Biden acts with executive order to protect abortion and reproductive rights

Biden acts with executive order to protect abortion and reproductive rights

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

In response to the Supreme Court's decision to overthrowRoe v. calf, President Joe Biden signed an executive order on Friday aimed at ensuring access to certain reproductive health care services. The executive order comes two weeks after the court decision that struck down the federally protected right to abortion and gave individual states the ability to enact their own abortion legislation.

The executive order directs the Secretary of Health and Human Services (HHS) to take a series of actions and report to the White House within 30 days. These measures include protecting access to medical abortion and contraception, adopting additional policies to protect private health information, and potentially changing guidance on physicians' responsibilities and protections related to emergency care.

While these measures are helpful, there are no actions the president can take to restore abortion rights nationwide. As Biden himself made clear in the executive order, the only way to ensure access to abortion is for Congress to restore the protections it providesRoe v. calfas federal law.

“According to the court’s reasoning, there is no constitutional right to vote,” Biden said Friday. “The only way to fulfill and restore this right for women in this country is to vote…We need two additional pro-choice senators and a pro-choice House to codify Roe into law.”

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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 United States. Data released by the Guttmacher Institute found that medication abortions accounted for 54 percent of all abortions in 2020, up from 39 percent in 2017.

Medication abortions typically require the use of two medications, mifepristone and misoprostol, both of which are currently available by 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 following the court's decision to overturn the drugroe“States may not ban mifepristone [the first of two medications that make up the abortion pill] based on disagreements with the FDA’s expert opinion on its safety and effectiveness.”

According to current information from the White House, it is unclear how HHS plans to ensure that medication abortions are “widely accessible.”

The White House has also promised to protect access to contraceptives. The Affordable Care Act already guarantees coverage for free birth control and contraceptive advice for policyholders and their families. The president's executive order directs HHS to take action to increase access to the "full spectrum of reproductive health services, including family planning services and providers," the White House fact sheet states.

Additionally, HHS has already directed the Centers for Medicare and Medicaid Services to “take all steps available under law to ensure patient access to family planning care and to protect family planning providers.”

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Data protection

Data protection was also addressed as part of the newly issued White House fact sheet. According to the document, HHS and the Federal Trade Commission will consider additional measures to protect patient privacy, both online and in medical settings. The White House says it will work to address issues such as "the transfer and sale of sensitive health-related data, combating digital surveillance related to reproductive health services, and protecting people seeking reproductive health care from inaccurate information, fraudulent schemes, or deceptive practices."

In an updated guidance released June 29, HHS clarified that the HIPAA Privacy Policy “allows, but does not require,” companies covered by HIPAA, such as hospitals, health care 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 HIPAA entity may only share PHI if there is a court order. In states where there are anti-abortion laws and a state requirement to disclose a patient's condition, a HIPAA covered entity is "permitted, but not required" to disclose personal health information under the new HIPAA guidelines. However, it must still share PHI if there is a court order or if there is a threat to life.

The fact sheet shared by the Biden administration appears to further strengthen these protections by issuing new guidance to help ensure that physicians and other medical providers and health plans know that "with limited exceptions, they are not required - and in many cases not permitted - to disclose patients' private information, including to law enforcement authorities."

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Emergency care instructions

Emergency care was another impact of the court's decision to strike downRoe v. Calf.Before signing the executive action, Biden highlighted a scenario in which concerns about legal action could prevent patients from receiving life-saving care. "A patient walks into an emergency room in any state, she suffers... a life-threatening miscarriage, but the doctor will be so worried about being criminalized for his care that he will delay treatment to call the hospital's attorney, who fears the hospital will be penalized if the doctor provides the life-saving care," he explained.

To prevent such scenarios, the President's executive action directs HHS to take measures to ensure that pregnant individuals and individuals experiencing pregnancy loss have access to the "full rights and protections for emergency medical care under the law."

The administration noted that there may be updates to current guidance on physicians' duties and protections under the Emergency Medical Treatment and Labor Act (EMTALA). EMTALA, enacted in 1986, is intended to ensure public access to emergency services. This measure requires Medicare-participating hospitals that provide emergency services to provide medical evaluations for medical emergencies, including active labor. It also requires hospitals to provide stabilizing treatment to patients in emergencies.

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