The A Line Weekly #2
Biden's Executive Order, Codifying Roe into Law, Interstate Commerce Law and Abortion
Hi.
Welcome back to The A Line. This week we’re talking about:
Biden’s Executive Order to protect reproductive rights
What codifying Roe into law may look like
How anti-abortion lawmakers are attempting to use the Commerce Clause to prosecute people for traveling to other states to obtain abortion care
Biden Signs Executive Order Aimed at Protecting Abortion at the Federal Level
On Friday, President Biden signed an Executive Order “Protecting Access to Reproductive Health Care Services.” The order comes after the Biden administration’s assertion that abortion and reproductive services are a right that must be codified into federal law. Reproductive rights are complicated. Biden broke the order down into four categories:
Safeguarding access to reproductive health care services, including abortion and contraception;
Protecting the privacy of patients and their access to accurate information;
Promoting the safety and security of patients, providers, and clinics; and,
Coordinating the implementation of federal efforts to protect reproductive rights and access to health care.
Under each overarching goal, Biden mapped out his specific goals in ensuring safe, legal reproductive care.
Safeguarding access to reproductive health care services, including abortion and contraception
First, Biden directed the Secretary of Health and Human Services (HHS) to “take additional action to protect and expand access to abortion care, including access to medication that the FDA approved as safe and effective over twenty years ago.” Though these “additional actions” are not defined and are rather vague.
Next, the HHS “will take steps to ensure all patients – including pregnant women and those experiencing pregnancy loss – have access to the full rights and protections for emergency medical care afforded under the law…” The order cited the Emergency Medical Treatment and Labor Act (EMTALA) which outlines guidance for physician conduct, but given the medical professions’ history of publically supporting the criminalization of abortion, this doesn’t strike me as a very concrete move toward protecting abortion rights. To ensure reproductive care stays legal we cannot rely on standing acts and laws. What Biden doesn’t seem to fully understand is that old legislation won’t help us. We’ve seen what happens when we leave abortion rights to prior interpretations. To ensure abortion is legal and stays legal, Biden will have to craft a new legislature and work with both Democrats and Republicans to get it passed.
Biden did vow to increase access to information about all reproductive health options and where people can receive care. He also pledged to assemble a team of lawyers, bar associations, and public interest organizations and raise funds to support anyone who needs legal assistance while seeking care. These are the kinds of concrete action steps we need from our government.
Protecting the privacy of patients and their access to accurate information
In an attempt to protect Americans and their private health information, Biden “asked the Chair of the Federal Trade Commission to consider taking steps to protect consumers’ privacy when seeking information about and provision of reproductive health care services.” This, again, falls into a vague category. Maybe Biden can’t make the Chair of the Federal Trade Commission do anything, but he needs to do more than nicely ask her to protect our rights.
The HHS will be issuing new guidance as to how HIPPA protects patients’ healthcare information ensuring patients, doctors, and other healthcare providers know they are not obligated, or in many cases permitted, to divulge private information. The administration also issued a how-to guide for protecting your mobile data when seeking reproductive care.
Promoting the safety and security of patients, providers, and clinics
This bullet point is meant to emphasize Biden’s commitment to protecting those who are offering reproductive care. It is admirable that Biden is acknowledging the violence many face while trying to provide safe abortions and contraceptives. Just this month in Hempstead, NY, Christopher “Fidelis” Moscinski* and his “Witness for Life” organization blocked the entrance to the local Planned Parenthood and stopped patients from entering the facility to receive care. Moscinski and his group used bike locks to shutter Planned Parenthood’s gates and then laid on the ground in front of the gates to physically block patients from entering, while verbally harassing them. Moscinski also leads a monthly march and attempted invasion of the downtown NYC Planned Parenthood on Bleecker Street. There are thousands of groups like Witness for Life across the country. I salute Biden for prioritizing the safety of reproductive healthcare providers and patients, but will remain skeptical of these safety precautions until I see them in practice. After all, even Moscinski has connections to NYPD.
*Usually I would not use an Instagram post as a source but I was unable to find any coverage on this event beyond the photo evidence NYC for Abortions shared on their platform. This speaks volumes about the kind of attention and accountability pro-life activists face.
Coordinating the implementation of Federal efforts to protect reproductive rights and access to health care
Biden directed the HHS and the White House Gender Policy Council to establish and lead an interagency Task Force on Reproductive Health Care Access — a team responsible for coordinating Federal interagency policy making and program development. This task force, which includes the Attorney General, will focus on crafting and implementing policy to protect patients and healthcare providers as well as providing technical support for states providing care to out-of-state patients.
