The authority and limitations of executive orders used to safeguard abortion rights



As a decision looms in Dobbs v. Jackson Women’s Health Organization, the landmark Supreme Court case that would effectively eliminate the constitutionally-protected right to legal abortion, pressure on President Joe Biden to take action to protect that right is mounting — so much so that Biden directly addressed it on late-night TV this week, telling Jimmy Kimmel that, while he urged legislative action, the White House is also mulling executive orders protecting abortion access.The authority and limitations of executive orders used to safeguard abortion rights

PostThe Post Dobbs executive order was discussed prior to Biden’s Wednesday appearance however, Biden’s White House has kept quiet about what the proposed actions might be like. The interview he had with Kimmel was no exception; After urging the use of legislation to implement the protections for abortion rights, Biden stated to Kimmel, “I think what we’re going to have to do… There are some executive orders I could employ, we believe — we’re looking at that right now.”

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On Tuesday, prior to Biden’s late-night appearance, Democratic senators, including Chris Van Hollen of Maryland and Elizabeth Warren of Massachusetts wrote to Biden in which they urged Biden to make an announcement to create an entire-government plan to defend the right to choose and citing the administration’s prior willingness to act on protecting voting rights, fighting the spread of racism and enhancing the competition in the economy.

“Now is the time for equally bold action to protect the right to an abortion,” the letter states which states that “the dramatic escalation of attacks on abortion access — spearheaded by right-wing justices, lawmakers, and activists — demands comprehensive and creative strategies from every corner of the federal government.” The letter calls on Biden to provide an executive directive that requires the head of all federal departments to provide their plans for protecting abortion rights within the first 30 days of the order’s announcement and concludes that the issue — as well as the millions of people who could be affected in the event that it is decided by the Supreme Court ruled that Mississippi could indeed prohibit pre-viability abortions will require “no less than a whole-of-government response.”

But the administration has indicated that any decision will be made following the court’s announcement of its decision. It will not be announced in a preemptive manner. “We don’t have a final conclusion,” the former White House Press Secretary Jen Psaki stated at a press conference in May, following the revelation that an unpublished decision by moderate Supreme Court Justice Samuel Alito declaring the Mississippi restriction as constitutional was revealed in the newspaper Politico. “The Supreme Court themselves made clear that this isn’t the final decision. We’re already doing a lot in the background and we’ll have further to add,” Psaki said at the time.

Although the administration reportedly increased its plans following the leak of the draft memo meeting with advocates, providers, as well as state legislators, Democrats, and abortion rights activists, are dissatisfied with the apparent inability to prepare for what they believe is the inevitable end of Roe v. Wade after decades of militant conservatives fighting to overturn it.

“Why is it that we are so far in the back of this? What is the strategy? We were aware of this in principle since Justice AmyConey Barrett joined the court in May. Coney Barrett was appointed to the court in December, and has been it has been in the practice since December.” Democratic strategist Christy Setzer said to The Hill in May. “I don’t want to hear empty rhetoric about how we won’t go back, I want to hear that there is a legislative or federal plan to change things.”

What specifically could executive orders have to do with the right to abortion?

The heart of the Dobbscase There are three issues: Whether it’s illegal for a state to pass any pre-viability laws on abortions; under what law should such a prohibition be read; and if abortion providers have the legal right to challenge the state’s abortion laws in favor of their clients.

Any executive action that the administration chooses to take will be fairly restricted when states are given the power to regulate pre-viability abortion, regardless of the unnecessary burdens this law would impose on those who want to get these procedures, many will legislate the practice virtually to the point of being unenforceable. If it is decided that abortion clinics do not have the legal right to challenge the laws these states pass, it’s likely they’ll ever be challenged as such cases will require substantial resources that individual abortion patients are likely to lack.

The executive orders won’t be able to challenge the decision directly instead, they’ll increase the access to resources available to those who want to have an abortion. “As far as specific actions, there’s any number of areas of concern they could seek to address,” Setzer explained to Vox via email. For instance “working to increase access for low-income women and women of color even in blue states like New York and Connecticut; protecting patient privacy (for patients and medical workers) where abortion will be criminalized; increasing access to contraception under Obamacare in states where it’s limited; working to lessen barriers to getting the abortion pill.”

In the letter they sent on June 7, Democratic legislators highlighted some actions Biden could take, including giving more access to medication abortion, a method of abortion that works early in the pregnancy. The two medications misoprostol and mifepristone combined together, are safe and effective to end pregnancies that are early and are available via post from the time the FDA changed a rule which prohibited postal delivery in December. However, several states that have conservative legislatures quickly adopted measures to prohibit or limit access to them after the decision.

