In response to the Supreme Court last week overturning the landmark 1973 Roe v Wade decision, after previously upholding the constitutional right to an abortion in Planned Parenthood of Southeastern Pennsylvania v Casey, HHS Secretary Xavier Becerra outlined the next steps for the Biden administration.
“On Friday, June 24, 5 Americans decided to use the vast power bestowed on them by our democracy and our Constitution to unconscionably put at risk the life and health of millions of our fellow Americans. They chose to unconscionably limit Americans’ established freedom and autonomy to control their own body, decisions usually made in consultation with their doctor, not a politician. And they chose to unconscionably strip away the fundamental health care protections that every American of childbearing age has known all their lives,” HHS Secretary Xavier Becerra said during a press conference today in response to the Supreme Court’s ruling overturning the landmark 1973 Roe v Wade decision. “Friday’s Supreme Court decision was despicable—but it was not unpredictable. HHS has been preparing for this for some time.”
In the June 24 decision, authored by Associate Justice Samuel Alito, the Supreme Court actually voted 6-3 on the case at hand, Dobbs v Jackson Women's Health Organization, but Chief Justice John Roberts filed a separate opinion expressing concerns around a complete reversal of Roe v Wade, which had established the constitutional right to an abortion. This was a right the Court previously upheld in Planned Parenthood of Southeastern Pennsylvania v Casey. Friday’s decision relegated abortion law to the states, some of which ordered an immediate cease to the procedure following the announcement.
Becerra laid out HHS’ 5-step action plan, which has as its core ensuring women’s reproductive rights and their access to reproductive health care on their terms.
“There is no magic bullet,” he reiterated. “But if there is something we can do, we will find it and we will do it at HHS.”
The plan he laid out is built upon these 5 areas:
Increasing Access to Medication Abortions
Even though federal programs are legally required to provide medication abortion in circumstances where the woman’s life is at risk or in cases of rape or incest, Becerra emphasized that with the overturning of the nearly 50-year-old right, it’s more important than ever to ensure all federally supported programs comply with this directive.
Ensuring Patient and Provider Privacy
HHS’ Office of Civil Rights is being directed to ensure that patients and their providers won’t face discrimination or encroachment on their privacy for seeking and providing, respectively, reproductive health care.
Examining HHS’ Authority Under EMTALA
The Emergency Medical Treatment and Active Labor Act (EMTALA) guarantees the right to emergency department care regardless of insurance status or ability to pay. Using this precedent, Becerra wants to ensure now that in cases where care is provided to pregnant patients—in particular, those who are experiencing pregnancy loss or complications—if abortion care is that care, that a doctor’s clinical judgement will not be questioned when deeming abortion care appropriate.
Navigating Family Planning
All HHS departments are being tasked with ensuring that all health care providers, “from doctors to pharmacists to clinics,” are trained on how to provide optimal family planning care in the post-Roe era. This includes patient care referrals and care navigation.
Protecting Contraception Access
Noting the vital role that family planning clinics play, Becerra stressed here the importance of making sure these clinics can continue to participate in Medicaid. Although there are minimum federal standards for family planning care, those exact services are not explicitly delineated in regard to Medicaid protection. Becerra, however, did emphasize ongoing access to emergency contraception and long-acting reversible contraception (eg, intrauterine devices).
Becerra placed great emphasis on ensuring and increasing access to abortion medications, especially, noting they are the gold standard of care in instances of miscarriage. “I say this as the spouse of a more than 30-year high-risk OB-GYN: The Supreme Court’s decision will result in worse health outcomes and death for some patients. Working to increase access to this drug is a national imperative and in the public interest.”
To this effort, HHS will continue to actively support FDA decisions regarding these medications’ safety and effectiveness as well as work with Attorney General Merrick Garland and the Department of Justice to ensure states that ban abortion medications don’t do so just because they disagree with the FDA. In addition, HHS’ own Reproductive Access Task Force will be making certain that information on access to and coverage of sexual/reproductive health care is accurate.
“This is a critical moment in our history. How we respond will speak to how we view the rights, the dignity, and the well-being of women everywhere,” Becerra stated. “We will leave no stone unturned. All options are on the table. We will do everything within our legal limit of the law to reach patients and support providers.”