Biden signs executive order to support patients traveling for abortions

President Biden on Wednesday signed an executive order directing the Department of Health and Human Services (HHS) to consider working with states to use Medicaid waivers to pay for expenses for women who cross state lines to receive abortions.  

The executive order was the second that Biden has signed over the past month in response to the Supreme Court’s June ruling striking down the landmark 1973 abortion decision in Roe v. Wade.  

“I believe Roe got it right, and it’s been the law for close to 50 years,” Biden, who is isolating with COVID-19, said in virtual remarks at a meeting of an interagency task force on reproductive health care.  

“I commit to the American people that we are doing everything in our power to safeguard access to health care, including the right to choose that women had under Roe v. Wade which was ripped away by this extreme court,” Biden said.  

Biden’s executive order also directs HHS to consider actions like providing technical assistance and issuing new guidance to make sure health care providers comply with nondiscrimination laws in the wake of the ruling. 

And the order instructs HHS to improve federal research and data collection at the National Institutes of Health (NIH) and the Centers for Disease Control and Prevention (CDC) in order to evaluate the impact of the Supreme Court’s ruling on maternal health and reproductive healthcare.  

Biden administration officials did not provide many specifics about what the Medicaid waivers could look like, leaving the details up to HHS. 

The executive order states that Health and Human Services Secretary Xavier Becerra “shall consider actions to advance access to reproductive healthcare services, including, to the extent permitted by Federal law, through Medicaid for patients traveling across State lines for medical care.”

Officials said Biden’s new order paves the way for Becerra to invite states to apply for Section 1115 Medicaid waivers to cover certain costs related to traveling for abortion. 

White House press secretary Karine Jean-Pierre stressed that the use of Medicaid funds would help low-income women who live in states with abortion restrictions and cannot afford to travel across state lines.  

“It’s going to help in particular low-income women,” Jean-Pierre told reporters at a press briefing Wednesday afternoon. “It paves the way for Medicaid to pay for abortions for women having to travel out of state.”  

However, the Hyde Amendment prohibits the use of federal funds to pay for most abortions, with exceptions given for cases of rape, incest and when the life of the pregnant person is endangered. The Medicaid waivers are likely to face Republican-led legal challenges. 

Jean-Pierre insisted that the executive order did not run afoul of the Hyde Amendment and said that HHS would ensure that the law is followed. She later seemed to clarify that the waivers could be used to support transportation, contraception and abortion procedures in some cases. 

“Medicaid provides comprehensive health care to women with low incomes,” Jean-Pierre said. “This care includes family planning services such as contraception, non-emergency medical transportation and support services like targeted case management which allows health care providers to help patients coordinate their care and it also includes abortion care in certain circumstances as excepted by the Hyde Amendment, which is rape, incest and life of the mother.” 

The actions triggered by the executive order, she said, “leverage Medicaid to support patient care for those living in states with abortion bans.” 

The Biden administration has faced pressure to take more aggressive action to protect access to abortion, as several states have moved to implement new restrictions following the Supreme Court decision in June.

The White House had been internally considering using Medicaid funds to help pay for travel for abortion as early as May, following the leak of a draft opinion suggesting the Supreme Court was poised to overturn Roe.  

While Wednesday’s action is likely to be welcomed by abortion rights advocates, the administration has resisted calls to declare a public health emergency with respect to abortion access.  

A senior administration official previewing the order told reporters that the White House continues to review options to protect access to abortion services, but suggested that such a declaration would not yield much in the way of additional resources or legal authority. 

“The president is looking at all his options,” Jean-Pierre said Wednesday.  

Wednesday’s task force meeting took place a day after voters in Kansas dealt a resounding defeat to a state constitutional amendment that would have paved the way for new restrictions on abortion.  

Biden heralded that result, saying that “voters made it clear politicians should not interfere in the fundamental rights of women.” 

Also, he again called on voters to elect more Democrats so that Congress can pass federal legislation codifying abortion rights.   

Updated at 4:37 p.m.