On July 8, 2022, US President Joe Biden signed an executive order aimed at protecting and expanding access to abortion care and also at protecting access to contraceptives. The signing formalized measures that the White House had initiated two weeks earlier, after the Supreme Court of the United States (SCOTUS) issued its decision regarding the Dobbs versus Jackson Women’s Health Organization abortion case, on June 24. This Dobbs case involved a Mississippi law prohibiting abortions after 15 weeks gestation. Along with upholding the Mississippi law with 6 justices for and 3 against, the Dobbs decision also overturned the Roe versus Wade decision of 1973, 5-4. Written by Associate Justice Samuel Alito, the Dobbs decision reverses Roe v Wade by taking issue with what is known as substantive due process, a mechanism through which Roe v Wade applied the 14th Amendment to protect abortion as a privacy right. Rather than representing a sudden loss of abortion rights, the Dobbs decision, overturning Roe, was the latest of almost a 50 year process of chipping away at abortion rights. Notably, in many US states, access to abortion had been deteriorating since 1992, when the SCOTUS had issued a decision on a case called Planned Parenthood of Southeastern Pennsylvania versus Casey. This 1992 case upheld the main rational of Roe, substantive due process, supporting the idea that the US Constitution supports a right to privacy that includes the right of women to abortion. However, the Casey decision rejected the trimester framework of Roe, replacing it with an idea that fetal viability (the capability of the baby to survive outside the women) was possible at earlier gestational ages than recognized by Roe.
Planned Parenthood b Casey enabled any US state to enact prohibitions against abortion earlier in pregnancy than had been allowed from 1973 to 1992. Additionally, the SCOTUS Casey decision made it legal for states to enact other restrictions such as requiring women seeking abortions to listen to a list of scary warnings and to go through a 24 hour waiting period after appearing at a clinic seeking an abortion, and requiring a minor to get consent from a least one of her parent to get an abortion, unless the minor can convince a judge that she suffers from a “hardship. Due to Casey and subsequent SCOTUS decisions, in many states, abortion was already difficult for the most vulnerable women, and girls, to obtain prior to Dobbs. Now, there was an aspect of the Pennsylvania law that SCOTUS did not uphold in the Casey case. This was a provision that a woman had to notify her husband that she was getting an abortion. The SCOTUS rejected this spousal notification provision, but it is noteworthy that the Third Circuit US Court of Appeals that had reviewed the case prior to SCOTUS had consisted of three judges. Of those three appellate judges, one of them had favored upholding the Pennsylvania provision requiring a woman to inform her husband about her abortion. That one Third Circuit judge was voted down, but he is now part of SCOTUS and his name is important: Samuel Alito, the very justice who authored the majority opinion in the recent Dobbs case.
President Biden’s executive order of July 8 was written so as to expand abortion access in cases where it had been severely restricted for some time. The assistance from the executive order is limited compared to measures that state court systems will be able to do in cases when there are judges who recognize the flawed nature of the SCOTUS Dobbs decision and compared with measures that Congress will be able to take, if the Democrats win more seats this coming November. But the executive order will help protect access to medication abortion, in which medications, usually mifepristone and misoprostol, are administered to terminate the pregnancy, generally up to 77 days gestation. It will increase outreach and education to help assure that women are aware of available abortion care, and it will help protect access to emergency and other lifesaving treatment for spontaneous abortion (miscarriage), stillbirth, and ectopic pregnancy in states whose laws may otherwise put doctors, clinics, and hospitals to hesitate providing such life saving treatment, due to concerns that providing such treatment might put them at risk of criminal charges and loss of licensure.
During a speech prior to signing the executive order, President Biden asserted the right of the Executive Branch of government to interpret the US Constitution, implying that the Judicial Branch doe not have a monopoly on such interpretation. During his speech, Biden explained how the SCOTUS overturning of Roe was an entirely political act with no valid jurisprudence to back it up. This rebuttal of the Court included noting how Alito’s reliance on state laws against abortion from the 19th century as a basis for claiming that Roe v Wade had been an historical anomaly was flawed, because laws enacted against abortion in the 19th and early 20th centuries had not prohibited abortion throughout the entire course of pregnancy. As we have discussed here on The Pulse, those old laws prohibited abortion after quickening and generally it was up to the women when to reveal that quickening had begun.
During the speech, President Biden also reminded the country about a recent case of a 10 year-old girl, pregnant as a result of rape, being prohibited from receiving an abortion in Ohio, the state where she resided and which has enacted particularly Draconian prohibitions against abortion. The girl had to travel to neighboring Indiana to have the pregnancy terminated and subsequently the physician who provided the abortion care, Dr. Caitlin Bernard, revealed that she was being harassed for providing that care. In an interview with National Public Radio, the interviewer actually felt it necessary to have Dr. Bernard explain to listeners why carrying a pregnancy to term would be dangerous for a 10 year-old. As you may know well by now from reading The Pulse, extreme young age puts a pregnant woman —in this case, we must say a pregnant girl— at high risk of pregnancy complications, such as preeclampsia. Though we haven’t discussed it, you probably also realize that a 10 year-old would also be much more likely than a grown woman to need a cesarean section. This is because the pelvis of a girl is not fully developed, so the birth canal is likely to be too small for the newborn’s head, even the newborn is preterm (which it would be, if the girl suffers from preeclampsia)
Importantly, the executive order protects access to contraceptive care. In connection with this, President Biden mentioned specifically Justice Clarence Thomas’ concurrence in the Dobbs decision, in which Justice Thomas wrote that the same reasoning concerning substantive due process and Roe v Wade may, in the future, enable the Court to reconsider the Griswold v Connecticut case that provided married couples the right to contraception in 1965. In discussing this, President Biden paused for a moment as asked in which century to they (meaning Thomas and the others) think we are living. We discussed the implications of the Thomas concurrence with respect to Griswold v Connecticut recently here on The Pulse, because you should not ignore ignore it. The Dobbs decision is not the end of where abortion opponents want to take things. Importantly, executive order protections for access to contraceptives includes access to emergency contraception, known as “Plan B” or the “morning after pill”.