Probably the most enthusiastic assessment that an abortion rights advocate can make for President Biden’s executive order that aims to “protect access to reproductive health services” is that it’s better than nothing. That’s because the order, signed by Biden in a brief ceremony at the White House on Friday as vice-president Harris and secretary of Health and Human Services Xavier Becerra looked on, has been spoken of by the White House in only the vaguest terms. The order consists of a series of directives aimed at HHS and the justice department, but these directives are imprecisely worded. They create few obligations for these agencies; they appear designed not to ruffle any feathers. It’s unclear what, precisely, the order will mean for abortion access, and specifically what actions those agencies will now be required to take.
The executive order calls for expanded access to abortion medication in states where abortion has not been outlawed; it doesn’t say whether this will include eliminating the current, medically unnecessary restrictions on the drugs or making them available over the counter, as abortion rights advocates have called for. It asks HHS to make “updates to current guidelines”, for emergency medical care, in an effort to reduce deaths in pregnant women whose doctors refuse to intervene in medical crises for fear of harming a fetus and incurring liability; it does not call for HHS to solidify these guidelines into a rule that would more forcefully protect women’s lives.
It asks the Department of Justice to convene volunteer lawyers to represent people trying to get or provide legal abortions and gestures vaguely at providing women defense for things like crossing state lines or obtaining care in one state that is illegal in the one where they live. But it doesn’t say whether the administration will work to support the attorneys already doing this work, like those at the Texas-based Jane’s Due Process or the legal non-profit If/When/How, and it does not say how it will make sure that this supply of volunteer, pro bono legal assistance doesn’t dry up. The order talks about protecting privacy and combatting disinformation, but it makes no mention of crisis pregnancy centers, the fake clinics that deceive patients, disseminate false information about abortions, and suck up large amount of information about the women they lure through their doors. The order calls for HHS to expand access to contraception, but doesn’t say how.
The short version seems to be, that the Biden administration will make no effort to reverse the sadistic and draconian attacks on women’s rights in red states. But it will make some kind of vague, still-undefined effort to stop them from spreading to blue ones.
It’s not much of a payoff, considering the massive amount of pressure from abortion rights advocates that it took to elicit this response from the Biden administration. Despite having a six-week heads-up on the coming overturn of Roe after a draft of the majority opinion was leaked in early May, and in spite of having more than a year since the case, whose outcome was never in doubt, was granted cert by the US supreme court, the Biden administration seemed flat-footed and caught off guard by the end of national abortion rights.
Reporting from CNN claims that the White House was unique among court watchers in being surprised when the Dobbs decision was released on 24 June. In a sign of how seriously the administration is taking women’s rights, an aide assigned to respond to the Dobbs decision was out getting coffee when she heard about the opinion’s release from a push notification on her phone. For his part, Biden himself is so enthusiastic about abortion rights that he was planning to nominate an anti-choice Republican judge to a lifetime appointment on a federal district court in Kentucky that very same day.
Overall, the administration has seemed unwilling to move towards a more robust defense of women’s freedoms, and unwilling to treat the reversal of Roe as the disaster for equal rights and civil liberties that their base sees it as. They issue capacious statements – and, now, a capacious executive order – that are light on specifics, and tend to conspicuously avoid the word “abortion.” When Joe Biden began his signing ceremony for his executive order, he did not immediately turn to the reason why he was there – the rollback of a fundamental civil and human right for half of his constituents. Instead, he took a moment to boast about some promising jobs numbers. When the signing ceremony concluded, the first question the president took was from a male reporter, who asked about the assassination of former Japanese prime minister Shinzo Abe.
Perhaps what’s most noticeable about Biden’s executive order is what it doesn’t say. It does not say that the administration will make federal lands in red states available for abortion services, as some legal experts have urged. It does not say that the DoJ will bring lawsuits against states that ban abortion medication, on the theory that such bans violate the FDA’s supremacy. It does not pledge a repeal of the Hyde amendment.
The somewhat lukewarm reception of Biden’s EO from the reproductive rights community may have been tempered by reporting from Bloomberg on Friday that the administration had dismissed the idea of declaring a national health emergency in response to the supreme court ruling, a move that would have empowered the administration to respond proportionately to the massive and ongoing threat to women’s safety and liberty. According to Bloomberg, Biden and his advisers ditched the idea because they didn’t want to get sued over it. In his statements before signing the executive order, Biden said that his administration would “use every tool available” to secure abortion access. Well, apparently not every tool.
Moira Donegan is a Guardian US columnist
