What Do Trump’s New Directives Mean for Reproductive Rights?

The flurry of executive orders signed by President Donald Trump during his first week in office has been staggering. The orders have oftentimes been cruel, dubiously legal and frankly, mind-boggling. But their sheer number — coupled with an unprecedented, far-reaching freeze on both foreign aid and domestic federal funds — is intended to do just that: confuse and overwhelm. In many ways, some of the orders amount to little more than “glorified press releases” given their inability to actually change the law, Chase Strangio, co-director of the LGBTQ & HIV Project at the American Civil Liberties Union, wrote on Instagram ahead of Trump’s inauguration.

Case in point: On January 24, Trump issued an executive order on reproductive rights titled, “Enforcing the Hyde Amendment.” The order claims, falsely, that policies by President Joe Biden’s administration “forced taxpayer funding of elective abortions in a wide variety of Federal programs.” The Hyde Amendment, however, has banned the use of federal funds for abortion care since 1977 — and reproductive rights advocates have long challenged this pernicious law. Framing his latest executive order as “enforcing the Hyde Amendment” is just another one of Trump’s strategies to sow confusion.

So what does the executive order do? Truthout spoke with Amy Friedrich-Karnik, federal policy director of the Guttmacher Institute, a research and policy nonprofit dedicated to advancing reproductive health and rights in the U.S. and around the world. Friedrich-Karnik unpacked Trump’s actions on reproductive rights so far and their implications for people seeking abortion care.

The interview below has been edited for length and clarity.

Schuyler Mitchell: To start us off, what sort of executive orders on reproductive healthcare were in place under President Joe Biden’s administration, and what was the impact of those policies on people seeking abortion care?

Amy Friedrich-Karnik: I think it is false of the Trump administration to invoke the Hyde Amendment in the way that they framed their executive order, because nothing that the Biden administration did violated the Hyde Amendment. Essentially, the Trump administration’s order revoked two of the Biden administration’s executive orders issued in the weeks and months right after the Dobbs decision overturned Roe v. Wade. The first executive order was a whole-of-government approach to what the federal government can do within the bounds of the law, including the Hyde Amendment, to support and promote information and access to abortion care where it remained available. Then you had different actions and guidances that came from that, with the goal of expanding access to and information about abortion care, but none of those actions violated the Hyde Amendment, which prohibits federal funds from being put toward the provision of abortion care.

Biden’s executive order, for instance, created a Medicaid 1115 demonstration waiver that would allow states to assist patients traveling across state lines for care. The waivers are a way for states to ask the federal Centers for Medicare & Medicaid Services (CMS) to do different things with their Medicaid dollars, to either reach certain populations or provide certain types of healthcare services through Medicaid. So, if a state wanted to use its Medicaid dollars to help with those transportation expenses for abortion patients, it could apply for that waiver. I will say that only California applied, and it was not even yet approved or in practice at the end of the Biden administration.

Another kind of policy that resulted out of Biden’s executive orders was the establishment of the Interagency Task Force on Reproductive Health Care Access. Eventually, you also had a whole new regulation around the Health Insurance Portability and Accountability Act (HIPAA) and expanding privacy protections for folks and their reproductive health care information. There was also the work that was done around EMTALA, or the Emergency Medical Treatment and Active Labor Act. The administration issued clarification on what was already in EMTALA and gave clear guidance that, as the law states, emergency rooms have to provide abortion care to pregnant patients if that is the care that is needed to stabilize them.

The executive orders from the Biden administration didn’t explicitly create policy, and I think it’s also important to say that the Trump executive order rescinding those doesn’t automatically change policy either. The Biden administration’s executive orders just gave guidance to the agencies to take specific actions, which they subsequently did. In theory, the Trump administration will have to go through and rescind those actions specifically as well. The Trump executive order doesn’t just wipe those things out.

Right, they’re not laws, and they still have to go through the regulatory rulemaking process in terms of their implementation. So, are there any immediate impacts on abortion access or reproductive care from this Trump executive order, or does it all still have to go through an administrative process?

That’s a great question. So, technically, everything has to go through an administrative process. To change any of the things we just talked about, yes, there would need to be new guidance issued, new regulations proposed, comment periods and all of that. In that sense, none of the policies have changed — and that is something that is important for folks to understand.

I think in practice what we’re seeing from this administration, clearly in the last week and a half, they’re indicating that they’re not necessarily going to follow those processes and procedures. I think that there is a practical effect to some of this and other executive orders, where they are just starting to implement them without having gone through the regular process. And in each case, depending on what we’re talking about, that may or may not be legal or constitutional. And we’re going to see a lot of legal challenges that come out of that.

On January 27, the Trump administration ordered a pause on federal aid, creating widespread confusion. The order was temporarily blocked by a judge, and then the memo calling for the freeze was rescinded on January 29 by the White House. If the administration tries to put something similar forth in the future, what impact would such a funding freeze have on reproductive rights?

We’re still unpacking it as we learn more, but for example, Title X clinics would not get payments anymore. Title X provides family planning services for low-income folks.

As they keep rolling out these funding freezes, both on foreign aid and then on domestic, they are using the executive orders as an excuse. For example, when the stop-work order and foreign aid freeze came on Friday night, they sort of invoked the executive order from last Monday, which said that nothing we do internationally shall be in violation of America’s values. That is obviously extremely vague, but it is what they are invoking as an excuse for why they are then freezing funds. So rhetorically, as they continue to freeze funds and evaluate what programs they will and won’t continue to fund, I would imagine they invoke this executive order on reproductive rights, even if it’s not directly a plausible excuse for why they would stop funding.

