A Suite Of Potential Executive Actions For A Post-Roe World

On May 2, 2022, news outlet Politico published a draft of the Supreme Court’s upcoming decision in Dobbs v. Jackson Women’s Health Organization, a case challenging Mississippi’s ban on abortion after 15 weeks. The central argument of the case rests on the constitutionality of abortion, creating an opportunity to reassess the landmark 1973 Roe v. Wade decision that protected the right to abortion before fetus viability. If issued as written, the draft opinion would completely overturn Roe. It asserts there is no Constitutional right to abortion services, thereby permitting states to more heavily regulate or completely ban the procedure.

A federal law codifying abortion rights would offer protection if Roe falls; however, efforts to legislate a solution continue to fall short of the 60 votes needed to pass a divided Senate. Acknowledging this reality, the Biden administration has indicated it is considering taking executive action to help alleviate the effects of state limits and bans on abortion post-Roe. Democratic legislators also urged a “whole-of-government response” in a letter to the President on June 7. The communication highlighted six actions the White House could take, which include:

  1. Increasing access to medication abortion;
  2. Providing resources for individuals seeking abortion care in other states;
  3. Establishing a reproductive health ombudsman at the Department of Health and Humans Services (HHS);
  4. Enforcing “Free Choice of Provider” requirements;
  5. Clarifying protections for sensitive health and location data; and
  6. Using federal property and resources to increase access to abortion.

The court is expected to rule on the case before its term is up in late June or early July. While it is unclear if the draft from February represents the court’s final word on the issue, reproductive rights are expected to be drastically scaled back. Once issued, the Court’s ruling will immediately take effect, putting pressure on the Biden administration to quickly implement safeguards to protect the rights of pregnant people. The White House should take lawmakers’ suggestions seriously and instruct the leaders of each federal agency to submit plans to protect the right to an abortion within 30 days.

WHG’s full issue brief analyzing the six proposed administrative actions listed above is available to all readers here.

Lauren Testa has experience working with a diverse range of clients – including, investors and lenders, federal and local government