What Joe Biden's Election Means For Abortion Rights

Like many abortion rights opponents, Tom McClusky is feeling good about battles won under President Trump during his four years in office.

"He has probably done more pro-life things than many Republicans who have had two terms," McClusky said.

McClusky, vice president of government affairs at the March for Life, points to Trump's reinstatement and expansion of the Mexico City policy, which forbids foreign aid groups who provide or refer patients for abortion from receiving U.S. funds, and similar rules for domestic family planning providers who receive funds through the federal Title X program.

A push to reverse Trump's executive actions

Those same Trump administration policies are a top target for abortion rights supporters, who want President-elect Joe Biden to immediately reverse what they call "gag rules."

"The harm that has been done by the Trump administration — the harm that has impacted a lot of low-income and rural communities around access to basic family planning services — has been horrific," said Alexis McGill Johnson, the president of Planned Parenthood.

Trump's policies have prompted many providers to leave the federal Title X program, reducing the availability of services provided almost by half, according to an analysis by the Guttmacher Institute, which supports abortion rights.

A history that long predates Trump

Gretchen Borchelt, of the National Women's Law Center, said Biden will take office at a "crisis moment" for abortion access. Borchelt said that's not solely attributable to Trump; it's the culmination of decades of effort by groups who've worked to restrict the procedure at the state level.

"And so we need this [Biden] administration to recognize that crisis and take steps not only to undo what the Trump administration did, which was add more and more restrictions, but actually to move us forward and get us to a better place than we have been," Borchelt said.

Borchelt said she also hopes to see Biden support robust funding for reproductive health and agencies that support those services. She'd also like Biden to work to reverse the Hyde Amendment, which prohibits federal funding for most abortions — a goal that would require help from Congress.

Meanwhile, Carol Tobias of the National Right to Life Committee said anti-abortion rights groups are fearful of what Biden's inauguration will mean.

"I think it will be a dark day in history for unborn children," Tobias said.

Battles in the courts, legislatures

Tobias said activists will continue working at all levels of government to pass abortion restrictions, including laws aimed directly at challenging Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide.

"We've had it for almost 50 years. There are legislators who want to be the sponsor of the bill that goes before the Supreme Court that overturns Roe v. Wade," Tobias said.

McClusky, with the March for Life, said abortion rights opponents are feeling optimistic, with three of Trump's conservative nominees now sitting on the high court — most recently, Justice Amy Coney Barrett, whose nomination was quickly pushed through by Senate Majority Leader Mitch McConnell just before the election.

"It's not just the Supreme Court justices," McClusky said. "They've put in some fantastic — a couple of hundred circuit court judges as well all."

Polls indicate a majority of Americans support the Roe decision, which guaranteed the right to an abortion but allowed states to increasingly limit the procedure as a pregnancy progresses. Later rulings, like Planned Parenthood v. Casey in 1992, gave states more room to regulate abortion under certain conditions.

Codify Roe?

Given the uncertainty around abortion rights in the courts, Biden campaigned on a proposal to codify Roe in federal law.

Mary Ziegler, a law professor at Florida State University, said it's unclear what exactly such legislation would do.

"We don't really know what he means by that, other than the common denominator that there's a right to abortion and you can't ban abortion. But beyond that, who knows what he's talking about," Ziegler said.

Biden also would need cooperation from Congress — unlikely if Republicans maintain control of the Senate. And with an increasingly conservative judiciary, there may be little Biden can do as president to stave off a wave of abortion restrictions in red states.

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