Biden Takes Executive Actions To Protect Abortion And Contraceptive Rights

On Friday, June 24, the Supreme Court released an opinion on Dobbs vs. Jackson Women's Health Organization, overturning the standing court decision of Roe v. Wade that guaranteed a person’s right to privacy when seeking an abortion. Now, each state can make laws governing a person's access to abortion, and the ramifications have been swift.

A clinic in Alabama canceled 100 scheduled appointments for abortion because providers can now face up to 99 years in prison if they provide abortion services, according to CNBC. Similar stories have been reported nationwide — people travel across state lines to seek abortion, and abortion bans putting pregnant people with life-threatening conditions at risk. The fallout will get worse.

In response to the overturn of Roe, on July 8th, President Joe Biden announced a series of executive actions he has taken to protect access to abortion and other forms of reproductive healthcare.

"Today, President Biden will sign an Executive Order Protecting Access to Reproductive Health Care Services," the White House fact sheet reads. "This Executive Order builds on the actions his Administration has already taken to defend reproductive rights."

The directive outlines a number of steps to be taken to protect access to reproductive care and a pregnant person's right to medical privacy.

Safeguarding access to reproductive health care services, including abortion and contraception

• Protect Access to Medication Abortion: The order will try to ensure medication abortion is as accessible as possible across the country.
• Ensure Emergency Medical Care: The order declares that the Department of Health and Human Services (HHS) will work to ensure all patients, including pregnant people and people experiencing pregnancy loss, have full rights and protections to emergency medical care. They can do so by “considering updates to current guidelines that clarify physician responsibilities and protections under the Emergency Medical Treatment and Labor Act (EMTALA).”
• Protect Access to Contraception: The HHS will “take additional actions” to expand access to emergency contraception and contraception such as IUDs. The memo notes that in every state and D.C., the Affordable Care Act “guarantees coverage of women’s preventive services, including free birth control and contraceptive counseling.” The HHS is also pushing Medicare/Medicaid to take “every legally available step” to ensure patient access to family planning care.
• Launch Outreach: The order directs an increase in outreach and public education efforts to “ensure that Americans have access to reliable and accurate information about their rights and access to care.”
• Convene Volunteer Lawyers: The Attorney General (AG) and White House counsel will find volunteer lawyers to provide legal representation to patients, doctors, and more to protect a person's right to access care in their state or a neighboring one. An example of what this would look like in practice, per the memo, is “protecting the right to travel out of state to seek medical care.” It appears the AG will fight any attempt to limit a person’s ability to move through states freely to access medical care.

Protecting the privacy of patients and their access to accurate information

• Protect Privacy: The White House asked the Federal Trade Commission (FTC) to “consider taking steps to protect consumers’ privacy when seeking information about and provision of reproductive health care services.” There have been very real concerns from privacy experts following the overturn of Roe that people’s app usage — especially of period-tracking or fertility apps — or even internet activity could be used against them if they seek reproductive care. The White House has issued a guide for people who use apps on how to protect their personal data.
• Protect From Inaccurate Info: The HHS, AG, and the FTC have been asked to “consider options to address deceptive or fraudulent practices” online regarding access to reproductive care information.
• Protect sensitive health information. The White House issued a new guidance to address how HIPAA — the privacy rule that protects a person’s private and individual health history — can be utilized to keep patients safe. “The guidance helps ensure doctors and other medical providers and health plans know that, with limited exceptions, they are not required — and in many cases, not permitted — to disclose [private patient information] to law enforcement” or to others.

Promoting the safety and security of patients, providers, and clinics

• Increase Safety: Actions will aim to increase safety at all levels of care from clinics, providers, and patients seeing reproductive care. "This charge includes efforts to protect mobile clinics, which have been deployed to borders to offer care for out-of-state patients," the briefing explains.
• Create a Task Force: Additional measures that will be taken to protect rights include establishing a task force responsible for coordinating policy and program development and support training at the medical level, including family planning care.

“President Biden has made clear that the only way to secure a [person’s] right to choose is for Congress to restore the protections of Roe as federal law,” the White House said. “Until then, he has committed to doing everything in his power to defend reproductive rights and protect access to safe and legal abortion.”

What The Actions Don’t Do

Although the actions are important from the federal government, much more can and needs to be done in order to protect families nationwide. For one, Biden alone cannot restore federal access to abortion. Only Congressional policy can do so.

The Women’s Health Protection Act (WHPA) and the Equal Access to Abortion Coverage in Health Insurance EACH Act, which would reverse the Hyde Amendment that prohibits federal funds for abortion, could become law.

These bills would address the problem of abortion access and enshrine it as federal law. Those bills can’t pass unless the filibuster is suspended, even in just a one-time carve-out, which Biden has said he supports in order to protect abortion. Other moderate Democrats do not.

In a press conference addressing the orders on Friday, Biden said, “We need two additional pro-choice senators and a pro-choice House to codify Roe as federal law. Your vote can make that a reality. I know it's frustrating and it made a lot of people very angry. But the truth is this... women of America can determine the outcome of this issue,” and pointed out that in the reasoning of Dobbs, the Supreme Court suggested that contraception used between married couples and other rights to privacy will be under attack next.

Some actions wouldn’t require overturning the filibuster. Experts and lawmakers have suggested, for example, that the federal government use federal lands to offer abortion services in states where the practice will be or has become illegal. However, the White House refused to do so, per CNN, suggesting that doing so would have “dangerous ramifications.”

Another thing Biden could try — but won’t — is expanding the Supreme Court. Doing so would put more liberal-leaning justices on the court.

Although Biden’s action does make some progress, it can’t do what needs to be done: make sure everyone in every state who needs an abortion can get one.