What Can Biden Actually Do About Abortion Rights Before Leaving Office?

Once Donald Trump is back in the Oval Office on January 20, his administration is sure to further erode Americans’ reproductive rights. Most of his potential Cabinet members are openly anti-abortion, including Robert F. Kennedy Jr. and Dr. Mehmet Oz, both of whom could be in charge of top health agencies. The incoming administration is also likely to follow several proposals outlined in Project 2025, the far-right transition plan connected to dozens of Trump’s close allies and alumni, that would further restrict abortion and birth control.

But can President Joe Biden do anything to protect reproductive health care in the next 60 days before he leaves office? I spoke with Greer Donley, a professor at the University of Pittsburgh School of Law who specializes in reproductive justice, about Biden’s options — though she cautions they are limited, and whatever actions he takes to slow down the incoming Trump White House’s efforts won’t stop them entirely.

Federal regulations

While any of Biden’s executive orders can be reversed by Trump simply signing a new one once he takes office, undoing federal agencies’ rules is a much lengthier process — and Biden should take advantage of that, Donley says. For example, this summer, the administration finalized a rule designed to protect patients’ privacy by preventing prosecutors from getting ahold of their medical records if they obtained a legal abortion. Biden should finalize similar rules concerning abortion care, contraception, and other reproductive health-care issues that remain pending before January 20, Donley says.

“It would ensure that the Trump administration would have to undergo the same procedures to reverse it,” she adds. “It’s been almost four years, and the Biden administration hasn’t undone what Trump did. It could set into place a rule that would be similarly hard for the Trump administration to undo.”

While this isn’t a foolproof plan — the Republican-controlled Congress could use the Congressional Review Act to reverse the rules — it would require more legwork for the incoming Trump administration than if Biden simply left the regulations pending.

Federal judges

At the time of this writing, there are 45 vacancies in the federal judiciary, with 17 nominations pending. Senate Democrats have been rushing to confirm as many nominees as possible before Trump’s inauguration, which has enraged Republicans despite the fact that the GOP confirmed 13 of Trump’s federal judge picks during this same period after the 2020 election.

Donley says the next several weeks give Biden and Senate Democrats an opportunity to nominate and confirm even more judges. “That’s an easy one that should just be happening,” she adds. Otherwise, Trump will fill those vacancies once he comes into office — and we already know what kind of judges he’d nominate. As Gregg Nunziata of the conservative group Society for the Rule of Law told Bloomberg Law after the election, the president-elect looks for “highly credentialed, very right-wing nominees who are committed to an agenda, not towards neutral judging.”

EMTALA inquiries

After Dobbs, the Biden administration issued guidance saying that hospitals receiving federal funding must offer emergency abortions to patients in need of stabilization in order to comply with the Emergency Medical Treatment and Labor Act, better known as EMTALA. This is likely to change under Trump. Experts expect the incoming administration will reverse the guidance, saying that EMTALA doesn’t apply to pregnant patients in need of life-saving abortion care. Furthermore, Dr. Oz, whom Trump nominated to run the Centers for Medicare and Medicaid Services, opposes abortion from the moment of conception. CMS is the agency that enforces EMTALA, which means that even if the Trump administration doesn’t rescind the Biden-era guidance, Oz could deprioritize federal complaints from people who were denied care for their pregnancy complications.

The Biden administration can conclude any outstanding EMTALA investigations before his term ends, Donley says, to ensure that no pending case falls through the cracks once Trump is back in office.

Mifepristone protections

Currently, the FDA approves mifepristone, the first drug used in the medication-abortion regimen, only for use in abortions. However, its manufacturer, Danco Laboratories, reportedly wanted to ask the FDA to approve the drug for miscarriage management, too. Though it’s unclear whether Danco has moved ahead with the process, Donley says the Biden administration should move forward with it to keep the pill available.

The Trump administration is expected to either rescind the FDA’s approval of mifepristone for abortion care or, at the very least, reinstate medically unnecessary restrictions that would drastically reduce access to the pill. But approving mifepristone for miscarriages would mean it could still potentially remain on the market, Donley says. That’s currently the case for misoprostol, the second pill in the medication-abortion regimen. Misoprostol is approved as a stomach-ulcer drug, but it’s simultaneously used off-label for a wide range of gynecological care, including softening the cervix for biopsies, inducing birth, and managing postpartum hemorrhages.

Presidential pardons

The anti-abortion movement has been calling for the next Trump administration to enforce the Comstock Act, an 1873 anti-obscenity law that would prohibit mailing abortion pills and other tools used to terminate a pregnancy. This would amount to a de facto national abortion ban, and Trump wouldn’t need congressional approval to go through with it. “If I was a midwife or a rando left activist packing pills in a basement in New York State … I would be really f—ing worried right now,” Kristan Hawkins, president of the anti-abortion group Students for Life, told the Washington Post recently. But what if Biden preemptively issued pardons to abortion providers and other people who’ve distributed mifepristone and misoprostol? There’s precedent for him to use his executive power in this way, dating all the way back to George Washington.

“My colleague David Cohen brought up the idea,” Donley says. Federal offenses have a five-year statute of limitations, so the pardons “would ensure that any abortion provider was safe from any prosecutions for actions that happened while Biden was in office.” This would be a gamble, however. “The best interpretation of the Comstock Act is that no one has violated it to begin with,” Donley says. Issuing pardons could suggest a crime was committed, and this could strengthen the Trump administration’s potential interpretation of the law and any subsequent efforts to enforce it.

The Cut offers an online tool you can use to search by Zip Code for professional providers, including clinics, hospitals, and independent OB/GYNs, as well as for abortion funds, transportation options, and information for remote resources like receiving the abortion pill by mail. For legal guidance, contact Repro Legal Helpline at 844-868-2812 or the Abortion Defense Network.