The White House on Friday announced a wide-ranging executive order aimed at protecting abortion rights — its most significant response to a recent Supreme Court decision overturning long-standing precedent guaranteeing the right to an abortion nationwide since the high court made the ruling two weeks ago.
The White House said the move, a response to the Dobbs v. Jackson Women’s Health Organization decision, is intended to protect access to a range of reproductive health services, protect patient privacy, advance patient and provider safety, and coordinate the implementation of efforts among federal agencies.
The Supreme Court ruling gave states the ability to regulate abortion before viability, and left Democrats scrambling for avenues to protect abortion access, especially in states that have implemented near-total abortion bans since the decision was announced.
Still, the announcement has spurred mixed feedback even among abortion rights supporters.
While lawmakers and groups like NARAL Pro-Choice America and the National Women’s Law Center welcomed the announcement from the White House as a step forward, its breadth and timing are not enough for some advocates, including All* Above All, Liberate Abortion, URGE: Unite for Reproductive & Gender Equity and the Women’s March.
The groups called for more tangible actions, like declaring a separate public health emergency related to abortion.
The announcement came as Democratic governors in Maine, Colorado, Rhode Island and North Carolina also signed executive orders this week establishing some abortion protections in those states. The Senate Judiciary and Health, Education, Labor and Pensions committees are both slated to examine the aftermath of overturning Roe v. Wade in hearings next week, while the House is teeing up a vote on two abortion rights bills as early as Wednesday.
Most Democratic messaging has focused on increasing turnout in the 2022 midterms as a chance to pick up seats in Congress. Without larger margins, changes to federal abortion law are nearly impossible for either side.
President Joe Biden, speaking at an event Friday alongside Vice President Kamala Harris, Health and Human Services Secretary Xavier Becerra and Deputy Attorney General Lisa Monaco, said voting remains the essential way to protect abortion access and called the Supreme Court ruling a political decision.
“We need two additional pro-choice senators and a pro-choice House to codify Roe as federal law,” Biden said. “While I wish it had not come to this, this is the fastest route available. I’m just stating a basic fundamental notion. The fastest way to restore Roe is to pass a national law codifying Roe.”
The multipronged order would mainly focus on actions to be taken through the Department of Health and Human Services.
Specifically, Biden would instruct HHS to take additional actions to expand access to medication abortion, a two-pill regimen used to end pregnancies before 10 weeks — building on actions Becerra announced last week.
The Food and Drug Administration approved medication abortions in 2000, but the drug can sometimes be difficult to access because of regulatory barriers in dispensing the drug and state-level bans that prevent it from being prescribed by telehealth or non-physician practitioners.
The order instructs HHS to take additional steps to guarantee that pregnant women and those experiencing a miscarriage are ensured their rights and protections under the 1986 health law known as the Emergency Medical Treatment and Labor Act. This may include updating guidance for providers on their responsibilities and protections in providing emergency care.
It would also direct HHS to take actions to protect all forms of contraception, including emergency contraception and long-acting reversible contraception like intrauterine devices, or IUDs. The 2010 health care law requires most health plans to access birth control without a copay, with the Supreme Court carving out some exceptions for religious employers.
The order also calls on HHS to increase education and outreach efforts about reproductive health care to provide accurate information about access and legal rights.
The White House counsel and attorney general will also work with legal advocacy groups and private pro bono lawyers to provide legal representation for patients, providers and other affected individuals who seek to travel to another state to seek an abortion. Attorney General Merrick B. Garland previously announced he would pursue action against a state or official who blocks a person from traveling or interferes with allowing another person to travel to seek an abortion.
Biden instructed HHS to take these steps and send the White House a report on its progress within 30 days.
The president also calls on HHS and the White House Gender Policy Council to form and lead an interagency task force on access to reproductive health care through the formation of new policies and programs. The task force, which would include Garland, will assist states needing legal protection to help patients from other states and for providers in states where abortion remains legal.
The order would also take steps to protect patient privacy, as advocates have sounded the alarm about privacy and technology concerns that could harm patients and providers unknowingly.
Biden’s order asks the chair of the Federal Trade Commission to take steps to protect the privacy of individuals seeking information about reproductive health, including abortion. It would also ask Becerra, Garland and FTC Chair Lina M. Khan to examine ways to reduce deceptive practices online and curb the spread of misinformation related to abortion.
And HHS specifically will be instructed to look for ways to protect information related to reproductive health, including under the Health Insurance Portability and Accountability Act, or HIPAA. HHS last week issued guidance on how HIPAA protects some information.
The order’s focus on safety would include both cybersecurity and physical security.
It states that the administration will ensure the safety of patients, providers and other third parties, including by protecting mobile clinics, referring to efforts to expand operations at state borders near abortion deserts.
Response was mixed, even among anti-abortion and abortion rights groups.
“We are glad to see the White House start to implement a whole of government approach to abortion access. But this plan, which the White House committed to months ago, is both late and not enough,” said Morgan Hopkins, interim executive director of campaigns and strategies at All* Above All, which supports repealing the Hyde amendment. “President Biden must do more. We need bold action immediately to ensure people can access the care they need.”
“President Biden’s executive order to safeguard access to reproductive healthcare, including abortion care, is an important first step in restoring the rights taken from millions of Americans by the Supreme Court. We’re encouraged by the Biden-Harris administration’s work to defend abortion rights and access, and look forward to continuing partnership with the administration to make good on its commitment to championing reproductive freedom,” said NARAL Pro-Choice America President Mini Timmaraju.
Abortion opponents called out the executive order and other recent actions, such as calls to expand the Supreme Court or remove the Senate filibuster, as steps in the wrong direction.
“President Biden has once again caved to the extreme abortion lobby, determined to put the full weight of the federal government behind promoting abortion,” said Susan B. Anthony Pro-Life America President Marjorie Dannenfelser. “We are committed to exposing Democrats’ abortion extremism to voters across key battleground states so this extreme agenda can be soundly rejected at the ballot box this November.”