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No, Biden’s executive order doesn’t reverse the Supreme Court decision to overturn Roe v. Wade

On July 8, President Joe Biden signed an executive order expanding abortion access. Here’s what that order does.
Credit: AP
President Joe Biden signs an executive order on abortion access during an event in the Roosevelt Room of the White House, Friday, July 8, 2022, in Washington. From left, Vice President Kamala Harris, Health and Human Services Secretary Xavier Becerra, and Deputy Attorney General Lisa Monaco look on. (AP Photo/Evan Vucci)

On July 8, President Joe Biden signed an executive order that aims to protect abortion access across the U.S. The order was in response to the Supreme Court’s decision to overturn Roe v. Wade, which federally protected the right to abortion. 

VERIFY viewers Hollis and Christina asked the team to explain what the order actually does, while Twitter users asked if the order reverses the Supreme Court decision and whether abortion clinics can reopen in states where they shuttered.

RELATED: VERIFY Fact sheet: Roe v. Wade and U.S. abortion rights

THE QUESTION 

Did President Joe Biden’s executive order on abortion reverse the Supreme Court’s decision to overturn Roe v. Wade?

THE SOURCES

THE ANSWER

This is false.

No, President Joe Biden’s executive order didn’t reverse the Supreme Court decision to overturn Roe v. Wade. The order was a directive Biden made to federal agencies in order to protect some abortion access. Individual states can still decide whether to ban, restrict or permit abortions.

WHAT WE FOUND

Executive orders direct a federal official or administrative agency to engage in a course of action or refrain from a course of action. When Biden signed the executive order, he said “the executive order provides safeguards to access care.” It doesn’t reverse the Supreme Court decision to overturn Roe v. Wade. These are broad protections and states can still make their own laws.

A president “has no unilateral power to overturn SCOTUS rulings,” Erwin Chemerinsky, dean of the University of California at Berkeley School of Law, told VERIFY.  

A president “can endorse a strategy or a position, and of course make nominations in line with those policy priorities when [Supreme Court] vacancies arise, but he's extremely limited in outright overturning SCOTUS decisions,” Chemerinsky said.

The actions Biden outlined are intended to head off some potential federal penalties that people seeking an abortion may face after the ruling, but his order cannot restore access to abortion in the more than a dozen states where strict limits or total bans have gone into effect. It also cannot protect people from facing prosecution for violating laws in those states. 

Here is what the order does:

  • Attempts to preserve access to federally approved abortion medication: Roughly a dozen states have banned nearly all abortions, including those conducted via pills. Before the Supreme Court ruling, abortion pills were made permanently available by mail or telehealth by the Food and Drug Administration (FDA) in December 2021. Biden’s executive order gives Health and Human Services (HHS) 30 days to provide a report with options to make the pill available, even in states that have banned them. The order does not make the pills readily available in those states immediately.

  • Ensures emergency medical care for pregnant people or people experiencing pregnancy loss: Biden’s order directs HHS to consider making updates to guidance that clarify physician responsibilities and protections under the Emergency Medical Treatment and Labor Act. The Act guarantees public access to emergency services regardless of ability to pay.

  • Protects access to contraception: This includes birth control, emergency contraception or long-acting reversible contraception like intrauterine devices (IUDs). Biden’s order directs HHS to continue taking “every legally available step” to ensure access under the Affordable Care Act.

  • Protects patient privacy: This includes issuing new guidance to address how the HIPAA Privacy Rule protects the patient, even when it comes to reproductive health care. The guidance would help medical providers and insurance companies know, with limited exceptions, they are not required to disclose patients’ private information, including to law enforcement.

  • Establishes a task force of volunteer lawyers: Attorney General Merrick B. Garland and the White House Counsel would convene a group that provides people and providers with pro bono legal assistance to help them navigate new state restrictions.

Here is what the order doesn’t do: 

  • Change individual state legislation regarding abortion services: Biden’s order does not reverse abortion bans that went into effect after the SCOTUS ruling. It doesn’t allow for the reopening of clinics has previously provided abortion services in states that have strict limits or total bans. The order also doesn't prevent states from potentially prosecuting those who provide or assist those seeking abortions.

The Associated Press contributed to this report.

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