Stanford’s Michelle Mello on the Biden Administration’s Abortion Care Guidance

On June 24, the U.S. Supreme Court in Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade and returned the power to define abortion rights and restrictions to the states. The Biden Administration is now attempting to protect reproductive rights through other means. Here, Michelle Mello, Professor of Law and Professor of Health Policy at Stanford, discusses new guidance for healthcare providers issued by the Biden Administration.

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Law and Health Policy Professor Michelle Mello

What has the Biden Administration been doing in response to the Supreme Court’s Dobbs v. Jackson Women’s Health Organization ruling? 

President Biden and others who want abortion access to be protected have to confront two realities right now. The first is that the Supreme Court eliminated the constitutional right to abortion and left scant recourse for litigation to reclaim aspects of it. The second is that although Congress could, in principle, pass a law creating a statutory right to abortion, Democrats aren’t likely to get the votes to do that.

So the Biden Administration is thinking about next-best solutions. Executive officials are looking around to see what they can do under existing federal statutes. The president can’t just issue an executive order restoring abortion rights, but he can tell federal agencies to take a hard look at the leeway they have to enforce existing federal statutory rights or interpret statutes in ways that help protect abortion access. Officials are also trying to ensure that frontline healthcare providers like physicians and pharmacists aren’t overcomplying with restrictive state abortion laws because they’re uncertain about their legal obligations.

So what steps has the Biden Administration taken so far?

 The past week has seen three important announcements. On July 8, President Biden issued an executive order instructing federal agencies to hunt for ways to use their existing authorities to minimize the adverse impacts of the Dobbs decision—for example, by expanding access to medications used in medical abortions and making sure insurers know they still have to cover all contraceptives. Interestingly, one instruction was to convene a sort of legal SWAT team of government and private lawyers to help defend patients and providers seeking or offering reproductive healthcare services and protect their right to travel.

On July 11, the Centers for Medicare and Medicaid Services (CMS) issued a guidance document clarifying emergency-care physicians’ and facilities’ obligations to deliver abortion care when needed to stabilize a patient’s emergency condition, even if state law prohibits it. And on July 13, the Office of Civil Rights, which sits within the Department of Health and Human Services, issued guidance interpreting federal civil rights laws to require pharmacists to fill prescriptions for drugs that can be used to induce abortions when those drugs have been prescribed for other purposes.

These documents follow on other guidance issued on June 29 regarding privacy protections for patients’ reproductive healthcare data. That guidance clarified that the privacy provisions of Health Insurance Portability and Accountability Act (HIPAA) don’t require healthcare providers to report data on abortion-related care to state authorities. (Unfortunately, as I’ve written about elsewhere, although HIPAA doesn’t require that, state law often does, and HIPAA won’t shield providers who don’t want to comply with a state official’s investigative demand.)

It sounds like the new guidance on emergency care might set the federal government up for a legal battle with the states. Can CMS really declare that providers must not comply with state law?

Legal battles lie ahead. It took the State of Texas just three days to file a lawsuit against the U.S. Secretary of Health and Human Services over the emergency-care guidance. Texas was probably emboldened by recent U.S. Supreme Court decisions narrowing the discretion of federal agencies to issue regulations that implicate questions of deep economic and political significance.

 What’s at issue here is whether CMS can use the Emergency Medical Treatment and Labor Act of 1986 (EMTALA) to preempt—or trump—state laws that prohibit abortion even when it’s necessary to prevent serious harm to the pregnant person. It’s crystal clear that Congress intended EMTALA to preempt state laws that directly conflict with EMTALA’s commands, and Texas isn’t even trying to argue otherwise. The fight is about whether CMS’s particular interpretation of what EMTALA requires, and the manner in which the guidance was issued, are legitimate.

 The agency’s interpretation of EMTALA certainly doesn’t seem like a big stretch.  CMS is just reminding providers that they’re legally obligated to provide stabilizing treatment to patients who have an emergency condition that the provider reasonably believes will deteriorate without the treatment. In some cases, the necessary stabilizing treatment is abortion. Examples include patients with ectopic pregnancy, complications of a spontaneous pregnancy loss that has begun, or severe preeclampsia.

That doesn’t sound like much. Is the guidance even useful?

Yes. Even though it’s just restating existing law, there’s real value in that in situations where people feel uncertain about what the law requires of them.  That’s definitely the case here: even hospital lawyers have been worried about how their clients are going to be able to comply with both EMTALA and restrictive state abortion laws. We know from other areas of health law like medical malpractice that when physicians aren’t sure about the legal standard of care, they tend to practice defensively, often to patients’ detriment. In this case, they might feel chilled from providing reproductive health services that they have a legal right (and actually a legal obligation) to provide. 

Another consideration is that the guidance document provides a legal defense in the event that a state law enforcer goes after a physician or facility for providing services that are illegal under state law. Finally, because EMTALA is enforceable through a complaint process, the guidance creates an opportunity for defenders of abortion rights to launch legal actions to protect access in emergency cases and penalize providers who deny medically necessary care.

How about the guidance to pharmacists—how helpful is that?

 It addresses a narrow problem, but it’s important. There have been scads of reports of patients being denied medications essential to their health simply because they are women of childbearing age and the medication can also be used to induce abortion. For instance, a woman with rheumatoid arthritis may rely on methotrexate as an immunosuppressive treatment and suddenly find that her pharmacy won’t fill her rheumatologist’s prescription. Or someone who is in the midst of a spontaneous miscarriage may be denied the mifepristone and misoprostol prescribed to evacuate the fetus. There is even concern about patients being able to access emergency contraception such as levonorgestrel (“Plan B”). 

These denials have caused a lot of outrage, and rightfully so. But rather than reflecting zealotry on the part of pharmacists, they may simply be another example of people overcomplying with a law they don’t understand. State officials appear to be in no hurry to clarify that their abortion laws aren’t intended to apply to circumstances like these, and pharmacist associations haven’t yet stepped in to fill the gap.

That leaves the federal government, and the tool it has at its disposal is federal civil rights laws, especially section 1557 of the Affordable Care Act. Under that law, healthcare providers that receive money from federal health programs can’t discriminate against people based on protected characteristics. Those characteristics include disability and sex, which have been interpreted to encompass pregnancy and medical conditions related to pregnancy. So here, the Office of Civil Rights is expressing its view that denying these drugs because a patient is pregnant or you think she might be pregnant constitutes illegal discrimination.

Overall, how optimistic are you about the Biden Administration’s ability to use steps like these to protect reproductive health rights?

Well, these are useful steps—but they’re modest ones. If you think about abortion access as having been protected for 50 years by a fortress, the U.S. Supreme Court took a battering ram to the fortress and knocked down a huge wall. These measures are like putting a few rocks back up where the wall used to be.

But, they can help blunt some of the sharpest edges of the Court’s decision, helping pregnant persons who could die—soon—without abortion care, and patients who are denied essential medications and who are basically collateral damage in this fight. Finally, they can help return some measure of confidence to healthcare providers trying to figure out what is and isn’t okay in the post-Dobbs landscape. These are scary times for them as well. 

Michelle Mello, Professor of Law and Professor of Health Research and Policy (School of Medicine), is a leading empirical health scholar whose research is focused on understanding the effects of law and regulation on health care delivery and population health outcomes. She was elected to the National Academy of Medicine (formerly known as the Institute of Medicine), one of the highest honors in the fields of health and medicine, in recognition of outstanding professional achievement and commitment to service.