On June 24, 2022, in a landmark decision in Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey and held that the U.S. Constitution does not contain a right to abortion.
The 6-3 opinion (authored by Justice Samuel Alito and joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, with Chief Justice Roberts concurring in the judgment) has sparked outrage and action by the Biden administration, including by the White House, Department of Health and Human Services (HHS), and Department of Justice (DOJ).
White House Response and Executive Order
Shortly after Dobbs was issued, President Joe Biden stated: “The Court has done what it has never done before: expressly take away a constitutional right that is so fundamental to so many Americans that had already been recognized.” He called on Congress to “restore the protections of Roe v. Wade as federal law,” noting that the President does not have that power.
The Biden administration announced in a Fact Sheet two actions it was taking: (1) protecting the right to seek medical care, including across state lines, and (2) protecting access to contraception and chemical abortion drugs, which are approved by the Food and Drug Administration (FDA).
After criticism by Democrats of Biden’s “painfully inadequate” response (especially considering a draft Dobbs opinion was leaked on May 2), Biden signed an executive order (EO) on July 8—two weeks after the final opinion dropped.
In the EO titled “Protecting Access to Reproductive Health Care Services,” Biden states, “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.”
The EO focuses on safeguarding access to “reproductive healthcare services” (i.e., abortion and contraception), protecting patient privacy and access to information, promoting safety and security, and coordinating Biden administration actions. Most of the EO is focused on actions by HHS, but DOJ and the Federal Trade Commission (FTC) are also included.
More specifically, HHS is directed to identify actions to:
- protect and expand access to abortion (including chemical abortion), as well as family planning services (including emergency contraception);
- increase outreach and public education efforts about reproductive healthcare services, including through the federally funded Title X program;
- ensure pregnant women, and those experiencing miscarriages and ectopic pregnancies, receive necessary emergency medical care as required by federal law; and
- strengthen protections for sensitive health information related to reproductive healthcare services, as well as provide guidance and education on protecting such information.
HHS Secretary Xavier Becerra, Attorney General Merrick Garland, and the Chair of the FTC are directed to “consider” ways to “address deceptive or fraudulent practices related to reproductive healthcare services, including online, and to protect access to accurate information.” (This appears to be targeted towards pro-life pregnancy centers, which some on the Left call “fake clinics” because they do not promote abortion.) The FTC is also “encouraged” to “consider” taking actions “to protect consumers’ privacy when seeking information about and provision of reproductive healthcare services.”
Garland and the Secretary of Homeland Security are directed to “consider” actions to ensure the safety of patients, providers, and reproductive healthcare facilities (including mobile clinics). Garland is further directed to provide technical assistance concerning federal constitutional protections to states seeking to provide abortions to out-of-state residents.
In addition, Garland and the White House Counsel are directed to convene a meeting of volunteer private lawyers to encourage them to represent those who seek or provide abortion. The EO also creates an interagency task force on “Reproductive Health Care Access” to coordinate federal interagency policymaking, program development, and outreach efforts.
It is clear that the Biden administration wants to make Dobbs an election issue. During Biden’s remarks before signing the July 8 EO, he emphasized—“Go out and vote. Well, for God’s sake, there’s an election in November. Vote, vote, vote, vote.” For her part, Vice President Kamala Harris stated that Dobbs purportedly calls into question other “right to privacy” cases about birth control, interracial marriage, and same-sex marriage, urging Americans to vote for elected leaders that will stand for the right to privacy. Never mind Dobbs went out of its way to state “abortion is fundamentally different” from “intimate sexual relations, contraception, and marriage.”
HHS Secretary Becerra called the Dobbs decision “unconscionable,” stating that abortion is “a basic and essential part of health care” and that “patients must have the right to make decisions about their health care and autonomy over their own bodies.” Becerra cited his pro-abortion history and promised that HHS would ensure every American has access to “safe and legal abortion,” including chemical abortion. Becerra directed HHS to “do any and everything [it could] here” and promised HHS “will double down and use every lever [it has] to protect access to abortion care.”
In the same vein, U.S. Surgeon General—"the Nation’s Doctor”—Vice Admiral Dr. Vivek Murthy called Dobbs “a major step backward for public health.” More specifically, the health of women and “pregnant people” will be put at risk, which will disproportionately affect historically marginalized populations. Murthy also stated that “all health decisions . . . should be made by patients and their health care providers.” Despite this platitude shared by Becerra and Garland, earlier this year the Biden HHS and DOJ vigorously defended COVID-19 vaccine mandates issued by HHS’s Centers for Medicare & Medicaid Services (CMS) and the Occupational Safety and Health Administration, requiring health interventions for millions of employees.
