As Biden and Harris Take Over the White House, McConnell Surrenders Control of the Senate

On January 20, President Joseph R. Biden and Vice President Kamala D. Harris were sworn into office. The Trump era is officially over, and though repairing the damage remains a herculean task, the new administration wasted no time in getting started.

Biden Takes Executive Action on Reproductive Health

Only hours after his inauguration, President Biden signed an order freezing all pending regulatory changes begun by the Trump administration. Included among them was a last-minute attempt to further expand the Global Gag Rule by applying it to USAID contracts, which comprise some 40 percent of the agency’s family planning initiatives. Advocates had been worried that Trump allies would manage to push the final rule through before the end of his term, which would have made it more complicated and time-consuming for the Biden administration to unwind. Fortunately, the Trump administration ran out of time before it could complete the process, and we expect the proposed rule to be scrapped.

On January 28, President Biden signed a second executive memorandum more explicitly focused on reproductive rights. The measure revoked the Global Gag Rule and ordered government agencies to immediately begin informing grantees that the restrictions have been lifted. It also set in motion a process to reinstate the U.S. contribution to the United Nations Population Fund (UNFPA), which had been halted under Trump, and withdrew the U.S. from the so-called Geneva Consensus Declaration, a United Nations initiative largely driven by the Trump administration that promotes a narrow, anti-choice, anti-LGBTQ view of human rights. Additionally, the memorandum instructed the Department of Health and Human Services (HHS) to begin the process of reviewing the so-called Domestic Gag Rule, a Trump administration rule which has severely restricted the Title X program since the rule went into effect in 2019. Because the rule was finalized and implemented, it cannot be undone by executive action alone. It will have to go through a regulatory process that will take, at a minimum, several months to be completed.

Georgia Runoff Outcome Leaves Senate Split

Control of the White House was decided in November, but the Senate took a little longer. When no candidate in either of the two Georgia Senate races won an outright majority in the November general election, both races went to a runoff. On January 5, Democrats Jon Ossoff and Raphael Warnock won those races, defeating Republicans David Perdue and Kelly Loeffler, respectively. Their wins mean the Senate now has a 50-50 split between Democrats and Republicans. (Senators Angus King of Maine and Bernie Sanders of Vermont are registered Independents; both caucus with the Democrats). With Vice President Kamala Harris presiding over that body and ready to break any ties, Democrats are officially in control, making Chuck Schumer (D-NY) the new Senate Majority Leader. The implications for reproductive health and rights are positive, though not as straightforward as they might seem. Though there is now effectively no risk of hostile legislation moving forward, several members on each side have mixed records, particularly on abortion access, meaning affirmative progress on some aspects of our agenda remains a challenge.

Proactive Bills Reintroduced, With More to Come

On the same day President Biden repealed the Global Gag Rule, champions in both the Senate and the House reintroduced the Global Health, Empowerment, and Rights (HER) Act (S. 142/H.R. 556). As in previous years, Jeanne Shaheen (D-NH) leads the bill in the Senate, while in the House, Democrats Barbara Lee (CA), Jan Schakowsky (IL), and Ami Bera (CA) have taken over from Rep. Nita Lowey (D-NY), who retired at the end of the previous term. Despite President Biden’s repeal of the Global Gag Rule, passing the Global HER Act is still vital, since it is the only way to ensure that the Global Gag Rule cannot return with a future administration. Senator Shaheen highlighted that reality when she reintroduced the bill, saying:

We know how detrimental this policy has been—how it likely contributed to increased maternal deaths, unsafe abortions, and compromised access to critical care. Rescinding this rule is the start but it is not enough—there needs to be a permanent fix. That is why today I will reintroduce my bipartisan bill, the Global HER Act. The Global HER Act would permanently repeal this policy so women and their families around the world can trust that they will have access to reproductive medical services and so international organizations on the frontlines can carry out their missions to deliver care without worrying if they’ll have to choose between limiting care for patients or losing funding. Enough is enough.

The Global HER Act has 45 co-sponsors in the Senate, including Republicans Susan Collins (ME) and Lisa Murkowski (AK), and 173 co-sponsors—all Democrats—in the House.

The Global HER Act is not the only proactive bill we expect to see reintroduced over the next few months. Rep. Jan Schakowsky plans to reintroduce the Abortion is Health Care Everywhere Act to repeal the Helms Amendment, which, since 1973, has prohibited the use of U.S. foreign assistance funds for abortion care overseas. That bill is currently expected to be reintroduced in March. We also expect there will be a companion bill in the Senate, though details on sponsorship and timing are still pending. Additionally, Rep. Chrissy Houlahan (D-PA) plans to reintroduce the proactive Support UNFPA Funding Act.

Supreme Court Greenlights Abortion Pill Restrictions

In mid-January, the Supreme Court, in its first abortion-related case since the late Justice Ruth Bader Ginsburg was replaced by the more conservative Justice Amy Coney Barrett, sent a worrying signal about its willingness to consider future abortion restrictions. In an unsigned, unexplained order, the Court allowed the federal government to restrict access to medication abortion during the pandemic by refusing to waive a Food and Drug Administration (FDA) rule that requires patients to pick up the drugs in-person at a hospital or clinic. Waivers were issued for other drugs with similar safety profiles. The American College of Obstetricians and Gynecologists (ACOG), along with other groups, argued in court that this requirement unjustifiably exposed patients to the risk of contracting COVID-19 and thus constituted an undue burden on their rights. A federal judge in Maryland agreed and issued an injunction. The Trump administration sought to have the injunction stayed. After some additional legal wrangling, the Supreme Court sided with the Trump administration on January 12. Only Chief Justice John Roberts offered any insight into the decision, stating the courts owed deference to the government in its response to a public health crisis. Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer have indicated that they would not have approved the stay. In the matter of this particular restriction, the underlying issue is likely to be moot. It is probable that the Biden administration will extend the waiver to cover abortion medications. But the decision should be a warning to reproductive rights advocates about what is to come.