life after roe

Maybe This Will Make It Easier to Get an Out-of-State Abortion?

Photo: Chris Kleponis/UPI/Shutterstock

People crossing state lines for abortion access may, at some point, be able to use Medicaid to cover the cost of the procedure. That’s according to a new executive order that President Joe Biden signed on Wednesday in a rejoinder to the Supreme Court’s Dobbs decision. As was the case with the order he signed last month, which dealt mostly with medication abortion and access to contraception, the measure is light on details. For example, it compels the Department of Health and Human Services to “consider action to advance access to reproductive healthcare services” for patients — specifically Medicaid patients — obligated to travel out of state, without elaborating on what “action” might mean in this sentence.

But that caveat is significant, both because about a third of abortion patients (presumably some of those worst affected by the added costs of a long trip) are enrolled in Medicaid and because, under the Hyde Amendment, federal Medicaid funds can only be used for abortion in a narrow set of circumstances. The amendment, which Biden supported for decades before making a campaign-trail policy reversal, makes exceptions for pregnancies that result from rape or incest and/or that threaten the patient’s life or health. Whether or not an individual state makes allowances beyond those guidelines comes down to its individual laws.

Which is to say it’s not immediately clear how this is going to work, but that appears to be what Biden has tasked Health and Human Services secretary Xavier Becerra with figuring out. An unnamed administration official told ABC News that the order would enable states “to apply for Medicaid waivers so that states where abortion is legal could provide services to people traveling from a state where abortion may be illegal to seek services in their state.”

At the same time, Biden also called on the HHS to “consider all appropriate actions” necessary when it comes to pregnant patients in need of urgent care. Since the Supreme Court returned the question of abortion’s legality to the states, doctors across the country have reported collateral damage: people denied prescribed drugs to complete miscarriages; people denied prescribed drugs to treat totally unrelated medical issues, like arthritis or cancer; people forced to carry or birth dead fetuses because physicians fear breaking the law. With respect to doctors “who may be confused or unsure of their obligations” in the post-Roe medical landscape, the order aims to ensure compliance with federal nondiscrimination laws, whether it is through “technical assistance” — somehow gathering providers to remind them of their professional duties and the “potential consequences” of not doing them — or whatever the HHS sees fit. Again, the order is scant on specifics and includes no timeline for all this supposed action.

Still, though it does not offer bold, or even clear, solutions to a problem that urgently demands them, the order represents movement in a more correct direction. The timing is encouraging, too: Biden dropped the measure the day after 58 percent of Kansas voters rejected a ballot measure that would’ve allowed lawmakers to enact new and aggressive abortion restrictions with abandon. In one sense, that outcome isn’t all that surprising: The majority of U.S. adults support abortion access and/or oppose making the procedure illegal, meaning the legislators who back bans may break with their constituents. It’s not the people who want this but an ideologically motivated group of politicians.

It’s also not the physicians who have complained of being hamstrung by new restrictions, and Tuesday brought good news on that score, too. As of August 2, the Justice Department is suing Idaho over its looming trigger ban that includes exceptions only for rape, incest, and situations in which a patient’s life — not health — is on the line. But that qualification could violate the Emergency Medical Treatment and Labor Act, the federal government argues. “If a patient comes into the emergency room with a medical emergency jeopardizing the patient’s life or health, the hospital must provide the treatment necessary to stabilize that patient,” Attorney General Merrick Garland said of the suit. “This includes abortion, when that is the necessary treatment.”

Will This Make It Easier to Get an Out-of-State Abortion?