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June 30, 2022

'All options are the on the table': The Biden administration's next steps post-Roe

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    HHS Secretary Xavier Becerra on Tuesday announced the Biden administration's next steps to protect reproductive health care following the Supreme Court's decision to overturn the 1973 Roe v. Wade and 1992 Planned Parenthood v. Casey decisions.

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

    HHS outlines plan to ensure access to reproductive care

    During a press conference on Tuesday, Becerra outlined new steps the Biden administration will take to ensure access to reproductive health care across the country. "All options are on the table," he said. "We will do everything within the legal limit of the law to reach patients and support providers."

    To begin, Becerra said HHS will work to increase access to abortion medications. Currently, federal law requires HHS programs to provide abortion medications in certain circumstances, when the life of a mother is at risk or for pregnancies that result from rape or incest, and Becerra said it is "imperative" that all programs comply with these practices.

    In addition, Becerra said HHS will help prevent the discrimination of patients seeking reproductive care and physicians providing it. In particular, HHS will review whether federal regulations under the Emergency Medical Treatment and Active Labor Care Act could be used to protect health care workers providing care for pregnant patients with complications.

    HHS will also require hospitals to comply with a federal law mandating that they stabilize patients experiencing a medical emergency—including by performing abortions, if necessary.

    Federal officials will also take steps to protect private health data, which some advocates are concerned will be used against individuals who seek abortions in states with bans. "We don't want anyone's private health information … to be leaked in ways that violate federal law," Becerra said.

    Finally, Becerra said he would direct CMS to "take every legally available step to protect family planning care," including emergency contraceptives and IUDs.

    "Healthcare is a matter to be decided by patients and their providers," he said. "As part of these efforts, we will make clear that family planning providers are able to participate in the Medicaid program. These clinics provide safe care and have a vast expanse of expertise in providing reproductive healthcare."

    Overall, Becerra said that there is "no magic bullet, but if there is something we can do, we will find it and do it."

    Advocates push for more aggressive action to ensure abortion access

    So far, advocates, including several Democratic lawmakers, have pushed the federal government to take more aggressive action to ensure access to abortion and other reproductive care across the country.

    For instance, a group of 34 Senate Democrats, including Sens. Patty Murray (D-Wash.), Elizabeth Warren (D-Mass.), and Ed Markey (D-Mass.), on Saturday wrote a letter to President Joe Biden calling for "bold action to protect the right to an abortion." Recommendations included providing federal employees who live in states with abortion bans with childcare and travel vouchers if they need to travel out of state for an abortion, as well as providing reproductive health services on federal property.

    Separately, Rep. Ayanna Pressley (D-Mass.) and a group of Black congresswomen on Friday urged Biden to "use all applicable executive authorities," including declaring a national public emergency, to increase access to abortion care.

    According to legal experts, Biden and his administration are likely limited in what they can legally do in response to the Supreme Court's ruling, and any action to broaden access to abortion care will draw litigation.

    "There's a lot of steps they can take that are in the direction of supporting reproductive care, but he doesn't have a lot of major actions he can take by his executive authority in my view," said Nicole Huberfeld, a professor of Health Law, Ethics & Human Rights at Boston University's School of Public Health.

    However, there are additional actions he could likely take to increase access, such as asking FDA to make abortion medications available over the counter.

    "He can do a lot more than he's doing, but he can't do everything," Lawrence Gostin, director of Georgetown University's O'Neill Institute for National & Global Health Law. "He can't order states to allow abortions. Only Congress can do that. But short of that, he's got a lot of options."

    In order to facilitate Congressional action, Biden on Thursday said he'd support temporarily suspending the filibuster in the Senate in order to pass legislation that would codify Roe v. Wade into law. If the filibuster were suspended, it would allow the Senate to pass legislation with 51 votes rather than the 60 that are usually required for a bill to advance.

    "The most important thing to be clear about is we have to codify Roe v. Wade into law and the way to do that is to make sure Congress votes to do that," Biden said. "And if the filibuster gets in the way … it should be provided an exception for this … to the filibuster." (Diamond/Roubein, Washington Post, 6/28; Puzzanghera, Boston Globe, 6/27; Sullivan, The Hill, 6/28; DePeau-Wilson, MedPage Today, 6/28; Stolberg/Savage, New York Times, 6/29; Goldman, Modern Healthcare, 6/28; Restuccia/Thomas, Wall Street Journal, 6/30)

    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: 

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