Outline of the United States with text above it that reads, "Executive Orders."

How Governors Used Executive Orders to Protect Abortion Access in a Post-Roe United States

Mollie Fairbanks, Guttmacher Institute
Reproductive rights are under attack. Will you help us fight back with facts?

First published online:

When the US Supreme Court overturned Roe v. Wade, in June 2022, it gave states across the country the ability to severely restrict or ban abortion. Policymakers hostile to abortion had been preparing for such a decision for decades. Following the Dobbs v. Jackson Women’s Health Organization decision, abortion was immediately banned in nine states as a result of previously enacted legislation, including “trigger” bans and pre-Roe bans. More than 14 million women of reproductive age, in addition to transgender and nonbinary people who might need an abortion, lost access to abortion care in their state in a matter of days, and millions more were living in uncertainty.

Though some states had previously enacted abortion protections, many states with elected officials supportive of abortion rights did not begin to prepare for the loss of federal abortion protections until a draft of the Dobbs decision was leaked, on May 2, 2022. The abrupt and dire change in abortion access signaled by the leak motivated state policymakers, including governors, to take swift, decisive action. At a point in the year when half of state legislatures were no longer in session and therefore largely unable to enact laws protecting abortion rights, supportive states had limited opportunities to mitigate the damage done by Dobbs. Consequently, 14 governors have used executive orders since the Dobbs leak to prevent the enforcement of out-of-state abortion restrictions in their states.

How and Why Governors Took Action

Executive orders—which are legal documents issued by governors to immediately declare or enact a policy—have been used to affect abortion access before. Many governors issued orders to restrict or protect access to abortion in the early stages of the COVID-19 pandemic. When Roe was overturned, governors once again needed to act quickly in the face of a national emergency.

Sixteen governors issued a total of 20 executive orders related to abortion following the leak of the Dobbs decision. Perhaps reflecting the fact that many states with anti-abortion elected officials had already banned abortion, only two anti-abortion governors issued orders. One, in South Dakota, simply repealed a prior executive order rendered irrelevant by the new political landscape. The other order, in Oklahoma, created a task force to support anti-abortion centers (also known as crisis pregnancy centers) and people experiencing an unintended pregnancy.

The other 14 governors—in Arizona, California, Colorado, Hawaii, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Pennsylvania, Rhode Island and Washington—issued a total of 18 executive orders designed to mitigate the harm being done by states with near-total abortion bans. The majority of these orders declared that abortion patients and providers would be protected from legal or professional consequences enforced by states banning abortion while seeking or providing care that is legal in the protective state. Governors protective of abortion rights, in other words, decreed that their states would refuse to cooperate with other states’ attempts to investigate, extradite or prosecute abortion seekers or providers.

These governors had good reason for issuing such protective measures: The Dobbs decision completely altered the legal landscape and enabled anti-abortion lawmakers to accelerate and escalate their agenda. States enacted 1,381 abortion restrictions since Roe v. Wade was decided, in 1973, and 46 percent of those passed in the last decade before the loss of federal abortion protections. Some of the most recent were extremist bans that exceeded the severity of previously enacted restrictions. In 2021, Texas enacted the infamous Senate Bill 8, which contained a never-before-seen provision: the ability for anyone to sue an abortion provider, or anyone who aided a patient in obtaining an abortion—including by providing financial assistance for the procedure. Idaho and Oklahoma passed similar laws early in 2022, before the Dobbs decision was announced. After Dobbs, states have continued to pursue limits on abortion access, with laws including prohibitions against helping minors travel for abortion care without parental consent and near-total bans.

All but six of the protective executive orders were issued in the three weeks following the Dobbs decision. (Michigan Gov. Gretchen Whitmer [D] issued an executive order following the Dobbs leak, in May, and a third order in December; governors in New Mexico and Massachusetts signed their second round of executive orders later that summer and the following spring, respectively; Hawaii’s governor issued that state’s sole order in October; and Arizona’s governor issued an executive order just before the one-year anniversary of Dobbs.) Governors sought to quickly provide legal protections for the anticipated influx of providers and patients coming from states with near-total abortion bans, who might now be subject to lawsuits or felony charges. Consequently, nearly every executive order included a prohibition on state cooperation with out-of-state investigations into legally provided abortion care; a prohibition on the extradition of persons wanted in connection with these investigations; or a prohibition on professional consequences, such as the suspension or revocation of a medical license, for abortion providers. Seven orders included all three of these provisions.

