July 8

By Susan Milligan

President Joe Biden, under intense pressure from his party’s rank and file to use the tools of his office to protect abortion rights, will sign an executive order Friday aimed at expanding access to medication abortions, protecting the privacy of women seeking abortions, and marshaling a legal team to defend women traveling for legal abortions.

The order does not – and cannot – undo the moves by dozens of states to severely restrict or outright ban abortion after the Supreme Court decision last month reversing a 49-year guaranteed right to terminate a pregnancy. But the order, the White House said in a statement early Friday morning, will help women navigate state laws to access abortion.

“President Biden has made clear that the only way to secure a woman’s right to choose is for Congress to restore the protections of Roe as federal law,” the White House said, referring to the 1973 Roe v Wade ruling making abortion legal across the nation. “Until then, he has committed to doing everything in his power to defend reproductive rights and protect access to safe and legal abortion.”

The executive order directs the Department of Health and Human Services to take action to expand access to medication abortion, which allows women and girls to terminate a pregnancy at home by taking two pills. Medication abortions, which were approved by the FDA in 2000, now account for more than half of all abortions in America, according to the Guttmacher Institute.

The agency will also take steps to ensure emergency care for pregnant women and those experiencing a miscarriage, including considering updates to current guidance that clarify physician responsibilities and protections under the Emergency Medical Treatment and Labor Act. Reproductive rights activists are concerned that the state bans on abortion will prevent doctors in some states from tending to women who need Dilation and Curettage (commonly known as a D and C) to stop life-threatening bleeding during an emergency.

Health and Human Services will also take steps to protect and expand access to contraception, including emergency contraception (known colloquially as the “morning after pill”) and intrauterine devices that abortion rights advocates fear will be outlawed under certain state laws.

The agency has 30 days to submit a report back to Biden on how it will fulfill the order, the White House said.

The attorney general and the White House, meanwhile, will convene a team of volunteer lawyers to provide free legal care to “patients, providers, and third parties lawfully seeking or offering reproductive health care services throughout the country,” the White House said. That directive is aimed at thwarting threatened efforts by states to make it illegal for a woman to travel to another state to get an abortion where it is legal.

“Americans must remain free to travel safely to another state to seek the care they need,” the White House said, and will fight “any attack by a state or local official who attempts to interfere with women exercising this right.”

The order also directs agencies to take steps to protect the privacy of women and girls seeking abortions and to crack down on fraudulent and deceptive practices – including those online – by those trying to stop them from accessing the procedure.

The executive order specifically directs HHS to issue new guidance on protecting privacy rights of abortion patients under the Health Insurance Portability and Accountability Act (HIPAA). “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, are not permitted – to disclose patients’ private information, including to law enforcement,” the White House said.

The administration will also release a how-to guide to protect health information on mobile apps. Reproductive rights groups are worried that law enforcement will use Internet searches or menstruation and pregnancy apps to track down women seeking medication abortions or surgical abortions in other states.

Without going into detail, the executive order said the administration will take steps to ensure the safety of patients, providers and third parties in reproductive health services – including protecting mobile clinics set up at the border inside states where abortion is still legal.

Finally, Biden’s executive order directs HHS and the White House Gender Policy Council to establish an interagency Task Force on Reproductive Health Care Access, “responsible for coordinating Federal interagency policymaking and program development.” As part of that, the Justice Department will provide technical assistance to sates offering abortions to out-of-state patients.

Biden delivered a fiery rebuke of last month’s Dobbs v Jackson Women’s Health Organization ruling allowing individual sates to restrict or ban abortion, calling it an “outrageous” reversal of a longtime right.

But he also has been criticized by fellow Democrats who think he has not done enough to protect and expand abortion access where it is legal.

The president last week convened an online session with Democratic governors, who made various suggestions, including using federal lands for abortion clinics in states where the procedure is otherwise banned. The administration has been skeptical of that idea, saying it could put women and providers at risk.

Biden has also called for the Senate to abandon the filibuster, so abortion rights could be enshrined with only the Democratic caucus’s 50 votes. But Biden cannot force the Senate to act, and two Democratic senators have been clear that they will not reject the filibuster.