The Biden administration has taken several significant actions to facilitate abortion access as over a dozen states have outlawed or seriously limited abortion following the Supreme Court’s overturning of Roe v. Wade in June.

However, experts say some of the administration’s guidance and policies, aimed at covering abortion-related costs and overriding state abortion law, won’t hold up under legal scrutiny.

Following the overturning of Roe, President Biden vowed to “do all in my power to protect a woman’s right in states where they will face the consequences of today’s decision,” while acknowledging that the only way to fully restore the abortion access under Roe at the federal level was through Congress where his party lacks the votes to do so.

1. Abortion Travel Policies

One thing he highlighted at the time was a supposed “bedrock right” of women to travel to obtain an abortion. His administration’s policies have since reflected that view, even offering taxpayer funds for abortion travel.

To that end, Biden signed an executive order in August that would allow states to pay for Medicaid waivers to fund women traveling out of state to receive abortions. However, as Politico noted in October, no states have applied for these waivers likely due to the cumbersome application process as well as concerns over potential legal issues with the Hyde Amendment, which bars the use of Medicaid funds for abortions except in cases of rape, incest, and life of the mother.

In September, the Department of Justice’s Office of Legal Counsel issued a memo claiming that “the Hyde Amendment is best interpreted as not prohibiting indirect expenditures” including traveling for an abortion.

Melanie Israel, a policy analyst at the DeVos Center for Religion and Civil Society at the Heritage Foundation, told the Register that “Democratic administrations have not liked the Hyde Amendment for years,” and if the DOJ’s claims are correct, past administrations would have sidestepped the Hyde Amendment all along “by paying for pretty much everything except the abortion procedure itself.”

She was not surprised by the administration’s attempts to justify coverage of abortion-related costs, as the White House is “desperate to do whatever they possibly can to expand abortion in a post-Dobbs World.”

2. Abortions for Veterans

The Biden administration also issued an interim rule for the Department of Veterans Affairs in September to “provide access to abortions when the life or health of the pregnant Veteran would be endangered if the pregnancy were carried to term, or when the pregnancy is the result of rape or incest.” According to the federal agency, “VA is taking this action because it has determined that providing access to abortion-related medical services is needed to protect the lives and health of veterans.”

In a comment on the interim final rule, Israel and her colleague Emma Waters said that the VA was overreaching in its novel interpretation of existing law. They wrote that “far from giving the VA authority to include abortions in VA programs, Congress has placed significant limitations on taxpayer-funded abortions vis-a-vis military personnel and veterans. Thus, the statutes that exist on this subject point in a direction opposite that taken in the interim final rule.”

The U.S. Conference of Catholic Bishops and the Archdiocese for Military Services wrote that “there are at least three problems with the interim final rule. First, the Department has no statutory authority to adopt it. Second, the rule represents a violation of conditions Congress has placed on the availability of taxpayer funds and government facilities for abortions. Third, the rule will facilitate the taxpayer-funded destruction of innocent human lives and harm the women it is intended to benefit.”

Israel said that the VA didn’t go through the normal regulatory process in issuing this as an interim final rule, instead the department argued that “they needed to have this go into effect immediately and that they would accept public comment after the fact.” She called it part of a strategy of “do the executive actions first and litigate later.”

Fifteen state attorneys general, led by Mississippi Attorney General Lynn Fitch, wrote in November that the rule “will not stand in the way of the duly enacted laws of our States or our commitment to enforcing those laws.” The attorneys general wrote that they “will watch closely the VA’s use of this rule” and they “are prepared to act decisively if the VA violates state law, breaks its pledge that the rule operates only in ‘limited circumstances,’ or defies any other legal requirements.”

Rachel Morrison, an attorney at the Ethics and Public Policy Center’s HHS Accountability Project, told the Register that despite the VA’s justification for the rule that veterans will face “serious threats to their life and health” post-Dobbs, the department hasn’t cited a single instance of this being the case. She also pointed out that currently “no state law prohibits abortion if it's necessary to save a mother's life.”

3. ‘Piecemeal’ Actions Across Federal Agencies

Morrison said the administration is “trying to be as creative as possible” to offer abortions through the VA and elsewhere, but there are limits to what they can do legally. She described its approach as “piecemeal” attempts to cover abortion-related costs for different groups and listed several examples of this in addition to the VA rule.

The Office of Personnel Management stated in June that federal employees can use sick leave to “access medical care” which was widely interpreted to mean access to abortion as the White House referenced this as part of their commitment to “reproductive healthcare.” The Department of Defense released a memo in October stating that for those serving in the military, it would “facilitate official travel to access noncovered reproductive health care that is unavailable within the local area of a Service member's permanent duty station.” The Office of Refugee Resettlement also recently issued guidance to “prioritize placement of pregnant UC [unaccompanied children] and UC who are victims of sexual-based crimes in states without abortion bans and with broad access to reproductive health care.”

4. EMTALA Reinterpretation

Another area in which the Biden administration is attempting to circumvent state law on abortion, Morrison said, is through HHS guidance, issued in July, claiming that under the Emergency Medical Treatment and Labor Act (EMTALA), if abortion is a “stabilizing treatment necessary to resolve” a patient’s “emergency medical condition,” a physician “must provide that treatment.” If state law “prohibits abortion and does not include an exception for the life and health of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted,” the guidance stated.

Morrison pointed out that EMTALA elsewhere “mentions an unborn child multiple times” and “stabilizing an unborn child,” something that calls into question the new HHS interpretation that the 1982 funding statute requires abortion in certain cases.

Texas sued over the guidance and a federal judge issued a temporary injunction against it in August. U.S. District Judge James Wesley Hendrix wrote that the administration’s guidance “goes well beyond EMTALA’s text, which protects both mothers and unborn children, is silent as to abortion, and preempts state law only when the two directly conflict."

The DOJ filed a lawsuit in Idaho, arguing that the state’s abortion ban violated EMTALA, and U.S. District Judge B. Lynn Winmill enjoined the state’s law banning abortion where it might conflict with EMTALA. The state has outlawed all abortions except in cases of rape, incest, or life of the mother. Attorneys for the state are asking Judge Winmill to reconsider, arguing that the state’s law does not conflict with EMTALA and this new, broader interpretation of EMTALA “unconstitutionally hijacks” Idaho’s power to regulate abortion.

5. Abortion Pill Access

Israel pointed out that another area where abortion advocates are pushing for the Biden administration to act is to use the FDA’s regulation of the abortion pill mifepristone to override state law. While the Biden administration removed an in-person dispensing requirement on the drug despite safety concerns, an FDA spokesperson recently acknowledged concerns about the serious complications that can arise from women obtaining the drug without consulting a medical professional.

Attorney General Merrick Garland made a statement following the Dobbs decision that “the FDA has approved the use of the medication Mifepristone” and “states may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.”

Israel said that “states do in fact have the power to regulate medicine” and that “can go beyond what the bare minimum FDA protocols are for these abortion pills.” She highlighted a paper by senior Heritage legal fellows Thomas Jipping and Sarah Parshall Perry, defending the states’ authority to regulate abortion drugs. They noted that “state laws requiring in-person prescription and dispensing of abortion drugs” — laws long required by the FDA itself — “do not conflict with the FDA’s approval. Rather, they exercise states’ authority to regulate the medical profession, enhance public safety, and restrict abortion.”