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8 July 2022

Has Joe Biden saved abortion?

The US president can’t kid himself that his executive order is all it takes.

By Emily Tamkin

The US president Joe Biden signed an executive order on abortion rights today (8 July), two weeks after the Supreme Court decided to strip millions of their federally guaranteed right to an abortion.

In those two weeks, clinics have shut. In Texas, a state court ruled that a 1925 law banning abortion could go into effect immediately. Clinics in states where abortion remains legal are in high demand from patients inside and outside those states, though in Montana, clinics are pre-emptively restricting access to abortion pills for out-of-state patients to protect themselves from lawsuits. The past two weeks have been a murky legal area, with state courts ruling on what bans can go into effect when; with hospitals making decisions in the interest of limiting their liability, rather than in the interests of women’s health; and with people seeking abortions having to sort out what is still available to them and where by themselves.

Enter Biden’s executive order. This is not legislation, which only Congress can pass at the federal level, but it is a directive to the various parts of the administration. The president directed the Department of Health and Human Services (HHS), for instance, to increase access to abortion medication and protect access to family planning, including contraception, though what this looks like and what protection HHS is actually able to provide in states with anti-abortion laws is not yet clear. The administration is also addressing, through the order, “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”. And the order authorises an inter-agency taskforce, which will include the attorney-general, Merrick Garland, to “provide technical assistance to states affording legal protection to out-of-state patients as well as providers who offer legal reproductive health care”.

Perhaps the most obvious question is why the Biden administration, which knew how the Supreme Court was going to rule on the question of abortion, did not have this executive order prepared for 24 June, the day the Supreme Court announced its decision.  

It is also unclear what some of this will look like in reality. Garland said in a press release two weeks ago that women “in states that have banned access to comprehensive reproductive care must remain free to seek that care in states where it is legal”, and that “we stand 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”. Garland also said that the Justice Department would work with other agencies to resolve questions about who has authority to provide reproductive care. Garland, in other words, already appeared to make some of the same promises that the executive order essentially does. Yet how any of this works is no clearer now than it was two weeks ago.  

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All of the issues the executive order touches on – privacy, access, questions of interstate legality – are important ones. But the executive order in and of itself will not resolve them, or protect access to abortion in the US. If this is all the administration does, it will be woefully insufficient.

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If, however, the executive order is the administration’s jumping-off point, and does result in more information and access to abortion pills, and does convince clinics in states where abortion is still legal that they can help those from states where it is not – if, in other words, Biden does not think that his work on this is done after he signs his name – it will be a start. A late one, but a start.

[See also: Why men don’t get Roe vs Wade]