Weeks after the Supreme Court overturned Roe v. Wade, the Biden administration has proceeded cautiously in its attempts to protect access to abortion and contraception — too cautiously, to hear some critics tell it.
The Department of Health and Human Services recently pledged to help women maintain access to the procedure and launched the ReproductiveRights.gov website. Meanwhile, in an executive order, the White House outlined several steps it will take to safeguard reproductive health services.
President Biden noted that HHS will “take action to protect and expand access to abortion care.” The safeguards will include medication abortion, which has already been approved by the Food and Drug Administration. The agency will also work to maintain access to family planning services, emergency contraception and long-acting reversible contraception, including IUDs.
The executive order also pledged to protect people from privacy violations related to reproductive health services and bolster the Health Insurance Portability and Accountability Act (HIPAA) so that providers are not required – or permitted – to disclose private information about patients availing themselves of those services. Finally, the Biden administration is assembling a cadre of lawyers to represent patients and providers on a pro bono basis.
Shortly after Biden signed the executive order, HHS announced new guidance that includes abortion services under the aegis of emergency medical care. HHS Secretary Xavier Becerra released a letter to healthcare providers which noted that federal law preempts state laws that limit abortion services in medical emergencies.
Per the Emergency Medical Treatment and Labor Act (EMTALA), providers and healthcare systems could be penalized and lose Medicare or Medicaid funding for violations around emergency treatment. “Under the law, no matter where you live, women have the right to emergency care – including abortion care,” Becerra stressed.
Abortion rights advocates welcomed Biden’s measures, characterizing them as a welcome first step in battling what they view as a massive assault on women’s rights.
“The coordinated attack on abortion access in America is a public health crisis and we must use every federal tool available to confront it,” Congresswoman Ayanna Pressley, chair of the Pro Choice Caucus’ Abortion Rights and Access Task Force, said in a statement. “I’m glad President Biden has heeded our calls to expand access to medication abortion and protect those seeking abortion care from criminalization.” Still, Pressley urged Biden to designate the rollback on abortion rights as a public health emergency.
Advocates for Youth, an organization focused on reproductive and sexual health, noted in a statement that they are “encouraged and hopeful” by Biden’s actions. However, they hope to see “tangible outcomes and actual protections for people who provide and need access to abortion care.”
“Young people do not have the luxury of waiting any longer to access the services they need and deserve,” the organization added in a statement.
Other advocates believe the Biden and HHS actions aren’t enough — and that the federal government may lack the power to do anything more.
Indeed, there are limits to the executive order. It doesn’t prevent states from restricting abortion access or declare abortion a public health emergency — a designation that would allow HHS to allocate more money to the effort. Additionally, the Hyde Amendment, which prevents the use of federal funds on abortion services, remains in effect.
“Maybe the reality is there really is nothing that can be done federally,” Robin Marty, operations director of the West Alabama Women’s Center, told Politico. “If so, that should terrify everyone.”
Pro-life advocates, not surprisingly, had a very different response to the executive order. Texas filed a lawsuit against the new HHS guidance, arguing that the federal government doesn’t have the authority to make providers offer abortions in emergency situations under EMTALA.
“No federal statute, including EMTALA, supersedes or preempts the States’ power to regulate or prohibit abortion,” the lawsuit argues.
In response to the challenge, an HHS spokesperson said that it “stands unwavering in our commitment to protecting patients’ right to access the health- and life-saving care that they need and that is protected by federal law.”