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The limitations of Joe Biden’s executive order on abortion

It marks an important first step, though there’s still more the White House could do.

President Biden sits and signs at a desk, while Vice President Kamala Harris,
President Joe Biden signed an executive order on abortion rights on Friday.
Yuri Gripas/Abaca/Bloomberg via Getty Images

On Friday, President Joe Biden signed an executive order dedicated to protecting abortion rights, following repeated calls from Democratic lawmakers and advocates to do so.

The order, which directs several federal agencies to take action on abortion, has been described by some legal experts and activists as an important first step, though it falls short of what many previously called for.

“Let’s put it this way: Nothing in his executive order will fundamentally change the everyday lives of poor women in a red state,” Georgetown University health law professor Lawrence Gostin told Vox.

Biden’s executive order indicates progress: It emphasizes the White House’s support for protecting access to medication abortion, defending access to contraception, and guaranteeing a patient’s right to emergency medical services. It also addresses some of the concerns progressive lawmakers and abortion rights activists had about his initial response and sends a message about how seriously the administration is taking this issue.

The order fails to include, however, certain measures advocates and Democratic lawmakers have suggested, including an explicit commitment from the Justice Department to get involved in lawsuits that defend a person’s right to medication abortion and the use of Medicaid resources to fund travel for people who need to go across state lines. While both of these efforts would likely face court challenges, they’re also moves that have solid legal footing, according to Gostin, and that could significantly improve access for people living under abortion bans.

Broadly, Biden’s actions have been welcomed by Democrats, advocates, and legal experts, though there’s an overwhelming sense in his party that he could do more. While Biden is unable on his own to bring back the protections offered by Roe and an executive order is no replacement for legislation, there are further steps he could take to try to preserve abortion access. Jennifer Klein, the head of the White House’s Gender Policy Council, noted in a Friday briefing that the White House is still in the process of exploring other options, including declaring a public health emergency.

“We are glad to see the White House start to implement a whole of government approach to abortion access,” says Morgan Hopkins, the interim executive director of campaigns and strategies at All Above All, an abortion rights advocacy group. “But this plan, which the White House committed to months ago, is both late and not enough.”

What’s in Biden’s executive order on abortion

Biden’s executive order details a couple of different areas where the federal government is trying to protect abortion access.

It focuses on a few key issues:

  • Protecting medication abortion access: Biden is calling on the Department of Health and Human Services to continue to identify ways to preserve access to medication abortion, which the administration has made more available during the pandemic. Last year, the Food and Drug administration approved changes that enabled people to receive a prescription via telemedicine and get abortion medication through the mail. More recently, HHS also emphasized that federal programs are required to provide medication abortion in cases of rape, incest, and when a woman’s health is at risk.

The order directs HHS Secretary Xavier Becerra to compile a report within 30 days detailing different options for further guaranteeing this access. Attorney General Merrick Garland has also previously said he opposes state bans on medication abortion, though he did not indicate what actions his department would take in response to these bans.

  • Guaranteeing emergency care: The administration is considering updating guidance for providers and hospitals under the Emergency Medical Treatment and Labor Act, which requires that patients experiencing a medical emergency are provided stabilizing treatment. This is important because it could provide vital clarification for providers working in states where there are abortion bans, who may be worried about legal ramifications as they are offering medical care.

“Often abortion is the required treatment when a pregnant person’s life or health is in danger, and health care providers must have clear guidance about their legal duties in the face of confusing state abortion bans that impose severe criminal penalties,” says Cynthia Soohoo, a law professor and gender justice expert at the CUNY School of Law. “Without this clear guidance, pregnant people will die.”

  • Strengthening contraception access: The White House is directing HHS to protect access to contraception including emergency contraception and IUDs as some Republican state lawmakers eye restrictions on birth control. Last week, the agency announced plans to send $3 million in additional funding to different providers to build out family planning services; it also held a meeting with insurance companies about coverage for contraception, which is required of most insurers by the Affordable Care Act.
  • Providing more resources and information: The White House has committed to offering more information to people about abortion access in different states, a chief demand of activists. Already, the administration has set up a website called www.reproductiverights.gov, though there has been a push for the site to be more robust.
  • Protect patient data: Concerns have grown in recent weeks that state prosecutors could use things like period tracking apps and internet search data to try to go after people who pursue abortions. The executive order asks the Federal Trade Commission, an independent agency, to weigh efforts that could shield how this data is used. HHS has also released a guide on how to secure personal data when using mobile apps and is in the process of determining if there are other means of making patients’ reproductive health data more secure.
  • Protecting security of clinics: The White House has said it’s focused on protecting abortion clinics, which have been the site of anti-abortion demonstrations and faced violent threats. The executive order didn’t specify exactly what these protections would entail.

There’s still more the White House could do

While the executive order is an important first step, it contains a lot of sweeping statements that still need more specifics.

For example, some advocates have said they’re unclear on how the administration will defend medication abortion access and provide financial support for women who need to travel for an abortion. When it comes to access, there are a few routes the White House could take, like committing to lawsuits that contest state abortion bans on the grounds that FDA rules about medication abortion supersede state policies.

Such a move would face legal pushback, but there is a precedent for a challenge like this, including a 2014 suit involving an opioid drug in Massachusetts, Drexel University law professor David Cohen previously told Vox.

Abortion advocates have also called for the administration to consider more “creative” efforts like declaring a public health emergency and establishing abortion clinics on federal lands. The White House has previously said that it was worried providers and patients could be prosecuted by state officials even if clinics were set up on federal lands. Klein noted the White House was still open to a public health emergency, though there are concerns that such a move wouldn’t release much funding.

“I call on the administration to recognize the true emergency we are in. Get creative. Get caught trying. Don’t let norms, or decency, or ‘tradition’ stand in your way,” said Women’s March executive director Rachel O’Leary Carmona in a statement.

In general, there’s still room for the administration to explore options beyond what Biden committed to on Friday. “The executive order seems to be drafted to mitigate harm, which is important, but I fear it is not enough to address the moment we are in,” Soohoo told Vox.