Biden Administration Takes Action Following Supreme Court Decision Overturning Roe v. Wade

In the two weeks following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, the Biden Administration has taken several actions to provide clarity about women’s access to reproductive health services, including regarding abortion.

• Executive Order Protecting Access to Reproductive Health Care Services. The President issued an Executive Order Protecting Access to Reproductive Health Care Services. The order directs HHS to submit a report to the White House within 30 days on the agency’s planned actions: to protect and expand access to abortion care, including access to medication abortion; to ensure emergency medical care; to protect access to contraception; and to launch outreach and education efforts to “ensure that Americans have access to reliable and accurate information about their rights and access to care.” The order also directs HHS and the White House Gender Policy Council to establish an interagency Task Force on Reproductive Health Care Access, responsible for “coordinating Federal interagency policymaking and program development.” Executive orders are direction from the president to federal agencies on how to carry out their existing duties; they generally do not give agencies new authority.
• ReproductiveRights.gov. The day after the Supreme Court’s ruling, HHS launched a new website (www.reproductiverights.gov) to provide “accurate and up-to-date information about access to and coverage of reproductive health care and resources.” This website provides information in English and Spanish on the federal laws that afford certain rights to women with regard to access to and coverage of reproductive health care, including family planning counseling, birth control, and other preventive health services. The website also addresses an individual’s right under the Emergency Medical Treatment and Labor Act (EMTALA) to receive emergency medical care including an abortion if necessary to save a person’s life, and provides information about the right to file a complaint under the Health Insurance Portability and Accountability Act (HIPAA) if a patient is concerned about a violation.
• Guidance on Reproductive Health Data and Patient Privacy Protections. The HHS Office for Civil Rights (OCR) issued two new documents.
  • The first guidance document, “HIPAA Privacy Rule and Disclosures of Information Relating to Reproductive Health Care,” describes circumstances in which the HIPAA Privacy Rule limits or permits the disclosure of health information relating to abortion and other sexual and reproductive health care.
  • The second guidance document, “Protecting the Privacy and Security of Your Health Information When Using Your Personal Cell Phone or Tablet,” notes that HIPAA does not generally protect health information on personal cell phones and tablets, and provides specific ways individuals can protect their information when using health information apps.
• Letter to Health Insurers on Contraceptive Coverage. The Secretaries of HHS, Labor, and the Treasury sent a letter to health insurance issuers and group health plan sponsors underscoring that plans and issuers “must meet their obligations to ensure access to contraception,” as outlined by the ACA’s contraceptive coverage requirement. The letter further notes that the departments intend to “correct all areas of potential non-compliance and to take specific actions to ensure that covered individuals have critical access to contraceptive services.”
• White House Blueprint for Addressing the Maternal Health Crisis. On the morning of the Supreme Court’s ruling in Dobbs, the White House issued its Blueprint for Addressing the Maternal Health Crisis. This “whole-of-government approach to combatting maternal mortality and morbidity” lays out specific actions and goals that the federal government can take to improve maternal health across the nation, including extending Medicaid postpartum coverage to one year postpartum; diversifying the maternal health care workforce; and “ensuring women giving birth are heard and are decisionmakers in accountable systems of care.” The White House’s blueprint anticipated the Dobbs decision—based on an earlier leaked draft—and issued this publication with the knowledge that the states that have the highest maternal mortality rates and worst maternal health outcomes are often the same states that have “trigger” laws, or abortion bans that took effect in the immediate aftermath of the Supreme Court ruling.

NOTE: For more information on Dobbs v. Jackson Women’s Health Organization and its impact, please see Manatt’s recent articles:

The Chaotic Health Care Landscape in a Post-Roe World - Manatt, Phelps & Phillips, LLP

OCR Issues Guidance on Protection of Reproductive Health Data - Manatt, Phelps & Phillips, LLP

More detailed information also is available through Manatt on Health, Manatt’s premium information service. Manatt on Health provides in-depth insights and analyses focused on the legal, policy and market developments that matter to you, keeping you ahead of the trends shaping our evolving health ecosystem. Available by subscription, Manatt on Health delivers a personalized, user-friendly experience that gives you easy access to Manatt Health’s industry-leading thought leadership. To learn more or schedule a demo, contact Barret Jefferds at bjefferds@manatt.com.