Biden-Harris Administration's Actions on Reproductive Rights
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In response to the Supreme Court’s decision overturning Roe v. Wade, the Biden-Harris Administration has made clear its commitment to defending reproductive rights and has taken a range of actions to protect access to abortion and reproductive health care services more broadly. See below for a summary of key steps the Administration has taken as part of the whole-of-government response.
President Biden’s Executive Orders
The President issued his first reproductive rights Executive Order on 7/8/22, outlining actions to safeguard access to reproductive health care services, including abortion and contraception; protect the privacy of patients and their access to accurate information; promote the safety and security of patients, providers, and clinics; and coordinate the implementation of Federal efforts, including through the creation of the Task Force on Reproductive Healthcare Access. As required by this Executive Order, HHS issued an Action Plan to Protect and Strengthen Reproductive Health Care on 8/26/22.
President Biden’s second Executive Order issued 8/3/22 built on actions that the Biden-Harris Administration has taken to protect access to reproductive health care services by supporting patients traveling out of state for medical care, ensuring health care providers comply with federal non-discrimination law, and promoting research and data collection on maternal health outcomes. On 8/26/22, HHS Secretary Xavier Becerra and CMS Administrator Chiquita Brooks-LaSure issued a letter to U.S. governors inviting them to work with CMS and apply for Medicaid 1115 waivers to provide increased access to care for women from states where reproductive rights are under attack and women may be denied medical care.
Protecting Access to Critical Health Care
Protect Emergency Medical Care. DOJ filed a lawsuit seeking to enjoin Idaho’s abortion prohibition to the extent that it makes abortion a crime even when necessary to prevent serious risks to the health of pregnant patients. The suit asserts that Idaho’s law conflicts with the Emergency Medical Treatment and Labor Act (EMTALA), which requires providers in Medicare-funded emergency departments to offer stabilizing treatment, including abortion services if necessary, in emergency situations, and that in those circumstances Idaho’s law is preempted. This litigation follows guidance issued by HHS affirming EMTALA’s requirements, as well as a letter from Secretary Becerra to providers making clear that federal law preempts state law restricting access to abortion in emergency situations. On 8/24/22, the U.S. District Court of the District of Idaho issued a preliminary injunction blocking the enforcement of Idaho’s ban on abortion as applied to medical care required by EMTALA. DOJ is also defending HHS’s guidance in litigation in Texas.
Strengthen Nondiscrimination in Healthcare. HHS announced a proposed rule to strengthen nondiscrimination in health care. The proposed rule implements Section 1557 of the Affordable Care Act and affirms protections consistent with President Biden’s executive orders on nondiscrimination based on sexual orientation and gender identity.
Issue Guidance to Retail Pharmacies. HHS issued guidance to roughly 60,000 U.S. retail pharmacies to remind them of their obligations under federal civil rights laws to ensure access to comprehensive reproductive health care services. The guidance makes clear that as recipients of federal financial assistance, pharmacies are prohibited under law from discriminating on the basis of race, color, national origin, sex, age, and disability in their programs and activities. This includes supplying medications; making determinations regarding the suitability of a prescribed medication for a patient; and advising patients about medications and how to take them. On 10/14/22, Secretary Becerra tweeted that HHS has received complaints about chain pharmacies across the U.S. not complying with federal obligations to fill prescriptions, and that the HHS Office of Civil Rights has opened investigations into these companies and others.
Protecting Privacy
Take Action Against Illegal Use and Sharing of Sensitive Data. The Federal Trade Commission committed to fully enforcing the law against illegal use and sharing of highly sensitive data, including location and health information contained in fertility and period tracking data. The FTC urged companies to consider that sensitive data is protected by numerous state and federal laws, claims that data is “anonymous” are often deceptive, and the FTC has a track record of taking action to ensure companies do not misuse consumer data. On 8/29/22, the FTC sued a data broker for selling data that identifies and tracks people at sensitive locations, including reproductive health clinics, domestic violence shelters, and places of worship.
Protect Patient Privacy under HIPAA. HHS issued guidance to address how the HIPAA Privacy Rule protects the privacy of individuals’ protected health information, including information related to reproductive health care. The guidance helps ensure doctors and other medical providers and health plans know that, with limited exceptions, they are not required – and in many cases, are not permitted – to disclose patients’ private information, including to law enforcement. HHS also issued a how-to guide for consumers on steps they can take to make sure they’re protecting their personal data on mobile apps.
Request Information on Data Privacy from Mobile Providers. The Federal Communications Commission Chairwoman wrote to the top 15 mobile providers requesting information about their data retention and data privacy policies and general practices, consistent with the President’s commitment to protecting Americans’ privacy. On 8/25/22, Chairwoman Rosenworcel shared mobile carrier responses.
Protecting Critical Populations
Protect Access to Abortion for Veterans. On 9/2/22, the Department of Veterans Affairs (VA) issued an interim final rule that will allow the VA to provide access to abortion counseling and—in certain cases—abortion care to pregnant Veterans and VA beneficiaries. The VA will provide access to abortion when the life or health of the Veteran would be endangered if the pregnancy were carried to term or when the pregnancy is the result of rape or incest. The Department of Justice has announced that it will defend any VA providers whom states attempt to prosecute for violations of state abortion laws.
Protect Students from Discrimination Based on Pregnancy. On 10/4/22, the Department of Education released a resource for universities outlining their responsibilities not to discriminate on the basis of pregnancy or pregnancy-related conditions, including termination of pregnancy. This guidance reminds schools of their existing and long-standing obligations under Title IX.
Legal Defense
Launch a DOJ Reproductive Rights Task Force: The DOJ announced a Reproductive Rights Task Force, which will monitor and evaluate state and local actions that infringe on federal protections relating to the provision or pursuit of reproductive care, impair women’s ability to seek reproductive care where it’s legal, impair individuals’ ability to inform and counsel each other about the reproductive care that is available in other states, ban medication abortion, or impose criminal or civil liability on federal employees who provide legal reproductive health services.
Defend the Right to Travel: On 6/24/22, President Biden reaffirmed the Attorney General’s statement that women must remain free to travel safely to another state to seek the care they need. President Biden committed his administration to defending “that bedrock right.”
Provide Access to Accurate Information and Legal Resources
HHS launched and continuously updates ReproductiveRights.gov, a website on people’s right to access reproductive health care, including birth control, abortion services, other preventive health services, and health insurance coverage. DOJ also launched http://justice.gov/reproductive-rights , a webpage that provides a centralized online resource of the Department’s work to protect access to reproductive healthcare services.
The Department of Justice and the Office of White House Counsel convened more than 200 lawyers and advocates from private firms, bar associations, legal aid organizations, reproductive rights groups, and law schools across the country on Friday, July 29 for the first convening of pro-bono attorneys, as directed in the first Executive Order. The convening closed with a call to action from the Second Gentleman, urging firms to commit a minimum of 500 hours to defending reproductive rights and justice.
For up-to-date information on your right to access reproductive health care, visit www.reproductiverights.gov
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