It took five months for the Biden administration to make a substantive policy change to advance abortion rights. And even that change was buried in a 61-page regulation setting rules for 2022's Affordable Care Act enrollment.
The policy would reverse a Trump administration rule requiring insurers that cover abortion to send separate bills for that coverage. Abortion opponents had hoped the extra paperwork would persuade insurers to stop offering the coverage.
But the new administration's effort also highlights the frustrations abortion-rights advocates have with the slow pace of change from a president they strongly supported — and who courted their votes. "Biden will work to codify Roe v. Wade, and his Justice Department will do everything in its power to stop the rash of state laws that so blatantly violate Roe v. Wade," said his campaign platform.
The late-June action was technically Biden's second move on reproductive rights. Following a recent custom in which presidents taking office from the opposite party have reversed each other's abortion policies, Biden in January gave an initial nod to that campaign promise. He issued an executive order that overturned the so-called Mexico City policy that prohibited U.S. funding of foreign organizations that perform abortions or even lobby for looser abortion laws. It also instructed the Department of Health and Human Services to rewrite a Trump regulation that has effectively shut Planned Parenthood out of the federal family planning program, Title X.
But those Title X changes haven't happened yet, nor has the administration formally moved to undo rules that make it easier for employers to opt out of the ACA mandate to provide no-cost contraception. Also so far unchanged are Trump administration modifications to Medicaid guidance that allow states to ban Planned Parenthood from Medicaid. And abortion rights supporters' concerns are growing after the Supreme Court accepted a Mississippi case that could significantly weaken or even overturn Roe v. Wade, the 1973 ruling that legalized abortion nationwide.
In fact, to the consternation of reproductive rights advocates, Biden has apparently not even uttered the word "abortion" as president. A website is keeping track.
None of that, however, has stopped abortion opponents from painting the president and his administration as pro-abortion crusaders. "Once a supporter of policies that protect the lives of the unborn and their mothers, President Biden today caters to the most extreme voices within his party," said a statement from the Susan B. Anthony List in May. The statement was in response to Biden's keeping a campaign pledge to submit a budget calling for Congress to eliminate the Hyde Amendment, which for years has forbidden most federal abortion funding, particularly affecting low-income women in the Medicaid health program. It's named after former Republican Rep. Henry Hyde of Illinois.
It's true that Biden, a practicing Roman Catholic whose stance is criticized by many U.S. bishops, used to be much less supportive of abortion than he is today. But abortion moderates are a disappearing species in both political parties.
As recently as the 1990s, Democrats and Republicans jointly led "pro-life" and "pro-choice" caucuses in Congress. In 1991 an estimated third of Democrats in the U.S. House voted with anti-abortion advocates. A smaller but still significant minority of Republican House members voted with abortion-rights backers. The Senate was similarly divided. The divisions through the '90s helped explain why Democrats, even when they controlled both houses of Congress and the White House, were unable to eliminate the Hyde Amendment or codify abortion rights (they tried both).
Since then, though, both parties have retreated more firmly to their respective corners on reproductive health. Despite some complaints, the 2020 Democratic platform calls for repealing the Hyde Amendment, and the 2016 GOP platform (there was no formal platform in 2020) asserts that "the unborn child has a fundamental right to life which cannot be infringed." Anti-abortion Democrats in each chamber of Congress can be counted on one hand, as can Republican abortion-rights supporters.
The shift clearly has a lot to do with the replacement of Democratic conservatives in the South — many of whom opposed abortion — with Republicans. Along with that came redistricting, which has created more reliably red and blue districts. In a heavily Democratic or Republican district, politicians out of alignment with the majority of their party on issues such as abortion are more likely to draw primary opposition and less likely to raise money from activists.
But it's not just Democrats who are retreating from the middle of the abortion debate. In 1992, the Senate approved a bill by an overwhelming margin that would specifically allow federal funding of research on fetal tissue left over from elective abortions. Among the Republicans who voted for that measure who are still in the Senate are current Minority Leader Mitch McConnell and Chuck Grassley (R-Iowa).
By the time the issue returned to the political agenda in 2015, McConnell and Grassley had changed their positions.
Abortion will remain front and center for both parties as the Supreme Court prepares to review a Mississippi law that bans the procedure after 15 weeks and allows no exceptions for cases of rape or incest.
But Democrats will be tested most immediately. Progressives are determined to vote to eliminate the Hyde Amendment. Yet direct federal abortion funding makes even some abortion-rights backers squeamish, as Biden was until 2020 when, under some duress, he promised to sign the repeal if it came to his desk. As always, abortion remains a political high wire.
HealthBent, a regular feature of Kaiser Health News, offers insight and analysis of policies and politics from KHN's chief Washington correspondent, Julie Rovner, who has covered health care for more than 30 years.
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