The Democrats in their letter also suggest offering resources such as childcare and travel vouchers for those who need to travel outside of their state of residence to obtain abortion treatment. This would help tackle a major issue for people with low incomes who want an abortion: the huge price of everything as well as the cost associated with the process itself. Costs for childcare, travel as well as lost wages due to being unable to work are among the expenses that women with low incomes seeking abortions in states with restricted access have endured for a long time, as The Intercept published in the year 2019.

The letter proposes a number of interventions of HHS. Department of Health and Human Services (HHS) that include the creation of an ombudsman for reproductive health that “could educate the public and analyze data collected by HHS about access to reproductive services.” This could involve gathering and analyzing information about the insurance coverage available for contraception as well as providing information on the availability of abortion services as well as funding. The lawmakers also suggest HHS seek to broaden the number of reproductive health professionals accessible to Medicaid patients through “more aggressively enforcing federal requirements” that allow patients to choose the choice of the provider they prefer.

The HHS’s Office of Civil Rights could be able to strengthen and clarify the privacy protections for online information about their reproductive health so that it isn’t used by states with strict reproductive and abortion laws. Protection of data is vital for both those who seek abortions and health professionals as an app that tracks your period, for example, may prevent people from having an abortion as it might show how far along their pregnancy is. Additionally, sensitive information regarding abortion providers could compromise their safety or freedom.

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Additionally, the mobilization of federal resources — such as offering reproductive health services on federal land in states with strict restrictions on abortion — might be in the works also. In the July 7th letter to the Pentagon might be able to consider moving military soldiers and their families to access reproductive health or abortion in the event that they require it as well as that

they suggest that the Office of Personnel Management could provide paid time off and reimbursement of procedures for employees of the federal government who have an abortion.

The suggestions listed are solutions to problems; they’re not an actual challenge to the issues raised within the Dobbscase. However, considering how focused the GOP is on sabotaging the right to have an abortion and also the decreasing chance of a Democratic majority approving legislation to safeguard it, the measures might be the best option for the administration to choose from.

Legislative protections will be more secure, however, they’re difficult to put into place.

Biden stressed the importance of legislating and voting in his speech on Wednesday. He claimed that If Dobbs gets ruled out and trigger laws take force, “it’s going to cause a

mini-revolution and they’re going to vote a lot of these folks out of office.” However, in general, the public doesn’t choose to vote on a single issue, and basing your decision on anger isn’t a good strategy with no specific strategy and clear ideas regarding how to safeguard abortion rights have placed Democrats and the reproductive health system in this situation in the first place.

“Part of my displeasure is, frankly, with my own colleagues and friends. The other side for the past 50 years has been operating with an effective legal plan and which strategy will we implement in the next 50 years?” Rep. Elisa Slotkin (D-MI) said Thursday. “As someone who comes from a CIA and Pentagon background, I’m frankly furious that there wasn’t more D-Day, decision day, planning.”

Biden as the president of the Republican party hasn’t been the most forceful in ensuring that abortion rights are protected. “In general, this is an issue where the bully pulpit really matters, and where President Biden still seems afraid to even say the word ‘abortion,'” Setzer said to Vox. “That’s the point — the first step to protecting abortion access is saying the words ‘abortion access.'”

If abortion is not supported with full force at the highest levels the passage of legislation that protects the rights of women to choose abortion is a grueling mountain to climb. It’s failed in the past. Last year it was the Women’s Health Protection Act was passed by the House without any Republican supporters. The bill was rejected by the Senate in May, after the leak of the Dobbsdraft in light of the fact that it didn’t have Republican support. West Virginia Sen. Joe Manchin who is who is a self-described anti-abortion Democrat was a skeptic and was also against it. In the end, expecting fear and outrage about a single issue to alter the state legislatures and even the Senate is a bit an unrealistic expectation, especially if the president doesn’t take a proactive approach to both options to safeguard access to abortion and alternative to conservative control.

In lieu of the Biden’s response and Democrat’s milquetoast’ reaction, Setzer said, Biden and the Democrats need to be speaking about abortion “every opportunity they have. Congress

approved”the Women’s Health Protection Act-Super. Now, let Republicans take a vote on abortion twenty times more prior to November. Instruct them to vote over and over again. Make it a part of your ads. Don’t be scared it’s an effective political issue.”

Without a resolute reaction, the notion that Dobbsdecision by itself can and will have an impact on the midterm elections isn’t convincing. “President Biden’s not wrong — overturning Roe could indeed galvanize votes for Democrats in the midterms, but only if we can believe that the White House can and will take up that fight, and it’s not a promising start,” Setzer declared. “I’m frankly not swayed by their secret plan on abortion.”

The authority and limitations of executive orders used to safeguard abortion rights