On Saturday, June 25—the day after the Dobbs opinion was issued—HHS launched a website (ReproductiveRights.gov), which states “Reproductive health care, including access to birth control and safe and legal abortion care, is an essential part of your health and well-being.” The website includes information about birth control, abortion, and preventative health services, insurance, government programs, and HHS complaints, emergency care, and patient privacy.
On June 27, Becerra, along with Department of Labor Secretary Marty Walsh and Department of the Treasury Secretary Janet Yellen, met with health insurers and issued a letter “reminding them of their obligations under the Affordable Care Act (ACA) to provide coverage for contraceptive services at no cost” and calling on them “to remove impermissible barriers and ensure individuals in your plans have access to the contraceptive coverage they need, as required under the law.”
The next day, on June 28, Becerra held a press conference, reiterating that the Dobbs majority “unconscionably put at risk the life and health of millions of their fellow Americans” and “chose to unconscionably limit Americans’ established freedom and autonomy to control their own body— decisions usually made in consultation with their doctor, not a politician.”
Becerra detailed five priorities:
- Increasing access to chemical abortion.
- Ensuring patient and provider privacy and nondiscrimination.
- Protecting emergency care of women experiencing pregnancy loss or complications.
- Ensuring providers have family planning training and resources.
- Strengthening family planning care, including emergency contraception.
Becerra concluded, “We will leave no stone unturned. All options are on the table. We will do everything within the legal limit of the law to reach patients and support providers.”
On priority 2, HHS issued new guidance on patient privacy on June 29. One guidance (which “does not have the force and effect of law”) addresses when the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule permits disclosure of personal health information, including about abortion, without an individual’s authorization, while a second guidance addresses the extent to which private medical information, such as period trackers and other health information apps, is protected on personal cell phones and tablets.
Regarding the nondiscrimination prong of priority 2, HHS has indicated that it will soon propose new regulations on Section 1557, the ACA’s nondiscrimination provision that prohibits discrimination on the basis of sex (among others bases) in federally funded health care programs and activities. It is anticipated that HHS will define sex to include “termination of pregnancy.” On June 13, HHS announced new guidance to “roughly 60,000 U.S. retail pharmacies, reminding them of their obligations under federal civil rights laws.” Citing to Section 1557 and a disability discrimination law, Section 504 of the Rehabilitation Act of 1973, the guidance (which also does “not have the force and effect of law”) states a pharmacy “may be discriminating” on the basis of sex or disability if it refuses to provide contraception that could act as an abortifacient or fill drugs that can be used for or in conjunction with chemical abortion when the drugs are requested for other reasons based on pregnancy, pregnancy-related medical conditions, or disability.
On priority 3, CMS issued new guidance on July 11 on the Emergency Medical Treatment and Active Labor Act (EMTALA) and abortion. The same day, Becerra sent a letter on EMTALA obligations to health care providers. EMTALA requires hospitals to medically screen, stabilize, and appropriately transfer an individual with an “emergency medical condition,” defined as “a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in—(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part” (emphasis added). The EMTALA statute explicitly and repeatedly recognizes the unborn child. Indeed, “appropriate transfer” is defined as a transfer “in which the transferring hospital provides the medical treatment within its capacity which minimizes the risks to the individual’s health and, in the case of a woman in labor, the health of the unborn child” (emphasis added). By its own terms, EMTALA imposes a duty to save both mother and child.
CMS’s guidance, which purportedly “does not contain new policy,” states (with emphasis): “If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment. When a state law prohibits abortion and does not include an exception for the life and health of the pregnant person—or draws the exception more narrowly than EMTALA’s emergency medical condition definition—that state law is preempted.” No state abortion law prohibits a hospital from taking necessary steps to save a mother’s life or properly treat ectopic pregnancy or miscarriage. An abortion with the intended outcome of the death of the child is never necessary to save the life of the mother. Indeed, if a hospital performs an emergency abortion that results in the mother and child surviving, it is considered a failed abortion.
On priorities 4 and 5, HHS announced on June 30th nearly $3 million in new grants for Title X family planning providers to “increase training and technical assistance to address the challenges that the recent Supreme Court decision may have on their Title X Family planning service delivery.” Title X is a federal program that funds state and private health care organizations offering voluntary family planning services, but per the statute, Title X funds cannot go to programs “where abortion is a method of family planning.”
