‘No Magic Bullet’ for Preserving Abortion Access, Biden’s Health Secretary Says

With the White House under pressure to push back on the Supreme Court ruling on abortion, Xavier Becerra unveiled several steps aimed at protecting access to the procedure.WASHINGTON — President Biden’s health secretary, facing criticism from other Democrats that the administration is not doing enough to counter the Supreme Court’s decision overturning Roe v. Wade, said on Tuesday that there was “no magic bullet” to preserve access to abortion — even as he outlined a series of steps his department will take in an effort to do so.Xavier Becerra, the secretary of health and human services, told reporters that at Mr. Biden’s direction, he had instructed his agency to take a number of actions, including making sure that federal programs cover medication abortion in cases of rape or incest or when the life of the mother is at risk.At a morning news conference, Mr. Becerra said his department would work with the Justice Department to ensure that women have access to abortion pills — two different drugs, taken 24 to 48 hours apart and authorized for the first 10 weeks of pregnancy — in places where state law conflicts with the judgment of the Food and Drug Administration, which has approved the drugs for use and determined that they are safe and effective.It will also require hospital emergency rooms to comply with a federal law mandating that they stabilize patients experiencing a medical emergency — including by performing abortions if necessary. And it will take steps to ensure that patients’ records are private, to keep state or local officials from identifying women who have had abortions.But those steps may not go far enough for progressive Democrats and other advocates for reproductive rights. Some lawmakers, including Representative Alexandria Ocasio-Cortez of New York and Senator Elizabeth Warren of Massachusetts, have pressed the administration to build abortion clinics on federal land and pay for people to travel out of state to seek abortions.From Opinion: The End of Roe v. WadeCommentary by Times Opinion writers and columnists on the Supreme Court’s decision to end ​​the constitutional right to abortion.Michelle Goldberg: “In the aftermath of the anti-abortion movement’s catastrophic victory, it’s worth asking what we can learn from their tactics.”Maureen Dowd: “The court is out of control. We feel powerless to do anything about it. Clarence Thomas, of all people, has helped lead us to where we are.”Peter Coy: “People on the losing end of Supreme Court decisions increasingly feel that justice is not being served. That’s a scary situation for American democracy.”Jamelle Bouie: “The power to check the Supreme Court is there, in the Constitution. The task now is to seize it.”Michele Goodwin, law professor: “The overturning of Roe v. Wade reveals the Supreme Court’s neglectful reading of the amendments that abolished slavery.”Those were not among the measures that Mr. Becerra announced on Tuesday, and he sounded a note of caution about what the administration can and cannot do. There are still complex legal issues to sort out, he said, to ensure the administration does not violate the court’s ruling in Dobbs v. Jackson Women’s Health Organization.“It was a long decision and it did upend 50 years of precedent, and so you want to make sure that what you do is within the confines of the law,” Mr. Becerra said. “We’re not interested in going rogue.”Activists unfurled a banner that read “Biden: Protect Abortion” near the White House on Tuesday.Shuran Huang for The New York TimesHe called the court’s decision “despicable,” and at one point said he wanted to offer “my apologies” that the administration could not do more. “There is no magic bullet,” he said, “but if there is something we can do, we will find it and we will do it.”The administration has studied, but remains skeptical about, the idea of hosting abortion clinics on federal enclaves like military bases and national parks — where state prosecutors lack jurisdiction — in states where abortion is now a crime.The problem, according to officials familiar with internal deliberations, is that the federal government could not ensure that doctors who are not federal employees performing official duties — and potentially patients — would not be at risk of prosecution. The White House press secretary, Karine Jean-Pierre, dismissed the idea on Tuesday, telling reporters aboard Air Force One that it could have “dangerous ramifications” for women and doctors.If a Republican were to win the presidency in 2024, his or her Justice Department could charge people with state-law abortion crimes — and the statute of limitations for charging conduct dating back to 2022 will not have run out. States could strip doctors of their medical licenses. And state prosecutors could try to charge people with related conduct that took place outside the enclave — like helping women get there — under a theory of aiding and abetting or conspiracy.Offering financial