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The Story: President Biden signed an executive order on abortion—and he’s discovering the limits of his power on the issue.

The Background: Last Friday morning, President Biden signed an executive order that the administration claims is for “Protecting Access to Reproductive Health Care Services.” Here’s what the executive order entails:

  • Directs the Department of Health and Human Services (HHS) to take additional action to protect and expand access to abortion care, including access to FDA-approved abortifacient drugs.
  • Directs the HHS to take steps to ensure 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).
  • Directs the HHS to 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).” (Note: Some of these IUDs—such as the copper T IUD—may have an abortifacient effect.)
  • Directs the HHS to increase outreach and public education efforts regarding access to abortion.
  • Announces a plan to 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.”
  • Asks the chair of the Federal Trade Commission to consider taking steps to protect consumers’ privacy when seeking information about and provision of abortion-related services.
  • Directs HHS to consider additional actions to better protect sensitive information related to abortion-related services.
  • Charges the federal government with ensuring the “safety of patients, providers, and third parties,” and protecting the “security of other entities that are providing, dispensing, or delivering reproductive health care services.”
  • Directs HHS and the White House Gender Policy Council to establish and lead an interagency Task Force on Reproductive Health Care Access.
  • States that the Attorney General will provide technical assistance to states affording legal protection to out-of-state patients as well as to providers who offer legal reproductive health care.

What It Means: President Biden is learning what previous presidents have discovered: the executive branch doesn’t have much power to affect abortion. The executive order even notes that “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.”

This is not what supporters of abortion wanted to hear. As an article in Politico notes, “Many activists and abortion providers voiced frustration with the [EO]’s scope, vagueness and timing and worried it would do little to influence the impact on the ground of mounting state bans.”

They are correct. Fortunately for the unborn, this order isn’t going to have much effect on the issue now that the Supreme Court has put it back in the hands of our elected representatives in Congress and state legislatures.

Most actions in the executive order are continuing current policies while others are designed merely to give the appearance of “doing something.” Take, for example, the section about the EMTALA and “access to the full rights and protections for emergency medical care.” As HHS Secretary Xavier Becerra said in a news release on Monday, “Today, in no uncertain terms, we are reinforcing that we expect providers to continue offering these services, and that federal law preempts state abortion bans when needed for emergency care.”

The EMTALA protects providers’ clinical judgment and the actions they take to provide stabilizing treatment to pregnant patients who are under emergency medical conditions, regardless of restrictions in any given state. In other words, a state can’t prevent a doctor from performing an abortion to save the life of the mother. But as even the pro-abortion Guttmacher Institute points out, there is no state that bans or restricts abortion that doesn’t already have an exception when the mother’s life is at stake.

U.S. presidents do have some influence on the issue of abortion, which is why it’s imperative that they be pro-life. But aside from nominating Supreme Court justices, most of what they can do is purely symbolic. For the past 50 years, Republican presidents have vied for the title of “Most Pro-Life President Ever” based on whether they spoke at the March for Life (Ronald Reagan and George W. Bush did so by phone, and Trump by satellite) or opposed abortion in a State of the Union Address (Reagan in 1988, George W. Bush in 2003, and Trump in 2019).

Thanks to the Dobbs ruling, to earn the moniker “Most Pro-Abortion President Ever” President Biden (and future Democratic presidents) will have to take steps that are more symbolic than substantive.

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