The White House has issued a memorandum addressing access to mifepristone—a medication abortion drug approved by the Food and Drug Administration (FDA)—in the wake of the Supreme Court's Dobbs decision, which overturned the federal constitutional right to abortion (Memorandum (Jan. 22, 2023) and fact sheet; see Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022)). Among other provisions, the memorandum:

For more information on the Dobbs ruling, see:

To access other Dobbs-related resources, search "Dobbs w/5 Jackson" on the Practical Law website. In addition, for more information on state laws and regulations addressing the post-Dobbs legality of abortion, health provider protections and penalties, payment requirements and restrictions, and requirements regarding medical abortions, see State Abortion Laws Quick Compare Chart.

The White House's memorandum notes that in 2000 the FDA approved mifepristone for use in the US as a method to end pregnancies early. Under federal law, the use of mifepristone is governed by a set of conditions known as Risk Evaluation and Mitigation Strategies (REMS). During the COVID-19 pandemic and related US public health emergency (PHE), the FDA stopped enforcing a requirement that mifepristone be prescribed in person. Earlier this month, the FDA modified the REMS governing mifepristone's use so that health providers and individuals can continue to use telehealth to prescribe and receive mifepristone by mail when the COVID PHE ends (see Practice Note, COVID-19 Compliance for Health and Welfare Plans: COVID-19 Public Health Emergency and National Emergency Declarations and Telehealth and Other Remote Care Services). Specifically, the FDA permanently removed the requirement that mifepristone be prescribed in person (FDA Q&As on Mifeprex (Jan. 4, 2023)). In addition, pharmacies can become certified to dispense mifepristone to individuals.

At the state level, however, the memorandum notes that some states have announced efforts to restrict access to mifepristone. Guidance issued in Florida, for example, discourages pharmacies from dispensing mifepristone—reasoning that Florida law restricts where medication abortion can be provided to hospitals and other physician settings.

The White House's memorandum also expands on a prior Biden administration order issued in response to the Dobbs ruling. Specifically, in a July 2022 order, the administration instructed HHS to identify actions to expand access to abortion—including medication abortion (Executive Order 14076 (July 8, 2022); see Legal Update, White House Executive Order Addresses Post-Dobbs Access to Abortion and Contraceptives).

The memorandum directs HHS (and other federal agencies), within 60 days, to consider:

Additionally, the memorandum instructs the Attorney General, Secretary of Homeland Security, and HHS to provide information to a federal interagency task force on reproductive health care access concerning:

According to the administration, these actions would build on HHS's other post-Dobbs initiatives to expand access to reproductive care. These HHS initiatives include:

In the rapidly changing post-Dobbs legal environment, there continues to be significant concern over whether parties that help make available medication abortion drugs—including through employer-sponsored group health plans and other arrangements—could incur liability for doing so under state law (either civil or criminal). At least some states have imposed bans on medication abortion beginning at a relatively early stage of a pregnancy. And with state legislatures returning to session in the new year, it is possible that additional restrictions may follow.

As part of HHS's response to the Dobbs ruling (under the Biden administration), the agency reiterated that the Affordable Care Act (ACA) requires employer-sponsored health plans—subject to exceptions—to provide first-dollar coverage of birth control and family planning counseling to participants and beneficiaries (see Practice Notes, Preventive Health Services Under the ACA, Other Than Contraceptives and Contraceptives Coverage Under the ACA). In a related proclamation, the Biden administration declared January 22, 2023, as the 50th anniversary of the Supreme Court's Roe v. Wade decision.

To access other Dobbs-related resources, search "Dobbs w/5 Jackson" on the Practical Law website (see also Abortion and Contraceptives Services for Group Health Plans Toolkit).