The Executive Order On Women’s Health

Let’s look at the Biden administration’s response to Dobbs. It consists, so far, of a big executive order

The fact sheet for the executive order is itself long. The executive order is longer.  I’m going to work from the fact sheet. Last part of the fact sheet first: What has been done already.

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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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Now a quick overview of the rest. I’ve added numbers to the sections that don’t appear in the fact sheet. There is a lot more in the fact sheet! The Secretary of Health and Human Services, Xavier Becerra, will have a big role in the actions going forward.

1. 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. 
  • Ensure Emergency Medical Care. 
  • Protect Access to Contraception. 
  • Launch Outreach and Public Education Efforts. 
  • Convene Volunteer Lawyers. 

I particularly like that last bullet point about volunteer lawyers and pro bono representation.

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.

2. Protecting patient privacy. The Executive Order will:

  • Protect Consumers from Privacy Violations and Fraudulent and Deceptive Practices. 
  • Protect Sensitive Health Information.  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.
    • Issuing a how-to guide for consumers on steps they can take to make sure they’re protecting their personal data on mobile apps.

3. Protecting Patients, Providers, and Clinics.  The Administration will ensure the safety of patients, providers, and third parties, and protect the security of other entities that are providing, dispensing, or delivering reproductive health care services. 

4. 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. 

Here’s a press release from DHHS on the executive order. Again, a lot there.

  • Secretary Xavier Becerra, in a letter to providers, made clear that this federal law preempts state law restricting access to abortion in emergency situations.
  • A list of actions taken so far
  • A list of five priorities

This release and the letter to providers were obviously coordinated with the White House and planned ahead of time. Attorney General statement. States cannot ban mifepristone, part of the medical means for abortion. Under these two statements, it looks like pharmacies can’t refuse to fill prescriptions that might cause abortions. This includes methotrexate, which non-pregnant people have said they cannot get to treat their rheumatoid arthritis.

The Becerra and Garland statements set federal rules above state rules. That will be the cause of many lawsuits. Texas’s Attorney General Ken Paxton is in the lead for prioritizing his state’s right to kill women.

And, btw, Biden will not appoint that anti-abortion judge.

Cross-posted to Lawyers, Guns & Money