On June 24, the U.S. Supreme Court made the historic decision to strip women and pregnant people of the federal right to abortion. The 6–3 ruling in the Dobbs v. Jackson Women’s Health Organization case overruled Roe v. Wade and Planned Parenthood v. Casey entirely, leaving millions of people to grapple with almost insurmountable challenges in accessing the vital health care they need. The decision will have a particularly cruel and disproportionate impact on women of color, who were already bearing the brunt of health inequities related to coverage, cost, and care of abortion access, even well before this Supreme Court ruling.

While the ruling stipulated that the authority of abortion rights now rests with the states, the Biden–Harris administration has stepped in to offer some relief by leveraging pathways through executive action aimed at lightening the burden and helping ensure access to abortion at this critical juncture. The Century Foundation has developed this administration policy action tracker, which will be updated periodically. It offers insight into key actions by the Biden–Harris administration to support access to abortion in response to the U.S. Supreme Court’s decision to overturn Roe v. Wade.

Tracking the Biden–Harris Administration’s Actions on Abortion Access

Date of Action Department/Agency Action 
January 21, 2022 U.S. Department of Health and Human Services (HHS) On the forty-ninth anniversary of Roe v. Wade, Secretary Xavier Becerra established the HHS Intra-agency Task Force on Reproductive Healthcare Access

 

The task force is comprised of senior-level HHS officials who have been charged with the responsibility to identify and coordinate specific actions that protect and bolster access to sexual and reproductive health care. 

June 24, 2022 HHS HHS launched Reproductive Rights.Gov, a website to serve as a guide to existing reproductive rights in the United States. The guide outlines rights to abortion, birth control, emergency care services, and preventive care, as well as information on insurance coverage and resources for finding health care options regardless of insurance status.
July 8, 2022 White House,

Office of the President

President Biden signed an Executive Order Protecting Access to Reproductive Health Care Services. The Executive Order builds on the actions taken by the administration to protect reproductive rights by: safeguarding access to reproductive health services, protecting the privacy of patients, promoting the safety of patients, providers and clinics, and coordinating efforts through the creation of an Interagency Task Force on Reproductive Health Access.

 

More specifically:

+ The executive order directs HHS to protect access to medication abortion, ensure emergency medical care is available, protect access to contraception, increase outreach and public education efforts, and convene volunteer lawyers to encourage legal representation related to attacks on reproductive health access. HHS must submit a report on these efforts within thirty days.

+ Privacy protection actions include directing the HHS and Federal Trade Commission to consider additional threats to stop deceptive practices and protect sensitive health information.

+ The administration will also protect the safety of providers and patients of reproductive health services.

July 11, 2022 HHS Following President Biden’s executive order, HHS issued guidance to clarify that the Emergency Medical Treatment and Labor Act (EMTALA) includes abortion services.

 

 

First enacted in 1986, EMTALA provides rights to any person who comes to a hospital emergency care and seeks treatment. Under EMTALA regulations, hospitals must provide stabilizing medical treatment if an emergency medical condition is found to exist. As abortion bans continue to take affect nationwide, the Biden administration has reminded hospitals that they must comply with EMTALA regulations. Meaning, if a person is experiencing a life-threatening condition due to their pregnancy, a physician is legally obligated to perform an abortion regardless of state law. EMTALA regulations trump state laws. Hospitals could receive fines or be removed from the Medicare program if they fail to comply.

July 13, 2022 The Federal Trade Commission (FTC) Following President Biden’s executive order, the FTC has committed to enforcing the law against the illegal use of sharing highly sensitive data

 

 

Sensitive data can include a person’s location as well as their medical information. When sharing personal information online, it is important to remember that many apps and websites that claim to be anonymous are often “deceptive” and this data can often be re-identified. For example, the data used by period trackers or fertility trackers can be used to determine when a person became pregnant. 

July 14, 2022 HHS Following President Biden’s executive order, HHS issued new guidance which directs pharmacies to fill medication abortion, contraception, and other perscriptions

 

 

Under this guidance, the Biden administration is enforcing Section 1557 of the Affordable Care Act and Section 504 which prohibits recipients of federal financial assistance from denying an individual benefits—including the supply of medication—on the basis of their sex, disability and other basis. According to the Biden administration’s interpretation of these non-discrimination rules, pharmacies cannot discriminate against pregnant people as pregnancy is a form of sex discrimination. Therefore, they must supply pregnant people with their medications. 

July 25, 2022 HHS HHS proposed a rule implementing Section 1557 of the Affordable Care Act to prohibit discrimination on the basis of sex, disability, race, color, age, and national orgin in health services and activities. Most relevant to abortion access, the proposed rule expands the definition of sex based discrimination to include pregnancy or related conditions like “pregnancy termination.” 
August 2, 2022 U.S. Department of Justice (DOJ) The DOJ filed a lawsuit against Idaho for violating EMTALA regulations

 

 

Idaho’s near total ban on abortion provides exceptions if abortion is necessary to prevent the death of pregnant woman or in cases of rape or incest but the law does not allow abortion to protect the health of a patient. Secretary Becerra explained the reasoning behind the DOJ’s action: “Pregnant women should not have to be near death to receive care.” If a physician determines that an abortion is stabilizing treatment, then under EMTALA regulations a state’s law cannot prohibit that care. 

August 3, 2022 White House,

Office of the President

At the first convening of the Task Force on Reproductive Health Access, President Biden signed an executive order to protect access to reproductive health care and other services

 

 

This executive order clarifies EMTALA regulations, issues guidance to pharmacies that receive federal assistance under Section 504 of the Rehabilitation Act and Section 1557 of the Affordable Care Act; and provides protections for consumers against the illegal use and sale of sensitive data. Acknowledging the damaging effect of anti-abortion laws on maternal health outcomes and the need to monitor the effects of abortion bans, this executive order also directs HHS evaluate and improve research on maternal health. 

August 26, 2022 HHS, Centers for Medicare and Medicaid Services (CMS) Building off of the latest executive order, Secretary Becerra and CMS Administrator Brooks-LaSure sent a letter to governors, as well as state CMS directors, inviting them to submit 1115 demonstration waivers to expand access to care to individuals traveling from states that have banned or restricted abortion care. The letter emphasizes, in addition, the flexibility that states have in using their state Medicaid funds. The letter also reiterated guidance on EMTALA.
August 26, 2022 HHS HHS released a report (as required by Executive Order 14076) on its plan of action in response to the Dobbs v. Jackson Women’s Health Organization decision. The report outlines actions taken regarding access to medication abortion and contraceptive care, EMTALA and non-discrimination in health care, protecting patient privacy, improving awareness and access to accurate information, and improving data quality.
September 1, 2022 U.S. Department of Veterans Affairs The Department of Veterans Affairs (VA) submitted an interim final rule that will allow the VA to provide abortion counseling services and allow for abortion care in some limited cases.