On the subject of foreign aid, Trump also issued a memo reinstating a policy that blocks U.S. aid to organizations abroad that provide abortion care. What are your concerns about the impacts of this policy?

So, we call this the Global Gag Rule. And this is a policy that says nongovernmental organizations (NGOs) that are not U.S.-based that receive U.S. foreign assistance are not allowed to engage in any type of work around the provision of abortion care, referral for abortion care, or advocacy in their own country around abortion care — even using their own money. It basically puts a gag on organizations overseas that receive anything related to global health foreign aid. It prevents them from being engaged in any way in abortion care work, even with their own money, regardless of what the laws in that country may be.

It’s an extremely harmful policy that has come into place under every Republican president since Ronald Reagan, and then every Democratic president rescinds it, usually within their first couple of days. So we’re used to seeing this policy come and go. The last time around, the Trump administration expanded it to apply to a lot more types of foreign aid and really exacerbated the harm by doing so.

The harm from this policy is that it places a lot of restrictions on what organizations around the world are doing when it comes to providing reproductive health care. What Guttmacher’s research has found is that, when the gag rule is in place, progress that is being made to expand access to contraception and other forms of reproductive health care is really stymied and then reversed.

There is federal legislation called the Global HER Act, which would permanently repeal the gag rule so that it can’t come back every time a Republican president is elected. It’s a bill that has been reintroduced in the last few sessions of Congress, and it essentially says that the Global Gag Rule is unlawful. It has a huge amount of support in the House and the Senate.

So, the fact the Trump administration has stated their intent to reinstate the Global Gag Rule is not unexpected, but it still will have a huge impact on the ground. This is, of course, assuming that federal aid dollars start to flow again in general and those programs pick back up. Right now, the immediate impact of all of this is really going to come from the stop-work order and foreign aid freeze, but this policy on top of that is going to be hugely impactful and harmful for reproductive health programs around the world.

An abortion policy fact sheet by Trump also claims that Biden’s executive order “politicized enforcement of the Freedom of Access to Clinic Entrances (FACE) Act” and says this has been rescinded. We’ve already seen Trump pardon 23 anti-abortion protesters who were convicted under the FACE Act, which was passed in 1994 and makes it a crime to physically obstruct or use force to interfere with access to clinics that provide reproductive services. Another memo from Trump’s Justice Department instructed prosecutors to limit the enforcement of the FACE Act. What are the impacts of this on people who are seeking abortion care?

The statements and actions of the Trump administration around the FACE Act are hugely problematic and, frankly, frightening. The FACE Act is there to act as protection for clinics and for folks who access abortion care, to protect their safety and ability to access those clinics freely. I think it’s a signal to the anti-abortion movement that they are allowed to harass people outside of clinics as patients try to enter and clinic staff try to go to work. We’ll have to see how that plays out, but I think it’s a very, very scary message to send and say they aren’t going to be enforcing this traditionally bipartisan law.

Part of the Biden executive order that was rescinded talks about the threat to patient privacy related to the transfer and sale of digital health-related data and digital surveillance of reproductive health care services. After Roe v. Wade fell, there was a lot of information about how to protect yourself digitally as it relates to period tracking apps and other data. Do you have any thoughts on digital privacy and abortion care under the Trump administration? Is there anything that people should be more mindful of now in light of these executive orders?

I think this issue is extremely important. We remain very concerned about how this administration could weaponize data, including individual patient data, and we know that anti-abortion actors on the ground in states are doing this. Texas is a perfect example. They are trying to get ahold of individual patient data so that they can prosecute whoever they can, related to abortion care. We don’t trust that this administration will take any measures to ensure patient privacy. So while HIPAA remains the law of the land and is obviously incredibly important to protect patient safety, we need additional protections for folks, and I don’t think this administration is going to deliver that.

It’s a scary time for individuals and people, whether it’s their apps on their phone or patient data being held by healthcare providers, it’s an area we’re going to have to look at really closely, because I think that the protections that we would expect from the government to ensure privacy are not going to be upheld by this administration.

Do you have any pieces of advice for people who are seeking reproductive care? Anything that is important for people to know or remember as we head into this year under this administration?

Abortion is still legal. Abortion is still accessible in many, many parts of the country. People still have the right to access that care, to travel for that care. And people should be very mindful of getting good quality information about how and where to access that care and not spread misinformation that may come up on social media. We can all, in community, be spreading the right and true information about what is accessible. On the policy front, I think it’s important to pay attention to what’s going on and take action when organizations put out calls to action.

What we would like to see is that people who receive healthcare from the government — who receive insurance from Medicaid or Medicare, or who are federal employees, or who get their healthcare from the Veterans Health Administration — all of those people deserve access to abortion care. Everybody should have coverage for abortion care, regardless of where they get their insurance or how they get their insurance. What the Hyde Amendment is doing is denying people that access to care. Abortion is health care like anything else. The Equal Access to Abortion Coverage in Health Insurance (EACH) Act is a piece of legislation that has existed for the last several years that would revoke the Hyde Amendment and make sure everybody has access to that coverage.