This is the strongest step Biden is taking. By acknowledging that this is in fact a gender policy issue, Biden recognizes the stigmas and biases that are inherently present when drafting and implementing legislation of this kind. In establishing a task force dedicated to ensuring reproductive freedom, Biden has shown us a sign of real action. He is showing us that reproductive rights are a priority. I look forward to following the task force’s work.
In addition to these four main categories, Biden has also appointed the HHS to ensure all family planning agencies have the proper funding, training, and support to handle all family planning needs. The administration is allocating $3 million to fund safe family planning. Biden also declared all federal employees, including military personnel, will receive financial and moral support in seeking both in- and out-of-state care.
My favorite of Biden’s steps: the HHS launched ReproductiveRights.gov to ensure access to quality information.
This is a great start federally. Now we keep going.
Can We Codify Roe Into Federal Law?
Many, including myself, believe reproductive rights should be codified into federal law. It is, in my view, the only way to guarantee reproductive rights for all. Unfortunately, not everyone agrees, making the road to federal codification complicated if not nearly impossible.
The Big Problem: Most Republicans are not going to get on board with this.
As we saw with the number of trigger laws that went into effect after SCOTUS overturned Roe v. Wade — a total of 13— a lot of Republicans are seeking to criminalize abortion in all cases, including rape and incest. Getting these states to support a federal pro-choice law is going to be difficult. It’s definitely going to take more than the two years Biden has left in his term.
In a recent New Yorker piece, staff writer Isaac Chotiner spoke with Leah Litman, an assistant law professor at the University of Michigan and co-host of the “Strict Scrutiney” podcast, on the plausibility of a federal law upholding Roe. Litman said she was “extremely skeptical” that Congress would be able to “codify a federal right to abortion.”
“They are much more likely to conclude that such a statue exceeds Congress’ powers…” she said.
This is because many conservatives do not believe that there is any right to abortion protected under the Fourteenth Amendment. They don’t believe there is any right for Congress to protect, therefore, no need for a law codifying Roe.
This leaves us with only one real option: the Commerce Clause.
Basically, the Commerce Clause gives Congress the power to regulate commerce (economic acts) between states and foreign nations, including Native tribes. Because an abortion procedure costs, on average, between $750 and $1500, it is considered an economic act. Theoretically, Congress could seek to federally legalize abortion and other reproductive care in the context of regulating interstate commerce, a tactic the Biden administration is already employing.
Biden Seeks to Halt Anti-Abortion Laws Criminalizing People for Traveling to Receive Reproductive Care
The Thomas More Society, a conservative legal organization, is working on model legislation for state lawmakers that would allow private citizens to sue anyone helping people who are seeking out-of-state reproductive care, as reported by The Washington Post. The legislature’s language is borrowed from the Texas abortion ban that was enacted last year which empowered private citizens to enforce the ban through civil litigation. If codified, The Thomas More Society’s bill would allow private citizens to act as law enforcement — an unusually strict measure.
The National Association of Christian Lawmakers, an antiabortion organization led by Republican state legislators, escalated things by proposing a bill that criminalizes people for crossing state lines to obtain care.
Peter Breen, vice president and senior counsel for the Thomas More Society feels the bill is justified. “Just because you jump across a state line doesn’t mean your home state doesn’t have jurisdiction,” he said.
I’m going to have to disagree with you there, Breen. The state you live in should not have jurisdiction over your actions in other states. Take smoking pot, for example. Anyone from any state can travel to Colorado, California, or anywhere else where the possession and use of marijuana is legal, and smoke weed. They can buy it in whatever capacity they want — flower, edibles, pre-rolls, carts — and legally get high as a kite as long as they stay within the lines of whatever enlightened state they're in. Healthcare procedures should be no different. It is common for cancer or surgery patients to travel across state lines to receive top-notch health care. It is completely legal to do so. This is interstate commerce. Abortion is a health care procedure like any other. I see no legal or reasonable basis for criminalizing women for crossing state lines to receive one.
The Biden administration has declared it will fight such laws as they violate the right to interstate travel. Even Justice Kavanaugh said, in his Dobbs concurrence, that he did not believe women should be punished for crossing state lines to obtain an abortion. But Republicans and the current Court are notorious for striking down statues they don’t support under the Commerce Clause. Given this, it is unlikely the Biden administration will be able to codify a federal right to abortion anytime soon.
Sen. Jason Rapert of Arkansas already has plans for a special session to discuss the proposed anti-abortion law in his state before the 2023 session convenes. He equated crossing state lines to obtain an abortion to human sex trafficking in stating his intent to codify the restrictive bill into Arkansas state legislature. Such a comparison is frankly, disgusting. Rapert makes it clear men like him have no business governing people’s bodies.
