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Biden’s majority is fragile. But it could also be incredibly powerful.

Despite Joe Biden’s defeat of Donald Trump, the November election was a bit of a letdown for Democrats. The party lost House seats, and Senate Republicans did better than expected, dashing progressives’ dreams of a transformational Biden administration.

Then January 5 happened. Democrats Jon Ossoff’s and Raphael Warnock’s victories in the Georgia runoff elections mean that the Democratic policy wish list has been disinterred — even if the reality of a 50-50 Senate and slimmer Democratic margin in the House may force the party and the president-elect to temper their ambitions.

That gives Biden two years to move — two years with a 50-50 Senate when he’ll be constrained by what moderates like Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) are willing to vote for.

Still, Biden and his allies in Congress can accomplish an awful lot through a process called budget reconciliation. The Senate filibuster means that a bill typically requires 60 votes to move forward. With only 50 Democratic senators (plus tie-breaker Vice President-elect Kamala Harris), that’s a nearly insurmountable barrier. But the budget reconciliation process exempts certain legislation that primarily affects taxes and spending from the filibuster, meaning the 50 Senate Democrats can pass it on their own.

That makes reconciliation the most crucial process for the Biden presidency, through which his legislative agenda will live or die.

Not everything can pass through budget reconciliation. It likely rules out measures like a minimum wage increase, or DC and Puerto Rico statehood, or updates to the Voting Rights Act, or gerrymandering reform.

Still, it’s plausible that Biden and his allies in Congress can use budget reconciliation to accomplish large swaths of his agenda, including paid parental and sick leave, universal pre-K, a $3,000 child allowance, universal housing vouchers, a massive investment in clean energy, expanded health care coverage, and more.

During the general election, Biden’s team talked about him as the next FDR: a president who could seize a crisis to fundamentally transform the role of government. What he can achieve through reconciliation falls short of those ambitions; he will not turn America into a European social democracy overnight.

But what Biden can do — consensus items that most congressional Democrats agree on and have been campaigning on for years or decades — could nonetheless transform American life dramatically. An America where pre-K is universal and child care is affordable for all, with trillions in clean energy investment, free community college, paid maternity leave, a child allowance for parents, and a housing program that nearly eliminates homelessness, is a very different America. And it is in reach for the Biden administration.

The potential and limits of a Senate majority

Joe Biden’s agenda is vast and impossible to summarize in a single article, even when confined to what’s possible under budget reconciliation. But to pick out some of its most important aspects, Biden could:

To understand why this is possible, and much of the rest of his agenda is likely not, you have to know a bit about the filibuster.

The filibuster, a Senate practice developed in the mid-19th century, gives senators the power to delay legislation by either speaking indefinitely or (most often) merely threatening to speak indefinitely. Initially, there was no way to end a filibuster as long as the senator in question was committed to delaying; in the 20th century, though, the Senate developed the “cloture” rule, which allows a supermajority of senators, currently 60, to end a filibuster. Under the Obama and Trump presidencies, filibusters became so frequent that there is an understanding that all legislation supported by one party but not the other will need 60 votes to overcome a filibuster and pass the Senate.

But there is a catch: In the 1970s, the Senate crafted a process called “budget reconciliation” that allows certain legislation to avoid a filibuster. It’s a major advantage that has unsurprisingly been used for lots of major legislation over the years: the 2017 Trump tax cuts and 2001/2003 Bush tax cuts, the 1996 welfare reform act, and the 2010 bill in which Obama and allies nationalized the student loan industry.

It also means that the 50 Democratic senators plus Vice President-elect Kamala Harris will be able to pass some types of legislation, so long as all Democrats are in agreement.

However, reconciliation comes with profound limitations. It can usually only be used once per budget resolution, which in theory works out to one reconciliation bill a year. (Since Congress hasn’t yet passed a budget resolution for fiscal year 2021, Democrats could do two bills this year, one for 2021 and one for 2022; the details are a bit complicated, as the Center on Budget and Policy Priorities’ David Reich and Richard Kogan explain.) 

