Agencies Are Responding to the Supreme Court's Abortion Ruling. Here's How.

In the days following the Supreme Court’s 5-4 decision to overturn Roe v. Wade, the 49-year-old court decision that established Americans’ ability to have an abortion, federal agencies and workers scrambled to find ways to protect federal employees seeking or administering reproductive health services in states that have banned or plan to ban abortion.

Approximately 150,000 federal employees live in Texas and Mississippi, which already effectively had no access to in-state abortions due to laws that were at the heart of Dobbs v. Jackson Women’s Health Organization, the case decided last week. Another 227,000 feds live in 11 states with so-called “trigger laws,” which were designed to kick in automatically once Roe v. Wade was overturned, while 290,000 more federal workers live in nine states with abortion bans in place from before Roe was decided. And officials in four states, housing 131,000 federal employees, vowed to pass new bans once the court acted.

Although the heads of most federal agencies issued statements decrying the decision issued by the court’s conservative majority—leaked nearly two months ago—few of those agencies announced any concrete steps to protect abortion access. The Biden administration vowed to fight any effort by states to restrict the movement of people across state lines to receive reproductive health services, and said the Food and Drug Administration would fight any effort to rule that medical abortions such as the morning after pill and other medications that end pregnancies, are unsafe.

In addition, Attorney General Merrick Garland said in a statement Friday that the government would protect federal employees who provide reproductive health services from being sued or prosecuted by states that have banned abortion and other related services.

“Federal agencies may continue to provide reproductive health services to the extent authorized by federal law,” Garland said. “And federal employees who carry out their duties by providing such services must be allowed to do so free from the threat of liability. It is the department’s longstanding position that states generally may not impose criminal or civil liability on federal employees who perform their duties in a manner authorized by federal law.”

But given the long-standing Hyde Amendment, which bars federal funds from being used for abortions, it is unclear how many federal workers would benefit from such protection. One possibility is the fact that the Hyde Amendment includes exceptions in cases where the pregnant person has been raped and in cases where the pregnancy threatens the life of the mother.

Meanwhile, federal employee groups are increasingly calling on the Biden administration to authorize paid leave for federal workers who live in jurisdictions with abortion bans to travel out of state to obtain reproductive health services. The Department of Justice Gender Equality Network, an association of around 1,100 Justice Department employees, first floated the idea in May after the draft of the Dobbs decision leaked.

Stacey Young, president of the Gender Equality Network, said paid administrative leave for abortion-related travel would be simple way to support federal employees, particularly since the Hyde Amendment prevents them from having abortions covered as part of the Federal Employee Health Benefits Program.

“The DOJ Gender Equality Network has requested administrative leave or interstate travel for abortion care—an obvious and tangible benefit the president can provide federal workers now,” she said. “It would send a strong message to the country that the administration cares about public servants’ access to basic health care.”

On Saturday, that proposal gained a new key backer: the nation’s largest federal employee union. In a statement, American Federation of Government Employees National President Everett Kelley called on federal agencies to adopt a paid travel leave policy, mirroring new policies being rolled out at some private sector companies.

“Abortion rights have always been union rights and now, as a result of this decision, employers will have to compensate for at least some of the costs this decision has imposed on American families,” Kelley said. “The federal government, as a model employer, must immediately agree to provide paid leave and cover the travel costs of any federal or D.C. government employee who must leave their state of residence in order to obtain an abortion.”

Although the Office of Personnel Management declined to comment on paid travel leave and the Justice Department did not respond to a request for comment, The New York Times reported earlier this month that administration officials felt confident that the DOJ would eventually conclude that offering paid travel leave to federal employees and using federal funds to help pay travel and lodging costs for abortion seekers who needed financial assistance would not violate the Hyde Amendment.