Biden commits to protecting reproductive rights on anniversary of Roe vs Wade

New administration has plans to expand reproductive rights, but could face fights in Congress and at the conservative Supreme Court

US President Joe Biden prepares to sign a series of executive orders at the Resolute Desk in the Oval Office just hours after his inauguration on 20 January, 2021 (Getty Images)

On the 48th anniversary of Roe v. Wade, the landmark 1973 Supreme Court decision establishing a constitutional right to abortion, the Biden administration vowed to protect reproductive rights after numerous rollbacks during the Trump years.

“In the past four years, reproductive health, including the right to choose, has been under relentless and extreme attack,” the administration said in a statement on Friday. “We are deeply committed to making sure everyone has access to care – including reproductive health care – regardless of income, race, zip code, health insurance status, or immigration status.”

It outlined an agenda that included “codifying Roe v. Wade and appointing judges that respect foundational precedents like Roe,” as well as expanding health care access and promoting reproductive rights worldwide through international aid, though to accomplish these goals, the new administration will face an uphill battle through a divided Congress, a deeply conservative Supreme Court, and a thicket of restrictive state abortion laws.

There are many fronts on which the Biden administration is likely to change US reproductive policy, at home and abroad.

On Thursday, Dr Anthony Fauci, one of the nation’s top public health officials, told the World Health Organization that the US would revoke a Trump administration “gag rule” cutting off aid money to international groups that provide, advocate for, or refer people to abortions, "as part of his broader commitment to protect women's health and advance gender equality at home and around the world."

The policy dates back decades, and was passed in response to Roe, but was strengthened under the Trump administration to apply to all federal agencies and departments involved in the US $10 billion expenditures on global health.  

The Biden administration also plans to restore federal funding to Planned Parenthood, which left the Title X grant programme after the Trump administration in 2019 banned grantees from providing or referring people to abortions except in cases of rape, incest, or health emergency.

President Biden’s goal of jettisoning the Hyde Amendment, a rule which prohibits the use of federal funding for abortion more broadly in most cases, could prove even more significant for abortion access, as it would allow federal dollars to go towards abortions under the administration’s proposed public insurance option.

As recently as 2019, Mr Biden, a devout Catholic who has gone back and forth over abortion over the years, supported the amendment but changed his mind after intense backlash.

“If I believe health care is a right, as I do, I can no longer support an amendment that makes that right dependent on someone’s ZIP code,” Mr. Biden said at the time. 

Another key area could be strengthening the Affordable Care Act, also known as Obamacare, which required most private insurance plans to cover birth control without copayments, increasing access and affordability for millions of people. The Trump administration allowed organisations to opt out of the mandate for religious reasons, a policy upheld by the Supreme Court.

The new administration also signed an executive order in its early moments outlining a broad interpretation of federal anti-discrimination rules to include protections for trans people in health care settings, and calling on federal agencies to review their discrimination regulations and policies and clarify that sex discrimination encompasses sexual orientation and gender identity.

Still, the president has numerous obstacles between him and this ambitious change to US health policy. Since Roe v. Wade was decided, states have enacted more than 1,100 rules regulating and restricting abortions, including more than 450 since 2011  leaving some states with a sole abortion provider and others with numerous procedural roadblocks before patients can access their federally protected care.

Most major federal action would have to pass through Congress, where an evenly split Senate will struggle with the filibuster, a rule requiring a supermajority of 60 votes to pass certain legislation that makes major change difficult, as majority leader Chuck Schumer and his outgoing Republican counterpart Mitch McConnell continue to haggle over power-sharing rules for the incoming Congress.  

What’s more, even if action did pass Congress, or come straight from the White House, a conservative Supreme Court with Justices like Amy Coney Barrett, who has previously declared her opposition to abortion, could strike them down amid the more than a dozen abortion cases making their way through the appeals process. 

And any attempt to establish the Biden administration’s credentials as abortion advocates will have to contend with the president’s own history on the subject, which includes initially backing a constitutional amendment in 1982 that would outlaw abortion, before later voting against it, and once saying Roe went “too far” and telling an interviewer a woman shouldn’t have the “sole right to say what should happen to her body.”