    <img alt=" " src="https://cdn.vox-cdn.com/thumbor/aOeA0tK09NGeLDL4Q8atTfREhh0=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/22222494/GettyImages_1292321546.jpg" />
  <cite>Tasos Katopodis/Getty Images</cite>
  <figcaption>House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer speak on Capitol Hill in December.</figcaption>

Then there are the limits on what a bill passed under reconciliation can do, imposed by the “Byrd Rule,” which offers a way for senators to raise an objection against “extraneous” provisions in bills being considered under reconciliation. If the Senate presiding officer (who has historically always acted on the advice of the nonpartisan Senate parliamentarian) agrees, the provision is struck.

The basics of the Byrd Rule are that reconciliation bills cannot change Social Security, or have merely “incidental” effects on spending/revenue, or increase deficits after 10 years. There are a couple of other limitations as well, but those are the major ones. In other words, reconciliation can be used for spending and taxing, but usually not for pure regulation or legal changes. If the main effect is not budgetary, it’s not reconcilable.

The purpose of budget reconciliation is to reconcile tax and mandatory spending laws to the budget, and it’s never been used to alter discretionary spending, which sustains the military, most domestic government agencies, and some social programs like Head Start, although an ambitious vice president willing to lean on the Senate parliamentarian might be able to force through at least some changes.

Those strictures set some pretty stiff limits on Democrats’ legislative ambitions. Some examples of legislation that probably wouldn’t survive a “Byrd bath” (the Capitol Hill term of art for how the Senate strikes Byrd-violating provisions from reconciliation bills) include:

A minimum wage increase, for example, might indirectly affect the federal budget by leading to higher income and payroll tax revenues and less expenditure on food stamps. But that’s exactly the kind of “incidental” effect the Byrd Rule doesn’t allow legislation to use as an excuse.

But even with those constraints, there is still plenty that Democrats can do. Any spending or tax measure that is deficit-neutral or expires within 10 years and doesn’t touch Social Security is fair game. If the legislation requires accompanying regulation, the situation could get more difficult, but as long as those needs are minimal, reconciliation is a doable option.

So let’s go through Biden’s agenda and highlight some key measures that likely can be included in reconciliation.

Biden’s reconcilable agenda

Biden laid out an extensive legislative platform during his campaign. It starts with his preferred response to the Covid-19 pandemic and accompanying economic crisis. But it goes well beyond that, too. His “Build Back Better” plan spans clean energy, caregiving/universal pre-K, subsidies for US manufacturing, and measures to remedy the racial wealth gap.

The measures detailed below are all pulled from the platform that Biden (and in one case Harris) laid out during the campaign. They are not maximalist measures from the left wing of the congressional Democratic caucus; they are measures with buy-in from the executive branch.

That does not mean that all of these will pass under Biden. What Biden and Harris are willing to support and what Sens. Manchin and Sinema, the likely swing voters in the Democratic Senate caucus, are willing to support are two categories that only sometimes overlap. Fitting all these measures into just a few reconciliation bills would also pose daunting timing and logistical hurdles.

But these measures nonetheless give a sense of what Democrats could do if Manchin and Sinema get in line — and, tellingly, this list does not include cultural hot-button issues like gun control, new restrictions on coal energy, or expanded immigration, which could mean that there’s more for Manchin and Sinema to like here than it might seem.

Covid-19

The first and arguably most important thing Biden and his allies can do with reconciliation is invest in his Covid-19 response agenda. Some of these items can be implemented with the president’s authority alone (like using the Defense Production Act to ramp up production of masks and other personal protective equipment), and some require formal legislation (like nationwide mask mandates, though Biden’s plan suggests he would implement mandates by leaning on governors rather than passing a bill).

But some of it is mostly about increasing federal spending on certain programs, and so long as the spending is structured as a mandatory program, it will likely make it through reconciliation. For instance, Biden has called for a Public Health Jobs Corps comprising over 100,000 employees to work on contact tracing and other pandemic response; a $25 billion investment in vaccine manufacturing and distribution; and a “restart package” for small businesses to help them operate safely during the pandemic. All of those are measures that could likely survive reconciliation.

