Despite Georgia Victories, Congressional Democrats Have Limited Options on Abortion

Biden poised to take executive action, get cabinet picks confirmed despite Republican opposition

Speaker of the House Nancy Pelosi (D., Calif.) and Senate Majority Leader Chuck Schumer (D., N.Y.) / Getty Images
January 11, 2021

Despite unified control of both chambers of Congress and the presidency, congressional Democrats' narrow majorities will make lasting legislative victories on abortion difficult to attain, likely leaving President-elect Joe Biden to resort to executive actions.

Victories in both of the runoff elections in Georgia have given Senate Democrats a 50-50 split in the Senate with Vice President-elect Kamala Harris (D.) in a position to cast a tie-breaking vote. The party's 2020 platform vowed to restore federal funding for Planned Parenthood; repeal the Hyde Amendment, which prohibits taxpayer funding of abortion; and overturn federal and state laws restricting access to abortion or other "reproductive health and rights."

But West Virginia senator Joe Manchin (D.) pledged to thwart any legislative attempts to institute taxpayer funding of abortion.

"As a life-long Catholic, I have always been pro-life and believe that the Hyde Amendment ensures federal funds are not used to perform abortions anywhere in the country," Manchin told the Washington Free Beacon. "Repealing the Hyde Amendment would be foolish and I’m strongly opposed to this push from some Members of Congress. If this legislation is brought before the Senate I will vote against repealing the Hyde Amendment."

Despite the promise of legislative gridlock, however, the Biden administration is poised to undo the Trump administration's anti-abortion policies through executive action. According to Kristen Day, executive director of Democrats for Life of America, the most significant impact of Democratic control of the Senate may be cementing the confirmation of Xavier Becerra as Department of Health and Human Services secretary.

"It's not a good pick for moderation and bringing people together," Day said. "He's a very extreme abortion advocate. That would be very dangerous on a federal level."

Becerra has already come under fire from pro-life advocates for his record of targeting anti-abortion activists and opposition to religious-conscience rights. A Republican-majority Senate could have blocked his nomination on a party-line vote, but they will need to get at least one Democrat to oppose him.

As attorney general of California, Becerra prosecuted anti-abortion activists and defended an unconstitutional law that would have required crisis pregnancy centers to advertise abortion services. He is also likely to follow through on Biden's pledge to revive the Little Sisters of the Poor legal battle, since he cosponsored legislation in 2007 that would have eliminated religious-conscience objections to contraceptive coverage mandates.

Biden will also be able to use executive actions to reverse anti-abortion policies like the Mexico City policy, which prohibits the use of taxpayer money to support foreign nongovernmental organizations that provide abortion services or recommendations.

"Biden has completed his flip-flop on abortion," David O'Steen, executive director of the National Right to Life Committee, told the Free Beacon. "I expect he will issue executive orders that are very harmful to the pro-life cause."

O'Steen said he expects most, if not all, of the Trump administration's executive orders on abortion, such as reinstating the Mexico City policy and changing Title X funding to effectively remove Planned Parenthood from accessing Medicaid funds, to be rescinded by the Biden administration.

Day expressed optimism that another moderate Democrat, Sen. Bob Casey (D., Pa.), could join Manchin in protecting the Hyde Amendment. Casey's track record on the issue is mixed, as he has supported the Hyde Amendment but also favored taxpayer funding for Planned Parenthood.

Day said Democratic extremism on abortion and interest-group pressure could push the party far beyond where the majority of public opinion stands.

"We have pro-life Democrats who voted for Biden," Day said. "They need to go back to the Biden administration and say, 'We supported you and we want Hyde to stay in place, we want the conscience protections for workers to not be involved in abortions.' Those are two very reasonable asks."

Still, with Biden reversing his long-term stances on abortion issues and nominating Becerra, he will be able to take executive and regulatory action that will not require congressional action.

"Everything is at risk right now. I don't think any abortion policy is safe," Day said.