help to women to cross state lines to get an abortion could also be problematic for the administration, because it might violate the so-called Hyde Amendment, which bars federal funds from being used to pay for abortion except in cases of rape or incest, or where the life of the mother is at risk. Mr. Becerra was asked on Tuesday if the Department of Health and Human Services might provide such financial help.Once officials know “exactly what we believe we are able to do, and have the money to do, we will let you know,” he said. “But until then, what I could simply say to you is: Every option is on the table.”One area where the administration can act is to ensure that women have access to emergency contraception — the so-called morning-after pill, also known as Plan B — and intrauterine devices. Both are common methods of contraception, but abortion opponents regard them as “abortifacients” and have tried in some states to restrict access to them.Some family-planning clinics in states that are banning abortion say their supplies of Plan B are now running short, because women — fearful that the pills will be outlawed — are stocking up. Hailey Kramer, a nurse practitioner at Tri-Rivers Family Planning in Rolla, Mo., said on Monday that the clinic’s supplier was grappling with soaring demand and that the pills had been back-ordered since a draft of the opinion overturning Roe was leaked last month.Mr. Becerra also said he had directed the Centers for Medicare and Medicaid Services to take action against states, including Missouri, that have excluded Planned Parenthood, a major provider of birth control, from Medicaid family planning programs that reimburse for such services.“We will make clear that family planning providers are able to participate in the Medicaid program,” he said.

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Biden Administration May Appeal Mask Mandate Ruling

If the C.D.C. decides there is a public health basis for trying to reinstate and extend the mask mandate, the Justice Department will swiftly file an appeal.WASHINGTON — The Biden administration announced on Tuesday that it intended to appeal a Florida judge’s ruling that struck down a federal mask requirement on airplanes, trains, buses and other public transportation — but only if the Centers for Disease Control and Prevention decides that extending the measure is necessary.The announcement from the Department of Justice came after a day of back and forth inside the White House, as administration officials faced a legal and political quandary: whether to let the judge’s ruling stand or to fight it, knowing that an appeal could result in a higher court, perhaps the Supreme Court, ruling against the administration and setting a lasting precedent that could undercut the C.D.C.’s authority.In the end, the administration charted a careful course, publicly objecting to Monday’s ruling but putting off a final decision about whether to contest it. The Justice Department and the C.D.C. “disagree with the district court’s decision and will appeal, subject to C.D.C.’s conclusion that the order remains necessary for public health,” the department said in a statement.“You are in the position of having two horrible choices,” said Lawrence O. Gostin, an expert in public health law at Georgetown University. “One choice is to risk forever taking away C.D.C.’s powers if this goes up to the 11th Circuit and ultimately the Supreme Court.“And on the other hand,” he added, “if you let what I consider to be a lawless decision by this judge go forward, then C.D.C. is going to be gun-shy about doing things that it deems effective for the protection of the American public.”The mask mandate — which also applied to transportation hubs like airports and train stations, and even to ride-sharing services like Uber — had been set to expire on May 3 even before the judge struck it down on Monday.If the C.D.C. decides there is a public health basis for trying to reinstate and extend the mandate, the Justice Department will swiftly file an appeal. But if the C.D.C. decides otherwise, the administration will not appeal and the case will instead end as mooted — but without any signal of executive branch acquiescence to the judge’s view of its authority.The Justice Department “continues to believe that the order requiring masking in the transportation corridor is a valid exercise of the authority Congress has given C.D.C. to protect the public health,” its statement said. “That is an important authority the department will continue to work to preserve.”The C.D.C. imposed the mandate in early 2021, at the direction of the president. The agency had already extended it several times, most recently on April 13. At the time, it said it wanted to keep the requirement in place several more weeks while it assessed the potential severity of the Omicron subvariant known as BA.2, which recently became the dominant version among new U.S. cases.As the administration considered its options on Tuesday, White House officials, including President Biden himself, were cautious in their public remarks. On a trip to New Hampshire to promote infrastructure spending, the president was asked by reporters whether people should wear masks on planes.