Stimulus

Biden has consistently called for additional relief measures, beyond those passed in December. He has embraced calls for $2,000 stimulus checks (on top or instead of the $600-per-adult checks approved in December), additional relief to states and localities (specifically calling for a “renewable fund for state and local governments” and “an emergency package to ensure schools have the additional resources they need to adapt”), and nationwide “work sharing” to deter layoffs during recessions.

Biden has also endorsed the HEROES Act, the House-passed $3 trillion stimulus measure that would have extended the $600-per-week bonus unemployment insurance in effect last summer, rather than the $300-per-week bonus passed in December. It’s not clear whether he would push to increase the bonus to $600 in the coming months, or for retroactive UI benefits for August through December, when there were no bonus benefits. Biden has, however, said that the $600 bonus payments should last “for however long this crisis lasts,” which would suggest retroactive payments and a boost to $600 going forward.

All of the above could be passed through reconciliation. Biden could also, if he wanted, use reconciliation to pass measures creating “triggers” so emergency provisions like extra UI are triggered automatically in future crises. This is a common feature of reform proposals like Democratic Sen. Michael Bennet’s, and Senate Finance Chair Ron Wyden has said he wants “automatic stabilizer” provisions like these included in an economic relief bill. This measure would likely have to expire in 2031, to avoid increasing the deficit outside of the 10-year “window,” but it could make the response to future recessions much faster and more robust.

Anti-poverty measures

Biden and Harris have embraced an extensive anti-poverty agenda, almost all of which is passable through the reconciliation process — though unless paid for by tax increases, it would have to expire after 10 years. Harris co-sponsored the American Family Act, which would offer non-wealthy Americans at least $250 in cash per month, per child, to support struggling families with children. That measure would lift at least 4 million children out of poverty, and Biden has endorsed it in at least temporary form.

Biden has also endorsed making Section 8, the federal program offering housing vouchers to low-income families, an entitlement. Currently, only about one-quarter of families eligible for Section 8 benefits get them due to funding shortfalls. Biden’s proposal would make basic housing a universal benefit, cutting poverty substantially and homelessness dramatically, with one study suggesting vouchers could cause a 75 percent reduction in homelessness.

While Biden has not endorsed it, Harris has called for dramatically expanding the earned income tax credit (EITC) by creating a new $3,000-per-worker credit that phases in, dollar for dollar, with income. A full-time worker at the minimum wage earning $14,500 a year would get an additional $3,000 in benefits. While that’s on the more dramatic end of what congressional Democrats are likely to support, almost all Democrats have endorsed a plan called the Working Families Tax Relief Act that includes a more modest bump in the EITC. Put together, these plans could cut poverty in the United States by as much as half. 

    <img alt=" " src="https://cdn.vox-cdn.com/thumbor/qPySu5XnbI4sydN6Puhp7pcTZOA=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/22222512/GettyImages_632190472__1_.jpg" />
  <cite>Alex Wong/Getty Images</cite>
  <figcaption>President Barack Obama, Sen. Chuck Schumer (middle left), Rep. Nancy Pelosi (center), and Vice President Joe Biden (right) at Donald Trump’s inauguration in 2017 in Washington, DC.</figcaption>

Pre-K and caregiving

Biden has an extensive caregiving agenda, which got a central role in his “Build Back Better” program outlined last summer. It includes a subsidy and tax credit package to states to guarantee universal pre-K access for 3- and 4-year-olds, increased funding for Medicaid’s long-term care services and support, a refundable child care tax credit of up to $8,000 per child under age 13, and a state partnership offering a sliding-scale child care subsidy based on the Child Care for Working Families Act sponsored by Sen. Patty Murray (D-WA) and Rep. Bobby Scott (D-VA).

He has also endorsed paid family and medical leave along the lines of Sen. Kirsten Gillibrand’s (D-NY) FAMILY Act, though Biden would pay for it with tax increases on the wealthy rather than Gillibrand’s proposed mild payroll tax increase.

