Biden-Harris Administration Pushing Back on Abortion Rights

Health & Gender Policy Brief #156 | By: Stephen Thomas | June 12, 2022

Header photo taken from: CNN

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748100ad8d1cd5763c54af1ad7bc027e — President Joe Biden Signs Executive Order to Protect Abortion Access.

Photo taken from: Yahoo

Policy Summary

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Striving to be proactive in reinstating abortion rights that the U.S. Supreme Court curtailed June 24, the administration of President Joseph R. Biden Jr. and Kamala D. Harris is taking steps to safeguard a right that the high court established in Roe v. Wade in 1973.

The first step is constituent reassurance that the administration is not sitting on the sidelines. For instance, Vice President Harris on July 8 discussed with lawmakers from several Republican-controlled states the administration’s fight to restore women’s reproductive rights is still ongoing. The vice president also met with health care providers, faith-community figures, experts in constitutional and privacy law, and state attorneys general.

In so doing, the vice president “reiterated the Administration’s commitment to partnering with elected leaders at the local, state, and federal level to protect reproductive health care access,” according to a statement issued by the White House on July 8.

That very same day, President Biden signed an Executive Order intended to “promote access to critical reproductive healthcare services, including abortion,” according to the order. The president reiterated in the Executive Order, “It remains the policy of my Administration to support women’s right to choose and to protect and defend reproductive rights. Doing so is essential to justice, equality, and our health, safety, and progress as a Nation.”

Policy Analysis

What does the executive order mean? Contrary to the highest aspirations of abortion-rights activists, an executive order cannot reverse the U.S. Supreme Court’s foolish ruling June 24 in Dobbs v. Jackson Women’s Health Organization.

Executive orders have limitations. In a 2008 article on Executive Orders, attorney and law professor Patrick Parenteau, the president derives the authority to issue Executive Orders from Article II, Section 1, of the U.S. Constitution, which reads, “The executive power shall be vested in a president of the United States of America.” In Section 3, the Constitution reads, “The President shall take care that the laws be faithfully executed.”

Here is the tricky part. Although judicial review of executive and legislative actions has existed in the U.S. since the U.S. Supreme Court’s ruling in 1803 in Marbury v. Madison, there is no executive rollback of Supreme Court rulings.

Nevertheless, rest assured that Biden’s Executive Order is not insignificant.

What President Biden can do—and did do—is instruct federal agencies and departments to comb the law and to recommend to the White House ASAP all mitigating executive avenues available to the president to protect a woman’s right to choose. The president also issued several directives in his Executive Order.

This list below is not exhaustive:

Abortion Crisis Pregnancy Center MG TT 03 — Before Roe v. Wade was overturned, Texas last year spearheaded an effort to prevent women from committing to an abortion, by “seeking alternative resources.”

Photo taken from: Miguel Gutierrez Jr. / The Texas Tribune

The Department of Health and Human Services will identify “potential actions” that might “protect and expand access to abortion care, including medication abortion,” family planning services, emergency contraception, and full protections under the law for women who experience miscarriages and ectopic pregnancies. HHS also must develop a way to promote “awareness of and access to the full range of contraceptive services.”

White House counsel and the Justice Department must reach out to lawyers and “public interest organizations” to encourage lawyers to “represent and assist patients, providers, and third parties lawfully seeking these services throughout the country.”

The Justice Department must work with the Department of Homeland Security to ensure the safety of “patients, providers and third parties” as well as clinics and pharmacies that dispense or otherwise provide reproductive health services. Protecting patients’ personal health data is also on their agenda.

What about protections for states that patients visit for out-of-state abortions? The Justice Department, as the President directed, must provide “technical assistance” to states that want to protect those patients.

AAZn7AF.img — White House says hospitals, doctors must give abortions in emergencies. The Department of Health and Human Services (HHS) reaffirmed that the Emergency Medical Treatment and Labor Act (EMTALA) protects providers when offering legally-mandated, life- or health-saving abortion services in emergency situations.

Photo taken from: The Hill

All the identified federal departments must find solutions to the Supreme Court’s restriction on reproductive rights—protections that federal law on the books today permits. President Biden says that repeatedly in his Executive Order. The solutions must be legally justifiable.

For instance, HHS on July 11 issued “guidance” permitting abortions in Medicare-participating hospitals when the procedures are provided during “life- or health-saving” treatment.

“Under the law, no matter where you live, women have the right to emergency care—including abortion care,” HHS Secretary Xavier Becerra said in a statement. “Today, in no uncertain terms, we are reinforcing that we expect providers to continue offering these services, and that federal law preempts state abortion bans when needed for emergency care. Protecting both patients and providers is a top priority, particularly in this moment. Health care must be between a patient and their doctor, not a politician. We will continue to leverage all available resources at HHS to make sure women can access the life-saving care they need.”

Keep in mind that any federal agency’s interpretation of a federal statute can be challenged in court—perhaps even all the way to the U.S. Supreme Court. Nevertheless, Article VI of the U.S. Constitution makes federal law the “supreme law of the land,” which is a part of what Becerra meant when he stated that “federal law preempts state abortion bans” in medical emergencies.

The Biden-Harris administration’s task is daunting, but it is not impossible. Just about every U.S. president has used the Executive Order to further a policy agenda, according to the American Bar Association. There’s no reason to believe that the administration cannot find, by executive action, bulletproof solutions— fortresses that are legally impenetrable at least until the U.S. Supreme Court rules against them.

In the meantime, there will be a midterm election in November. Efforts to pass a federal statute to protect a woman’s right to make her own reproductive decisions may very well depend on the outcome.