AG Garland (who was nominated by President Barack Obama for the Supreme Court) called Dobbs “devastating,” stating that DOJ “strongly disagrees” with the Court’s decision, which he says “upended the doctrine of stare decisis.” He called the right to abortion a “fundamental right” that “has been an essential component of women’s liberty” and “has safeguarded women’s ability to participate fully and equally in society.” In fact, “[f]ew rights are more central to individual freedom than the right to control one’s own body.” In line with the Biden administration’s equity push, Garland predicted the decision will disproportionately affect “people of color and those of limited financial means.” Dobbs, according to Garland, “will have an immediate and irreversible impact on the lives of people across the country”—presumably, he is not referring to the lives of unborn children.
Garland promised DOJ will “use every tool at [its] disposal” and “work tirelessly to protect and advance reproductive freedom.” He highlighted several legal protections. First, under Dobbs, states are still permitted to allow abortion within their borders, and the Constitution prohibits states from controlling actions outside their borders. Second, the First Amendment protects advocates peacefully expressing a view for or against abortion; violence and threats of violence are not, and DOJ “will not tolerate such acts.”
Relatedly, the Freedom of Access to Clinic Entrances (FACE) Act prohibits anyone from obstructing access to “reproductive health services” through violence, threats of violence, or property damage. The Act defines “reproductive health services” as services “relating to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy.” Under this definition, pro-life pregnancy centers qualify. But despite the increasing number of attacks—including graffiti threats of violence, broken windows, and fire bombings—on pro-life pregnancy centers (and churches, which the FACE Act also protects), DOJ appears to be silent.
Next, the FDA has approved the use of the “Mifepristone”—one of the two drugs used for chemical abortion. Without citing any legal authority, Garland opined that “States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.” Notably, Garland does not say that states cannot ban Mifepristone for other reasons, such as their compelling interest in protecting the lives of unborn children.
Finally, federal agencies and employees may continue to provide “reproductive health services to the extent authorized by federal law.” (The Hyde Amendment prohibits federal funding for most abortions.) Further, it is DOJ’s “longstanding position” that, in general, states cannot impose criminal or civil liability on federal employees who perform duties as authorized by federal law, and such duties would not violate the Assimilative Crimes Act and lead to prosecution by the federal government. While limited abortions may be permitted under federal law, no law requires the federal government to provide abortion.
On July 12, DOJ established a “Reproductive Rights Task Force” to “monitor and evaluate all state and local legislation and enforcement actions that threaten” legal “reproductive care,” referencing the legal protections Garland identified in his statement. The announcement reiterated that “the best way to protect reproductive freedom is through congressional action,” offering its legal expertise to the legislative branch.
Other Agencies’ Responses
The Department of Defense (DoD) (according to a White House Fact Sheet) issued a memo reiterating that the Department will continue to provide “seamless access to reproductive healthcare” for military service members and families, and DoD civilian patients as permitted by federal law in the cases of rape, incest, or to protect the life of the mother.
The Office of Personnel Management (OPM) issued guidance on June 27 explaining that paid sick leave for federal workers covers absences for necessary travel, including longer distances out of state, to obtain medical examinations or treatments. Conspicuously absent are the terms “abortion” or “reproductive health care services.” However, based on the timing, it is clear that is what the guidance is directed towards, and a subsequent White House Fact Sheet confirmed the guidance was for “reproductive health care.” Senator Rubio sent a letter to OPM stating that paid sick leave for abortion would violate the Hyde Amendment, and asking for clarification that the policy does not cover travel for abortion.
The Wall Street Journal reported on July 12 that a U.S. Immigration and Customs Enforcement (ICE) memorandum states that under existing ICE policies, pregnant women detained in ICE immigration custody “have access to full reproductive health care” and that “it may be necessary to transfer” a pregnant woman to another ICE facility “when appropriate and practicable, in order to ensure such access.”
Considering the Dobbs opinion was leaked over two months ago, many thought the Biden administration’s response would be more robust. Biden has been adamant, however, both that congressional action is needed since executive power is limited and that abortion is an election issue. Nevertheless, the White House, HHS, DOJ, and other federal agencies have been issuing statements and policy positions under existing law at a steady pace. With continued congressional inaction, the Biden administration will certainly keep looking for more ways to push its pro-abortion agenda—legally, politically, or otherwise.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us at email@example.com.