All of those spending measures can be passed through reconciliation. But Seth Hanlon of the Center for American Progress flags that Biden’s plan to give caretakers a wage credit for Social Security, effectively raising retirement benefits for stay-at-home parents and full-time elderly/disabled family caregivers, could not run through reconciliation because the process bars changes to Social Security. 

    <img alt=" " src="https://cdn.vox-cdn.com/thumbor/0yVyjqDF9W4IzeOJEgUQdxDQg1k=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/22222524/GettyImages_1229592523.jpg" />
  <cite>Nicholas Kamm/AFP/Getty Images</cite>
  <figcaption>House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer on Capitol Hill in November.</figcaption>

Education

Beyond pre-K and caregiving, Biden has also proposed free community college and forgiving the first $10,000 in student loans held by all debtors. While raising committee issues, both those policies are easily doable through reconciliation. Indeed, the modern student loan program was created in 2010 through a reconciliation bill.

Climate change

As David Roberts has explained for Vox, budget reconciliation is probably the best way to pass climate legislation under a Democratic administration. Some of Biden’s agenda, like a binding 100 percent clean energy requirement by 2050, is likely off limits to reconciliation as it’s closer to regulation than taxation.

But Biden also pledged $2 trillion in climate spending, which can be passed through reconciliation. Of that $2 trillion, $400 billion will go to federal purchases of clean energy tech like batteries and electric vehicles to help boost those industries. Other components include infrastructure projects like electricity grid upgrades and universal broadband; expanded public transportation; and massively expanded R&D spending on clean energy and carbon removal.

Health care

Biden’s health care plan calls for reducing the Medicare eligibility age from 65 to 60, offering a public option open to individuals and employers (including individuals getting private insurance through their employer), boosting the Affordable Care Act’s subsidies for health insurance, and making Medicaid expansion available to the 14 states that have not embraced it through the new public option.

My colleague Dylan Scott has more details here, predicting that while subsidy expansion is likely, a public option will be a much harder lift for Democrats. There is some ambiguity about whether a public option is passable through budget reconciliation, as Scott notes, but many Democrats believed it was in 2010 during the Obamacare fight. A Medicare age change is almost certainly passable. 

    <img alt=" " src="https://cdn.vox-cdn.com/thumbor/RxtbQfPdG4PoFqlcI_Pf8kS4_Rk=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/22222531/GettyImages_1271930740.jpg" />
  <cite>Chip Somodevilla/Getty Images</cite>
  <figcaption>Senate Minority Leader Chuck Schumer (left) fist bumps then-presidential nominee Joe Biden as he arrives for a remembrance ceremony of the 9/11 attacks on September 11, 2020, in New York City.</figcaption>

Tax increases

This is a somewhat odd time to be raising taxes, given the still-nascent economic recovery and rock-bottom interest rates that make it cheaper to pay off federal debt in five to 10 years than to prevent incurring the debt now. But Biden has promised not to raise taxes on people making under $400,000 and to substantially increase taxes above that mark to the tune of $4 trillion over 10 years, and all of that could be done in reconciliation — and used to pay for some other items on his agenda outlined here.

Debt ceiling

One of the biggest thorns in the side of the Obama administration was Congress’s statutory limit on the amount of debt the United States could have outstanding, a limit that gave House Speaker John Boehner incredible leverage, most notably in the summer of 2011, to threaten to force a default on the US’s debts if his legislative demands were not met.

Abolishing the debt ceiling entirely may not be possible through reconciliation, but it can certainly be rendered impotent by raising it to, say $999 quadrillion.

The Biden legacy

Fitting all of those measures into two or three reconciliation bills from 2021 to 2023 would be challenging. It would require herculean efforts of vote-wrangling in the Senate, and likely some unsavory deals akin to the “Cornhusker Kickback” subsidy to Nebraska that got Sen. Ben Nelson (D-NE) on board with Obamacare in 2009. Biden and his administration will need to prioritize carefully, and perhaps drop some measures they consider too difficult to get Democratic consensus on.

There’s also a chance that the sheer cost of some of these measures will bring back the austerity politics that dominated much of Obama’s presidency. Biden has been talking a good game about the necessity of increased deficit spending, especially on temporary investments like green energy. But moderates like Manchin and Sinema may balk at a $4-5 trillion combined price tag for his agenda.

