On July 8, 2022 President Biden issued an Executive Order on Reproductive Health Services.
The Dobbs Digest is breaking it down, section-by-section, line-by-line.
Now, the Executive Order (EO) isn’t very long, but it covers a lot of ground and mandates action in a very short period of time. We introduced the EO in the previous edition of The Dobbs Digest and discussed the text of Sections 1 and 2, which you can access here.
You can read the entire EO here.
By way of recap …
The Executive Order
The President's EO has 6 sections, and some sections have multiple subsections.
The Dobbs Digest is breaking them down one at a time.
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
In this edition, we’re diving into Section 3.
BREAKING IT DOWN: Section 3
Here's the full text of Section 3:
Sec. 3. Protecting Access to Reproductive Healthcare Services.
(a) Within 30 days of the date of this order, the Secretary of Health and Human Services shall submit a report to the President:
(i) identifying potential actions:
(A) to protect and expand access to abortion care, including medication abortion; and
(B) to otherwise protect and expand access to the full range of reproductive healthcare services, including actions to enhance family planning services such as access to emergency contraception;
(ii) identifying ways to increase outreach and education about access to reproductive healthcare services, including by launching a public awareness initiative to provide timely and accurate information about such access, which shall:
(A) share information about how to obtain free or reduced cost reproductive healthcare services through Health Resources and Services Administration-Funded Health Centers, Title X clinics, and other providers; and
(B) include promoting awareness of and access to the full range of contraceptive services, as well as know-your-rights information for those seeking or providing reproductive healthcare services; and
(iii) identifying steps to ensure that all patients ‑- including pregnant women and those experiencing pregnancy loss, such as miscarriages and ectopic pregnancies — receive the full protections for emergency medical care afforded under the law, including by considering updates to current guidance on obligations specific to emergency conditions and stabilizing care under the Emergency Medical Treatment and Labor Act, 42 U.S.C. 1395dd, and providing data from the Department of Health and Human Services concerning implementation of these efforts.
(b) To promote access to reproductive healthcare services, the Attorney General and the Counsel to the President shall convene a meeting of private pro bono attorneys, bar associations, and public interest organizations in order to encourage lawyers to represent and assist patients, providers, and third parties lawfully seeking these services throughout the country.
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Let's begin with Section 3, part (a)(i).
Note: The EO text is in bold, my commentary is in italics.
EO TEXT:
Sec. 3. Protecting Access to Reproductive Healthcare Services.
(a) Within 30 days of the date of this order, the Secretary of Health and Human Services shall submit a report to the President:
(i) identifying potential actions:
(A) to protect and expand access to abortion care, including medication abortion; and
(B) to otherwise protect and expand access to the full range of reproductive healthcare services, including actions to enhance family planning services such as access to emergency contraception;
COMMENTARY:
The first substantive directive in the EO is related to protecting access to "Reproductive Health Services," which is a defined term in the EO (see prior TDD details).
The directive is to the Secretary of Health and Human Services, which is the head of an executive "agency," which is also a defined term (see prior TDD for details).
The directive, or task, here is to prepare a report, to be delivered to the President w/in 30 days (so, August 8, 2022) identifying ways to protect and expand access to abortion care (medical, surgical, and medication abortion) as well as the other reproductive health services. This includes those services set forth in the definition of "Reproductive Health Services," such as counseling and referral services for both men and women.
The piece of this that stands out is that the task is for HHS to propose ways the federal government can help accomplish these things, not actually accomplish these things. Given that abortion has been returned to the states, it will be interesting to see what proposals are actually set forth given the government's necessarily limited power over states. Absent a federal law that preempts a state law, this will be interesting.
Let's move on to Section 3, part (a)(ii).
EO TEXT:
(ii) identifying ways to increase outreach and education about access to reproductive healthcare services, including by launching a public awareness initiative to provide timely and accurate information about such access, which shall:
(A) share information about how to obtain free or reduced cost reproductive healthcare services through Health Resources and Services Administration-Funded Health Centers, Title X clinics, and other providers; and
(B) include promoting awareness of and access to the full range of contraceptive services, as well as know-your-rights information for those seeking or providing reproductive healthcare services; and ...
COMMENTARY:
Section 3(a)(ii) continues by directing the HHS to identify ways to increase outreach and education regarding access to reduced cost or no cost RHS through government programs, including launching a public awareness campaign.
Here's a link to the government programs referenced in the EO Section (a)(ii)(A):
Here's a link to the public awareness "Know Your Rights" campaign referenced in Section 3(a)(ii)(B):
Next up, Section 3, part (a)(iii).
EO TEXT:
(iii) identifying steps to ensure that all patients ‑- including pregnant women and those experiencing pregnancy loss, such as miscarriages and ectopic pregnancies — receive the full protections for emergency medical care afforded under the law, including by considering updates to current guidance on obligations specific to emergency conditions and stabilizing care under the Emergency Medical Treatment and Labor Act, 42 U.S.C. 1395dd, and providing data from the Department of Health and Human Services concerning implementation of these efforts.
COMMENTARY:
The third directive, or task, in the EO is for the Secretary of HHS to identify how pregnant women can be sure to receive emergency medical care regarding pregnancy, pregnancy loss, miscarriages, and ectopic pregnancies, particularly by considering updates to enforcement guidelines for the Emergency Medical Treatment and Labor Act, which you can access here.
Here's the bottom line.
If any participating hospital (basically a hospital receiving federal funds) violates the requirements of the law (which outlines when a hospital has to provide emergency care and when it can decline it), they can be fined up to $50,000 per violation (up to $25,000 for hospitals with less than 100 beds).
The same goes for any physician who negligently violates any requirements as well. Patients who are harmed can bring a lawsuit against the hospital and/or physician.
Let's wrap up with Section 3, part (b).
EO TEXT:
(b) To promote access to reproductive healthcare services, the Attorney General and the Counsel to the President shall convene a meeting of private pro bono attorneys, bar associations, and public interest organizations in order to encourage lawyers to represent and assist patients, providers, and third parties lawfully seeking these services throughout the country.
In this final paragraph of Section 3, the President is directing the Attorney General and White House counsel (chief lawyer) to reach out to attorneys, associations, and public assistance organizations and encourage them to provide pro bono (or free) legal services to patients, healthcare providers, and anyone else who believes they may get in the crosshairs of abortion restrictions.
That’s a wrap for the edition of The Dobbs Digest. We’ll be back next time with a breakdown of Section 4 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.
Thank you sooooo much for your support!
Warmly,
Kelley