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The President’s Abortion Executive Order: Both Performative and Deeply Troublesome

[This post originally appeared at the Human Life Review’s NewsWorthy site]

In the aftermath of the Dobbs decision, pro-abortion advocates have been scrambling for a response from the federal government. They obviously don’t want to take their unpopular extremist position—abortion on demand for any reason up until birth—to state legislatures.

President Obama once famously bragged that rather than take the trouble of convincing Congress to pass a law, all he needed was “a phone and a pen.” Today his former vice president followed in his footsteps. Spurred by desperate pro-abortion forces to “do something”, President Biden has issued an executive order “Protecting Access to Reproductive Health Care Services”.

Of course, the Supreme Court in Dobbs held that the regulation of abortion is now a matter for the states. So there’s actually precious little that the federal government can directly accomplish that has anything to do with “access” to abortion. Nevertheless the White House put together a package of initiatives, most of which are purely performative. But some of them are deeply troublesome. Let’s take a look at a few parts of the executive order.

“Safeguarding access to reproductive health care services, including abortion and contraception”

The most significant part of this proposal is the administration’s commitment to making so-called “medication abortion” more available. This is a major goal of pro-abortion forces after Dobbs. Already, over half of abortions are done though medication. They see this as a way of ensuring that abortion is still available even in states that have laws banning it.

But there are significant legal issues involved in any attempt by the federal government to “ensure that medication abortion is as widely accessible as possible.”

After Dobbs, it is clear that the individual states have primary legal authority over the methods of abortion. States have used this authority in the past to ban partial birth abortion, dismemberment abortion, etc. Some have already restricted or banned the use of “medication abortion”. Although the FDA has approved the medicines for use, it is far from clear that the agency can preempt state laws banning their use.

A larger problem for the administration is an already-existing federal law. 18 U.S. Code § 1461 specifically bans mailing “every article or thing designed, adapted, or intended for producing abortion . . . and every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion.” Any violation of this statue is a felony, with a prison sentence of up to five years.

The current Justice Department will certainly never prosecute anyone for violating this statute. But it is a remarkable sign of the administration’s abortion extremism that the president is openly ordering the secretary of HHS to facilitate the commission of a federal felony.

Query—is that a failure to “take care that the laws be faithfully executed” (see Article 2, Section 3 of the Constitution)? Would it constitute an impeachable “high crime and misdemeanor” (Article 2, Section 4)?

“Protecting the privacy of patients and their access to accurate information”

This part of the executive order mainly deals with securing patient information. But that is already robustly protected under the Health Insurance Portability and Accountability Act (HIPAA). So this is another bit of pure public relations.

But there is another part of this proposal that is very troubling. The order directs HHS, the Attorney General and the Federal Trade Commission “to consider options to address deceptive or fraudulent practices, including online, and protect access to accurate information.”

This can only mean one thing. The persecution of pro-life pregnancy resource centers—which rests on the bogus idea that they are deceiving women—has been going on at the state level. But now the persecution will be a federal case. That is very alarming.

The pro-abortion crowd hates pro-life centers because they tell women the truth. They tell mothers that their unborn child is actually a baby, that having a baby doesn’t ruin your life, and that people will walk with them and help them with any difficulties they have in taking care of their baby. Pro-abortion ideology can’t handle those messages, so they seek to suppress the messenger.

We have already seen Senators Warren and Menendez threaten a federal crackdown on pregnancy centers through legislation. Now we will see the agents of the administrative state and law enforcement take the field at the beck and call of the abortion industry.

I was once an Assistant United States Attorney. I know that the government has vast powers that can be used to ruin people’s lives. The last thing that anyone would ever want is to be in the sights of a federal prosecutor or a regulatory enforcer. The investigation itself is the punishment, even if there is no ultimate prosecution or penalty.

The idea of the federal government going after storefront volunteer pregnancy centers is appalling. But that’s part of the president’s plan.

“Promoting the safety and security of patients, providers, and clinics”

Even for the most hardened cynic, it is hard to believe how surreal this is.

Pregnancy centers and churches around the country have been vandalized and damaged since the draft Dobbs opinion was leaked in May. There has been no significant law enforcement response to this campaign of terrorism. The president did not direct the Justice Department to respond to this. There wasn’t even a mention of it in the executive order.

Instead, the federal government will now pour millions of dollars into abortion clinic security. This will add to the tens of millions being spent by states like New York and California.

But for pregnancy centers that are already under attack? Bupkis.

Changing Circumstances

When the president announced this executive order, he lamented that a radical abortion bill could not get a sufficient number of votes in Congress. In doing so, he used some very interesting language, no doubt unintentionally. He urged people to get out and vote for more pro-abortion legislators “if you want to change the circumstance for women, and even little girls in this country.”

The only “circumstance” that will change if the president and his supporters get their way is that fewer women and little girls will be born, and more mothers will be forever scarred by abortion.


Published by Ed Mechmann

I am a life-long New Yorker, a graduate of Columbia College and Harvard Law School, and a former state and federal prosecutor. I am currently the Director of Public Policy and the Director of Safe Environment at the Archdiocese of New York. All opinions here are mine, and mine alone, and do not represent official statements of the Archdiocese. All Glory to God.

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