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What Does Biden Abortion Executive Order Mean? Pills, State Bans Explained

Newsweek 7/8/2022 Zoe Strozewski
President Joe Biden is expected to sign an executive order Friday that the White House says is aimed at protecting access to reproductive health care services. Above, Biden speaks to supporters at Max S. Hayes High School on July 6, 2022 in Cleveland, Ohio. © Angelo Merendino/Getty Images President Joe Biden is expected to sign an executive order Friday that the White House says is aimed at protecting access to reproductive health care services. Above, Biden speaks to supporters at Max S. Hayes High School on July 6, 2022 in Cleveland, Ohio.

President Joe Biden is expected to sign an executive order Friday that the White House said is aimed at protecting access to reproductive health care services.

The move will come two weeks after the U.S. Supreme Court (SCOTUS) struck down Roe v. Wade, which protected the Constitutional right to an abortion for nearly 50 years, in a controversial decision that was lauded by conservatives and condemned by abortion rights advocates.


A White House fact sheet released ahead of the signing said that the executive order was a response to the SCOTUS ruling, and reaffirmed Biden's support for abortion rights.

Here's how the executive order will impact access to abortions and other reproductive health care services once it is in place.

Does Biden's order make abortions legal?

The order will not have any impact on the nationwide legality of abortion procedures. When the Supreme Court struck down the Constitutional right to abortions, the decision on legality was given back to the states.

Some states, like Missouri, Louisiana and South Dakota, almost immediately began invoking abortion trigger bans, preemptive restrictions that were already on the books before Roe was overturned and were permitted to go into effect once the protection was reversed. More conservative-led states that didn't have are expected to pass bans in the wake of the decision.

Other states, like New York, California and Michigan, reaffirmed their commitment to safeguarding abortion access within their borders once Roe was overturned. Two states, New Jersey and Colorado, codified abortion rights into state law earlier this year. Others, like Vermont, Illinois and Rhode Island, already had state laws in place to protect abortion access, Newsweek reported.

The only way abortions could be legalized nationwide would be for Congress to codify them into federal law. Such a law, the Women's Health Protection Act of 2022, failed in the Senate in May when it was not able to reach the 60-vote threshold in order to advance.

The legislation could pass the 100-member Senate with a simple majority, but Democrats would need to end or get an exception to the controversial filibuster rules.

Ending the filibuster would also require a simple majority vote in the Senate, but two Democratic senators, Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, have opposed the move. Because the Senate is evenly divided between Republicans and Democrats, and no Republicans are expected to support the move, the opposition from the two senators makes ending the filibuster extremely unlikely.

"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," the White House fact sheet read. "Until then, he has committed to doing everything in his power to defend reproductive rights and protect access to safe and legal abortion."

What does Biden's executive order do?

The order directs Secretary of Health and Human Services (HHS) Xavier Becerra to take or consider a host of actions to protect reproductive health care services, protect patients' privacy and access to factual information and promote the safety of patients, health care providers and third parties. The HHS was ordered to report back to Biden on progress in 30 days.

The multi-faceted order to protect reproductive health care services, for example, includes directing the HHS to take additional action to protect medication abortions, expand contraception access, ensure emergency medical care for those who are pregnant or experiencing pregnancy loss, increase public outreach and education efforts and convene volunteer lawyers to represent patients, providers and third parties.

The fact sheet did not specify exactly what the HHS' additional action for protecting medication abortion access and contraception would entail.

The order to protect patient privacy, in part seeks to begin addressing concerns about data privacy for patients seeking abortions or other reproductive health care services. Those who experience pregnancy have been urged since Roe was overturned to delete period tracking apps over concerns that authorities could obtain the personal health data they contain for potential criminal cases.

The fact sheet said that Biden directed 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 HHS will weigh additional moves to better safeguard private information on reproductive health care, such as under the Health Insurance Portability and Accountability Act (HIPAA), the sheet said.

It added that the HHS secretary had already issued guidance on HIPAA to make sure doctors, providers and health plans know what private patient information they are not required or permitted to share, including with law enforcement. The HHS has also issued a guide with steps consumers can take to protect their personal data on apps.

Can states still ban medication abortions?

"These actions [to protect and expand access to abortion care] will build on the steps the Secretary of HHS has already taken at the President's direction following the decision to ensure that medication abortion is as widely accessible as possible," the sheet added.

The medication abortion drug, mifepristone, is approved by the U.S. Food and Drug Administration. After the Supreme Court overturned Roe v. Wade, Attorney General Merrick Garland said in a statement that states "may not ban Mifepristone based on disagreement with the FDA's expert judgment about its safety and efficacy."

Garland said that the Justice Department is "ready to work with other arms of the federal government that seek to use their lawful authorities to protect and preserve access to reproductive care."

But states can, and already do, restrict or fully ban medication abortions. Mississippi's ban that went into effect after the Roe decision includes medication abortion, Forbes reported.

Greer Donley, an assistant professor at the University of Pittsburgh Law School, told the medical news site MedPage Today that state abortion bans will include medication abortion, but "arguably a state can't ban an FDA-approved drug."

Newsweek reached out to the White House for comment.

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