Biden to Issue Abortion Rights Order

The President has very little power here but he's using it.

President Joe Biden takes notes doing a G7 Leaders' Virtual Meeting Friday, Feb. 19, 2021, in the White House Situation Room.
Official White House Photo by Adam Schultz

AP (“Facing pressure, Biden to sign order on abortion access“):

President Joe Biden will take executive action Friday to protect access to abortion, the White House said, as he faces mounting pressure from fellow Democrats to be more forceful on the subject after the Supreme Court ended a constitutional right to the procedure two weeks ago.

The White House said Biden will speak Friday morning “on protecting access to reproductive health care services.” The actions he was expected to outline are intended to try to mitigate some potential penalties women seeking abortion may face after the ruling but are limited in their ability to safeguard access to abortion nationwide.

What actions? you might ask.

Biden is expected to formalize instructions to the Departments of Justice and Health and Human Services to push back on efforts to limit the ability of women to access federally approved abortion medication or to travel across state lines to access clinical abortion services.

Biden’s executive order will also direct agencies to work to educate medical providers and insurers about how and when they are required to share privileged patient information with authorities — an effort to protect women who seek or utilize abortion services. He will also ask the Federal Trade Commission to take steps to protect the privacy of those seeking information about reproductive care online and establish an interagency task force to coordinate federal efforts to safeguard access to abortion.

The White House said it will also convene volunteer lawyers to provide women and providers with pro bono legal assistance to help them navigate new state restrictions after the Supreme Court ruling.

So, some “pushing back,” “work[ing ] to educate,” and a good old “interagency task force.” And convening volunteers. That doesn’t sound like a lot offhand but the HHS and, especially, DOJ are fairly powerful entities. And having the FTC protect the confidentiality of medical information seems reasonable.

My prediction—and, granted, I’m not going out on a limb here—is that abortion rights groups will rage that this is far too little and anti-abortion activists will scream that its far too much.

There is already some pushback from Senate Republicans, notably Marco Rubio, that some steps the administration has already taken are in violation of the Hyde Amendment. In particular, he’s fighting an OPM policy allowing federal employees who live in states that restrict abortion rights to take paid sick leave to travel out of state. I am not a lawyer (he is) but I’m skeptical of that argument. While the language in the various bills continuing the decades-old policy refers to “abortion services,” as best I can determine it has always been interpreted extremely narrowly: federal tax dollars can’t be used to provide abortions.

Regardless, we’ll certainly see plenty of lawsuits over these new policies.

FILED UNDER: Law and the Courts, US Politics, , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Daryl and his brother Darryl says:

    Biden is damned if he does, damned if he doesn’t.
    The only thing that will make his Democratic critics happy is if he starts Pop-Up Abortion Clinics in National Parks.
    And the only thing that will make Republicans happy is if he shuts up and ignores the Extreme Court’s politically reasoned, and vengeful arguments, made in bad faith.
    The important thing to remember though, is that Republicans still want to terminate Social Security and Medicare.

  2. Kari Q says:

    I still can’t figure out what Biden is supposed to do. He doesn’t have much power to act on this. Powerful rhetoric is about the extent of it.

    @Daryl and his brother Darryl:

    The important thing to remember though, is that Republicans still want to terminate Social Security and Medicare.

    And that Republicans believe 10 year old rape victims should be forced to give birth.

    And that Republicans are trying to restrict women’s travel.

    And that they are already planning to ban contraceptives.

  3. Kathy says:

    @Kari Q:

    He’s supposed to do all the things he can’t do:

    Pass a reproductive health bill
    Pack the Supreme Court
    Increase the Federal Judiciary
    Pass voting rights legislation

    But he doesn’t control the Senate. Sinema and Manchin do.