Some orders contained additional, unique provisions. Following unfounded legal attacks on the abortion drug mifepristone, Massachusetts Gov. Maura Healey (D) issued an executive order in April 2023 to protect access to medication abortion in the state—in particular for students in the public university system. New Mexico Gov. Michelle Lujan Grisham’s (D) August 2022 executive order allocated $10 million toward a reproductive health clinic, whose services would include abortion care. And Arizona Gov. Katie Hobbs’s (D) June 2023 executive order gives the state attorney general sole authority to prosecute criminal cases regarding abortion. (See the appendix list for details on all abortion-related executive orders issued since the Dobbs leak.)

Benefits and Shortcomings of Executive Orders

By issuing executive orders, governors could quickly declare immediate protections for providers and patients. This was particularly helpful in states such as North Carolina, where the governor is supportive of abortion rights—but the legislature is not.

Executive orders offer other benefits as well: They send a message on where that governor stands on abortion access and affirm a governor’s prioritization of protective abortion policies going forward. Often less cumbersome and more accessible to the public than a law, executive orders are also an efficient means of educating voters on what is at stake and establishing a model for other governors to follow.

While executive orders are quick and efficient, and have the force of law, they suffer from certain downsides that laws do not. Executive orders are not enshrined in state statutes, nor in state constitutions, and they can be rescinded by succeeding governors. Furthermore, executive orders of this nature are untested legally, contributing to the already complex and confusing post-Dobbs legal landscape.

The problem of the impermanence of executive orders can be resolved by legislative action. In May 2022, Connecticut was the first state to pass a reproductive rights law offering the types of abortion protections conveyed in other states’ subsequent executive orders. This new type of legislation, known as an abortion “shield law,” protects individuals from facing legal consequences as a result of providing, receiving or facilitating abortion-related reproductive health care, and effectively seeks to limit the ability of anti-abortion states to enforce their abortion restrictions out of state. In the months following their governor issuing an executive order, nine more state legislatures—in California, Colorado, Hawaii, Maine, Massachusetts, Minnesota, Nevada, New Mexico and Washington—passed shield laws codifying those executive orders or expanding on them with further protections for patients and providers. Still, shield laws are as untested as the executive orders which preceded them and are likely to be challenged.

More State Action Is Urgently Needed

The 18 protective executive orders, and the shield laws that followed them, were a strong start to protecting abortion providers and patients. State policymakers should continue to pass shield law legislation while taking additional steps to protect abortion access. For example, many supportive states still have restrictive and outdated statutes that ought to be repealed. Michigan repealed its century-old total abortion ban this year; Wisconsin is endeavoring to do the same with its 1849 abortion ban. States should also look to other proactive strategies for protecting and promoting access to abortion care, such as funding abortion providers and abortion support networks, as California did, or expanding insurance coverage of abortion to remove cost-sharing requirements, as New York did. Constitutional amendments, such as the amendment approved by Vermont voters in November 2022, are a strong way to enshrine reproductive freedom at the state level.

Policymakers should strive to address other barriers to reproductive health care, such as those targeting low-income individuals; Black or Indigenous individuals and other people of color; immigrant communities; and unhoused individuals. For these groups, a legal promise of reproductive care does not necessarily make such care accessible. State policymakers should allocate funding to abortion funds and look to reproductive justice organizations for advice on supporting underserved communities, addressing inequities in access and removing barriers to care.

In addition, supportive states should track the strategies of abortion opponents and develop strategies in advance to counter the anti-abortion agenda. Earlier this year, California Gov. Gavin Newsom (D) convened the Reproductive Freedom Alliance, a nonpartisan group of 22 governors whose aim is to determine the best steps to take as hostile states continue to restrict abortion access. This alliance is a solid foundation for state efforts to organize against anti-abortion tactics, and states seeking to protect access to abortion should continue to communicate, work together and mobilize. Dobbs was not the end of the anti-abortion agenda; legislators and governors supportive of abortion rights need to act in concert, with intention and speed, to counter ongoing and future attacks on reproductive health care.

 

Appendix List: State abortion-related executive orders, in order of release since the Dobbs decision leak

Click each executive order to view details.

