Every opposition party in the United States denounces the use of Executive authority by the political party in power. They devote tremendous energy, sometimes successfully top challenge such assertions of executive authority as undemocratic, as a violation of the rule of law, and in violation of administrative practice and its regulatory constraints. In the process much administrative law has been made in the United States, and cultures of administrative operation, especially with respect to the exercise of discretion and the limits of administrative authority, have been made. Executive authority was a battleground during the Trump Administration (e.g., Department of Commerce v. New York, No. 18–966, 588 U.S. ___ (2019) (exercise of discretion by an administrative apparatus). It is one during the Biden Administration as well (e.g., West Virginia v. EPA, No. 20–1530, 597 U.S. ___ (slip op., 30 June 2022) (extent of delegated power to administrative agencies).
Until they become the political party in power.
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These contests reach their zenith when one or another of the political ranches appears to disturb even shaky truce lines in cultural, politically, socially, or religiously important issues. Women's autonomy, reproductive rights, and the protection of the unborn lies at the core of one such very shaky truce system. It was disturbed by the aggressive judicial intervention in Dobbs v. Jackson Women's Health Organization, No. 19–1392 (slip op. 24 June 2022). For my prior analysis here, and here). And the push back from the President, representing a potent and large portion of the nation opposed to the decision and its substance, should not have been unexpected. Again the dialogue between two coordinate branches, each limited in the tools available, and the extent of their authority, now starts its next phase.
The majority of the Supreme Court can content itself only with the law of the case in Dobbs, and the expectation that inferior courts will apply its holding in future cases. Yet American common law traditions suggest that unpopular decisions may be quite narrowly construed--and often distinguished, until it too finds itself on the wrong end of stare decisis. And the courts can be overwhelmed with cases suggesting exceptions. This is beyond the likely judicial contests over state over exuberance is interpreting the4 decision to its own political ends, and the counter thrusts (already started) of individuals cloaking their rights in another conservative principle--the right of free exercise of religion to protect the aut0nomy of women in their reproductive choices.
The President can content himself only with the power of Executive Order, one that the members of his pwn party sought to curtail significantly between 2016 and 2020 when it was being wielded against them by Mr. Trump and his party. These actions, too, may be overwhelmed by litigation and challenge. And they can reach only as far as the administrative authority under the control of the President reaches. That, however, can be sizeable in chunks.
The President has acted. The Executive Order issued 8 July 2022, along with a FACT SHEET distributed by the White House follows. Especially useful are efforts to batter publicize and simplify the means
for individuals to protect their (reproductive) rights in the face of
state interference (see, eg here).
There are a number of interesting approaches in the Executive Order.
In addition to information campaigns and compliance mandates against
fraud and deceptive practices, the Executive Order along with efforts to
encourage litigation and counseling by the organized bar (Section 3--Protecting Access to Reproductive Healthcare Services).
More interesting still, perhaps, is the intent to weaponize existing
federal privacy authority in Section 4 (Protecting Privacy, Safety, and
Security)--perhaps in this case to make it much harder for states to
proceed against individuals seeking to exercise reproductive options in
other states where such options may be lawfully undertaken. These will
likely be subject to countermeasures by opponents. In the process, the
law and practice of federalism in this Republic will surely be
significantly altered.The irony is that both political party organizations will remain adept at both defending and challenging Presidential assertions of Executive authority. While they will likely seek to distinguish good (theirs) from bad (their opponents') efforts, it is likely that the new equilibrium will both refine the art of executive authority and the rules under which it can be exercised. In the process compliance and abuse of discretion will also be transformed as governing principles.
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
Section 1. Policy. Nearly 50 years ago, Roe v. Wade, 410 U.S. 113 (1973), articulated the United States Constitution’s protection of women’s fundamental right to make reproductive healthcare decisions. These deeply private decisions should not be subject to government interference. Yet today, fundamental rights — to privacy, autonomy, freedom, and equality — have been denied to millions of women across the country.
