President Joe Biden signed an executive order Friday to protect access to abortion as he faced mounting pressure from fellow Democrats to be more forceful on the subject after the Supreme Court ended a constitutional right to the procedure two weeks ago.
The actions he outlined are intended to mitigate some potential penalties women seeking abortion may face after the ruling but are limited in their ability to safeguard access to abortion nationwide. Biden acknowledged the limitations facing his office, saying it would require an act of Congress to restore access to abortion in the more than a dozen states where strict limits or total bans have gone into effect in the wake of the Supreme Court’s ruling. About a dozen more states are set to impose additional restrictions in the coming weeks and months.
“The fastest way to restore Roe is to pass a national law,” Biden said. ““The challenge is go out and vote. For God’s sake there is an election in November. Vote. Vote. Vote. Vote!”
Biden formalized instructions to the Departments of Justice and Health and Human Services to push back on efforts to limit the ability of women to access federally approved abortion medication or to travel across state lines to access clinical abortion services. He was joined by Vice President Kamala Harris, HHS secretary Xavier Becerra and Deputy Attorney General Lisa Monaco in the Roosevelt Room as he signed the order.
His executive order also directs agencies to work to educate medical providers and insurers about how and when they are required to share privileged patient information with authorities — an effort to protect women who seek or utilize abortion services. He is also asking the Federal Trade Commission to take steps to protect the privacy of those seeking information about reproductive care online and establish an interagency task force to coordinate federal efforts to safeguard access to abortion.
Biden is also directing his staff to convene volunteer lawyers to provide women and providers with pro bono legal assistance to help them navigate new state restrictions after the Supreme Court ruling.
The order, after the high court’s June 24 ruling that ended the nationwide right to abortion and left it to states to determine whether or how to allow the procedure, comes as Biden has faced criticism from some in his own party for not acting with more urgency to protect women’s access to abortion. The decision in the case known as Dobbs v. Jackson Women’s Health Organization overturned the court’s landmark 1973 Roe v. Wade ruling.
Since the decision, Biden has stressed that his ability to protect abortion rights by executive action is limited without congressional action, and stressed that Democrats do not have the votes in the current Congress to do so.
“We need two additional pro-choice senators and a pro-choice house to codify Roe,” he said. “Your vote can make that a reality.”
He predicted that women would turn out in “record numbers” in frustration over the court’s decision, and said he expected “millions and millions of men will be taking up the fight beside them.”
On Friday, he repeated his sharp criticism of the Supreme Court’s reasoning in striking down what had been a half-century constitutional right to abortion.
“Let’s be clear about something from the very start, this was not a decision driven by the Constitution,” Biden said, accusing the court’s majority of “playing fast and loose with the facts.”
“Ultimately, Congress is going to have to act to codify Roe into federal law,” Biden said last week during a virtual meeting with Democratic governors.
The tasking to the Justice Department and HHS pushes the agencies to fight in court to protect women, but it conveys no guarantees that the judicial system will take their side against potential prosecution by states that have moved to outlaw 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. “Until then, he has committed to doing everything in his power to defend reproductive rights and protect access to safe and legal abortion.”
NARAL Pro-Choice America president Mini Timmaraju called Biden’s order “an important first step in restoring the rights taken from millions of Americans by the Supreme Court.”
But Lawrence Gostin, who runs the O’Neill Institute for National and Global Health at Georgetown Law, described Biden’s plans as “underwhelming.”
“There’s nothing that I saw that would affect the lives of ordinary poor women living in red states,” he said.
Gostin encouraged Biden to take a more forceful approach toward ensuring access to medication abortion across the country and said Medicaid should consider covering transportation to other states for the purposes of getting abortions.
Gostin said, “We basically have two Americas.” There’s one where people have access to a full range of healthcare, and “another where citizens don’t have the same rights to the safe and effective treatments as the rest of the country.”
Chiquita Brooks-LaSure, the administrator of the Centers for Medicare and Medicaid Services, told the AP that the agency was looking at how Medicaid could cover travel for abortions, along with a range of other proposals, but acknowledged that “Medicaid’s coverage of abortion is extremely limited.”
Biden’s move was the latest scramble to protect the data privacy of those contemplating or seeking abortion, as regulators and lawmakers reckon with the aftermath of the Supreme Court ruling.
The decision by the court is expected to make abortion illegal in over a dozen states and severely restricted in others. Privacy experts say that could make women vulnerable because their personal data could be used to surveil pregnancies and shared with police or sold to vigilantes. Online searches, location data, text messages and emails, and even apps that track periods could be used to prosecute people who seek an abortion — or medical care for a miscarriage — as well as those who assist them, experts say.
Privacy advocates are watching for possible new moves by law enforcement agencies in affected states — serving subpoenas, for example, on tech companies such as Google, Apple, Bing, Facebook’s Messenger and WhatsApp, services like Uber and Lyft, and internet service providers including AT&T, Verizon, T-Mobile and Comcast. Local prosecutors may go before sympathetic judges to obtain search warrants for users’ data.
Last month four Democratic lawmakers asked the FTC to investigate Apple and Google for allegedly deceiving millions of mobile phone users by enabling the collection and sale of their personal data to third parties.