Biden’s ‘Performative’ Executive Order on Abortion Access
The president looks to appease abortion advocates despite limited legal options.
WASHINGTON — The Biden administration is scrambling to take action on abortion following the Supreme Court’s landmark ruling that overturned Roe v. Wade and returned the question of abortion to the states. After weeks of outrage and complaints from abortion advocates, President Biden July 8 signed an executive order that aims to “promote access to critical reproductive healthcare services, including abortion.”
More than a dozen states have subsequently enacted abortion bans or significant restrictions, and given the limits on what the president can do in light of the Supreme Court’s decision, legal experts told the Register that the Biden administration appears to be trying to intimidate the states through the executive order and the guidance from various agencies that have followed, despite the limited scope of his executive authority.
Clarke Forsythe, senior counsel at Americans United for Life, told the Register that the order is “a desperate attempt by the Biden administration to do something in the wake of the Supreme Court decision.”
Forsyth added that the order’s frequent invocation of federal statutes is “clearly an attempt to project as much federal power as possible to basically eclipse the states in our constitutional and political system.”
In the fact sheet on the order, Biden directs the Department of Health and Human Services (HHS) to “protect access to contraception” and “take additional actions to expand access to the full range of reproductive health services, including family planning services and providers, such as access to emergency contraception and long-acting reversible contraception like intrauterine devices (IUDs).” The order also emphasizes “promoting awareness of and access to the full range of contraceptive services.”
Forsyth said the order spreads “misinformation” by “exaggerating the scope of the Dobbs decision, ignoring what the court actually said” about its potential legal impact on issues other than abortion. He pointed out that “the court’s opinion repeatedly says this is limited to abortion,” referencing Justice Samuel Alito writing in the June 24 Dobbs v. Jackson Women’s Health decision that access to contraception will be unaffected by the decision, as “rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed ‘potential life.’”
Rachel Morrison, an attorney at the Ethics and Public Policy Center, told the Register that “what Biden directs HHS and the other agencies to do was already happening without this executive order, and so it seems to be mostly performative: to appease the left that they are doing something.”
Teresa Collett, a professor at the University of St. Thomas School of Law, told the Register that portions of the order were unnecessary, including the HHS guidance stemming from the order that, under the Emergency Medical Treatment and Labor Act (EMTALA), “if a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition” and “that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment.” If state law “prohibits abortion and does not include an exception for the life and health of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.”
“The simple fact is every abortion statute in the country has an emergency exception,” Collett said. EMTALA already “clearly allows in an emergency situation … [the directive] to stabilize the patient. ... There is no question that it’s permissible.” She said the order is “grandstanding” because “no serious hospital administrator or health-care provider who knows anything about the law could be confused on this point.”
Medication Abortion Expansion
Another area of focus for the administration in the order is protecting “access to medication abortion,” with HHS taking unspecified “additional action” that “will build on the steps the Secretary of HHS has already taken at the President’s direction following the decision to ensure that medication abortion is as widely accessible as possible.”
The Food and Drug Administration had restricted the abortion pill mifepristone under its “Risk Evaluation and Mitigation Strategies” drug-safety program since 2000, only permitting that it be prescribed by a certified health-care provider and dispensed in a clinic, hospital or medical office. However, the FDA made two changes to its safety requirements on the abortion pill in December, first “removing the requirement that mifepristone be dispensed only in certain health care settings, specifically clinics, medical offices, and hospitals,” and “adding a requirement that pharmacies that dispense the drug be certified.” This made abortion pills by mail via telehealth more widely and permanently accessible.
FDA guidelines still specify that women should not take mifepristone if it has been more than 70 days since their last menstrual period, or if they’ve had an ectopic pregnancy, problems with adrenal glands, are currently being treated with long-term corticosteroid therapy, or have an intrauterine device in place.
Shortly after Roe was overturned, Attorney General Merrick Garland warned in a statement that “states may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.” Currently, 29 states require physicians to be the ones administering the abortion pill, and 19 states have in-person requirements banning the use of telemedicine to administer the abortion pill. Texas bans the pill at seven weeks, and Indiana bans it at 10 weeks, which is in line with the FDA guidelines.
Morrison said that “notably missing” from Garland’s statement is the reality that states are not prohibited from placing restrictions of mifepristone; instead, they are prohibited only from disagreeing with the FDA’s judgment about the drug’s safety and efficacy.
