Democrats control Congress, they only have the slimmest of margins—and a long list of goals that may take precedence over securing abortion.
The Hyde Amendment, first passed in 1976, bans federal funding for all abortions except in the cases of rape, incest, and life-threatening situations. It’s included every year in an appropriations bill for the Department of Health and Human Services. Biden could put out a budget proposal without the Hyde Amendment or push for legislation that would reverse it. But it’s unclear just how committed he is to that fight, which would draw severe Republican pushback. Biden didn’t even oppose the Hyde Amendment until 2019, when he drew headlines for flip-flopping on the issue within a few days.
Ending the Hyde Amendment could rewrite abortion access in the U.S. by dramatically expanding available federal funding for abortions. Had it ended in 2018, 14.2 million women who were enrolled in Medicaid and of reproductive age could have used federal dollars to help cover the cost of an abortion, according to a Kaiser Family Foundation analysis. The impact would be particularly huge for women of color, who are more likely to be on Medicaid and have higher rates of unintended pregnancies and abortion when compared to white women, Kaiser’s analysis found.
But when it comes to abortion in the U.S., even a figure as powerful as the president is constrained in what he can do on the state level—and that’s exactly where the fight over abortion access has played out.
Over the last decade, abortion opponents have passed hundreds of regulations that hacked away at access to the procedure. As of January 22, lawmakers in 17 states have prepared more than 80 abortion restrictions for the 2021 legislative session, according to the Guttmacher Institute, which tracks abortion restrictions. Last week, a lawmaker in Republican-dominated Mississippi introduced a bill that would make anyone who performed or attempted an abortion guilty of murder; anyone who even provides information about how to get an abortion could face up to 10 years in prison and a $25,000 fine. (If it passes, it will almost certainly be challenged in court; other state bans on abortion have already been halted by legal challenges.)
State legislators’ rush to attack abortion this year is likely fueled by their belief that the courts will be on their side. Not only is the federal judiciary now riddled with Trump appointees, but Trump was also able to nominate conservatives Amy Coney Barrett, Brett Kavanaugh, and Neil Gorsuch to the Supreme Court. Barrett, in particular, has repeatedly indicated her personal opposition to abortion; three weeks ago, in her first abortion case since joining the nation’s highest court, Barrett agreed to restore restrictions on abortion-inducing pills.
Which brings us to the looming shadow of Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide. With a comfy 6-3 conservative majority on the Supreme Court, abortion rights advocates fear for the ruling’s survival.
During his campaign, Biden promised to “codify” Roe—which is often used as a shorthand for legalized abortion—in anticipation of a Supreme Court attack on the ruling. Although that theoretically means Biden would back a federal law legalizing abortion, any further specifics on what that law would look like are unclear. What is clear, though, is that such a law would be deeply polarizing and unlikely to pass, even in a Democrat-controlled Congress. If it did, having the legal right to an abortion is not the same as being able to get one.
And despite his administration’s early work early work on revoking abortion “gag rules,” advocates worry that Biden will falter as a champion for abortion rights.
On Friday, on the 48th anniversary of the Roe Supreme Court decision, the Biden White House released a statement affirming its commitment to making sure that people have “reproductive health care.”
The statement didn’t mention the word “abortion.”