Since Roe v. Wade was Overturned: At Least Eighteen States Have Eliminated All or Some Access to Abortion; Republicans in New Congress Have Passed Anti-Abortion Measures; Court Poised to Eliminate Access to Medication Abortion Nationwide

Text of Letter (PDF)

Washington (Feburary 14, 2023) – Senator Edward J. Markey (D-Mass.) joined Senators Elizabeth Warren (D-Mass.), Mazie Hirono (D-Hawaii), Tina Smith (D-Minn.), Alex Padilla (D-Calif.), Cory Booker (D-N.J.), Jeff Merkley (D-Ore.), Richard Blumenthal (D-Conn.), Tammy Duckworth (D-Ill.), Tammy Baldwin (D-Wisc.), Sherrod Brown (D-Ohio), and Jeanne Shaheen (D-N.H.) in sending a letter to President Biden, urging his administration to take new steps to protect reproductive freedom amid divided control of Congress and increasing efforts to restrict access to abortion. 

“Each day, women’s lives are threatened because they are denied access to essential health care,” wrote the senators. “As President of the United States, you have a distinct role and responsibility to defend reproductive rights for all Americans and ensure those values are reflected in domestic and foreign policy. We urge you to continue using the resources of the entire federal government to mount a robust response to this crisis.”

After Roe v. Wade was overturned, Republican extremists doubled down on their attacks on reproductive freedom, endangering millions. In September 2022, Senate Republicans introduced legislation to ban abortion nationwide. House Republicans passed anti-abortion measures as their first order of business in the new Congress, and at least 18 states eliminated all or some access to abortion. In some states, women have to travel over seven hours to find the nearest abortion facility. Health care providers are being forced to withhold life-saving care, and women suffering from miscarriages, ectopic pregnancies and other complications face higher risks. Anti-abortion extremists have also filed numerous lawsuits to strip access even further, including a baseless lawsuit in Texas that seeks to eliminate access to medication abortion nationwide.

The senators applauded President Biden for taking significant steps to protect access to reproductive health care services, including removing unnecessary requirements for medication abortion, inviting states to use Medicaid waivers to cover travel expenses for reproductive care, and increasing access to contraception under the Affordable Care Act (ACA). 

The senators laid out eleven new steps the Biden administration can take to respond to this growing crisis: 

1. Clarify the resources and support available to individuals seeking abortion care outside of their home state by issuing guidance detailing Americans’ right to travel under the interstate commerce clause and exploring additional opportunities to finance travel and support for those seeking abortions.
2. Continue efforts to protect the privacy and safety of abortion providers and patients by issuing new regulations to strengthen the Health Insurance Portability and Accountability Act to ensure that data cannot be shared with law enforcement and used to criminalize abortion providers or patients, and to ensure robust enforcement of the law.
3. Protect access to medication abortion. In light of the deeply concerning lawsuit in Texas, Alliance for Hippocratic Medicine v. FDA, which poses significant risks to medication abortion and FDA’s long-standing authority to regulate drugs in the United States, the administration should use every legal and regulatory tool at their disposal to keep this drug – which has a more than 22-year safety record – on the market. This includes any existing authorities, such as enforcement discretion, to allow mifepristone to remain available.
4. Continue to evaluate remaining restrictions on medication abortion by continuing to follow the science to determine if any remaining restrictions on the distribution of mifepristone, including patient consent forms, are medically unnecessary. 
5. Ensure veterans, service members, beneficiaries, and other federal employees can access abortion care, and that Veterans Affairs and Department of Defense health care providers who perform covered abortions can act without retaliation. 
6. Enforce “Free Choice of Provider” requirements. The Department of Health and Human Services (HHS) should more aggressively enforce federal laws that guarantee Medicaid beneficiaries the ability to seek family planning services from their provider of choice, and protect the existing right of people to access care from their provider of choice
7. Rescind harmful Executive Orders that undermine access to abortion, contraception, and other reproductive care. 
8. Ensure enforcement of the women’s health preventive services benefit under the ACA by ensuring individuals with private health insurance have affordable access to the birth control of their choice. 
9. Ensure undocumented individuals seeking abortions, and those who assist them, can access that care without fear of detention or deportation. 
10. Ensure those held in federal custody can access abortion care by expanding and enforcing existing protections to safeguard the right to abortion for those who elect to receive these services while being held in federal custody.
11. Increase critical funding for domestic and global sexual and reproductive health services in the President’s 2024 Budget. The Budget Proposal should not include the Hyde Amendment or the Helms Amendment.

“In a post-Roe world, access to abortion care is increasingly limited nationwide. Medication abortion care has been safely used by millions since the FDA approved mifepristone more than 20 years ago. With access now on the line, the Biden administration must act swiftly to ensure this safe, FDA-approved medication remains available for those who want it,” said Kirsten Moore, Director of the EMAA Project. 

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