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White House Executive Order Addresses Post-Dobbs Access to Abortion and Contraceptives
Practical Law Legal Update w-036-2264 (Approx. 7 pages)
White House Executive Order Addresses Post-Dobbs Access to Abortion and Contraceptives
by Practical Law Employee Benefits & Executive Compensation
| Published on 11 Jul 2022 • USA (National/Federal) |
The White House has issued an executive order addressing actions the administration will take regarding reproductive health care services in response to the Supreme Court's recent Dobbs ruling on abortion. Among other topics, the order calls for additional administrative guidance on covered contraceptives and privacy considerations under the Health Insurance Portability and Accountability Act (HIPAA).
On July 8, 2022, the White House issued an executive order addressing actions the administration will take in response to the Supreme Court's Dobbs decision overruling the federal right to obtain an abortion recognized in Roe v. Wade and Planned Parenthood v. Casey (Executive Order on Protecting Access to Reproductive Health Care Services (July 8, 2022) and fact sheet; see also Dobbs v. Jackson Women's Health Org., (2022) and Legal Update, Supreme Court's Overruling of Roe v. Wade Raises Health Plan and Employment Implications). In addition to abortion, the order addresses reproductive health care issues that include medical, surgical, counseling, or referral services involving the human reproductive system (for example, contraceptives and pregnancy).
(For more information on post-Dobbs compliance considerations, see Abortion and Contraceptives Services for Group Health Plans Toolkit.)
Contraceptives and Abortion
The administration's order directs the Department of Health and Human Services (HHS), within 30 days, to submit a report to the President identifying potential actions that include:
- Protecting and expanding access to abortion care, including medication abortion.
- Preserving and expanding access to the full range of reproductive health care services, including actions to enhance family planning services, such as access to:
- emergency contraception; and
- long-acting reversible contraception (for example, intrauterine devices (IUDs); see Legal Update, ACA FAQs Address Coverage of Contraceptive Methods).
- Providing outreach and education about access to reproductive health care services, including a public awareness initiative to furnish access-related information.
The administration's public awareness initiative is intended to:
- Promote awareness of and access to the full range of contraceptive services and related information. Regarding the scope of these services under the Affordable Care Act (ACA), as implemented, see Practice Notes:
- Identify steps to ensure that individuals (including pregnant women and those who experience pregnancy loss from miscarriages and ectopic pregnancies) receive protections for emergency medical care, including through potential updates to guidance on emergency conditions and stabilization under the Emergency Medical Treatment and Labor Act (EMTALA). For more information, see:
HIPAA Privacy and Security Compliance Considerations
A section of the administration's order addresses potentially heightened safety and security risks involving the provision of reproductive health care services for:
- Individuals, providers, and third parties.
- Clinics (including mobile clinics), pharmacies, and other entities that provide, dispense, or deliver reproductive and related health care services.
In particular, the order addresses potential threats to patient privacy from:
- The transfer and sale of sensitive health-related data (see Practice Note, HIPAA Privacy Rule: Marketing, Sales, and Research).
- Digital surveillance of health care services.
In response (among other actions), the order instructs HHS to consider providing additional guidance under HIPAA (as amended by the Health Information Technology for Economic and Clinical Health Act (HITECH Act)) to:
- Strengthen protections for sensitive information regarding reproductive health care services.
- Bolster patient-provider confidentiality.
- Educate individuals on how to protect their health privacy and limit the collection and sharing of sensitive health-related information.
For more information, see:
Task Force
The order also directs HHS and other agencies to establish a task force on reproductive health care access. To be funded by HHS, the task force will identify and coordinate activities to strengthen reproductive health care services.
Practical Impact
The administration's order indicates that there will likely be more post-Dobbs guidance to follow for health plans, service providers, and their advisors—both in the contexts of HIPAA privacy and ACA contraceptives. HHS has already issued initial HIPAA privacy guidance addressing certain post-Dobbs situations (see Legal Update, In Post-Dobbs Guidance, HHS Addresses Disclosures of Abortion-Related Information).
Relatedly, the order instructs the Attorney General to issue technical assistance regarding federal constitutional protections for certain states as to out-of-state patients and providers that offer legal reproductive health care. This guidance may be of interest to health plans that have adopted or expanded their travel reimbursement benefits in recent weeks to address abortion services and expenses. (In a separate concurring opinion in Dobbs, Justice Kavanaugh—citing the constitutional right to interstate travel—noted his view that a state may not bar its residents from traveling to another state to obtain an abortion.)