Initial Federal Responses to Dobbs Decision

We have seen surveys showing about half of employers will not be implementing immediate changes following the Dobbs decision, but prefer to wait and see how federal and state activities progress in the near term.  Below we provide a summary of federal executive agency responses and directives seen thus far.

• June 24: US Attorney General Merrick Garland issued a statement following the Dobbs decision.  He focused on the these issues:
  • The Freedom of Access to Clinic Entrances Act “prohibits anyone from obstructing access to reproductive health services through violence, threats of violence, or property damage.”
  • The Justice Department will partner with all levels of law enforcement to protect access to medication abortion.  “The FDA has approved the use of the medication Mifepristone. States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.”
  • Finally he closes with the “longstanding position that States generally may not impose criminal or civil liability on federal employees who perform their duties in a manner authorized by federal law. Additionally, the Department’s Office of Legal Counsel has determined that federal employees engaging in such conduct would not violate the Assimilative Crimes Act and could not be prosecuted by the federal government under that law.”
• June 27: Tri-agency letter warning non-grandfathered health plans to comply with the ACA’s preventive care contraceptive requirements, including:
  • Coverage of the two emergency contraceptives approved by the FDA
  • In-network coverage with no cost to the member of at least one contraceptive in each of the 18 categories, but noting if the free version in that category isn’t what the patient’s provider deems medically appropriate for the member, then they must provide “an easily accessible, transparent, and sufficiently expedient exceptions process that is not unduly burdensome on the individual or their provider (or other individual acting as a patient’s authorized representative) and must defer to the recommendation of the attending provider” to secure an alternative FDA-approved contraceptive in that category at no cost
• June 29: HHS patient privacy guidance for employers and employees
  • For employers: “Reminds HIPAA covered entities and business associates that they can use and disclose PHI, without an individual’s signed authorization, only as expressly permitted or required by the Privacy Rule” and “explains the Privacy Rule’s restrictions on disclosures of PHI when required by law, for law enforcement purposes, and to avert a serious threat to health or safety”
    • https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/phi-reproductive-health/index.html
  • For employees: Provides steps individuals can take to limit and protect “the privacy and security of their health information when using their personal cell phone or tablet” since HIPAA does “not protect the privacy or security of individuals’ health information when they access or store the information on personal cell phones or tablets”
    • https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/cell-phone-hipaa/index.html
  • How to file a complaint:https://www.hhs.gov/hipaa/filing-a-complaint/index.html
• July 8: President’s “Executive Order on Protecting Access to Reproductive Healthcare Services”
  • President Biden is primarily looking to Congress to take legislative action, so this executive order is mostly focused on directing his agencies to compile information and promote education
  • This includes, but is not limited to:
    • Identifying “how to obtain free or reduced cost reproductive healthcare services through Health Resources and Services Administration-Funded Health Centers, Title X clinics, and other providers”
    • Enforcing “the full protections for emergency medical care afforded under the law, including by considering updates to current guidance on obligations specific to emergency conditions and stabilizing care under the Emergency Medical Treatment and Labor Act, 42 U.S.C. 1395dd” (EMTALA)
    • The creation of an interagency task force to coordinate a federal response
• July 11: HHS reminder that federally required emergency medical care may include abortion services
  • A letter addressed to health care providers in all states reiterates that the federal EMTALA statute provides a definition of medical emergency which requires examination and stabilizing treatment and preempts any state laws to the contrary

The above complies a list of federal activity. We hope to address state level activity; however, at this point, the legislative actions at the state level are moving fast and changing rapidly. It’s difficult to compile meaningful and actionable information at this early stage, but we will keep our readers updated as permanent changes develop.