Hooray, Our Abortion Access Executive Order Is Finally Here!

President Joe Biden is expected to sign an executive order aimed at protecting abortion rights — and as much as we sure would have preferred to see this go down several weeks ago when it leaked that the Supreme Court would be overturning Roe, at least it's something.

While the president cannot just restore abortion rights to the whole country, the Executive Order Protecting Access to Reproductive Health Care Services will empower Health and Human Services Secretary Xavier Becerra to implement steps to safeguard at least some reproductive health care options — including ensuring that medication abortion is widely available and accessible, as it was during the early days of the pandemic.

The HHS will also be directed to ensure all patients have access to emergency medical care "including by considering updates to current guidance that clarify physician responsibilities and protections under the Emergency Medical Treatment and Labor Act (EMTALA)." This basically means that physicians will not have to wait to check with their lawyers and the government before treating an ectopic pregnancy.

These two things could be the most helpful if done correctly. The FDA has determined for the last 20 years that medication abortion is safe and effective, and because it is a federal agency, it technically has supremacy over state law. The Department of Justice could, hypothetically, sue states for refusing to comply with FDA safety regulations.


Congress created the FDA’s national drug review system with a purpose of establishing national uniformity. The Supreme Court has previously said that a drug manufacturer should not have to stop selling its product in a state to comply with both federal and state laws. In a post-Roe world, this argument could extend even further to poke holes in bans on all abortion or extreme laws like S.B. 8 by forcing states to allow medication abortions.

The blueprint for this preemption challenge has already been successful against a state’s attempt to ban, and then regulate, a new opioid more stringently than the FDA. In a 2014 case, a court invalidated the state’s regulation as preempted even though the state was acting with an established, evidenced-based safety interest. The different trajectories of opioid and abortion regulation—the former entering the market with less stringent control and the latter subject to the most restrictive measures—makes the preemption argument stronger for abortion, as do the decades of research providing mifepristone’s safety.

EMTALA could also require doctors to treat patients whose self-managed abortions have complications. As these complications do not present any differently from incomplete miscarriages, doctors in emergency rooms would technically be required to treat patients even if they suspect it was the result of a self-managed abortion.

The HHS will also be directed to expand access to contraception, including emergency contraception and IUDs, as well as launch a public outreach and education campaign to ensure people have access to information about their rights and ability to access care.

The EO will also attempt to safeguard the ability of patients to travel to other states to seek abortion care by assembling a group of volunteer lawyers to represent "patients, providers, and third parties lawfully seeking or offering reproductive health care services throughout the country," including those trying to leave their state to get an abortion.

Additionally, in order to protect patients from being prosecuted for what they Google, 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 Department of Defense has been instructed to continue providing reproductive care for military members and their families.

This is all good. There are a few more things that could be done and should at least be considered in the future — for instance, allowing mobile abortion clinics to operate on federal lands, similar to the ones that are being deployed to the borders of forced birth states, making medication abortion available at post offices, allowing civilians to obtain abortion care at military hospitals, and providing travel vouchers to pregnant people seeking abortions. There are ways to do these things without violating the Hyde Amendment (which is gross and shouldn't exist anyway) and it's worth exploring our options here. Still, it's something. We'll take "something"!

And, as the administration recommends, we can also elect an extra seven Democratic senators in November, allowing us to pass the Women's Health Protection Act without eliminating the filibuster. It's a lot harder for individual voters to control that kind of thing (yes, even if we all vote) than it is for existing elected officials to get creative about increasing abortion access, but we can certainly try our best.

Watch Joe Biden sign abortion access executive orders here at 11:30 eastern.


[White House]

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Robyn Pennacchia

Robyn Pennacchia is a brilliant, fabulously talented and visually stunning angel of a human being, who shrugged off what she is pretty sure would have been a Tony Award-winning career in musical theater in order to write about stuff on the internet. Follow her on Twitter at @RobynElyse


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