“That’s up to them,” Mr. Biden replied.The Federal District Court judge in Tampa who struck down the mandate — Kathryn Kimball Mizelle — put forward a sharply constrained interpretation of the C.D.C.’s legal authority under the Public Health Service Act of 1944. If her view prevailed, the agency’s hands would be tied in future public health crises.But a ruling by a district court judge is not a binding precedent. Appealing the matter would carry the risk that the court that oversees her — the Court of Appeals for the 11th Circuit in Atlanta — could issue a ruling that constrains the agency’s future conduct at least in its region, the Southeastern United States. A majority of the judges on that circuit are also Trump appointees.And above it, the Supreme Court has a six-to-three conservative majority. In January, it blocked a Biden administration edict that large employers require workers to get vaccinated or submit to regular testing. (On the other hand, the court has permitted military officials to require service members and reservists to get vaccinated; it also upheld a federal mandate requiring health care workers at facilities receiving federal money to be vaccinated.)Dr. Thomas Frieden, who directed the C.D.C. for eight years under President Barack Obama, noted that the C.D.C. has “very little regulatory authority” and said other pandemic-related actions — including a moratorium on evictions and the use of the border authority known as Title 42 to keep immigrants from seeking asylum — may have, in effect, reduced the agency’s political capital to keep the mask mandate in place.“The broader question is, what is the appropriate use of mandates,” Dr. Frieden said. “The clearest case is for interstate travel, and so there is the risk that by pushing the envelope on other issues, we lost some of the narrative on what is an appropriate use of mandates.”Some supporters of the mask mandate have viewed an appeal as risky.“As tempting at it is to appeal it, because it’s a ridiculous ruling, the bigger issue is that you need to reserve the ability for the C.D.C. to act in case we have a big outbreak in the fall or the winter,” said Andrew Slavitt, a former senior health adviser to the president who helped run the administration’s Covid-19 response.“Trump appointed 234 federal judges,” he added, “and if you end up there or in the Supreme Court, you could really damage your ability to respond to the pandemic in the future.”But others spoke strongly in favor of an appeal.“What worries me is the fact that this judge is saying that C.D.C. doesn’t have the authority to protect the health of people in America as they best see fit,” said Dr. Rich Besser, a former acting director of the C.D.C. He added that if the ruling stands, it would be “really damaging, because going into the next event you’ve got this ruling there and it hasn’t been contested.”As a matter of politics, support for mask mandates has fallen in opinion polls as it has become clearer that healthy people who have been vaccinated and boosted — as well as those who remain unvaccinated but have survived a bout of Covid-19 — are generally at lower risk of experiencing severe or life-threatening symptoms if they get infected.“The country clearly wants to move on,” said David Axelrod, a Democratic strategist who served as senior adviser to President Barack Obama. “Mandatory masking is a volatile issue. So my instinct is that the path of least resistance would be to stand down, on the grounds the clock is quickly running out anyway.”But some people remain strongly in favor of such mandates. They have pointed to the continuing serious risk that any infection poses to immunocompromised people despite vaccination, and to the fact that very young children — while less likely to experience significant symptoms — are not eligible for vaccination.Monday’s ruling took officials in the White House by surprise and frustrated them, two senior officials said. But on Tuesday, as travelers aboard airplanes took directions from pilots to unmask and riders aboard transit systems went mask-free, the Biden administration did not lay out a detailed plan to contest the ruling, even as public health experts warned that the C.D.C.’s authority to prevent the spread of a contagious virus was on the line.Inside the C.D.C., officials felt their most recent extension of the mask mandate was reasonable, to give them time to assess the evidence and make a considered decision about whether to continue it.“C.D.C. scientists had asked for 15 days to make a more data-driven durable decision,” Dr. Ashish K. Jha, the new White House coronavirus response coordinator, wrote on Twitter. “We should have given it to them. But I’ll continue to follow CDC guidance & mask up on planes.”Katie Rogers

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