Duckworth Joins Warren and Colleagues in Urging Biden Administration to Do More to Protect Reproductive Freedom

[WASHINGTON, D.C.] — Today, U.S. Senator Tammy Duckworth (D-IL) joined U.S. Senator Elizabeth Warren (D-MA) and ten of their Senate Democratic colleagues in sending a letter to President Biden urging his administration to take new steps to protect reproductive freedom amidst divided control of Congress and increasing efforts to restrict access to abortion across the country. 

“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 eighteen states eliminated all or some access to abortion. In some states, women have to travel over seven hours to find the nearest abortion facility. Healthcare 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.

In their letter, the Senators applauded President Biden for taking significant action to protect access to reproductive healthcare 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 actions 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 healthcare 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.

Senator Duckworth is a champion and staunch defender of a woman’s right to choose. Just last week, the Senator hosted Dr. Erin King of Illinois’s Hope Clinic as her 2023 State of the Union guest, as part of the Senator’s continuing efforts to defend Americans’ right to full, comprehensive reproductive healthcare—no matter their zip code, income, ability status or skin color. The Senator is also working to reverse the Supreme Court’s dangerous ruling that struck down Roe v. Wade and enshrine its protections into law, and she introduced the Equal Access to Abortion Coverage in Health Insurance (EACH) Act, as well as supported the Women’s Health Protection Act, which she vocally criticized Republicans for blocking. After she urged Secretary of Defense Lloyd Austin to proactively protect servicemembers’ abortion rights, the Department of Defense announced several new protections and services to ensure our female troops can access the healthcare they need. Duckworth also pushed back against Republican attacks against the Biden Administration’s efforts to protect female Veterans’ access to care.

Along with Duckworth and Warren, the letter was signed by U.S. Senators Tammy Baldwin (D-WI), Richard Blumenthal (D-CT), Cory Booker (D-NJ), Sherrod Brown (D-OH), Mazie Hirono (D-HI), Ed Markey (D-MA), Jeff Merkley (D-OR), Alex Padilla (D-CA), Jeanne Shaheen (D-NH) and Tina Smith (D-MN).

Full text of the letter is available here and below.

Dear Mr. President:

It has been more than six months since the Supreme Court issued its devastating decision in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade and reversing nearly five decades of settled law. In that time, 18 states have eliminated all or some access to abortion,¹ and with states recently beginning their 2023 legislative sessions,² we expect additional states to implement abortion bans this year.³ These measures endanger millions of Americans – including those living in states where abortion remains legal – and have limited access not only to abortion care, but also to other essential health care services. As the American Medical Association explained, “State-imposed restrictions on abortion care have certainly resulted in diminished access to pregnancy care, reproductive care, and other health care, as well as delays in such care.”⁴ In some states, women must travel more than seven hours to find the nearest abortion facility.⁵ U.S. maternal mortality rates were already shamefully high even before the Supreme Court’s reckless decision.⁶ Now women suffering from miscarriages, ectopic pregnancies, and other complications are facing even more mortal threats as a result of these policies.

We appreciate all of the critical steps that the Biden-Harris Administration has already taken to protect access to reproductive health care services, including removing medically unnecessary in-person dispensing requirements for mifepristone, creating an avenue to grant patients Medicaid waivers to support travel expenses for reproductive care, clarifying that the Comstock Act does not prevent the mailing of medications for the purpose of abortion care, and, most recently, proposing to expand access to contraception under the Affordable Care Act.⁷ . It is critical that you continue to take whatever steps are within your authority to protect reproductive freedom.

After decades of activism by anti-abortion extremists, the Dobbs decision emboldened anti-abortion politicians to further their attacks on reproductive rights. In September 2022, Senate Republicans introduced legislation to impose a nationwide ban on abortion.⁸ House Republicans made it their first order of business in the new Congress to attack abortion rights and have already passed multiple anti-abortion measures since assuming the majority.⁹ Antiabortion politicians at the state level continue to enact new abortion restrictions and bans that will further threaten the ability of women to make decisions about their own bodies and futures.¹⁰ And anti-abortion extremists have filed numerous lawsuits to strip access even further, including a baseless lawsuit in Texas that seeks to eliminate access to medication abortion nationwide.¹¹

As President of the United States, you have a distinct role and responsibility to defend reproductive rights, protect access to reproductive health care, 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, including by considering the following ideas:

1. Clarify the resources and support available to individuals seeking abortion care outside of their home states. The Administration should build on the work of the Department of Justice (DOJ) and Health and Human Services (HHS) to protect Americans’ right to travel and help alleviate the financial strain on those who must cross state lines to access abortion care. Following Dobbs, the average travel time to an abortion clinic more than tripled – from about 28 minutes to over 100 minutes¹² – which, for many, means potentially crossing state lines. In June 2022, Attorney General Merrick Garland released a statement supporting Americans’ right to travel for abortion care, but further information is necessary to ensure patients can maximize these protections.¹³ Specifically, DOJ should issue guidance detailing Americans’ right to travel under the interstate commerce clause, which may be used to inform state shield laws. Federal agencies should also continue exploring additional opportunities to finance travel, childcare services, and other forms of support for individuals seeking to access abortion care that is unavailable in their home state, such as providing vouchers.

1. Continue efforts to protect the privacy and safety of abortion providers and patients. The HHS Office for Civil Rights issued guidance detailing how federal laws and regulations, including the Health Insurance Portability and Accountability Act (HIPAA), can be used to protect patients’ privacy. HHS should explore issuing new regulations to strengthen HIPAA 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.

