The gubernatorial executive order (GEO) is an increasingly visible legal tool within the public health arsenal that may blur some of the traditional lines created through the separation-of-powers framework, but is being used more and more in the public health context. GEO uses include tackling public health emergencies, establishing new programs and entities, directing or reorganizing agencies, increasing the profile of an issue, and controlling state operations.
How have GEOs been used in Rhode Island in recent years?
Many of us are familiar with the use of GEOs at the start and throughout the beginning of Covid-19 and the concept of a public health emergency. Here in Rhode Island, there were more than 185 different executive orders created starting in 2020.
These were not just about masks and safety in public spaces, but also included Authorizing Waiver and Medicaid State Plan Amendments and Adjustments to Essential Provider Rates (April 2020) and Increasing Access to Unemployment Insurance (October 2021), and the expansion of telemedicine access that directed insurance carriers to establish requirements for the coverage of telehealth and barred insurance carriers from imposing limitations on the delivery of telehealth (March 2020)
But the recent pandemic is not the only time in recent years in which a Rhode Island governor has utilized GEOs to address health crises or gaps in the provision of care.
- In May of 2018, a GEO expanded services for persons with mental illness and substance use disorders including directives to Medicaid and the review of policies that “hinder delivery of care”. This was characterized “addressing parity and access to timely and needed care”.
Given that right now in this state we have a system where people with private insurance have coverage for a health service protected by state law, but those who use public benefits do not, this seems like another time to address parity and timely access to needed care.
- A September of 2019 order responded to the rampant issues associated with young people and vaping which involved multiple agencies and in July of 2017, an order was signed in Rhode Island to address the opioid epidemic, which included directing the hiring of additional staff to ensure access to treatment.
Are gubernatorial executive orders used for health programs and state operations in other places?
These are other times in which a great need was identified and the governor saw fit to meet that need through executive order, but Rhode Island is not the only state to do so – and official public health emergencies are not the only time in which they have been done.
- Governors have issued GEOs on non-discrimination protections including in the Affordable Care Act and a former New York Governor used a GEO to create a state health insurance Exchange after a bill to establish an Exchange failed in the state legislature.
- Governors have used executive orders to establish new programs to address pressing public health concerns or require public health agencies to take specific actions.
Can the governor do this?
We believe that the GEO we are asking for may not be typical, but we are not living in typical times. There is strong precedent that it can be done and a great need that makes clear that it should be done. While the Rhode Island constitution does not specifically address executive orders nor does it limit this power.
The state Constitution says,“The governor shall take care that the laws be faithfully executed.” We have a stated right to abortion in Rhode Island law and there are policies that are specifically denying access to that right by carving out coverage for one services that is used by as many as 1 in 4 women of reproductive age and other people capable of getting pregnant during the course of their life. It is discriminatory and harmful – and more than ever it is interfering with a right that is already under attack that this governor has made multiple statements committing to support and uphold.
How does this relate to public health and state operations – functions that are often the focus of GEOs?
We are asking that the policies actively denying one health service someone may need if they are pregnant be lifted, so that the programs that already cover other pregnancy related care would also cover abortion.
- The programs already exist. Both the state employee benefits and Medicaid are providing care, have staff to keep the programs running and are included in the state budget for the coming fiscal year.
- Abortion is being provided in cases of rape, incest and life endangerment, so the facilities that may most often provide abortion should have in place the ability to accept both state employee and Medicaid benefits.
- It should not increase costs or alter the budget. Prior fiscal notes for legislation to ensure health coverage for abortion in these programs showed a cost savings. This is similar to legislative financial analysis in other states that similarly found a cost savings. In the most recent fiscal note analysis for the Rhode Island bill, the policy was found to be cost neutral.
What constitutes a public health emergency?
At the federal level, a public health emergency may be declared by the Department of Health and Human Services or through a presidential executive order. There is a national push for the president to declare a public health emergency and just this past Monday President Biden indicated he is considering doing so to free up federal resources to promote abortion access. As in the case of the PHE that was declared by the federal government during the pandemic, this would not only allow for, but urge changes to relevant programs, including Medicaid to ensure access to abortion.
This is relevant and yet not necessary for action to be taken. As stated, a health care need and crisis coupled with ensuring efficient and improved state operations are both relevant in this case and provide strong precedent to take action to halt the bans on one procedure that is in even greater need at this time and policies that have and continue to cause harm.
What about having the governor call a special session to vote on the Equality in Abortion Coverage Act?
We would certainly support this action as another path to halting the harmful bans taking away access to care that is protected under state law and policies that have a disparate and discriminatory impact. If the governor insists that this must be done legislatively it in NO WAY changes the urgent need and fact that people cannot wait another six months for the General Assembly to take action and get this done.
The Rhode Island state constitution makes clear that,”The governor may, on extraordinary occasions, convene the general assembly at any town or city in this state, at any time not provided for by law; and in case of danger from the prevalence of epidemic or contagious disease, in the place in which the general assembly is by law to meet, or to which it may have been adjourned, or for other urgent reasons, the governor may by proclamation convene said assembly at any other place within this state.”
Isn’t a GEO temporary?
There are orders that have a specific period of time for implementation or that it is in effect, but there are also cases including the recent order resisting criminalization of providers and patients in which a GEO states,”This Executive Order shall take effect immediately and shall remain in effect until amended, superseded, or revoked by subsequent Executive Order.” The legislature had a chance to do the right thing and did not and people are in a more desperate place when it comes to abortion access more than ever. We can’t wait anymore and the governor has the ability to halt the harm and get it done. That is what we are asking for. No more delays. Not another day of these discriminatory bans on health coverage for a procedure that is needed. We are in a national public health crisis that he can do something about.