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The power and limits of using executive orders to protect abortion rights

President Biden is mulling over what he can do in response to a looming Supreme Court ruling overturning Roe v. Wade.

Activists who feel helpless to codify abortion rights could find hope in Biden’s executive orders.
| Nathan Howard/Getty Images
Ellen Ioanes covers breaking and general assignment news as the weekend reporter at Vox. She previously worked at Business Insider covering the military and global conflicts.

As a decision looms in Dobbs v. Jackson Women’s Health Organization, the landmark Supreme Court case that would effectively eliminate the constitutionally-protected right to a legal abortion, pressure on President Joe Biden to take action to protect that right is mounting — so much so that Biden directly addressed it on late-night TV this week, telling Jimmy Kimmel that, while he urged legislative action, the White House is also mulling executive orders protecting abortion access.

Post-Dobbs executive orders were on the table before Biden’s Wednesday appearance, although the White House has kept quiet about what those actions could look like. His interview with Kimmel was no different; after encouraging a legislative approach to enacting abortion rights protections, Biden told Kimmel, “I think what we’re going to have to do... There’s some executive orders I could employ, we believe — we’re looking at that right now.”

On Tuesday, before Biden’s late-night appearance, Democratic senators including Chris Van Hollen of Maryland and Elizabeth Warren of Massachusetts sent a letter to Biden urging the administration to issue an order to develop a national, whole-of-government plan to protect the right to abortion, citing the administration’s previous willingness to take action on securing voting rights, combating racism, and strengthening economic competition.

“Now is the time for equally bold action to protect the right to an abortion,” the letter reads, asserting that, “the dramatic escalation of attacks on abortion access — spearheaded by right-wing justices, lawmakers, and activists — demands comprehensive and creative strategies from every corner of the federal government.” The letter urges Biden to issue an executive order requiring the heads of federal agencies to submit their plans to protect abortion rights within 30 days of the order, concluding that the issue — and the millions who would be affected should the Supreme Court rule that Mississippi can indeed ban pre-viability abortions — require “no less than a whole-of-government response.”

However, the administration has signaled that any action will come after the court announces its decision — not pre-emptively. “We don’t have a final conclusion,” former White House Press Secretary Jen Psaki said at a briefing in May, after a draft decision authored by conservative Supreme Court Justice Samuel Alito declaring the Mississippi restriction constitutional was leaked to Politico. “The Supreme Court themselves made clear this is not the final opinion. We are already working a great deal behind the scenes, and we will have more to say,” Psaki said at the time.

While the administration reportedly ramped up its planning after the draft memo leaked, holding meetings with providers, activists, and state lawmakers, Democrats and abortion rights activists have been frustrated with the perceived lack of preparation for what many consider the inevitable dissolution of Roe v. Wade after decades of conservative activism to defeat it.

“Why are we so behind the curve on this? Where is the plan? We knew this was coming in theory since [Justice Amy] Coney Barrett joined the court, and in practice since December,” Democratic strategist Christy Setzer told The Hill in May. “I don’t want to hear empty rhetoric about how we won’t go back, I want to hear that there is a legislative or federal plan to change things.”

What exactly could executive orders do for abortion rights?

At the heart of the Dobbs case are three questions: Whether it’s unconstitutional for a state to enact any pre-viability bans on abortion; under what statute any such prohibition should be interpreted; and whether abortion providers have the legal standing to challenge a state’s abortion laws on behalf of their patients.

Any executive action the administration decides on will be fairly limited; once states have the authority to regulate pre-viability abortion regardless of the undue burdens the laws would place on people trying to obtain them, many will legislate it practically out of existence. If it’s decided that abortion clinics don’t have legal standing to challenge laws those states enact, it’s unlikely they’ll be challenged at all, since such cases require significant resources that individual abortion patients likely don’t have.

Any executive orders wouldn’t challenge the ruling directly, but rather enhance access to resources for people seeking an abortion. “As far as specific actions, there’s any number of areas of concern they could seek to address,” Setzer told Vox via email, such as “working to increase access for low-income women and women of color even in blue states like New York and Connecticut; protecting patient privacy (for patients and medical workers) where abortion will be criminalized; increasing access to contraception under Obamacare in states where it’s limited; working to lessen barriers to getting the abortion pill.”

In their June 7 letter, Democratic legislators highlighted some actions Biden could take, like enabling greater access to medication abortion, a method of abortion that’s effective very early on in a pregnancy. The medications mifepristone and misoprostol, which, taken together, safely and effectively end early pregnancies have been available by mail since the FDA reversed a regulation prohibiting the postal delivery last December. However, a number of states with conservative legislatures swiftly took action to ban or restrict access to them following that decision.

