Two weeks have passed since the Supreme Court dropped its decision in Dobbs v. Jackson Women’s Health Organization, two weeks of predictable confusion and anxiety as right-wing states enact increasingly punitive abortion restrictions. The situation was always going to be dire: With Roe v. Wade overturned and federal abortion protections revoked, seven states have successfully activated their pre-Dobbs trigger laws, banning the procedure in almost every case. Many more are fighting legal challenges, creating a tangle of red tape that often leaves both providers and patients in limbo, wondering if, how, and when they can legally end a pregnancy where they live. Criminalizing abortion also threatens treatment for other conditions, including (but not limited to) miscarriage, ectopic pregnancy, and even certain forms of arthritis, which may benefit from a drug that can be used in medical termination.
As the fallout has unfolded along unsurprisingly chaotic lines, maybe you have wondered when the Democrats, up to and including President Joe Biden, would finally decide to do something about it.
Today, apparently. On July 8, Biden dropped an “Executive Order Protecting Access to Reproductive Health Care Services” in answer to Dobbs. It empowers Xavier Becerra, the secretary of the Department of Health and Human Services, to implement protections around reproductive-health services from contraception to Plan B to abortion. It also sketches legal provisions for providers and patients who may now find themselves targeted by the state. “This decision affects everyone, unrelated to choice, beyond choice,” Biden said of the Dobbs opinion. “We cannot allow an out-of-control Supreme Court, working in conjunction with extremist elements of the Republican Party, to take away freedoms and our personal autonomy.”
While light on exact details, a White House fact sheet says the order will shore up protections for patients and providers (around their data and personal safety). It also seeks to “protect access to medication abortion” and contraception and ensure emergency medical care for pregnant people. How it will do those things appears contingent on recommendations from the HHS, which Biden has directed to draft a report within 30 days. The order says it will beef up a legal network for patients under fire from their local governments and indicates it will attempt to expand contraceptive access by supporting Title X–funded clinics. The order also promotes a number of online informational guides on patients’ rights, data protection, and filing complaints.
That’s a start, though none of it quite meets the urgency of the moment. But the measure is at least something; many of us have been waiting all this time for the party in power to act, do anything, for the love of God, why are you just sitting there. Since the Court’s conservative majority issued its ruling, Biden has maintained that this mess is beyond his power to fix with an order. On Friday, he reiterated that the only way to restore abortion rights was for people to vote, a line that sounded similar to his June 24 address, in which he expressed open frustration and criticized the justices for their “extremism.” While he was correct in that assessment, and in his description of the decision as “out of touch with the majority of Americans,” his insistence that there was simply nothing he could do about it felt limp. Even if it’s Congress that needs to codify abortion protections, abortion itself has never been the only issue here. For decades, states have harassed, jailed, and prosecuted people on suspicion of abortion even when abortion was considered a constitutional right. Women have long wound up behind bars for miscarriages, stillbirths, driving without a seatbelt. This is not a new phenomenon, and as the rights of the fetus eclipse the rights of the person carrying it, we can expect to see more of that type of punishment. Without any guarantee of bodily autonomy, without the ability to decide when, whether, and if they will have children, people who can get pregnant lose the possibility of equality.
Meanwhile, conservatives have openly pursued new laws that penalize not just providers but also patients, opening them up to surveillance by their neighbors — see Missouri attempting to incentivize private citizens to report people they suspect of crossing state lines to terminate — and by data brokers. Some lawmakers, such as Louisiana State senator Katrina Jackson, have proposed criminally charging patients directly. Although contraception is still legal (for now, though even the Court’s left-leaning members fear it may find its way to the chopping block), doctors are reporting endless questions from worried patients concerned that getting an IUD could get them in trouble with the state.
All of this, it’s worth emphasizing, has been part of the forecast since at least the Dobbs opinion leaked in early May, if not years before. And to me, it seems smart to assume that just as the conservative lawmakers and lobbyists who have spent their careers maligning Roe were always sincere in their stated intention to tear it down, they are just as sincere in their aims to pass a federal abortion ban, reconsider gay marriage, scrap the right to birth control. Maybe it is time to take them at their word and start putting up those guardrails now. Today’s order is a step. It also isn’t enough. Please do more.