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. Wade
Commentary by Times Opinion writers and columnists on the Supreme Court’s decision to end the constitutional right to abortion.
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.”
He 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 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.