There are several ways for the president and the federal government to make getting an abortion easier and more affordable—including eliminating the Hyde Amendment and Comstock Act.
This article was originally published by The Conversation.
Kamala Harris has made a big promise: If she is elected president, she will “restore reproductive freedom”—meaning Roe v. Wade, the landmark Supreme Court decision that gave women the fundamental right to get an abortion. Harris’ position is similar to that of President Joe Biden, who also has said several times that he would “restore Roe v. Wade as the law of the land again.”
If Harris is now saying that she would simply sign a bill enshrining the right to an abortion, then she can keep her promise. But, as Biden noted, such a bill is unlikely to be enacted by a Republican-dominated Congress in which the House majority is Republican. Moreover, if Harris is expecting such a law to be upheld by this Supreme Court, or even a different set of justices, she could be seriously disappointed.
On the other hand, there is much that a potential Harris administration and Congress could do to offset the impact of the Supreme Court’s 2022 Dobbs v. Jackson Women’s Health Organization ruling, which removed federal constitutional protection for the right to get an abortion and sent the regulation of abortion back to the states.
As experts on constitutional law and reproductive health and justice, we are sorting out just what the federal government can do to protect access to abortion.
Most Americans think of the federal government and the president as capable of doing anything that a majority of Congress thinks is appropriate. But that is not true.
The president has various powers under the Constitution, including the authority to issue executive orders.
That’s what Biden did shortly after the Dobbs decision when he issued an executive order that called on different government officials and agencies to promote access to reproductive care, including abortion.
In addition, in April 2024, the U.S. Department of Health and Human Services issued a new rule that strengthened privacy protections for medical records and health information for people who receive “lawful reproductive health care,” including abortion.
Recent Supreme Court decisions, however, have weakened the stability of administrative agency decisions, which could undermine this and other federal agency efforts to protect reproductive healthcare.
In addition, such efforts could be undone by Congress overriding executive orders—or a future president reversing them.
Congress’ Hands Are Partially Tied
Two of us have written about how Congress does not have the authority to override a state’s decision to make abortions unlawful in most circumstances—although we recognize that some observers and experts would question this conclusion.
Congress has the power to pass laws, but only on a limited list of subjects. While the understanding of Congress’ power has expanded over time, there are still very real limits.
Congress is able to regulate commerce between states, but the Supreme Court has determined that its powers reach only activities that are economic in nature. So, the Court ruled in 1994 that the federal government could not ban the possession of guns in a “school zone,” since there was no direct economic element involved.
Other Options for Protecting Abortion Rights
The president and the federal government have other ways to make it easier and more affordable to get an abortion. Some of these methods might even be effective in states where there are partial or full bans.
First, Congress could amend existing federal laws to provide economic assistance for abortion. For example, it could repeal the Hyde Amendment, which is an annual restriction passed in 1976 that prohibits federal money from being used to fund abortions, except when necessary to save the life of a pregnant person or when a pregnancy is the result of rape or incest.
Biden promised to remove the Hyde Amendment in his 2020 campaign but has been unable to do so because of lack of congressional support. But eliminating the Hyde Amendment would have minimal impact in states with abortion bans.
Second, some states with abortion bans have threatened to prosecute those who help individuals travel to another state to get an abortion.
For example, Idaho passed a law making it a felony for adults who are not the parent of a pregnant minor to help that minor cross state lines for an abortion. A district court has temporarily stayed this law as unconstitutional. Tennessee has adopted a similar law, which has been challenged. In addition, four counties and a few cities in Texas have passed so-called “abortion trafficking laws,” which allow individuals to sue people who travel to get abortions out of state and those who help them.
Congress could enact legislation that protects the right to interstate travel for an abortion. Congress could also make it a federal offense for anyone, including state prosecutors, to interfere with that right.
Justice Brett Kavanaugh, in his concurring opinion in Dobbs, asserted that if states criminalized interstate travel for people to get an abortion, those laws would fail “based on the constitutional right to interstate travel.” The Supreme Court, however, has not yet addressed this issue.
Third, the Food and Drug Administration has approved, and in 2016 and 2021 expanded, the availability of mifepristone, one of the two drugs used for medication abortions. In June 2024, the Supreme Court threw out a lawsuit on procedural grounds that challenged the FDA’s authority to approve and regulate mifepristone.
Other cases concerning mifepristone are making their way through the courts, and some of them could ultimately reach the Supreme Court.
Regardless of those other lawsuits, an anti-abortion president could replace the head of this federal agency. The FDA might then rescind the current rules that have expanded access to mifepristone, including allowing the pill to be used later in pregnancy.
To prevent that from happening, Harris could ask Congress to pass a law that would guarantee the same kind of access to mifepristone that the FDA currently allows.
Congress could also ensure that mailing abortion pills is legal. It could do so by not only repealing a Victorian law called the Comstock Act, which some judges have interpreted as prohibiting the mailing of abortion pills, but also directly declaring that such acts are legal.
In June 2024, U.S. Sen. Tina Smith, a Democrat from Minnesota, introduced legislation to repeal the law’s abortion provisions.
The Department of Justice issued an opinion in 2022 that the Comstock Act does not override the FDA rule allowing mifepristone to be delivered by mail. But legislation would make it impossible for a future president to reverse that opinion alone, or reverse that decision without congressional approval.
Following Dobbs, the Department of Health and Human Services also issued guidance in 2022 declaring that a federal law called the Emergency Medical Treatment and Labor Act requires physicians to offer abortions when doing so would stabilize patients in emergency cases.
This issue reached the Supreme Court in June 2024, when the Court sent the case back to the lower courts to sort out factual issues. The Court, though, is likely to ultimately reach the merits on this case.
Presidential Actions Could Still Matter
Harris’ attempt to explicitly codify Roe would probably not succeed.
But Harris can recommend that Congress undertake many other legal reforms that are not constitutionally barred, and she could also take some limited actions based on her own authority. These could remove some obstacles to getting an abortion.
At Ms. magazine, our mission is to deliver facts about the feminist movement (and those who stand in its way) and foster informed discussions—not to tell you who to vote for or what to think. We believe in empowering our readers to form their own opinions based on reliable reporting. To continue providing you with independent feminist journalism, we rely on the generous support of our readers. Please consider making a tax-deductible donation today if you value the work we do and want to see it continue. Thank you for supporting women’s voices and rights.