Cases of Note:
A few important cases in the fight for reproductive justice came across my desk this week:
Colorado issued an order protecting those seeking and providing reproductive care in the state
Gov. Jared Polis of Colorado (shoutout to my home state!) issued an order “barring state agencies arresting or extraditing anyone seeking or providing reproductive care.” The order prohibits state agencies from cooperating with out-of-state investigations related to obtaining or providing reproductive health care. The state codified Roe into the state Constitution earlier this year.
North Carolina issued an order protecting abortion access in the state
North Carolina governor, Roy Cooper, signed an executive order protecting reproductive freedom and guaranteeing access to reproductive care in the state. This is an important act as North Carolina resides in a belt of anti-abortion states. The order also rejected other states’ efforts to criminalize women who cross state lines to receive care.
Florida State Abortion Ban is Heading to the Court of Appeals
Florida’s ban on abortion after 15 weeks was halted on July 5 when Florida Circuit Judge John C. Copper ruled the ban unconstitutional under the Florida state Constitution. In 1980, voters amended the state Constitution to ensure “every natural person has the right to be let alone and free from governmental intrusion into his private life.” In 1989, the Florida Supreme Court upheld that the right to abortion was “clearly protected” by the right to privacy.
“This Court must follow the Florida Supreme Court’s precedents on the right to privacy as those precedents currently exist,” wrote Cooper. “Not as they might exist in the future.”
The case was appealed by conservative lawyers and lawmakers and the ban is back in effect until a further judgment is made.
More cases are on the horizon. The ACLU is currently engaged in cases across Utah, Arizona, Texas, Ohio, Kentucky, West Virginia, and Florida.
Community Aid <3
Events:
July 11:
In Atlanta, GA
12:45 p.m.: Public Demand for Closure and Repurposing of Atlanta City Detention Center hosted by the Communities Over Cages Alliance. More info here.
July 13:
Across the US:
4 p.m.: Ban Off Our Bodies Walkout organized by Planned Parenthood. Find city-specific info here.
July 14:
In NYC:
1 p.m.: Stop Eric Adams’ Privatization of NYCHA Protest hosted by the United Front Against Displacement in City Hall Park. More info here.
August 7:
9 a.m.: Fruit Gang for Reproductive Rights 5k at Central Park hosted by Lydia Keating. All proceeds will be going to ARC-Southeast. Get your ticket here. Buy a T-Shirt for the event here.
Orgs that need donations:
New York Abortion Access Fund
The New York Abortion Access Fund is an organization that supports anyone who is unable to pay fully for an abortion and is living in or traveling to New York State by providing financial assistance and connections to other resources. NYAAF provides direct funding to clinics on behalf of the people we serve. When a clinic they work with sees a patient who needs assistance, NYAAF is one of the potential funding sources to which they turn.
Keep Our Clinics
The Keep Our Clinics campaign is the Abortion Care Network’s latest non-profit effort to protect access to care and support independent clinics across the country.
Keep Our Clinics is a fundraiser for independent abortion clinics across the USA. Donation helps independent clinics keep their doors open so they can provide abortion care. Funds are available for: making necessary security improvements, replacing and updating medical equipment, covering legal costs to maintain compliance with politically-motivated regulations, clinic building maintenance and repair, and more.
The People’s Bodega
The People’s Bodega is a WOC and queer-owned collective working to provide nutrition and resources to The People. They currently have chapters in LA and NYC. The People’s Bodega provides items like backpacks, tents, hygiene kits, underwear, socks, and other essentials in addition to meals, snacks, and water.
Gay4U
Gay4U is a traveling food truck initiative offering meals to transgender people of color at absolutely no charge. The group is actively fighting back against the poverty and food insecurity that disproportionally affects trans people of color. It is up to the rest of us to keep the mission financially alive.
A list of other NYC Orgs that need help provided by Mutual Aid NYC
Questions to consider before donating from Mutual Aid NYC:
How are the funds being used by the mutual aid group?
(For example: emergency medical support, living expenses)
How do community members get the resources they need from the mutual aid group?
What community outreach is being done by the mutual aid group?
What is the process for tracking collected and distributed funds?
Resources:
Self-Managed Abortion Info provided by New York City for Abortion Rights and the Reproductive Justice Collective at Columbia
Community Resource Library by Mutual Aid NYC. Search any service by NYC location.
Get Involved!
Here is a list of groups you can join in NYC fighting for intersectional reproductive rights!
That’s all for now. Stay safe.
With love,
Aleksandra
please send any tips or questions to alek.j.goldberg@gmail.com
Update: A prior version of this newsletter incorrectly that Moscinski and his followers “invaded” Hampstead Planned Parenthood. Rather, the group blocked the facility’s entrance and patients from entering.