The White House has issued a second executive order addressing actions the administration is taking to promote access to reproductive and other health care services (Executive Order (Aug. 3, 2022)). The administration's second order:

For more information on the Dobbs ruling, see:

The administration's second order reviews recent actions taken by the Department of Health and Human Services (HHS) in response to Dobbs. For example, in July HHS issued guidance to retail pharmacies concerning their obligations under federal civil rights laws to ensure equal access to comprehensive reproductive and other health care services, including for women who are experiencing miscarriages. These federal laws include:

For more information on this HHS guidance, see Legal Update, In Post-Dobbs Guidance, HHS Addresses Sex and Disability Discrimination Rules for Pharmacies.

HHS also recently clarified the obligations of hospitals and health providers, under the Emergency Medical Treatment and Labor Act (EMTALA) (42 U.S.C. § 1395dd), to provide stabilizing care, including abortion, to patients presenting at an emergency department with an emergency medical condition—if that care is necessary to stabilize the individual's emergency medical condition. For more information, see Practice Note, The Emergency Medical Treatment and Labor Act (EMTALA): Overview and Surprise Medical Billing for Health Plans, Health Insurers, and Health Care Providers and Facilities Toolkit.

According to the administration, however, some states' restrictive abortion laws have resulted in legal uncertainty and disparate access to reproductive health care services. The second order describes situations in which:

The administration's second order announces a general policy of supporting women's access to reproductive health care, including the ability to seek abortion care in states where it is legal (see Article, Group Health Plan Coverage Considerations for Employers After the Overturning of Roe v. Wade: Adding Travel and Lodging Benefits Under an Existing Group Health Plan). Accordingly, the administration's second order:

The second order also directs HHS to promote compliance with federal nondiscrimination laws by health providers that receive federal financial assistance, to ensure that individuals are not denied necessary health care on grounds protected by federal law, including:

In this regard, the administration's second order states that HHS may consider:

Some employer/plan sponsors may note with interest the administration's announced policy of supporting women's ability to seek abortion care in states where it is legal. However, the second order does not directly address Dobbs-related legal concerns for offering such benefits raised by employers, many of which are providing travel benefits at centers of excellence (or for services provided outside a set distance) for abortion and other services through their major medical plans. For example, some employers would like the administration to issue guidance addressing the extent to which (if at all) they will be shielded from liability, under ERISA preemption principles, for providing abortion-related travel and lodging reimbursements post-Dobbs. For more information, see Article, ERISA Preemption and Post-Dobbs Abortion Coverage for Employer-Sponsored Health Plans.