On July 8, 2022 President Biden issued an Executive Order (EO) on Reproductive Health Services.
The Dobbs Digest is breaking it down, section-by-section, line-by-line.
Now, the EO isn’t very long, but it covers a lot of ground and mandates action in a very short period of time.
You can read the full text here.
For a quick overview of Executive Orders, read my LinkedIn post on the subject here. I’m also reproducing the text below for your convenience.
[FROM LINKEDIN] TRUTH #201: EXECUTIVE ORDERS ARE POWERFUL TOOLS AT THE PRESIDENT’S DISPOSAL
President Biden issued an Executive Order on Protecting Access to Reproductive Healthcare today (see link above).
Executive Orders (EO) are policy directives issued by the President that don’t require Congressional approval. Rather, they’re mandates that circumvent the regular lawmaking process, which can be painfully inefficient. EOs can’t be expressly overridden by an Act of Congress, but they can be revoked by the current or future President at will.
EOs have been issued since the birth of our republic - some for good, and some, on reflection, for ill. The Emancipation Proclamation was an EO, as was the authorization for what became Japanese internment camps during WWII. President Kennedy created the Peace Corps by EO; President Bush created the Department of Homeland Security via EO as well. EOs have also been used to enforce national desegregation policies, including deploying the National Guard to Arkansas in 1957, paving the way for the Little Rock Nine.
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Irrespective of subject matter, EOs aren’t w/o controversy, particularly given the U.S.’s doctrine of separation of powers (SOP). SOP is the hallmark of the American government and, despite its inefficiencies and friction-making nature, was, according to J. Brandeis, adopted “to preclude the exercise of arbitrary power … and save the people from autocracy.” (Myers v. U.S. 1926, dissent).
The framers intentionally limited power by diffusing authority both vertically and horizontally. Vertical allocation of power is between the nation and the states; horizontal allocation is among the 3 branches of the federal government - legislative, executive, and judicial. EOs are part of the horizontal allocation of power.
Interestingly, Art. II of the Constitution vests executive power in the President without qualification; whereas Art. I delegates to Congress only those legislative powers “herein granted.” This distinction has been the source of intense debate over the nature and extent of the President’s inherent power.
EOs tend to be fairly straightforward and direct. They start with a preamble, which explains the purpose of the action, followed by any relevant definitions, and conclude with the order itself. Biden’s EO today followed this format.
I’ll give a full breakdown [in my next post], but here’s the gist.
The EO requires various governmental agencies to report back to the President w/in 30 days with information regarding:(1) Protecting Access to Abortion, and
(2) Addressing the Privacy, Safety, and Security of Patients and Providers.
He has also called on Congress to ratify Roe.
The Takeaway
EOs are powerful tools. Some have profound impact for the long-haul, others, perhaps, for just a short-time. Although they’re unchecked policy prescriptions by the President, there haven’t really been extensive efforts to scale them back from Rs or Ds, for obvious reasons. Elections have consequences!
This edition of The Dobbs Digest picks up where this post ends and examines the Executive Order in detail.
The Executive Order
The President's EO has 6 sections, and some sections have multiple subsections. We'll tackle the sections and their component parts one-by-one. In this edition, we’ll cover Sections 1 & 2 and identified below.
Here are the 6 sections:
1 - Policy
2 - Definitions
3 - Protecting Access to Reproductive Healthcare Services
4 - Protecting Privacy, Safety, and Security
5 - Coordinating Implementation Efforts
6 - General Provisions
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BREAKING IT DOWN: Section 1
Here’s the full text.
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."
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Section 1 has 3 paragraphs. Let’s review them in order.
Note: The EO text is in bold, my commentary is in italics.
EO TEXT:
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.
COMMENTARY:
Roe v. Wade articulated a woman’s right to choose to terminate a first-trimester pregnancy without government interference. This right, per the Supreme Court, arose from the “liberty” component of the 14th Amendment’s due process clause.
The 14th Amendment says that … no state shall deprive any person of life, liberty, or property without due process of law.
The term “liberty” has been interpreted by the high court to encompass certain rights of personal privacy in matters of marriage, sex, and family. The Roe court extended this definition to include a limited right to abortion. Roe is the first time such a right was articulated or acknowledged under U.S. law.
However, in the second trimester, the government’s interests in protecting maternal health and fetal life were on par with the woman’s right to choose, so it could step in with health and safety regulations, but could not proscribe - or prohibit - abortion. By the third trimester, a woman’s right is fully subordinated to those of the state, meaning states can prohibit abortion.
Nineteen years after Roe v. Wade, the U.S. Supreme Court changed the nature and scope of the right to say this: States cannot prohibit abortion pre-viability, but can post-viability. States can also pass reasonable health and safety regulations throughout the entire pregnancy, which was a big departure from Roe.
For a deeper dive in Roe and the rights it protects, listen to Episode 2 of my podcast I Am Roe, Hear Me Roar!
EO TEXT:
These deeply private decisions should not be subject to government interference.
COMMENTARY:
This is the policy statement, or the preference of Biden’s administration. It is aspirational as it reflects an interest in acknowledging rights broader than those Roe prescribed.
EO TEXT:
Yet today, fundamental rights — to privacy, autonomy, freedom, and equality — have been denied to millions of women across the country.
COMMENTARY:
This is a curious statement because no abortion laws specifically address “autonomy, freedom, or equality,” as they focus exclusively on the right to “privacy.”