The list above also does not resolve some of the Democratic Party’s longer-term problems, like its geographic disadvantage in the US Senate and the challenge of state-level gerrymandering. Admitting DC and Puerto Rico as states would alleviate the former a bit (though not enough), and mandating independent redistricting commissions would alleviate the latter — but those are likely not doable through reconciliation. With Democrats unlikely to get a 60-vote majority anytime soon, that could mean the party’s structural problems will just keep getting worse.

But enough caveats; the agenda above is enormous. It would make the US no longer the only industrialized country without paid family leave. It would dramatically reduce homelessness and evictions by ensuring all low-income families have a right to housing. It would slash child and adult poverty and greatly accelerate America’s (and the world’s) transition away from fossil fuels.

It’s easy to be cynical about American politics, especially if you have been fighting for the above goals for decades to little avail. But you should allow yourself to feel a little hope in this moment, too. We’re about to embark on a rare two-year period where big changes are possible. That’s worth getting excited about.

Pence has already said he won’t be invoking the 25th Amendment to remove Trump — but Tuesday’s vote picked up bipartisan support.

A House vote on Tuesday revealed strong support for President Donald Trump’s removal in the wake of the violent January 6 attack on the Capitol.

House lawmakers on Tuesday voted 223-205 to approve a resolution from Rep. Jamie Raskin (D-MD) that urges Vice President Mike Pence to use the process outlined in the 25th Amendment to force Trump to step down. One Republican — Rep. Adam Kinzinger (R-IL) — voted in favor of the resolution alongside Democrats.

While the resolution isn’t binding — and Pence has already said he won’t be invoking the 25th Amendment — the vote captured the House backing in favor of Trump’s removal from office. Multiple Republicans including Reps. Liz Cheney (R-WY), John Katko (R-NY) and Kinzinger (R-IL) had also announced earlier in the day that they plan to support Trump’s impeachment, which will get a vote on Wednesday.

Notably, House Republicans are not planning to whip the impeachment vote, CNN and Politico reported. In other words, while most GOP members of the House are expected to vote against impeaching the president, party leaders won’t try to convince the small group of lawmakers planning to defect from doing otherwise.

Calls for Trump’s resignation or removal have increased since January 6, when the president urged his followers to march toward the Capitol and express their concerns about the certification of the election results. The 25th Amendment — which enables the vice president and a majority of the Cabinet to declare a president “unable to discharge the powers and duties of his office” and force them to step down — has been viewed as the fastest way to remove Trump, though Pence has already said he won’t be taking this route.

The House on Wednesday will weigh one article of impeachment, charging Trump with inciting an insurrection. Given the overwhelming majority of Democrats who are on board, Trump is poised to become the first US president in history to be impeached twice.

House Democrats’ next steps on impeachment, briefly explained

Tuesday’s 25th Amendment resolution is the first of two votes the House will take in its attempt to remove Trump from office.

The House will introduce an article of impeachment Wednesday morning, setting up a vote on it for later in the day. Democrats had 217 cosponsors for the resolution as of Tuesday afternoon, per Rep. David Cicilline, one of the authors.

The House will vote on the single impeachment article, charging Trump with “incitement of insurrection” for his role in encouraging a mob of his supporters who later stormed the Capitol. Trump spoke to a crowd at a “Save America Rally” prior to the riot, during which he repeatedly said the election was “stolen” and asked them to march to the Capitol “to see whether or not we have great and courageous leaders or whether or not we have leaders that should be ashamed of themselves throughout history, throughout eternity.”

In their impeachment article, Democrats also mention Trump’s recent phone call with Georgia Secretary of State Brad Raffensperger in which he encouraged Raffensperger to “find” more than 11,000 votes to overturn the election. It also references Trump’s rhetoric about the November election being “fraudulent,” a lie he has repeated since his loss.

But the biggest thing Democrats are focused on is how Trump’s continued lies resulted in violence and death in DC, marking the first time Capitol Hill was breached since the British invasion of 1812 — and the first time by American citizens.

