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.

This tracker was last updated on January 23, 2024.

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 origin 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.
October 4, 2022 U.S. Department of Education The Department of Education released guidance reiterating its enforcement of the Title IX protection that prohibits discrimination on the basis of pregnancy, including pregnancy termination.

 

This announcement was included in a report to the President’s Task Force on Reproductive Healthcare Access, marking 100 days since the Dobbs decision.
October 20, 2022 U.S. Department of Defense In a memo from the Defense Secretary Lloyd Austin, the Department of Defense (DoD) was directed to establish travel and transportation allowances for servicemembers and their dependents to access abortion care that cannot be provided on base due to limited exceptions for abortion care.

 

The department will also establish additional privacy protections and guidance, a program to reimburse DoD providers who wish to become licensed in other states, and a program to support DoD providers who are subject to “adverse action” for providing health care.
November 10, 2022 HHS HHS released updated field guidance instructing staff to facilitate access to abortion care for unaccompanied migrant children if requested, and prohibiting staff from preventing access to abortion-related care. The Office of Refugee Resettlement is also tasked with prioritizing the placement of pregnant unaccompanied minors, and those who are victims of sexual assault, in states without bans on abortion care.
December 23, 2022 DOJ In early January 2023, the Department of Justice released an opinion (sought by the U.S. Postal Service) that the USPS can deliver packages containing the most commonly used medication abortion drugs, mifepristone and misoprostol. The memo makes clear that mailing of these medications does not violate the 150-year-old Comstock Act and affirms that Postal Service workers, in addition to private mail carriers, are legally able to deliver the medications in all states.
January 3, 2023 HHS, Food and Drug Administration (FDA) The FDA released its changes to the REMS guidelines which regulate mifepristone, used for medication abortion care. The agency both permanently lifted the in-person dispensing requirement for the medication and created a program in which brick-and-mortar and mail-order pharmacies can dispense the medication, a change from requiring provider dispensation. 

 

This is an important step to expand access, though it remains to be seen how many pharmacies will choose to opt into the program and become certified to dispense mifepristone.
January 5, 2023 HHS HHS proposed a rule, “Safeguarding the Rights of Conscience as Protected by Federal Statutes.” This would partially rescind a Trump-era regulation that emboldened institutions and individuals to discriminate against patients and refuse comprehensive health care. The rule endangered access to reproductive health care, including abortion, and care for LGBT individuals in particular. The proposed rule explicitly affirms the right for patients to access abortion care.
January 22, 2023 White House, Office of the President Fifty years after the U.S. Supreme Court’s decision in Roe v. Wade, President Biden signed a presidential memorandum, Further Efforts to Protect Access to Reproductive Healthcare Services. 

 

This memo directs HHS, in consultation with the attorney general and secretary of the Department of Homeland Security, to: 

 

+ Consider issuing new guidance to support patients seeking medication abortion care and for providers and pharmacies that wish to provide access;

+ Ensure that patients understand their right to access abortion care, and to consider additional actions to safeguard abortion access for patients; and.

+ Assess barriers to medication abortion access for patients and provide recommendations to the White House Interagency Task Force on Reproductive Healthcare Access on how to address these obstacles and improve access.
April 12, 2023 HHS  HHS issued a notice of proposed rulemaking to strengthen reproductive health care privacy. The proposed regulation would strengthen privacy protections, and in particular prohibits use or disclosure of protected health information to investigate patients, providers, and others involved in the provision of health care–including abortion care. These efforts are critically important as abortion care is increasingly criminalized across the country.
January 9, 2024 HHS HHS issued its final rule clarifying how federal health care refusal law is implemented. Safeguarding the Rights of Conscience as Protected by Federal Statutes was originally proposed in January 2023 (see above) and goes into effect March 2024. This regulation rescinds the most harmful portions of the Trump-era regulations and provides important protection against discrimination for health care providers and patients.
January 22, 2024 HHS HHS announced the launch of a plan to educate patients and providers of their rights under the Emergency Medical Treatment and Labor Act (EMTALA). The department will release resources to help patients understand the protections as well as the process for submitting a complaint. HHS will also disseminate training materials to providers and establish a team of experts to support hospitals and health care providers in complying with the law.

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