Joe Biden made efforts to protect abortion, but Congress did not codify access

President Joe Biden vowed to codify abortion rights, but he did not rally the congressional support needed to pass such legislation.

On his 2020 campaign website, Biden said he would work to "codify Roe v. Wade," the 1973 U.S. Supreme Court ruling that established federally protected abortion access. Biden said then that his Justice Department "would do everything in its power" to stop or curb anti-abortion state laws.

Two years later, the Supreme Court overturned Roe v. Wade. Still, Biden said he would restore Roe as the law of the land.

But congressional efforts to pass legislation prohibiting governmental restrictions on abortion access failed. 

The Biden administration has, meanwhile, sought to protect abortion rights in other ways, including through executive order.

In July 2022, the Department of Health and Human Services issued guidance telling health care providers that emergency abortion care fell under the Emergency Medical Treatment and Labor Act, a 1986 federal law requiring Medicare-participating hospitals to offer emergency care stabilizing patients or risk losing Medicare funding.

The guidance's interpretation has subjected the administration to multiple legal battles and the litigation has been complicated. In Idaho, courts sided with the administration that emergency abortions are covered under the federal law. But the U.S. Supreme Court decided not to hear the case, allowing emergency abortions to temporarily continue in the state, but sent it back to the U.S. Court of Appeals for the 9th Circuit, leaving the litigation unresolved. The high court did something similar in another case in Texas, this time rebuffing a Justice Department appeal.

The Justice Department also issued a December 2022 legal opinion that said abortion pills could be delivered legally through the mail to states that ban or restrict abortion. The Defense Department also issued a policy in 2023 to allow administrative leave and transportation allowances for service members to receive abortion care.

Although these efforts have helped buffer the 2022 Supreme Court decision's effects for some Americans, they fall short of Biden's campaign promise of passing a national law that guarantees federal abortion access.

President-elect Donald Trump can reverse the Biden administration's guidance when he takes office in January. And with Republicans gaining control of both the House and Senate, federal abortion rights are unlikely to be codified anytime soon.

We rate this Promise Broken.