To be clear, women have NEVER had a positive, or affirmative, legal right to an abortion in the U.S., they’ve only had the right to choose to terminate a pregnancy without undue interference from the state. As a practical matter, this meant that states couldn’t charge doctors with crimes for performing pre-viability abortions. Roe, in the end, was a physician-focused decision, not a woman-focused decision. For Justice Ruth Bader Ginsburg famously criticized Roe for this deficiency.
EO TEXT:
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.
COMMENTARY:
This is an extremely broad statement that, as a lawyer, feels to be more hyperbole than objective truth. It would be helpful to understand how “public health” is impacted more broadly than “women’s health.”
EO TEXT:
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.
COMMENTARY:
Abortion access has not changed at all in more than half of the states, so it would be helpful to understand how access to reproductive healthcare services is threatened for those women, specifically.
If something isn't broken, it doesn’t need to be fixed. But, if it is broken, we need to identify the break, examine it, and determine the best way to fix it.
EO TEXT:
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.
COMMENTARY:
I’m curious to understand why health clinics that provide services other than abortion, such as contraception, are being forced to close.
My gut reaction (and I could be totally wrong) suggests that such clinics simply aren’t profitable without abortion.
Which raises the issue of funding.
Funding bans have been in place and widely used since The Hyde Amendment was passed in 1980, prohibiting use of federal funds for non-therapeutic (not medically necessary) abortions. So, if funding is the issue and the only reason these clinics are closing, that feels like a potentially solvable issue, or at least one that can be mitigated quickly.
EO TEXT:
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.
COMMENTARY:
All women in all states where abortion is banned have to travel for the procedure, not just low-income, rural, and underserved communities.
Perhaps the intent of this statement was to clarify that low-income, rural, and underserved communities will be more severely impacted, which is a different issue. While not ideal, there are mitigating measures that can be taken vis-a-vis funding as noted above.
Also, an objective analysis of the bona fide access low-income women had pre-Dobbs v. post-Dobbs would be a worthy endeavor. History shows us that the access disparities have been alive and well for decades.
EO TEXT:
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.
COMMENTARY:
The Executive Order mandates agencies to gather information and report back to the President within 30 days regarding access, education, and legal support.
EO TEXT:
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.
COMMENTARY:
Section 1 closes with a restatement of the administration’s policy on abortion.
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BREAKING IT DOWN: Section 2
Here’s the full text.
(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.
Section 2 has 2 paragraphs, which comprise the Definitions section of the EO. Let’s review them in order.
Note: The EO text is in bold, my commentary is in italics.
EO TEXT:
(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).
COMMENTARY:
The definitions section of any legal document are extremely important since they explain what certain words mean in the context of the document. Absent a stated definition, words retain their ordinary meaning one would expect to find in a dictionary.
In the EO, the term "agency" is defined by referenced another federal law, 44 U.S.C. 3502(1), which states as follows:
... the term "agency" means any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency, but does not include—
(A) the Government Accountability Office;
(B) Federal Election Commission;
(C) the governments of the District of Columbia and of the territories and possessions of the United States, and their various subdivisions; or
(D) Government-owned contractor-operated facilities, including laboratories engaged in national defense research and production activities;
You'll note in the definition of agency, the EO specifically excludes an agency that would be defined as an "independent regulatory agency" under the same law, just section 5, not section 1.
... the term “independent regulatory agency” means the Board of Governors of the Federal Reserve System, the Commodity Futures Trading Commission, the Consumer Product Safety Commission, the Federal Communications Commission, the Federal Deposit Insurance Corporation, the Federal Energy Regulatory Commission, the Federal Housing Finance Agency, the Federal Maritime Commission, the Federal Trade Commission, the Interstate Commerce Commission, the Mine Enforcement Safety and Health Review Commission, the National Labor Relations Board, the Nuclear Regulatory Commission, the Occupational Safety and Health Review Commission, the Postal Regulatory Commission, the Securities and Exchange Commission, the Bureau of Consumer Financial Protection, the Office of Financial Research, Office of the Comptroller of the Currency, and any other similar agency designated by statute as a Federal independent regulatory agency or commission;
So, for purposes of the EO, the term "agency" means ...
... any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President) ....
and nothing more.
So, when the President is directing an "agency," it will be included among the categories in this definition. Note that all of them are part of the executive branch of the U.S. government, of which he is the head. This EO is not directed to Congress or the courts (the other 2 sections of the U.S. government).
EO TEXT:
(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.
COMMENTARY:
The definitions section of any legal document are extremely important since they explain what certain words mean in the context of the document. Absent a stated definition, words retain their ordinary meaning one would expect to find in a definition.
In the EO, the term "reproductive healthcare services" has a broad definition which is applicable only to this document. Others may define this term differently in different documents, so it's important to bear that in mind.
As for this definition, here's what's included:
- medical, surgical, counseling, or referral services relating to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy
What's important is that this definition includes any medical matters or non-medical counseling services, including services that refer women to pregnancy centers that provide abortions. It is also applicable to men and women since it references the human reproductive system, not just the female reproductive system.
The nuances of this definition will make more sense as we continue to explore the EO.
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That’s a wrap for the edition of The Dobbs Digest. We’ll be back next time with a breakdown of Section 3 of 6 of the Executive Order.
In the meantime, to learn more about the legal history of abortion, be sure to check out my podcast I Am Roe, Hear Me Roar! ...
It’s available on all podcasting apps. You can read the transcripts right here on my Substack page as well.
Thank you for your support!
Warmly,
Kelley