DemDaily: Orders in the Aftermath: Access and Abortion

July 11, 2022

It has been over two weeks since the Supreme Court of the United States struck down the landmark 1973 Roe v. Wade decision, holding that there is no longer a federal constitutional right to an abortion.

Amid a national outrage and ongoing protests across the country, at least ten states, emboldened by their new powers, have enacted laws banning abortion. A dozen more are battling it out in lower courts.

The ruling, which placed the authority to implement abortion laws squarely in the hands of individual states, leaves only two paths to overcome the devastating rights stripped by the High Court: the current Congress and the one we vote into office in November.

Ten states have successfully banned abortion so far: Alabama, Arkansas, Louisiana, Mississippi, Missouri, Oklahoma, South Dakota, Texas, West Virginia and Wisconsin.

In the interim, President Joe Biden signed an Executive Order last Friday initiating what is within his limited powers to do to defend reproductive rights and protect access to safe and legal abortion.

The order expands access to medication abortion and emergency contraception, safeguards patient privacy, and protects the security of reproductive health care services providers and mobile clinics deployed to borders to offer care for out-of-state abortions. It also bolsters legal services to protect the right to travel out of state for abortions.

WHITE HOUSE FACT SHEET: President Biden's Executive Order Protecting Access to Reproductive Health Care Services

Safeguarding Access To Reproductive Health Care Services. The President has directed the Secretary of Health and Human Services (HHS) to take the following actions and submit a report to him within 30 days on efforts to:

Protect Access to Medication Abortion. HHS will take additional action to protect and expand access to abortion care, including access to medication that the FDA approved as safe and effective over twenty years ago. These actions 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.

Ensure Emergency Medical Care. HHS will take steps to ensure all patients – including pregnant women and those experiencing pregnancy loss – have access to the full rights and protections for emergency medical care afforded under the law, including by considering updates to current guidance that clarify physician responsibilities and protections under the Emergency Medical Treatment and Labor Act (EMTALA).

Protect Access to Contraception. HHS will 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).

In all fifty states and the District of Columbia, the Affordable Care Act guarantees coverage of women’s preventive services, including free birth control and contraceptive counseling, for individuals and covered dependents. The Secretary of HHS has already directed the Centers for Medicare and Medicaid Services to take every legally available step to ensure patient access to family planning care and to protect family planning providers.

Launch Outreach and Public Education Efforts. HHS will increase outreach and public education efforts regarding access to reproductive health care services—including abortion—to ensure that Americans have access to reliable and accurate information about their rights and access to care.

Convene Volunteer Lawyers. The Attorney General and the White House Counsel will convene private pro bono attorneys, bar associations, and public interest organizations to encourage robust legal representation of patients, providers, and third parties lawfully seeking or offering reproductive health care services throughout the country. Such representation could include protecting the right to travel out of state to seek medical care.

Immediately following the Supreme Court decision, the President announced his Administration’s position that Americans must remain free to travel safely to another state to seek the care they need, as the Attorney General made clear in his statement and his commitment to fighting any attack by a state or local official who attempts to interfere with women exercising this right.

"What we're witnessing wasn't a constitutional judgment, it was an exercise in raw political power...Marriage equality, contraception, and so much more is at risk. This decision affects everyone -- unrelated to choice -- beyond choice. We cannot allow an out-of-control Supreme Court, working in conjunction with extremist elements of the Republican party, to take away freedoms and our personal autonomy." - President Joe Biden

Protecting Patient Privacy And Access To Accurate Information
The President’s Executive Order takes additional steps to protect patient privacy, including by addressing the transfer and sales of sensitive health-related data, combatting digital surveillance related to reproductive health care services, and protecting people seeking reproductive health care from inaccurate information, fraudulent schemes, or deceptive practices. The Executive Order will:

Protect Consumers from Privacy Violations and Fraudulent and Deceptive Practices. The President has asked the Chair of the Federal Trade Commission to consider taking steps to protect consumers’ privacy when seeking information about and provision of reproductive health care services. The President also has directed the Secretary of HHS, in consultation with the Attorney General and Chair of the FTC, to consider options to address deceptive or fraudulent practices, including online, and protect access to accurate information.

