How 2021 (and the Biden/Harris Administration) Could Mark a Turning Point for Reproductive Rights

Last year concluded with a monumental victory for human rights, when Argentina legalized abortion thanks to decades of grassroots organizing. And as early as this month, the US could turn over a new leaf for reproductive rights with the inauguration of the Biden-Harris administration, following a Trump era defined by an unprecedented surge in political attacks on the state and federal level. Throughout his presidency, on top of emboldening extremist state lawmakers and gutting funding for health care, Trump repeatedly used his platform to conflate abortion care with murder.

Already, the incoming administration has pledged to be a friendly one for reproductive rights. But to meet the urgency of this moment as we mark 48 years of Roe v. Wade on Jan. 22, we need more than friendliness. We need proactive policymaking to ensure pregnant people can get the real-life health care and supports they need, with a judicial landscape increasingly stacked with anti-abortion extremists, and state legislatures that have wasted no time introducing and passing punishing and restrictive bills in the first weeks of 2021.

The Biden administration’s early promises include reversing the Trump administration’s global gag rule policy, enacted in the first days of his presidency in 2017, which prohibits federal funding from supporting abortion and reproductive health care as well as sexual health education abroad. Increased maternal mortality rates and child marriage are historical consequences of such policies. Biden and Harris are also expected to restore Title X funding, which funds family planning for people who rely on Medicaid. The Trump administration had diverted Title X funding from clinics offering sexual and reproductive health care to predatory “crisis pregnancy centers,” and dangerous abstinence-only programs, resulting in the closure of several clinics.

The Trump administration rationalized defunding Title X by asserting that some clinics that receive funding offer abortion services, despite how the Hyde Amendment has prohibited federal funding from covering abortion care since 1976. The incoming Biden administration has also pledged to lift Hyde, which effectively prioritizes the personal and religious views of a narrow minority of abortion opponents in the country over the health and autonomy of everyone else. This policy position by President-elect Biden is a consequence of aggressive pressure from advocates in 2019, when he initially expressed support for it.

These are promising policy positions from the president-elect, who formerly limited his plans to “codifying Roe v. Wade” while on the campaign trail. But while formally protecting the legal right to abortion in the event that the 6-3, anti-abortion Supreme Court reverses it in the near future, advocates and people who organize for real-life abortion access on the ground have emphatically told us for years that too many barriers already exist, even with the legal right in place. All of these barriers carry the most harm for people of color and LGBTQ people, who are more likely to struggle to afford care, or have to travel across state lines to access it.

Especially during the pandemic and economic recession, both of which have created new barriers and new opportunities for states to block care, the federal government can’t be complacent. Following a recent Supreme Court ruling that blocked telehealth options for obtaining medication abortion care, the Biden administration will have to act quickly to lift medically unnecessary restrictions and ensure people can still get the care they need from home during a pandemic that grows deadlier by the day.

Access to medication abortion pills was especially important in the early months of the pandemic, when nearly a dozen states tried to exploit it to halt abortion services by falsely labeling it “non-essential” health care. But being forced to carry an unwanted pregnancy is a time-sensitive medical emergency, which anti-abortion politicians at the state level have long treated with inhumane and dangerous legislation to delay or deny access to care altogether. In recent years, states have passed and even enacted laws ranging from six-week abortion bans, citing pseudoscience about “fetal heartbeats,” to abortions later in pregnancy, which are often necessary for extreme health circumstances or delays in care due to restrictive laws. More recently, Ohio’s governor signed a bill to require people who have abortions to pay for the burial or cremation of their fetus. The law would also result in death certificates for aborted fetuses, which could soon make patients’ abortions public record.

The surveillance of people’s abortions and pregnancies is a mounting trend we’ll likely see more of in 2021, especially following a recent uptick in people being criminalized and even jailed for miscarriages, stillbirths, and self-managed abortions with abortion medication. Recent research has shown nearly a third of early abortions are medication abortions, which involve inducing a miscarriage, and this number has likely increased during the pandemic as more and more people opt to induce abortions at home.

Laws that ban, restrict or stigmatize and treat abortion and pregnancy with suspicion contribute to a culture where the health service is more likely to be criminalized. The incoming administration could take decisive action to curb these restrictions with a plan that Vice President-elect Kamala Harris formerly proposed on the campaign trail, which would require states to get pre-clearance from the federal government before implementing more abortion-based restrictions.

Ultimately, the future of abortion access and safety from criminalization could rest largely with the courts, from the Supreme Court to Circuit Courts across the country. While Biden has pledged to exclusively appoint Justices who would respect abortion rights, following a Trump presidency that yielded more confirmed judges and Justices than any presidency in recent history, this pledge isn’t enough. Only court expansion can begin to give abortion access and other issues crucial to the health and autonomy of people of color, pregnant people, LGBTQ folks, and immigrants a fighting chance, following years of the minority party stealing seats and rushing the confirmations of unqualified extremists.

Amid a public health crisis and following the ousting of a presidential administration that leaves an enduring legacy of violence targeting pregnant people, we can’t have a passively “pro-choice” White House and Congress. The moment we’re in requires bold action and bolder policymaking from the incoming administration on day one, from funding reproductive health care on the federal level, to proactively reining in state-level attacks. And the recent victory for abortion rights in Argentina models just how to achieve this: through relentless grassroots organizing and pressure on our state and federal representatives.

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Kylie Cheung

Kylie Cheung is a freelance writer and columnist who has written extensively about the 2016 and 2020 presidential elections, reproductive rights in the Trump era, and the #MeToo movement, with bylines in Teen Vogue, Salon, Alternet, Bustle, DAME Magazine, The Mary Sue, Feministing, and others; her book A Woman's Place is out now.

Kylie has written 3 articles for us.

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