Biden Acts To Protect Abortion and Reproductive Rights With Executive Order

Fact checked on July 8, 2022 by Vivianna Shields, a journalist and fact-checker with experience in health and wellness publishing.

In response to the Supreme Court's decision to overturn Roe v. Wade, President Joe Biden signed an executive order on Friday meant to ensure access to certain reproductive healthcare services. The executive order comes two weeks after the court decision, which dismantled the federally protected right to an abortion, giving individual states the ability to establish their own legislation around abortion.

The executive order directs the Secretary of Health and Human Services (HHS) to take a number of actions and report back to the White House within 30 days. Those actions include protecting access to medical abortion and contraception, issuing further directives to safeguard private health information, and potentially changing guidance around physician responsibilities and protections related to emergency care.

Though these actions are helpful, there is no action the president can take that can restore the right to an abortion nationwide. As Biden himself made clear in the executive order, the only way to secure access to abortion is for Congress to restore the protections provided under Roe v. Wade as federal law.

"Based on the reasoning of the court there is no constitutional right to choose," Biden said on Friday. "The only way to fulfill and restore that right for women in this country is by voting... We need two additional pro-choice senators and a pro-choice House to codify Roe as law."

Medical Access to Abortion and Contraception

A fact sheet provided by the White House outlines the actions HHS will take to protect and expand access to medication abortion. Currently, abortion pills account for the majority of abortions in the US. Data released by the Guttmacher Institute found that medication abortion accounted for 54 percent of all abortions in 2020, up from 39 percent in 2017.

Medicated abortions typically require the use of two medications, mifepristone and misoprostol, both of which are currently available through the mail in states without abortion restrictions.

As many as 20 states have already proposed bills restricting or banning access to abortion pills since the start of this year. Despite efforts to ban mifepristone, Attorney General Merrick Garland issued a statement after the court's decision to overturn Roe stating, "states may not ban Mifepristone [the first of two medications that make up the abortion pill] based on disagreement with the FDA's expert judgment about its safety and efficacy."

Based on the current information provided by the White House it is unclear how HHS plans to ensure that medication abortion is "widely accessible."

The White House has also promised to protect access to contraception. The Affordable Care Act already guarantees coverage for free birth control and contraceptive counseling to those covered by the insurance and their dependants. The president's executive order directs HHS to take 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 White House fact sheet said.

In addition, 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."

Privacy Protections

Privacy protections were also addressed as part of the newly issued White House fact sheet. The document says HHS and the Federal Trade Commission will consider further actions to protect patient privacy – both online and in medical settings. The White House says it will work to address such issues as "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."

In updated guidance published June 29, HHS clarified that HIPAA's privacy rule "permits but does not require" entities covered under HIPAA, such as hospitals, healthcare providers, and insurance companies, to disclose private medical information "as required by law."

In states where there are no anti-abortion laws and therefore no requirement to disclose a patient's condition, a covered HIPAA entity is only allowed to share PHI when presented with a court order. In states where there are anti-abortion laws and a state requirement to disclose a patient's condition, a covered HIPAA entity is "permitted but not required" to share personal health information under the new HIPAA guidance. However, it still must share PHI when presented with a court order or if there's a danger to life.

The fact sheet shared by the Biden Administration appears to further bolster these protections by issuing new guidance designed to help ensure that 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."

Guidance for Emergency Care

Emergency care has been another concerning ramification of the court's decision to strike down Roe v. Wade. Before signing the executive action, Biden highlighted a scenario in which concerns about legal action could prohibit patients from getting life-saving care. "A patient comes into an emergency room in any state in the union, she is ... experiencing a life-threatening miscarriage, but the doctor is going to be so concerned about being criminalized for treating her they delay treatment to call the hospital lawyer, who's concerned the hospital will be penalized if the doctor provides the life-saving care," he explained.

To prevent scenarios like this, the president's executive action instructs HHS to take steps to ensure that pregnant individuals and those experiencing a pregnancy loss, have access to the "full rights and protections for emergency medical care under the law."

The administration indicated that there may be updates to current guidance surrounding physician responsibilities and protections under the Emergency Medical Treatment and Labor Act (EMTALA). EMTALA, which was enacted in 1986, is designed to ensure public access to emergency services. This measure requires Medicare-participating hospitals that offer emergency services to provide medical exams for emergency medical conditions including active labor. It also requires hospitals that provide stabilizing treatment for patients experiencing an emergency condition.

HHS has 30 days to provide a report back to the White House detailing its actions and any progress made.