Following demands from abortion rights advocates and members of Congress to bolster federal protections for abortion care, President Joe Biden signed an executive order directing federal agencies to protect access in the wake of the US Supreme Court’s decision to revoke a constitutional right to abortion.
The order – which he signed on 8 July, two weeks after the ruling in Dobbs v Jackson Women’s Health Organization – arrives as several states have already outlawed abortion entirely in nearly all instances or severely limited access to care.
As many as 26 states could outlaw abortion without the protections affirmed under Roe v Wade, with state legislatures poised to draft more-restrictive laws – facing a wave of legal challenges – in the coming weeks and months.
The president cannot unilaterally restore Roe. The US Senate failed to pass a measure that would codify those protections into law. Mr Biden has called on Americans to vote for officials who support abortion rights in elections this fall in the hopes of reviving the bill.
In the wake of the Dobbs decision, abortion rights advocates have urged the president to declare a federal health emergency, loosen remaining restrictions on prescription abortion pills, open federal lands and health centres to providers, and apply the full weight of federal agencies against attempts to prosecute providers and people who “aid and abet” abortion care.
The president’s order covers a few areas – including medication abortion and contraception, legal defese against certain prosecution from anti-abortion states, digital privacy protections, and security for patients and providers – but includes steps the administration has already directed to federal agencies, while others are vague and do not include substantive actions.
It calls on the US Department of Health and Human Services to find ways over the next several weeks to ensure Americans can access abortion care.
The administration has admitted that there is little the federal government can do to reverse or stymie anti-abortion measures in states that have effectively ended legal care. The administration reportedly mulled whether to declare a public health emergency but decided against it, anticipating a protracted legal battle.
“This public health crisis will become more dire by the day,” said Nancy Northup, president and CEO at the Center for Reproductive Rights. She said the HHS plans should include “immediately declaring a public health emergency”.
Emma Roth, an attorney for National Advocates for Pregnant Women, said the order is a “promising start” but “lacks specificity” to meaningful address the state of abortion.
Georgeanne Usova, senior legislative counsel with the American Civil Liberties Union, said the order is “an important step” but urged the administration “to take swift, meaningful action to build on it”.
Directs HHS to develop a plan to ‘protect and expand access’
The order directs US Health and Human Services Secretary Xavier Becerra to submit a report within 30 days to outline plans to “take additional action to protect and expand access to abortion care”, including medication abortion.
HHS does not prescribe or distribute abortion drugs, however.
The US Food and Drug Administration has approved mifepristone for abortions up to 10 weeks. A two-drug regimen with mifepristone and misoprostol is the most common form of abortion care, and can be taken in the comfort of a patient’s home in most cases, but its prescription as abortion treatment is outlawed in many states under the same circumstances that anti-abortion laws have targeted procedural abortions.
Following the Supreme Court’s decision, US Attorney General Merrick Garland issued a warning that states “may not ban mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy”. It is unclear whether the US Department of Justice will intervene in challenges to state laws blocking that medication.
It is also unclear whether the executive order and HHS could make telemedicine appointments available to all Americans, including in states that have specifically outlawed telehealth for abortion prescriptions.
Under the executive order, the report from HHS must also include plans to support emergency medical care under the Emergency Medical Treatment and Labor Act, which grants public access to emergency services regardless of a patient’s ability to pay.
Dr Ghazaleh Moayedi, a Texas abortion provider, said that that the law “can’t make anyone provide an abortion or protect us from being arrested” and “requires stabilization in emergency medical situations – ‘emergencies’ are defined broadly and allow for A LOT of subjectivity.”
HHS also is directed to outline plans to “take additional actions to expand access to the full range of reproductive health services,” including contraception.
The agency will also “increase outreach and public education efforts regarding access to reproductive health care services – including abortion – to ensure that Americans have access to reliable and accurate information about their rights and access to care.”
Directs federal agencies to assemble legal support
President Biden also directs HHS to assemble a corps of volunteer lawyers, convening private pro bono attorneys and other groups to “encourage robust legal representation of patients, providers, and third parties lawfully seeking or offering reproductive health care services throughout the country”.
That legal support is intended to help protect patients who are traveling out of state to seek abortion care, which anti-abortion legislators and officials have signalled a willingness to prosecute.
Directs federal agencies to combat digital surveillance
The order directs the chair of the Federal Trade Commission to “consider taking steps to protect consumer’s privacy” when seeking information on abortion care, including considering how one’s digital footprint can be used by law enforcement in pursuing cases under states’ anti-abortion laws.
The White House has also instructed the HHS, FTC and US Attorney General to “consider options to address deceptive or fraudulent practises” online, appearing to suggest targeting so-called crisis pregnancy centres – nonmedical, often Christian-affiliated facilities that discourage people from seeking an abortion – that have appeared in online search results for abortion care.
Legislation in Congress would block intimate data gathered on smartphones – including, more broadly, location data – from getting into the hands of the companies that collect them and the companies that want to buy them.
A bill from California Congresswoman Sara Jacobs would strictly limit the sexual health data that companies can collect, retain and disclose, while a sweeping proposal from Senator Elizabeth Warren would ban data brokers from selling or transferring location and health data.
Democrats in Congress also have called on Google to stop steering abortion patients to “fake” clinics in search results. The company also has announced it will delete users’ location history when they visit an abortion clinic, domestic violence shelter or other sensitive area.
Abortion rights advocates and digital security experts have urged people seeking an abortion to follow guidelines to protect their digital footprints.
The White House is expected to issue a “how-to guide for consumers on steps they can take to make sure they’re protecting their personal data on mobile apps”.
‘Ensures’ security for providers and patients
Another element of the order would “ensure” security protections for patients and providers, including “efforts to protect mobile clinics, which have been deployed to borders to offer care for out-of-state patients”.
It directs the US Attorney General and Department of Homeland Security to “consider actions, as appropriate and consistent with applicable law, to ensure the safety of patients, providers, and third parties, and to protect the security of clinics (including mobile clinics), pharmacies, and other entities providing, dispensing, or delivering reproductive and related healthcare services”.
The order also creates an interagency task force on reproductive healthcare access between the HHS and the White House Gender Policy Council to include the US Attorney General, which will also offer “technical assistance to states affording legal protection to out-of-state patients as well as providers who offer legal reproductive health care”.