Eliminating the right recognized in Roe has already had and will continue to have devastating implications for women’s health and public health more broadly. Access to reproductive healthcare services is now threatened for millions of Americans, and especially for those who live in States that are banning or severely restricting abortion care. Women’s health clinics are being forced to close — including clinics that offer other preventive healthcare services such as contraception — leaving many communities without access to critical reproductive healthcare services. Women seeking abortion care — especially those in low-income, rural, and other underserved communities — now have to travel to jurisdictions where services remain legal notwithstanding the cost or risks.
In the face of this health crisis, the Federal Government is taking action to protect healthcare service delivery and promote access to critical reproductive healthcare services, including abortion. It remains the policy of my Administration to support women’s right to choose and to protect and defend reproductive rights. Doing so is essential to justice, equality, and our health, safety, and progress as a Nation.
Sec. 2. Definitions. (a) The term “agency” means any authority of the United States that is an “agency” under 44 U.S.C. 3502(1), other than one considered to be an independent regulatory agency, as defined in 44 U.S.C. 3502(5).
(b) The term “reproductive healthcare services” means medical, surgical, counseling, or referral services relating to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy.
Sec. 3. Protecting Access to Reproductive Healthcare Services. (a) Within 30 days of the date of this order, the Secretary of Health and Human Services shall submit a report to the President:
(i) identifying potential actions:
(A) to protect and expand access to abortion care, including medication abortion; and
(B) to otherwise protect and expand access to the full range of reproductive healthcare services, including actions to enhance family planning services such as access to emergency contraception;
(ii) identifying ways to increase outreach and education about access to reproductive healthcare services, including by launching a public awareness initiative to provide timely and accurate information about such access, which shall:
(A) share information about how to obtain free or reduced cost reproductive healthcare services through Health Resources and Services Administration-Funded Health Centers, Title X clinics, and other providers; and
(B) include promoting awareness of and access to the full range of contraceptive services, as well as know-your-rights information for those seeking or providing reproductive healthcare services; and
(iii) identifying steps to ensure that all patients ‑- including pregnant women and those experiencing pregnancy loss, such as miscarriages and ectopic pregnancies — receive the full protections for emergency medical care afforded under the law, including by considering updates to current guidance on obligations specific to emergency conditions and stabilizing care under the Emergency Medical Treatment and Labor Act, 42 U.S.C. 1395dd, and providing data from the Department of Health and Human Services concerning implementation of these efforts.
(b) To promote access to reproductive healthcare services, the Attorney General and the Counsel to the President shall convene a meeting of private pro bono attorneys, bar associations, and public interest organizations in order to encourage lawyers to represent and assist patients, providers, and third parties lawfully seeking these services throughout the country.
Sec. 4. Protecting Privacy, Safety, and Security. (a) To address potential heightened safety and security risks related to the provision of reproductive healthcare services, the Attorney General and the Secretary of Homeland Security shall consider actions, as appropriate and consistent with applicable law, to ensure the safety of patients, providers, and third parties, and to protect the security of clinics (including mobile clinics), pharmacies, and other entities providing, dispensing, or delivering reproductive and related healthcare services.
(b) To address the potential threat to patient privacy caused by the transfer and sale of sensitive health-related data and by digital surveillance related to reproductive healthcare services, and to protect people seeking reproductive health services from fraudulent schemes or deceptive practices:
(i) The Chair of the Federal Trade Commission (FTC) is encouraged to consider actions, as appropriate and consistent with applicable law (including the Federal Trade Commission Act, 15 U.S.C. 41 et seq.), to protect consumers’ privacy when seeking information about and provision of reproductive healthcare services.
(ii) The Secretary of Health and Human Services shall consider actions, including providing guidance under the Health Insurance Portability and Accountability Act, Public Law 104-191, 110 Stat. 1936 (1996) as amended by Public Law 111-5, 123 Stat. 115 (2009), and any other statutes as appropriate, to strengthen the protection of sensitive information related to reproductive healthcare services and bolster patient-provider confidentiality.
(iii) The Secretary of Health and Human Services shall, in consultation with the Attorney General, consider actions to educate consumers on how best to protect their health privacy and limit the collection and sharing of their sensitive health-related information.
(iv) The Secretary of Health and Human Services shall, in consultation with the Attorney General and the Chair of the FTC, consider options to address deceptive or fraudulent practices related to reproductive healthcare services, including online, and to protect access to accurate information.