1. Protect access to medication abortion. We are deeply concerned that a lawsuit in Texas, Alliance for Hippocratic Medicine v. FDA, poses significant risks to medication abortion and FDA’s long-standing authority to regulate drugs in the United States.¹⁴ We trust the administration will use every legal and regulatory tool at their disposal to keep this drug – which has a more than 22 year safety record¹⁵ – on the market. This includes any existing authorities, such as enforcement discretion,¹⁶ to allow mifepristone to remain available. FDA has previously used its authority to protect patients’ access to treatment and could do so again.¹⁷

1. Continue to evaluate remaining restrictions on medication abortion. In January 2023, the FDA permanently removed the medically unnecessary in-person dispensing requirement for mifepristone, as well as authorizing certified pharmacies to dispense the medication.¹⁸ This was an important step and will ensure more Americans can receive medication abortions. We encourage FDA to continue to follow the science to determine if any remaining restrictions on the dispensing of mifepristone, including patient consent forms, are medically unnecessary.¹⁹ If additional evidence is required, FDA could consider working with sponsors and researchers to approve studies that examine how mifepristone can be dispensed without any restrictions.

1. Ensure veterans, service members, beneficiaries, and other federal employees can access abortion care. Veterans Affairs (VA) Secretary McDonough has taken a number of steps to protect access to abortion care for veterans and VA beneficiaries, including issuing an interim final rule allowing VA health care providers to offer abortions and abortion counseling in certain circumstances regardless of state laws.²⁰ And in October, Defense Secretary Austin issued a memo to protect the rights and privacy of service members who need to take leave or travel to access abortion services, including by providing leave and reimbursement for travel and transportation costs.²¹ Additionally, both agencies have taken steps to expand access to contraception: the Department of Defense (DOD) recently waived copayments for certain contraceptives for TRICARE beneficiaries,²² and the VA has proposed waiving copays for all FDA-authorized contraception for CHAMPVA beneficiaries.²³ The VA and DOD should continue to ensure that their beneficiaries can access reproductive healthcare without retaliation, and that VA and DOD healthcare providers who perform covered abortions can act without retaliation. Additionally, DOD should ensure that leaders and commanders have accurate guidance on how to support service members seeking leave, and that military treatment facilities continue to carry contraception. We also appreciate your July 2022 Executive Order ensuring that all federal workers can use paid sick leave to travel for abortion care,²⁴ and we urge agencies to consider options to reimburse travel costs for federal employees in states that restrict or ban abortion care.

1. Enforce “Free Choice of Provider” requirements. Federal law guarantees Medicaid beneficiaries the ability to seek family planning services from their provider of choice, including abortion providers. But certain states have openly flouted these requirements.²⁵ HHS should more aggressively enforce these rules and protect the existing right of people to access care from their provider of choice.²⁶

1. Rescind harmful Executive Orders. The Biden-Harris Administration has worked to rescind harmful rules from previous administrations, including the Trump-era regulations implementing Section 1557 of the Affordable Care Act (ACA) and the “refusal of care” rule,²⁷ which we urge the Administration to finalize. In addition, several more remain in place and deserve renewed attention. These executive orders undermine access to abortion, contraception, and other reproductive health care. President Biden should rescind Executive Order 13535, which reinforces the Hyde Amendment and restricted certain federal funds under the ACA from being used for abortion services.²⁸ The President should also reverse Executive Order 13798, which set the stage for the creation of the HHS Conscience and Religious Freedom Division.²⁹ This Division has emboldened discrimination and refusals of care under the guise of religious liberty.

1. Ensure enforcement of the women’s health preventive services benefit under the ACA. The ACA requires most private health insurers to cover recommended women’s preventive healthcare, including contraceptives and related services, without cost sharing,³⁰ but some plans still do not comply with these requirements. HHS, along with the Departments of Labor and the Treasury, have issued guidance to clarify these requirements³¹ and recently proposed a rule to help ensure Americans whose employers or schools object to birth control can access it without cost-sharing.³² These are important steps, and HHS and the Center for Consumer Information and Insurance Oversight should continue working to ensure that Americans with private health insurance have affordable access to the birth control of their choice.

1. Ensure undocumented individuals can access abortion care without penalty. Federal agencies should ensure undocumented individuals seeking abortions and other crucial medical care, and those who assist them, can receive those medical services without fear of detention or deportation.

1. Ensure those held in federal custody can access abortion care. All federal agencies, including DOJ and the Department of Homeland Security, should expand and enforce existing protections to safeguard the right to abortion for those who elect to receive these services while being held in federal care or custody.

1. Increase critical funding for domestic and global sexual and reproductive health services in the President’s Budget. Title X is the only federal program dedicated to providing family planning and other sexual healthcare services,³³ and we encourage you to include strong support for the program and other domestic and global reproductive health programs in the 2024 President’s Budget. We also urge you to again release a Budget Proposal that does not include the Hyde Amendment, and to eliminate all restrictions on abortion coverage and funding, including the Helms Amendment. Both amendments disproportionately harm people of color and low-income communities.³⁴

Each day, women’s lives are threatened because they are denied access to essential health care. We commend the Administration’s efforts to protect reproductive freedom and urge you to continue to respond to this crisis with a whole-of-government approach, particularly as extremist judges and anti-abortion politicians across the nation and within Congress intensify their efforts to strip away reproductive rights.

Thank you for your attention to this important matter.

Sincerely,

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