If the House does pass the article of impeachment, Pelosi will then transmit it over to the Senate. By then, Democrats could be staring down a lengthy trial with just days left in Trump’s term. Some, including Sen. Joe Manchin (D-WV) are worried that could hurt Biden’s ability to get his Cabinet nominees approved and critical pieces of his agenda passed.

“We have to put our government together quickly — that’s the most important thing we should do,” Manchin told the Post last week. “We don’t need any more political theater.”

An impeachment trial could coincide with the early days of Biden’s administration

According to a memo from Senate Majority Leader Mitch McConnell, the Senate will not convene for regular business until January 19 unless lawmakers agree to do so earlier by unanimous consent. Given the likely Republican opposition to an earlier start, the Senate probably won’t be in full session for another week.

That timing means the start of an impeachment trial would coincide with that of the Biden administration, which officially begins after Biden and Vice President-elect Kamala Harris are sworn in on January 20. To get a trial started sooner, incoming Senate Majority Leader Chuck Schumer has urged McConnell to reconvene the upper chamber by using emergency powers established under a 2004 law.

According to the law, Senate majority and minority leaders are able to reconvene the Senate in times of emergency — essentially bypassing unanimous consent to do so — if both lawmakers agree to it. Speaking on Tuesday, Schumer said, “This is a time of emergency.”

“The bottom line is that Leader McConnell has the ability to call us back into session. And we can then move to convict Donald Trump in the impeachment trial and try him,” he added. “That’s what we hope McConnell will do.”

McConnell has yet to comment on whether he’d agree to this arrangement, but it’s unlikely he will. As a result, starting in late January the Senate is set to juggle both an impeachment trial, its own legislative agenda, and confirmations for Biden’s Cabinet nominees.

House Majority Whip Jim Clyburn previously suggested the House could hold off on sending the articles of impeachment in order to delay a potential trial, but some Democrats — including Majority Leader Steny Hoyer — argue that sooner is better. As the rules go, once the House sends articles of impeachment to the Senate, the upper chamber must begin the trial shortly thereafter.

What exactly this will look like in practice isn’t yet clear: Biden has suggested the Senate could split its time by tackling legislation and nominations in the morning and conducting the impeachment trial later in the day. “Can we go half day on dealing with impeachment, and half day getting my people nominated and confirmed in the Senate as well as moving on the package?” Biden seemed to suggest on Monday.

Time in the Senate was also split between impeachment and other legislative business during Trump’s 2020 trial, Politico reported. In an interview with Buffalo News, Schumer signaled the upper chamber was likely to take this approach.

“We’re going to have to do several things at once but we got to move the agenda as well. Yes, we’ve got to do both,” he said.

The Court’s decision may be the beginning of the end of Roe v. Wade.

On the surface, the Supreme Court’s decision in FDA v. American College of Obstetricians and Gynecologists, which was handed down Tuesday evening, is fairly minor.

The case involves a Food and Drug Administration requirement that a pill used in medication abortions must be distributed to patients directly by health providers and not by retail or mail-order pharmacies. A lower court temporarily suspended this requirement during the pandemic; the Supreme Court’s decision effectively reinstates the requirement.

The Court released no majority opinion, which means that the decision in American College does not explicitly change existing legal doctrine. And the case concerns a policy that the Biden administration could likely reverse after President-elect Joe Biden takes office.

Read between the lines, however, and American College warns of a dark future for abortion rights.

The premise of pro-abortion rights decisions like Roe v. Wade (1973) is that the Constitution provides special protection to the right to an abortion that it doesn’t provide to other elective medical procedures. Yet, as Justice Sonia Sotomayor explains in dissent, American College effectively rules that a commonly used abortion drug may be regulated more harshly than any other legal medication.

Although Chief Justice John Roberts wrote an opinion explaining that he would decide the case on very narrow grounds — holding that courts should defer to public health agencies during the pandemic — no other justice in the majority joined this opinion.

