On June 24, 2022, the U.S. Supreme Court issued an opinion in Dobbs v. Jackson Women’s Health Organization, where it overturned prior precedent in Roe v. Wade and Planned Parenthood vs. Casey, which previously provided federal constitutional protection of abortion rights.

The federal government quickly responded to the Supreme Court’s ruling through guidance, announcements, and clarifications, as well as a Presidential Executive Order.

The U.S. Attorney General Issues a Statement

On June 24, 2022, U.S. Attorney General Merrick Garland issued a statement in response to Dobbs, stating that the Justice Department disagrees with the Supreme Court’s decision. Further, the Attorney General addressed how the Justice Department will continue to support and advance reproductive rights.

For example, the Justice Department will:

  • Protect healthcare providers and individuals who seek reproductive health services in states where reproductive services are legal, under the Freedom of Access to Clinic Entrances Act;
  • Encourage the U.S. Congress to codify reproductive rights as well as other legislation that promotes access to reproductive services; and
  • Support other U.S. agencies, such as the Food and Drug Administration (FDA), in their efforts to provide reproductive services. For instance, the U.S. Attorney General emphasized that states cannot ban medications having received FDA approval, including those used for abortions or other reproductive health issues.

HHS Releases Guidance on the Protection of Patient Privacy

On June 29, 2022, the Department of Health and Human Services (HHS) issued guidance on patient privacy protections. In this guidance, HHS clarifies two concerns around the privacy of those individuals seeking reproductive care.

First, HHS addresses how federal law protects individuals’ private health information (PHI), specifically relating to abortion or other reproductive health services. This guidance reminds entities governed by the Health Insurance Portability and Accountability Act (HIPAA) that they can use and disclose PHI without the patient’s signature only as permitted in HIPAA’s Privacy Rule. HHS stressed that this type of use and disclosure may occur in very narrow.

Second, HHS addressed guidance on how to protect personal medical information on cell phone and tablets.

President Biden’s Executive Order Protecting Access to Reproductive Health Access

On July 8, 2022, President Biden signed an Executive Order on protecting access to reproductive health care services in response to Dobbs.

  • In this Executive Order, President Biden stated that the only way to secure this right would be for Congress to act, restoring reproductive rights under federal law. However, President Biden also called on HHS, the Federal Trade Commission (FTC), the Office of Personnel Management (OPM), the Department of Defense (DoD), and the U.S. Attorney General to help protect and defend reproductive rights.

Specifically, President Biden’s Executive Order addresses the following:

  • Safeguarding access to reproductive health care services, including
    • Protecting access to medication, such as mifepristone and misoprostol, often used to terminate early pregnancies;
    • Ensuring emergency medical care for pregnant women, as well as for women who are experiencing pregnancy loss; and
    • Protecting access to contraception, such as intrauterine devices (IUDs).
  • Protecting the privacy of patients and their access to accurate information, including
    • Protecting consumers from privacy violations when consumers are seeking information about reproductive health care services; and
    • Expanding patient privacy protections under HIPAA.

HHS Releases Guidance on the Emergency Medical Treatment and Active Labor Act (EMTALA)

On July 11, 2022, HHS released guidance for health care providers in response to President Biden’s Executive Order.

Specifically, in a letter from the HHS Secretary to medical providers as well as an HHS announcement, HHS reviewed how the Emergency Medical Treatment and Active Labor Act (EMTALA) applies to reproductive health care.

The EMTALA is a federal statute protecting health care providers’ medical decisions to offer life- or health-saving abortion services to pregnant patients experiencing medical emergencies — even if practicing medicine in a state with abortion restrictions.

For example, a physician treating a pregnant patient with an emergency medical condition, such as ectopic pregnancy, may choose abortion as the necessary medical treatment. If that medical care occurs in a state that prohibits abortion and does not provide an exception (or provides a very narrow exception) for the life and health of the patient, EMTALA governs – not state law.

If a hospital or doctor violates the EMTALA, then the hospital or doctor may see their Medicare provider agreement terminated and/or face civil monetary penalties. The Centers for Medicare & Medicaid Services (CMS) echoed these points by issuing a reinforcement of EMTALA obligations.

HHS Releases Guidance for the Nation’s Retail Pharmacies Clarifying Their Obligations to Ensure Access to Comprehensive Reproductive Health Care Services

On July 13, 2022, HHS submitted guidance to approximately 60,000 U.S. retail pharmacies, reminding them of their legal responsibilities under federal civil rights laws. Specifically, HHS stated that as recipients of federal financial assistance, such as through Medicare and Medicaid, these pharmacies are legally prohibited from discriminating against patients, based on race, color, national origin, sex, age, and disability. Further, HHS reminded these pharmacies that these protections include supplying and advising on prescribed medication, as well as making determinations as to the medication’s purpose and suitability.

This guidance represents yet another step taken by HHS in response to President Biden’s executive order.

Additional Resources

Jenny Kiesewetter — Jenny is a Retirement Plan Compliance Consultant for Sequoia, where she works with our clients to optimize and streamline retirement plan compliance. In her free time, Jenny enjoys spending time with her friends and family, traveling, live music, and dining out.