Protection from out-of-state investigations

Other directives or protections:

  • State agencies must evaluate and return reports within 30 days on how they can help reproductive rights
  • State employees must communicate with the public on the cost and availability of reproductive health care

Protection from out-of-state investigations

Provider protection from licensing board discipline

Protection from extradition

Protection from out-of-state investigations

Protection from extradition

Other directives or protections:

  • State agencies must coordinate to protect people and entities who obtain, provide or help to obtain or provide reproductive health care that is legal in Minnesota
  • State agencies must evaluate and return reports by August 1, 2022, on the safety, effectiveness and importance of reproductive health care in Minnesota

Protection from out-of-state investigations

Protection from extradition

Other directives or protections:

  • Protections include explicit prohibition on sharing patient medical records or data

Protection from out-of-state investigations

Provider protection from licensing board discipline

Protection from extradition

Protection from out-of-state investigations

Provider protection from licensing board discipline

Protection from extradition

  • Rescinded Executive Order 2021-12, which called for emergency rulemaking around medication abortion and telemedicine

Protection from out-of-state investigations

Other directives or protections:

  • State Patrol must coordinate with the Attorney General and General Consul to develop a process for screening out-of-state investigation cooperation requests relating to reproductive health care and report such requests to the governor
  • State and local law enforcement reminded that it is illegal for them to penalize, prosecute or otherwise take adverse action against someone who had an abortion, is believed to have had an abortion or assisted someone in obtaining an abortion
  • Affirms that the state will protect and serve people who come to Washington seeking abortion care

Protection from out-of-state investigations

Protection from extradition

Other directives or protections:

  • State agencies must coordinate to identify and remove barriers to reproductive health care

Protection from out-of-state investigations

Provider protection from licensing board discipline

Protection from extradition

Protection from out-of-state investigations

Provider protection from licensing board discipline

Protection from extradition

Other directives or protections:

  • State agencies must coordinate to protect people and entities who obtain, provide or help to obtain or provide reproductive health care that is legal in Colorado
  • Protections include explicit prohibition on sharing patient medical records or data

Protection from out-of-state investigations

Protection from extradition

Other directives or protections:

  • State agencies must coordinate to protect people and entities who obtain, provide or help to obtain or provide reproductive health care that is legal in North Carolina
  • State agencies may not require pregnant employees to travel to states that impose restrictions on reproductive health care unless that state’s restrictions include exceptions that are satisfactory to the employee
  • Department of Public Safety must work with law enforcement and reproductive health clinics to ensure the clinic access law is properly enforced

  • Creates a task force to support crisis pregnancy centers in Oklahoma; task force required to include faith leaders and plan to support “mothers” and make adoption easier

Protection from out-of-state investigations

Provider protection from licensing board discipline

Protection from extradition

Other directives or protections:

  • State employees must communicate with the public about the cost and availability of reproductive health care, and about protecting health care information stored electronically

Protection from extradition

  • Allocates $10 million to establish a reproductive health care clinic that will provide abortion care
  • Department of Health must develop a plan to expand access to reproductive health care in underserved areas
  • Department of Health must assess the feasibility of providing medication abortion in public health clinics
  • Department of Health to review and evaluate policies of other states that increase abortion access
  • Department of Human Services must develop policies to improve access to reproductive health care

Protection from out-of-state investigations

Provider protection from licensing board discipline

Protection from extradition

Other directives or protections:

  • Protections include explicit prohibition on sharing patient medical records or data

Protection from out-of-state investigations

Other directives or protections:

  • Requires state agencies and departments to review and assess any duties or jurisdictions that pertain to reproductive rights to ensure they reflect the protections guaranteed by the Michigan constitution
  • Requires state agencies and departments to resolve any conflict between their practices or policies and constitutional protections regarding reproductive health care
  • Requires state agencies and departments to identify ways to proactively increase reproductive health protections

Provider protection from licensing board discipline

Other directives or protections:

  • Commissioner of Public Health must issue guidance on the use, prescription, dispensation and administration of mifepristone or misoprostol
  • Practitioner professional protections include provision for medication abortion
  • Commissioner of Public Health must work with public universities to develop and implement plans that ensure students can access medication abortion
  • Division of Insurance must issue guidance to insurers about discrimination against providers who offer reproductive health care

Protection from out-of-state investigations 

Protection from extradition 

Other directives or protections: 

  • Declares that the state attorney general has sole prosecutorial authority in criminal cases relating to abortion 
  • Creates the Advisory Council on Protecting Reproductive Freedom, which will make recommendations to expand access to sexual and reproductive health services