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Opinion Biden is doing what he can to protect abortion access

President Biden speaks after signing an executive order on abortion access. (Yuri Gripas/Abaca/Bloomberg News)

Two weeks after the U.S. Supreme Court overturned Roe v. Wade and eliminated a woman’s constitutional right to choose, President Biden signed an executive order Friday that calls on the federal government to do everything in its authority to safeguard some abortion access for residents of states that outlaw the procedure. Exact details of how the administration aims to accomplish this goal remain to be seen; Mr. Biden directed the secretary of Health and Human Services to produce a report. That he didn’t act sooner, and that his order wasn’t sweeping in scope, drew criticism from activists who wanted bold action. But the fact is that the president is limited in his ability to restore abortion access. Mr. Biden is right to take care in devising solutions that have the best chance of success and can withstand legal challenges.

“We cannot allow an out-of-control Supreme Court, working in conjunction with the extremist elements of the Republican Party, to take away freedoms and our personal autonomy,” Mr. Biden said in a speech from the White House. The executive order he signed directed HHS Secretary Xavier Becerra to produce a report within 30 days outlining steps to protect access to medication abortion, expand access to emergency contraception and increase public education about reproductive rights. The order calls on the Federal Trade Commission — an independent agency — to consider taking steps to protect the privacy of people who are looking for information about abortion services. And it directs the attorney general and White House counsel to convene private pro bono attorneys, bar associations and public interest organizations to encourage robust legal representations of patients, providers and third parties. Among those needing possible representation: those traveling out of state to seek medical care.

The order falls short of the demands of some abortion rights advocates, who pushed for the establishment of abortion services on federal or Native American land or in VA hospitals. That those strategies likely would run afoul of laws such as the Hyde Amendment, which bans the use of federal funds for abortions, seems not to matter to those who would have Mr. Biden exceed his authority to accomplish their goals. Surely the country had enough of disregard for the law during the Trump administration.

One possibility pushed by abortion rights advocates and considered by the Biden administration was the declaration of a public health emergency. HHS could then enable the out-of-state prescribing and dispensing of medications for abortion for people in states with abortion bans (there are eight so far). It could also protect physicians from criminal liability after performing the procedure. The administration, Bloomberg Law reported, set aside the idea because it was concerned it would be seen as a public relations tactic, would draw lawsuits and would divert money from covid-19 programs. But if it helps women get the medicine they need and shields doctors, it seems to have some real utility. It should remain on the table for discussion as the plan is put together over the next 30 days.

Whatever the end result, Mr. Biden is correct when he says the only way to secure reproductive rights is for Congress to restore the protections of Roe as federal law. The votes don’t exist for that and accordingly Mr. Biden rightly urged, “The challenge is go out and vote. Well, for God’s sake, there is an election in November. Vote, vote, vote, vote!”

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Members of the Editorial Board and areas of focus: Opinion Editor David Shipley; Deputy Opinion Editor Karen Tumulty; Associate Opinion Editor Stephen Stromberg (national politics and policy, legal affairs, energy, the environment, health care); Lee Hockstader (European affairs, based in Paris); David E. Hoffman (global public health); James Hohmann (domestic policy and electoral politics, including the White House, Congress and governors); Charles Lane (foreign affairs, national security, international economics); Heather Long (economics); Associate Editor Ruth Marcus; and Molly Roberts (technology and society).