Sec. 5. Coordinating Implementation Efforts. (a) The Secretary of Health and Human Services and the Director of the Gender Policy Council shall establish and co-chair an Interagency Task Force on Reproductive Healthcare Access (Task Force). Additional members shall include the Attorney General and the heads of other agencies as determined by the Secretary of Health and Human Services and the Director of the Gender Policy Council. The Task Force shall work to identify and coordinate activities to protect and strengthen access to essential reproductive healthcare services. In addition, the Task Force shall coordinate Federal interagency policymaking, program development, and outreach efforts to address barriers that individuals and entities may face in seeking and providing reproductive healthcare services. The Department of Health and Human Services shall provide funding and administrative support as may be necessary for the performance and functions of the Task Force.
(b) The Attorney General shall provide technical assistance, as appropriate and consistent with applicable law, concerning Federal constitutional protections to States seeking to afford legal protection to out-of-State patients and providers who offer legal reproductive healthcare.
Sec. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
JOSEPH R. BIDEN JR.
THE WHITE HOUSE,
July 8, 2022.
__________
FACT SHEET: President Biden to Sign Executive Order Protecting Access to Reproductive Health Care Services
Two weeks ago, the Supreme Court issued a decision that overturned Roe v. Wade and
eliminated a woman’s Constitutional right to choose. This decision
expressly took away a right from the American people that it had
recognized for nearly 50 years – a woman’s right to make her own
reproductive health care decisions, free from government interference.
Fundamental rights – to privacy, autonomy, freedom, and equality – have
been denied to millions of women across the country, with grave
implications for their health, lives, and wellbeing. This ruling will
disproportionately affect women of color, low-income women, and rural
women.
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. Until then, he has committed to doing
everything in his power to defend reproductive rights and protect access
to safe and legal abortion.
Today, President Biden will sign an
Executive Order Protecting Access to Reproductive Health Care Services.
This Executive Order builds on the actions his Administration has
already taken to defend reproductive rights by:
- Safeguarding access to reproductive health care services, including abortion and contraception;
- Protecting the privacy of patients and their access to accurate information;
- Promoting the safety and security of patients, providers, and clinics; and
- Coordinating the implementation of Federal efforts to protect reproductive rights and access to health care.
SAFEGUARDING ACCESS TO REPRODUCTIVE HEALTH CARE SERVICES
The
President has directed the Secretary of Health and Human Services (HHS)
to take the following actions and submit a report to him within 30 days
on efforts to:
- Protect Access to Medication Abortion. HHS
will take additional action to protect and expand access to abortion
care, including access to medication that the FDA approved as safe and
effective over twenty years ago. These actions 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.
- Ensure Emergency Medical Care.
HHS will take steps to ensure all patients – including pregnant women
and those experiencing pregnancy loss – have access to the full rights
and protections for emergency medical care afforded under the law,
including by considering updates to current guidance that clarify
physician responsibilities and protections under the Emergency Medical
Treatment and Labor Act (EMTALA).
- Protect Access to Contraception.
HHS will take additional actions to expand access to the full range of
reproductive health services, including family planning services and
providers, such as access to emergency contraception and long-acting
reversible contraception like intrauterine devices (IUDs). In all fifty
states and the District of Columbia, the Affordable Care Act guarantees
coverage of women’s preventive services, including free birth control
and contraceptive counseling, for individuals and covered dependents.
The Secretary of HHS has already directed the Centers for Medicare and
Medicaid Services to take every legally available step to ensure patient
access to family planning care and to protect family planning
providers.
- Launch Outreach and Public Education Efforts. HHS
will increase outreach and public education efforts regarding access to
reproductive health care services—including abortion—to ensure that
Americans have access to reliable and accurate information about their
rights and access to care.
- Convene Volunteer Lawyers. The Attorney General and the White House Counsel will convene private pro bono attorneys, bar associations, and public interest organizations to encourage robust legal representation of patients, providers, and third parties lawfully seeking or offering reproductive health care services throughout the country. Such representation could include protecting the right to travel out of state to seek medical care. Immediately following the Supreme Court decision, the President announced his Administration’s position that Americans must remain free to travel safely to another state to seek the care they need, as the Attorney General made clear in his statement, and his commitment to fighting any attack by a state or local official who attempts to interfere with women exercising this right.