The Democrats’ letter also suggests providing resources like childcare and travel vouchers to people who must travel outside their home state to seek abortion care. That measure would address what is already a barrier for low-income people seeking an abortion: the sheer cost of it all, in addition to the price of the procedure itself. Childcare, travel expenses, and lost wages from missing work are all costs that low-income people seeking abortions in states with limited access have faced for years, as The Intercept reported in 2019.

The letter suggests a few interventions from the Department of Health and Human Services (HHS), including creating a reproductive health ombudsman position that “could educate the public and analyze data collected by HHS about access to reproductive services.” That could include collecting and analyzing data about insurance coverage for contraception, as well as providing information about access to abortion services and funding. The legislators also suggest HHS work to expand the pool of reproductive health providers available to Medicaid patients by “more aggressively enforcing federal requirements” that give beneficiaries their choice of provider.

HHS’s Office for Civil Rights could also strengthen and clarify the protection of people’s sensitive online data about their reproductive health so that data can’t be used by states with draconian abortion and reproductive health laws. Data protection is crucial for both people seeking abortions and for care providers; data from a period tracking app, for example, could prevent a person from getting an abortion because it could indicate how far along their pregnancy is, and sensitive information about abortion providers could endanger their freedom or safety.

Finally, a mobilization of federal resources — including providing reproductive health care on federal lands in states with severe abortion restrictions — could be on the table, too. The legislators suggest in the June 7 letter that the Pentagon could consider moving members of the military and their families to obtain an abortion and reproductive health care when they need it, and that the Office of Personnel Management could ensure paid time off and reimbursement of costs for the procedure for federal employees who get an abortion.

All of these suggestions are workarounds; they’re not really a direct challenge to the issues presented in the Dobbs case. But, given how intent the GOP is on steamrolling the right to an abortion, and the dwindling likelihood of a Democratic majority passing legislation to protect it, such measures may just be what the administration has to work with.

Legislative protections would be more secure — but they’re harder to enact

Biden pushed the importance of voting and legislative action during his appearance on Wednesday, claiming that if Dobbs is decided and trigger laws go into effect, “it’s going to cause a mini revolution and they’re going to vote a lot of these folks out of office.” But in general, people don’t just vote on one issue, and simply relying on outrage isn’t a great game plan; decades without a clear strategy and concrete ideas about how to protect abortion access has put Democrats and reproductive health care in this position in the first place.

“Part of my frustration is with, frankly, some of my own colleagues and peers. The other side for 50 years has had a legal strategy — where is our 50-year strategy?” Rep. Elissa Slotkin (D-MI) said Thursday. “As someone who comes from a CIA and Pentagon background, I’m frankly furious that there wasn’t more D-Day, decision day, planning.”

Biden, as the leader of the party, hasn’t been particularly forceful in making sure abortion rights are protected, either. “In general, this is an issue where the bully pulpit really matters, and where President Biden still seems afraid to even say the word ‘abortion,’” Setzer told Vox. “That’s the point — the first step to protecting abortion access is saying the words ‘abortion access.’”

Without full-throated support for abortion at the highest levels, passing legislation to protect abortion rights is a tough hill to climb. It has failed in the past; last year, the Women’s Health Protection Act passed in the House without a single Republican vote. It failed in the Senate in May, even after the leaked Dobbs draft, given that it had no Republican support and West Virginia Sen. Joe Manchin, a self-styled anti-abortion Democrat, voted against it, too. Expecting fear and outrage over one single issue to change the face of state legislatures, much less the Senate, seems like wishful thinking, particularly if the president doesn’t seem to proactively pursue both options to protect abortion access and alternatives to conservative rule.

Instead of Biden’s and Democrats’ milquetoast response, Setzer said, Biden and Democrats should be talking about abortion “every chance they get. Congress voted on the Women’s Health Protection Act— super. Now make Republicans vote on abortion 20 more times before November. Make them go on record again and again. Use it in ads. Don’t be afraid — this is a winning political issue.”

Without an aggressive response, the idea that the Dobbs decision alone could and will make a difference in the midterms isn’t at all convincing. “President Biden’s not wrong — overturning Roe could indeed galvanize votes for Democrats in the midterms, but only if we can believe that the White House can and will take up that fight, and it’s not a promising start,” Setzer said. “I’m frankly not swayed by their secret plan on abortion.”

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