Protect Sensitive Health Information. HHS will consider additional actions, including under the Health Insurance Portability and Accountability Act (HIPAA), to better protect sensitive information related to reproductive health care. The Secretary of HHS has already directed the HHS Office for Civil Rights to take initial steps to ensure patient privacy and nondiscrimination of patients, as well as providers who provide reproductive health care, including by:

* Issuing new guidance to address how the HIPAA Privacy Rule protects the privacy of individuals’ protected health information, including information related to reproductive health care. 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.

* Issuing a how-to guide for consumers on steps they can take to make sure they’re protecting their personal data on mobile apps.

Promoting Safety And Security
The Executive Order addresses the heightened risk related to seeking and providing reproductive health care and will:

Protect Patients, Providers, and Clinics. The Administration will ensure the safety of patients, providers, and third parties, and to protect the security of other entities that are providing, dispensing, or delivering reproductive health care services. This charge includes efforts to protect mobile clinics, which have been deployed to borders to offer care for out-of-state patients.

Biden: "The choice we face as a nation is between the mainstream and the extreme, between moving forward and moving backwards, between allowing politicians to enter the most personal parts of our lives and protecting the right to privacy — yes, yes — embedded in our Constitution."

Coordinating Implementation Efforts
To ensure the Federal government takes a swift and coordinated approach to addressing reproductive rights and protecting access to reproductive health care, the President’s Executive Order will:

Establish an Interagency Task Force. The President has directed HHS and the White House Gender Policy Council to establish and lead an interagency Task Force on Reproductive Health Care Access, responsible for coordinating Federal interagency policymaking and program development. This Task Force will also include the Attorney General. In addition, the Attorney General will provide technical assistance to states affording legal protection to out-of-state patients as well as providers who offer legal reproductive health care.

Executive Order Builds On Administration’s Actions To Protect Access To Reproductive Health Care
In addition to the actions announced today, the Biden-Harris Administration has taken the following steps to protect access to reproductive health care and defend reproductive rights in the wake of the Supreme Court decision in Dobbs. On the day of the decision, the President strongly denounced the decision as an affront to women’s fundamental rights and the right to choose In addition to action mentioned above, the Biden-Harris Administration is:

Supporting Providers and Clinics. The Secretary of HHS directed all HHS agencies to ensure that all HHS-funded providers and clinics have appropriate training and resources to handle family planning needs, and announced nearly $3 million in new funding to bolster training and technical assistance for the nationwide network of Title X family planning providers.

Promoting Access to Accurate Information. On the day of the Supreme Court’s decision, HHS launched, which provides timely and accurate information about reproductive rights and access to reproductive health care. This includes know-your-rights information for patients and providers and promoting awareness of and access to family planning services, as well as guidance for how to file a patient privacy or nondiscrimination complaint with its Office for Civil Rights.

Providing Leave for Federal Workers Traveling for Medical Care. The Office of Personnel Management issued guidance affirming that paid sick leave can be taken to cover absences for travel to obtain reproductive health care.

Protecting Access to Reproductive Health Care Services for Service members, DoD Civilians, and Military Families. The Department of Defense (DoD) issued a memo to the Force, DoD civilians and military families on ensuring access to essential women’s health care services. The memo reiterates that the Department will continue to provide seamless access to reproductive healthcare for military and civilian patients, as permitted by federal law. Military providers will continue to fulfill their duty to care for Service members, military dependents and civilian personnel who require pregnancy termination in the cases of rape, incest, or to protect the life of the mother.

"The only way to fulfill and restore that right for women in this country is by voting, by exercising the power at the ballot box...So the choice is clear. If you want to change the circumstance for women and even little girls in this country, please go out and vote...for God’s sake. There’s an election in November. Vote, vote, vote, vote.” - President Joe Biden

RelatedDemDaily: Supreme Court Silences Roe 6/24/22

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Sources: White House, DNC

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