  4. gVOR08 says:

    I’ll repeat a point I made late yesterday. Republicans fought for fifty years to repeal RvW. (OK, 49, minus the years it took Evangelicals to change their theology and join the crusade. But decades.) The moral of that story isn’t that eventually they won. (Hopefully temporarily.) The moral for Dems is that Rs lost for years and years and got reelected on abortion anyway. We eventually win by appointing a couple of Justices. To get to that point Dems have to win elections, and to win elections they have to be seen to be fighting. Biden needs to do what little he can and announce it with a stemwinder speech promising to appoint non-reactionary justices at the first opportunity. MAGAts are turning anti-corporate. Confuse them by pointing out these Federalist asshats are more pro-corporate than anti-abortion.

  5. SKI says:

    push back on efforts to limit the ability of women to access federally approved abortion medication

    My guess is that this is the next big fight. The FDA has exclusive rights to approve, or dis-approve, medications. State authority has been preempted and can’t deny access to FDA-approved medications. FDA has approved Mifepristone and Misoprostol. States shouldn’t be able to prevent them from being prescribed or used.

  6. Sleeping Dog says:


    True, but that’s not going to stop the revanchist from trying and in some states pass a ban, then it will intimidate physicians in R states that go that route into not prescribing. Years from now, the SC may rule in the favor of the FDA, but they’ll refuse to take a case until there are at minimum 2 opposing rulings at appeals court level. And if until that day comes, there will likely be an R administration that changes the FDA ruling on abortion pills.

  7. James Joyner says:

    @SKI: Not anywhere close to my area of expertise but states regulate prescriptions now. There are a myriad of laws on off-label use of FDA drugs and those regulating the substitution of generic drugs for name-brand drugs. Some states even impose limits on how many pills can be prescribed at a time. If those are legal, then I don’t know why a state can’t punish docs for prescribing an FDA-approved drug that is known to cause abortion if abortion is illegal in that state.

  8. SKI says:

    @James Joyner: It becomes a pre-emption issue. They can regulate in spaces the Feds left open. They can’t over-rule explicit federal regulation.

  9. wr says:

    Hard to imagine just about any Democrat objecting to what Biden said today in his signing statement.. This was not a judicial decision, it was an exercise of raw power by an out-of-control court in league with extremists in the Republican party.

    His delivery was only okay as usual… except when he was talking about the ten year old rape victim, when he was clearly furious.

    One great frustration about Biden is that he is such an institutionalist that he’s been unwilling to call out institutions as broken. That seems to be over now.

  10. Just nutha ignint cracker says:

    @Sleeping Dog: True, it’s not going to stop the revanchists.
    But the efforts off the pro-life forces didn’t stop their revanchists from murdering babies, either. As gVOR08 noted above. It took 50 years for them to stop their revanchists, but they kept hammering away at their message despite their continuing failure. It’s pro-life’s “turn” to get in a multigenerational fight and keep on futilely hammering away at its message despite the fact that it doesn’t seem to change anything.

    As I noted a couple of days ago, what worked for the right may not work for the left. “We want results, and we want them now“ain’t gonna butter no turnips. And a lot of people are going to needlessly be hurt in the interim. That’s what war–even “for the soul of the nation”-type–does. It hurts innocents and bystanders. That’s its nature.

    The sooner you start, the sooner it’ll be over.

  11. Gustopher says:

    I would like to see Biden direct HHS to define a minimum set of “health of the woman” scenarios, and to investigate how to make sure doctors and institutions who don’t respect that face consequences — licenses, funding, whatever they can weasel up.

    An ectopic pregnancy, to pick the simplest example, is nothing but a threat to a woman’s life.

    There are also drugs that can cause abortions which also have use for an assortment of other medical conditions — they are commonly used for autoimmune conditions, cancer treatment, etc. Guidelines to protect access to those should be written up.

    Would these survive judicial scrutiny? Maybe yes, maybe no.

    I don’t expect Biden to perform miracles. I do expect him to push the envelope a tad and not be playing it so safe.

    (And I want Schumer to be calling votes on a series of small bills that should gather 50+ senators support — make Republicans block health of mother exceptions, protecting travel across state lines, first trimester abortions…)

    Theater is important.

  12. Michael Reynolds says:

    Theater is important unless the show is a demonstration of impotence.