Two weeks after the Trump-packed U.S. Supreme Court ended federal protections of abortion rights (and more than two months after the court told us it would do just that), President Joe Biden is signing an executive order intended to “defend reproductive rights and protect access to safe and legal abortion.”
Biden is ordering Health and Human Services (HHS) Secretary Xavier Becerra to act to ensure access to abortion, including by expanding access to medication abortion and expanding access “to the full range of reproductive health services,” including “emergency contraception and long-acting reversible contraception like intrauterine devices (IUDs).” The order will also direct HHS to “take steps to ensure all patients—including pregnant women and those experiencing pregnancy loss—have access to the full rights and protections for emergency medical care afforded under the law.” That will include evaluating and updating the Emergency Medical Treatment and Labor Act (EMTALA) as needed to “clarify physician responsibilities and protections.”
The order directs HHS to “increase outreach and public education efforts regarding access to reproductive health care services—including abortion.” To that end, it has launched the website reproductiverights.gov. Beyond HHS, the administration announced that Attorney General Merrick Garland and the White House counsel will “convene private pro bono attorneys, bar associations, and public interest organizations to encourage legal representation for those seeking or offering reproductive health services,” including patients, providers, and third parties who assist in coordinating abortion care. That includes “protecting the right to travel out of state to seek medical care.”
The order also will direct the Federal Trade Commission to consider actions to protect consumers’ privacy when they seek information about reproductive health services, and to work with HHS and Justice to “consider options to address deceptive or fraudulent practices, including online.” It directs HHS to consider additional actions to prevent information about patients from being disclosed. Finally, Becerra is order to report back to Biden within 30 days.
For plenty of advocates, it’s both too little and a lot too late considering how long it’s been apparent that this was exactly what was going to happen with the Supreme Court—at least since September 2021, when it allowed Texas’ abortion bounty hunter law to stand.
Campaign Action
A public health emergency declaration would definitely be in order, one of the handful of bold actions the administration could be taking. Declaring this a public health emergency would give the federal government broad powers to redirect federal funding for abortion provision and granting civil immunity to allow licensed medical providers to practice in states where they aren’t licensed, giving them the ability to prescribe medication abortion via telemedicine to patients in states where providers are banned from doing so. Sens. Elizabeth Warren (D-MA) and Tina Smith (D-WI) suggested just that in an op-ed in The New York Times. The White House reportedly considered doing that, but ultimately decided against it.
Additionally, Biden could order the Food and Drug Administration to issue a statement that federal regulation of medication abortion preempts state law, and he could direct the Department of Justice could initiate its own lawsuits or participate in ongoing lawsuits to enjoin these bans as they apply to medication abortion.
The administration also rejected allowing independent abortion providers to lease property on federal public lands for abortion provision. Warren and Sen. Patty Murray (D-WA) made that suggestion in a letter to Biden a month ago, urging him to get an executive order out immediately announcing bold actions. The White House ultimately rejected that as well, with Press Secretary Karine Jean-Pierre saying using public lands would have “dangerous ramifications.”
Many of the bold actions the administration could take but has thus far chosen not to would bump up against federal courts and would likely ultimately fail. But what’s the downside of trying to fight for the most fundamental right of people to have a say over their own bodies? Certainly there isn’t one as far as the public—and especially Democratic voters—is concerned.
Privacy as a foundational value in a post-Roe landscape on Daily Kos' The Brief podcast