PROTECTING PATIENT PRIVACY AND ACCESS TO ACCURATE INFORMATION
The
President’s Executive Order takes additional steps to protect patient
privacy, including by addressing 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. The Executive Order will:
- Protect Consumers from Privacy Violations and Fraudulent and Deceptive Practices. 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 President also has directed the Secretary of HHS, in consultation with the Attorney General and Chair of the FTC, to consider options to address deceptive or fraudulent practices, including online, and protect access to accurate information.
- Protect Sensitive Health Information.
HHS will consider additional actions, including under the Health
Insurance Portability and Accountability Act (HIPAA), to better protect
sensitive information related to reproductive health care. The Secretary
of HHS has already directed the HHS Office for Civil Rights to take
initial steps to ensure patient privacy and nondiscrimination of
patients, as well as providers who provide reproductive health care,
including by:
- Issuing new guidance
to address how the HIPAA Privacy Rule protects the privacy of
individuals’ protected health information, including information related
to reproductive health care. The guidance 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.
- Issuing a how-to guide for consumers on steps they can take to make sure they’re protecting their personal data on mobile apps.
- Issuing new guidance
to address how the HIPAA Privacy Rule protects the privacy of
individuals’ protected health information, including information related
to reproductive health care. The guidance 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.
PROMOTING SAFETY AND SECURITY
The Executive Order addresses the heightened risk related to seeking and providing reproductive health care and will:
- Protect Patients, Providers, and Clinics. The Administration will ensure the safety of patients, providers, and third parties, and to protect the security of other entities that are providing, dispensing, or delivering reproductive health care services. This charge includes efforts to protect mobile clinics, which have been deployed to borders to offer care for out-of-state patients.
COORDINATING IMPLEMENTATION EFFORTS
To ensure
the Federal government takes a swift and coordinated approach to
addressing reproductive rights and protecting access to reproductive
health care, the President’s Executive Order will:
- Establish an Interagency Task Force. The President has directed HHS and the White House Gender Policy Council to establish and lead an interagency Task Force on Reproductive Health Care Access, responsible for coordinating Federal interagency policymaking and program development. This Task Force will also include the Attorney General. In addition, the Attorney General will provide technical assistance to states affording legal protection to out-of-state patients as well as providers who offer legal reproductive health care.
EXECUTIVE ORDER BUILDS ON ADMINISTRATION’S ACTIONS TO PROTECT ACCESS TO REPRODUCTIVE HEALTH CARE
In
addition to the actions announced today, the Biden-Harris
Administration has taken the following steps to protect access to
reproductive health care and defend reproductive rights in the wake of
the Supreme Court decision in Dobbs. On the day of the decision, the President strongly denounced the decision
as an affront to women’s fundamental rights and the right to choose In
addition to action mentioned above, the Biden-Harris Administration is:
- Supporting Providers and Clinics. The
Secretary of HHS directed all HHS agencies to ensure that all HHS-funded
providers and clinics have appropriate training and resources to handle
family planning needs, and announced nearly $3 million in new funding to bolster training and technical assistance for the nationwide network of Title X family planning providers.
- Promoting Access to Accurate Information. On the day of the Supreme Court’s decision, HHS launched ReproductiveRights.gov,
which provides timely and accurate information about reproductive
rights and access to reproductive health care. This includes
know-your-rights information for patients and providers and promoting
awareness of and access to family planning services, as well as guidance
for how to file a patient privacy or nondiscrimination complaint with its Office for Civil Rights.
- Providing Leave for Federal Workers Traveling for Medical Care. The Office of Personnel Management issued guidance affirming that paid sick leave can be taken to cover absences for travel to obtain reproductive health care.
- Protecting Access to Reproductive Health Care Services for Service members, DoD Civilians, and Military Families. The Department of Defense (DoD) issued a memo to the Force, DoD civilians and military families on ensuring access to essential women’s health care services. The memo reiterates that the Department will continue to provide seamless access to reproductive healthcare for military and civilian patients, as permitted by federal law. Military providers will continue to fulfill their duty to care for Service members, military dependents and civilian personnel who require pregnancy termination in the cases of rape, incest, or to protect the life of the mother.
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