“The only way to secure a woman’s right to choose is for Congress to restore the protections of Roe as federal law,” a statement from the White House said today. “Until then, he has committed to doing everything in his power to defend reproductive rights and protect access to safe and legal abortion.” President Biden announced an Executive Order Protecting Access to Reproductive Health Care Services on Friday. Safety and privacy measures for patients, providers, and clinics are at the forefront of the directive. It also emphasizes the provision of accurate healthcare information.
To expand abortion access, the order attempts to make medication abortions “as widely accessible as possible,” but what that means at a state-by-state level remains ambiguous. Immediately following the Dobbs decision, Attorney General Merrick Garland said states cannot justify medication abortion bans by questioning Mifepristone’s “safety and efficacy.” Yet the nine states that have banned abortions are not discriminating by procedure—all abortion methods are off the table, including medical ones. Nineteen states prohibit clinicians from prescribing abortion pills via telehealth, restricting online providers to states that clearly allow access.
Exceptions to new bans often allow abortions when it will save the life of the pregnant person.
“‘How imminent must death be?’” asked Lisa Harris, a Michigan abortion provider, in an interview with NPR. “‘There are many conditions that people have that when they become pregnant, they’re OK in early pregnancy, but as pregnancy progresses, it puts enormous stress on all of the body’s organ systems.’ … Does the language in these laws allow for abortion early in pregnancy if a life-threatening complication could arise later?”
The executive order tasks the Secretary of Health and Human Services (HHS) to tighten descriptions of medical emergencies, providing additional guidance for physician decision-making in concurrence with the Emergency Medical Treatment and Labor Act (EMTALA).
Though the Affordable Care Act (ACA) ensures complete coverage for birth control, House Committee on Oversight and Reform Chairwoman Carolyn B. Maloney (D-NY) launched an informal investigation into reports of pharmaceutical providers violating this standard. Nine companies were sent letters inquiring about their compliance with the ACA in late May. Friday’s executive order said the federal Medicaid agency is approaching “every legally available step to ensure patient access to family planning care and to protect family planning providers.”
Biden’s directive also aims to expand reproductive education—including abortion information—and assemble lawyers willing to work pro bono to represent patients, providers, and clinics facing abortion restrictions and their repercussions. To streamline coordination, the Biden administration introduced an Interagency Task Force that bands HHS with the Attorney General and White House Gender Policy Council.
The legal landscape of privacy protections for abortion care remains unclear. Biden requested the Federal Trade Commission “consider” fortifying privacy safeguards for people seeking information about pregnancy and other reproductive healthcare options. Adjustments to the Health Insurance Portability and Accountability Act (HIPAA) could reaffirm that clinicians are not required—or permitted, in many cases—to provide patient information to law enforcement. HHS will also update its user guide for personal data protection on mobile apps.
Crisis pregnancy centers, which distribute anti-abortion and faith-based information, can be easily confused with abortion clinics. Yet without certification as legitimate healthcare facilities, they are not held to federal privacy standards. People who come to centers expecting to speak to a physician or receive free resources are often subject to a counseling session. Any information shared may be distributed.
“Next week, we will again pass the Women’s Health Protection Act: landmark legislation enshrining the protections of Roe v. Wade into federal law,” House Speaker Nancy Pelosi (D-NY) said of her Democratic colleagues. “We will also pass legislation addressing the GOP’s disturbing threats to restrict Americans’ freedom to travel — reaffirming the constitutional right to seek care freely and voluntarily throughout the country.”
The Women’s Health Protection Act, sponsored by Representative Judy Chu (D-CA), passed in the House but has yet to gain Senate approval.