She said states can definitely continue to regulate mifepristone “because they have a compelling interest in protecting the lives of an unborn child, and so they can regulate in ways that achieve that compelling interest, which is not a disagreement with the safety and efficacy, but based on the compelling interest to protect life.”
With respect to the strong federal push for medication abortion, Forsythe said it was “simply reckless for the Biden administration to be taking away all medical oversight and offering abortion pills through mail” because it ignores “the real medical risks” posed by the drug. He referenced a recent article he co-wrote with Dr. Donna Harrison, an OB-GYN and executive director of the American Association of Pro-Life Obstetricians and Gynecologists, on state regulation of chemical abortion after Dobbs, in which they pointed out that an “in-person exam is the only opportunity to rule out an ectopic (outside the uterus) pregnancy. An in-person exam is also necessary to accurately determine gestational age, administer Rhogam for women with Rh negative blood types, and to screen for coercion and abuse. The FDA has abandoned its responsibility to minimize the risks to women from chemical abortion.”
They wrote that “states have good reason to limit the gestational weeks in which mifepristone and misoprostol can be used and to require in-person administration by a physician, pregnancy verification, the use of ultrasound to rule out an ectopic pregnancy, and gestational verification by ultrasound.” Additional state requirements might include “an in-person follow-up visit to verify fetal remains” and “that abortion data be recorded and reported for public health examination.”
They concluded that “although federal preemption of state regulations of mifepristone may be litigated, there is a presumption in favor of state police powers over public health and the practice of medicine” and pointed out that “there is no federal statute approving mifepristone, let alone one that clearly preempts state regulations.”
Security for Pro-Life Pregnancy Centers
Another problematic aspect of the executive order, according to pro-life analysts, is the way that it misrepresents the security concerns that have arisen with respect to Dobbs. Collett noted the portion of the order addressing “potential heightened safety and security risks related to the provision of reproductive healthcare services,” which states that “the Attorney General and the Secretary of Homeland Security shall consider actions” to “ensure the safety of patients, providers, and third parties, and to protect the security of clinics.”
She found it “unnecessary and inflammatory, given that, to my knowledge, since the Alito opinion has been issued, there has not been a single vandalization of an abortion clinic, while there have been 35 reported instances of vandalization of pregnancy centers which should fall under the language, both of the executive order and of the Freedom of Access to Clinic Entrances (FACE) Act.”
Morrison said that despite the DOJ’s silence on the matter, pro-life pregnancy centers should be receiving additional security since the executive order defines “reproductive healthcare services” as “medical, surgical, counseling, or referral services relating to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy.” She said, “under that definition, pro-life pregnancy centers would qualify because it’s not required that you address abortion.”
Looking Ahead to the Midterms
Collett said that, for the most part, the proposals in the order are matters where “constitutional challenges are less likely to occur than some of the proposals that congressional Democrats have been demanding.”
One proposal from Democrats in Congress, including Sen. Elizabeth Warren of Massachusetts and Rep. Alexandria Ocasio-Cortez of New York, was to offer abortion on federal lands. A White House official told NBC that the proposal was “well-intentioned” but that it “could put women and providers at risk” since “in states where abortion is now illegal, women and providers who are not federal employees could potentially be prosecuted.”
According to Collett, the president’s messaging on the issue has increasingly been to “try to stay to some large degree within things that are within the executive power.” She pointed to his remarks on the day of the decision that “the only way we can secure a woman’s right to choose and the balance that existed is for Congress to restore the protections of Roe v. Wade as federal law. No executive action from the president can do that. And if Congress, as it appears, lacks the vote — votes to do that now, voters need to make their voices heard.”
She said that the results of a recent Harvard/Harris poll casts doubt on President Biden’s confidence regarding where voters stand on the issue. The poll, conducted after Roe was overturned, found that “half of Americans say abortion should be legal no later than six weeks into pregnancy, and a strong majority say abortion should be legal no later than 15 weeks.” In addition, a new EWTN/RealClear Opinion Research poll found that, among likely Catholic voters, 60% would be less likely to support a political candidate who supports abortion until birth.
“There has been a lot of talk, but when it comes down to it, there’s not a lot of legal avenues that the president or even agencies have to promote abortion or coerce states into allowing abortion,” Morrison said. “That’s why they’re making it an election issue, which I don’t think is going to ultimately be successful for them.”