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August 3, 2022

Federal abortion actions: Biden issues second EO while DOJ sues Idaho for abortion ban

Daily Briefing

    The White House on Wednesday announced that President Joe Biden intends to sign an executive order (EO) aimed at helping women who travel across state lines to receive abortions, a move that comes as the Department of Justice (DOJ) on Tuesday filed a lawsuit against Idaho's near-total abortion ban.

    Check out our new resource page for post-Roe implications for health care

    Details on the EO

    In the order, Biden will direct HHS to consider using Medicaid to pay for the expenses of women traveling across state lines to get abortions.

    Specifically, the EO will direct HHS "to consider action to advance access to reproductive healthcare services, including through Medicaid for patients who travel out of state for reproductive healthcare services," according to a White House fact sheet.

    A senior Biden administration official told The Hill that states where abortion is legal could apply for a Section 1115 Medicaid waiver to provide services for women traveling for an abortion. However, it's unclear how the Hyde Amendment, which prohibits the federal government from using funds for abortion, might interfere with the order, USA Today reports.

    The EO will also direct HHS to "consider all appropriate actions" to make sure health care providers comply with nondiscrimination laws and direct the department to improve federal research and data collection to determine the impact of the Supreme Court's decision to strike down Roe v. Wade on maternal health.

    DOJ files lawsuit against Idaho abortion law

    Meanwhile, DOJ on Tuesday filed a lawsuit against Idaho, claiming its recent abortion law violates the Emergency Medical Treatment and Labor Act (EMTALA).

    According to DOJ's lawsuit, Idaho's law, which is expected to take effect on August 25, bans nearly all abortions. It also criminalizes health care providers who perform abortions, including those who perform an abortion in situations that "prevent a patient from suffering severe health risks or even death."

    "Although the Idaho law provides an exception to prevent the death of a pregnant woman, it includes no exception for cases in which the abortion is necessary to prevent serious jeopardy to the woman’s health," U.S. Attorney General Merrick Garland said, adding that the ban "would subject doctors to arrest and criminal prosecution even if they performed an abortion to save a woman's life. And it would then place the burden on the doctors to prove that they are not criminally liable."

    According to DOJ's lawsuit, EMTALA requires that every hospital receiving Medicaid funds provide "necessary stabilizing treatment to patients who arrive at the emergency departments while experiencing a medical emergency." Such treatment can sometimes include an abortion.

    "This may be the case, for example, when a woman is undergoing a miscarriage that threatens septic infection or hemorrhage, or is suffering from severe preeclampsia," Garland said.

    "Today, the Justice Department's message is clear: It does not matter what state a hospital subject to EMTALA operates in. If a patient comes into the emergency room with a medical emergency, jeopardizing the patient's life or health, the hospital must provide the treatment necessary to stabilize that patient," Garland added.

    In a statement, Idaho Gov. Brad Little (R) said he would work with the state's attorney general to defend the law "in the face of federal meddling."

    "Our nation's highest court returned the issue of abortion to the states to regulate—end of story," Little said. "The U.S. Justice Department's interference with Idaho's pro-life law is another example of Biden overreaching yet again while he continues to ignore issues that really should demand his attention—like crushing inflation and the open border with Mexico." (Victor, New York Times, 8/3; Chalfant, The Hill, 8/3; Morin, USA Today, 8/3; Halleman, Healthcare Dive, 8/2; Shabad/Dilanian, NBC News, 8/2; Balsamo/Boone, Associated Press, 8/2)

    The business implications of overturning Roe v. Wade

    Access our new resource library

    physiciansThe recent Supreme Court ruling on Dobbs v. Jackson Women’s Health Organization has triggered a cascade of uncertain consequences for health care leaders and the patients they serve.

    Going forward, our research teams will be updating this new resource page with helpful analysis and deep dives, including: 

    Access now

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