Feds Move to Protect Abortion Access, While Legal Confusion Spreads

Photo by Gayatrri Malhotra on Unsplash

President Joe Biden’s executive order on July 8 was aimed at countering the  criminalization of access to abortion. But it didn’t contain concrete actions on behalf of federal agencies.

That changed this week, with announcements from different parts of the federal bureaucracy aimed at supporting and protecting reproductive health in the new landscape created by the Supreme Court ruling that overturned Roe v Wade and Casey v Planned Parenthood.

The U.S. Department of Health and Human Services (HHS) stepped into the ring on July 11, with the publication of guidance that physicians across the country must provide an abortion if it is the stabilizing treatment needed for a patient experiencing a medical emergency according to federal law.

The release clarifies federal protections for abortion access for mothers and other pregnant people whose lives—or health—are at risk. For legal authority, HHS is relying on the ​​1986 Emergency Medical Treatment and Active Labor Act.

“Under the law, no matter where you live, women have the right to emergency care — including abortion care,” HHS Secretary Xavier Becerra said in a letter to providers nationwide.

“Today, in no uncertain terms, we are reinforcing that we expect providers to continue offering these services, and that federal law preempts state abortion bans when needed for emergency care.”

Covered emergency conditions include ectopic pregnancies, pregnancy loss complications, and other disorders.

Secretary Becerra also announced that the department will work to expand access to medication abortion and protect emergency abortion and contraceptive care across the country.

At the same time, the Department called on the insurance industry to commit to their obligations regarding no-cost contraceptive services under the Affordable Care Act.

Reproductive Rights Task Force

A day after the HHS announcement, the Department of Justice launched a “Reproductive Rights Task Force” aimed at protecting reproductive freedom and pushing back against state overreach on abortion rights.

The task force will track and coordinate federal responses to state and local legislation that impairs information about and access to reproductive care and abortion where it is legal.

The new task force formalizes a team that has been monitoring the legal landscape for reproductive care in the months following a leaked draft that showed abortion rights protected under Casey v. Planned Parenthood and Roe v. Wade were set to be overturned.

The Justice Department task force will also explicitly work to curb restrictions of mifepristone, a kind of hormone blocker that can prevent a pregnancy from developing, approved for mail-order delivery by the FDA in 2021.

The team, chaired by Associate Attorney General Vanita Gupta, will also provide “technical support” to Congress in developing legislation that codifies reproductive rights.

Diane Derzis, CEO of Jackson Women’s Health Organization in Mississippi, the clinic at the center of the Dobbs decision, told Democracy Now’s War and Peace Report that she thinks President Biden is limited in what he can do for abortion rights—she called for federal legislative action.

“The whole situation should never have happened. I think that it has to send the message that right now we are trying to plug the bleeding,” Derzis said, “And the only way to stop this is to absolutely pass federal law that protects a woman’s access to the most private decision of her life.”

At the State Level, Legal Limbo

Throughout the country, insurance companies, health care providers, and even lawmakers and politicians are guessing about the actual legal repercussions of many formally unenforceable laws criminalizing abortion.

In Texas, politicians are even trying to take aim at law firms for “aiding or abetting” in abortions illegal in the state, Reuters reports.

The Texas Freedom Caucus has said it would seek to make law firms criminally liable for helping to pay for abortions or abortion travel through new legislation, and seek the disabrement of affiliated attorneys. Many big law firms have joined a trend set by large U.S. corporations with workers in states with abortion bans to offer travel benefits and resources for getting abortions out-of-state.

In Louisiana, a second round restraining order blocking the state’s abortion bans was put in place on Tuesday, July 12, reinstating abortion access in an uncertain climate.

The original order halting three separate laws banning abortion in LA was overturned on Friday, July 8, on a question of court jurisdiction, the New York Times reports. The new order comes from Baton Rouge, the state capital, and resumes abortion access in Louisiana at least until a new hearing will consider a more permanent injunction on Monday, July 18.

A federal judge has issued an injunction halting a 2021 Arizona law that would extend “personhood” status to fetuses at every stage of development, potentially putting health care providers at risk of criminal prosecution under changes like endangerment or child abuse for providing care to pregnant patients that harms a fetus—even if the patient’s health is at risk. The injunction will likely hold until Arizona lawmakers are able to clearly define the scope of the state’s abortion laws, Courthouse News Service reports.

“When the punitive and regulatory weight of the entire Arizona code is involved, Plaintiffs should not have to guess at whether their conduct is on the right or the wrong side of the law,” U.S. District Judge Douglas Rayes said in his ruling.

“A law which requires such extraordinary effort to decipher fails to give ordinary people fair notice of the conduct it permits and proscribes.”

Audrey Nielsen is a TCR Justice Reporting intern.