Since the Supreme Court overruled the constitutional right to abortion, the response by President Joe Biden and his administration has lacked any sort of vigor. He and basically the whole Democratic Party were caught without a plan, despite the decision having leaked a month early, giving them time to prepare to defend abortion rights. And now, a full two weeks after the Supreme Court ended Roe v. Wade, Biden finally sounded angry about the decision and announced a new executive order aimed to protect abortion—but it’s disappointingly tepid and vague.
Overturning Roe was “a totally wrongheaded decision,” Biden said in announcing the EO on Friday.
“The practice of medicine should not be frozen in the 19th Century,” he added, referencing the inclusion of Sir Matthew Hale in the SCOTUS opinion—an English legal scholar who wrote that marital rape should be legal.
The EO instructs Health and Human Services (HHS) Secretary Xavier Becerra to “protect access to medication abortion,” but the EO didn’t specify how his administration will be protecting it in states that already ban telemedicine for abortion pills.
In fact, the whole document is mostly devoid of substantive actions. Yes, the administration issued new guidance for the privacy rule under the Health Insurance Portability and Accountability Act (HIPAA), guidance that “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.” But Emma Roth, a lawyer with National Advocates for Pregnant Women, said on Twitter that HHS needs to to engage in actual rule-making on HIPAA’s Privacy Rule. “Biden’s abortion EO is a promising start, but lacks adequate specificity,” she said.
The EO also relies on the Emergency Medical Treatment and Labor Act, promising to “clarify physician responsibilities and protections.” However, abortion providers already pointed out the limitations under EMTALA: Dr. Ghazaleh Moayedi, a Texas abortion provider, noted on Friday that “EMTALA can’t make anyone provide an abortion or protect us from being arrested. This law requires stabilization in emergency medical situations - ‘emergencies’ are defined broadly and allow for A LOT of subjectivity.”
Biden got the most animated when discussing a 10-year-old girl who made national headlines when she was forced to travel out of state for an abortion following her rape. “Imagine being that little girl. Just imagine.” “A 10-year-old girl forced to give birth to a rapist’s child?”
Biden also reminded everyone that the right is starting the drumbeat on a national abortion ban. “As long as I’m president, it won’t happen because I’ll veto it,” he said.
In the EO, Biden says he will convene a volunteer lawyer force to help patients and providers facing legal hurdles to access. Again, this is something that seems like a good idea, but is reinventing the wheel—there are already robust pro-abortion legal services at places like the Center for Reproductive Rights and the American Civil Liberties Union. Who do you think has been challenging every single anti-abortion law passed in state and federal courts? If/When/How: Lawyering for Reproductive Justice, a nonprofit, already exists to help people get legal advice about potential criminalized pregnancy. The infrastructure exists—and people deserve to be paid for their expertise.
The Biden administration reportedly had considered declaring a public health emergency that would allow them to do more, according to Bloomberg Law, but “ultimately decided against the move.” And while progressives like Sen. Elizabeth Warren (D-Mass.) have pushed to make abortions available on federal land, the administration has dismissed that idea.
There is, of course, one line in Biden’s EO that really stands out: “President Biden has made clear that the only way to secure a woman’s right to choose is for Congress to restore the protections of Roe as federal law.” That’s right, dear reader, we’re talking filibuster reform.
Biden, a longtime Senator, only came out in support of a filibuster reform only to codify Roe after Dobbs—but better late than never. Sen. Dianne Feinstein (D-Cali.) released a statement on Thursday saying she also supports a carve out for abortion, and longtime anti-abortion Sen. Bob Casey (D-Pa.) confirmed Thursday that he supports a carve out for codifying abortion rights. “He believes the rule should be changed for a number of issues and this is one of them,” his spokesperson said.
But Democrats would need every one of their senators to vote to do this, and Sens. Joe Manchin (W.Va.) and Kyrsten Sinema (Ariz.) remain opposed to any kind of filibuster reform—even just a specific carve-out to codify Roe.
Biden emphasized in his speech Friday that he needs two additional pro-abortion senators to make any headway in protecting abortion legislatively. “You vote can make that a reality. I know it’s frustrating,” he said. “The court now practically dares the women of American to go to the ballot box.”
He said he hopes women will turn out “in record numbers” to fix this. “The fastest way to restore Roe is to pass a national to law to codify Roe,” he said, adding that he would immediately sign such a law. But that supposes that Democrats will retain control of both the House and the Senate in the midterms, a historic impossibility.
This executive order, to be sure, is better than nothing. And this speech was the first time Biden has shown real fire regarding abortion policy. He even managed to use the word “abortion!” Considering that 50 years of abortion rights were just tossed into the dumpster, however, if he wants voters to turn out in record numbers for him again, he needs to show us stronger leadership.