For many years, Justice Anthony Kennedy — who typically voted to uphold abortion restrictions but sometimes voted to strike down particularly aggressive attacks on reproductive freedom — held the balance of power between four justices who support abortion rights and four who oppose them. But Kennedy’s retirement in 2018 and the death of pro-choice Justice Ruth Bader Ginsburg in 2020 — both Kennedy and Ginsburg were replaced by staunchly conservative Donald Trump appointees — makes it exceedingly likely that the Supreme Court will permit laws that effectively ban abortion.

American College does not go that far, but it is an ominous sign for anyone who cares about the right to terminate a pregnancy.

American College concerns access to abortion during the pandemic

The specific issue in American College involves mifepristone, part of a two-drug regime that is used to induce abortions. Mifepristone causes tissue within the uterus to break down and separate from the uterus itself. A day or two after taking mifepristone, the patient takes a drug called misoprostol, which makes the uterus contract and expel its contents.

While mifepristone is often taken at home, the Food and Drug Administration only allows the drug to be dispensed at hospitals, clinics, or other medical offices. It is not available at retail or mail-order pharmacies.

This limit on who can dispense mifepristone has been in effect for more than 20 years, and it’s ordinarily a fairly minor limit on abortion rights. During the Covid-19 pandemic, however, it is potentially a significant burden on patients’ ability to terminate their pregnancies.

In the midst of a deadly pandemic, any trip outside of the home — including a trip to an abortion clinic — can potentially expose individuals to the coronavirus. Moreover, as Justice Sotomayor explains in her dissent, “three-quarters of abortion patients have low incomes, making them more likely to rely on public transportation to get to a clinic to pick up their medication.”

That means that these patients “must bear further risk of exposure while they travel, sometimes for several hours each way, to clinics often located far from their homes.”

Indeed, in no small part due to concerns that patients who need to travel in order to pick up medications could become infected with Covid-19, the FDA has eased many restrictions on prescription drugs for as long as the pandemic rages.

The federal government, Sotomayor notes, “has urged healthcare providers and patients to take advantage of telemedicine.” It has “waived many in-person drug distribution requirements because they could ‘put patients and others at risk for transmission of the coronavirus,’” and it has also waived certain mandatory tests that ordinarily must be conducted before certain drugs can be prescribed.

And yet, under the Trump administration, the FDA has refused to relax restrictions on mifepristone. It even appears to have singled mifepristone out for particularly restrictive treatment. As Sotomayor writes, “of the over 20,000 FDA-approved drugs, mifepristone is the only one that the FDA requires to be picked up in person for patients to take at home.”

This is why American College is such a significant decision, even if it does not make any explicit changes to the Supreme Court’s legal doctrines governing abortions. Instead of holding that abortion is a constitutional right entitled to special protection by the courts, the decision in American College suggests that the government may treat abortion-related treatments more harshly than any other medical treatment.

Most of the conservative justices did not explain their decision

Sotomayor’s dissenting opinion was joined only by herself and Justice Elena Kagan — although Justice Stephen Breyer, the Court’s third liberal justice, indicated that he would have left in place a lower court decision which suspended the FDA’s restriction on who can dispense mifepristone.

Of the six conservative justices, only Chief Justice John Roberts explained why he voted the way he did, and Roberts’s opinion, for what it’s worth, disclaims any suggestion that American College is a broad attack on abortion rights.

“The question before us is not whether the requirements for dispensing mifepristone impose an undue burden on a woman’s right to an abortion as a general matter.” Rather, Roberts writes, he believes that “courts owe significant deference to the politically accountable entities with the ‘background, competence, and expertise to assess public health’” when deciding how the government should respond to the pandemic.

But Roberts is the most moderate member of the Court’s Republican majority. And his views matter far less than they used to, now that a majority of the Court is more conservative than he is. The five most conservative justices — a bloc of judges that is large enough to hand down binding decisions with or without Roberts — did not join Roberts’s opinion or otherwise explain their votes.

Every one of those five most conservative justices, though, has signaled a desire to roll back abortion rights — or even to overturn Roe outright.

American College, in other words, is unlikely to be the last decision from this Supreme Court restricting reproductive choice.

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