Some patients and providers say they continue to encounter barriers to care since the Supreme Court’s decision in June 2022 to strike down Roe and overturn the constitutional right to abortion. Here’s what the administration’s steps would mean for consumers.
Greater availability of no-cost contraceptives as mandated under the Affordable Care Act
Most employer and individual health plans must cover contraceptives approved or cleared by the Food and Drug Administration without asking patients to pay out-of-pocket costs. Health and Human Services Secretary Xavier Becerra sent a letter to health insurers reminding them to provide contraceptives at no cost.
Health plans and providers have also continued to complicate patients’ efforts to obtain no-cost contraceptives, the administration said. Federal officials this week cited an October 2022 report by House Democrats that analyzed barriers to contraception, finding at least 34 birth control products that required patients to spend out of pocket.
Some of those products were newer and offered clinical advantages, such as a vaginal ring that lasted for a year rather than a month like other products, or a progestin-only birth control pill that patients could take at different times throughout a day, rather than the same time every day.
The Department of Health and Human Services provided hypothetical examples of ways in which insurers could deny or complicate access to certain medications, including age restrictions, imposing burdensome requirements and requiring patients to pay out of pocket for certain services.
Protections for emergency abortions
Federal officials announced they would launch a campaign to highlight existing protections for emergency abortions. This includes urging patients and health-care workers to report cases in which emergency abortions have been denied.
The Biden administration maintains that federal law requires hospitals to perform emergency abortions, including in states with bans or restrictions on the procedure, although Republicans and some federal courts have disagreed.
A new team to enforce federal rules when hospitals deny emergency abortions
Health officials said they were creating a dedicated team to work with health-care providers to ensure compliance with the Emergency Medical Treatment and Labor Act, a federal law known as EMTALA that was passed nearly 40 years ago and requires that hospitals perform health-stabilizing treatment for all patients, even if that treatment is an abortion.
Abortion rights advocates have urged the Biden administration to more aggressively announce and enforce when hospitals and physicians violate EMTALA. Advocates argue that federal officials are doing too little in response to state abortion bans. They have cited the recent case of an Oklahoma woman who was told to wait in the parking lot until she became sick enough to qualify for an abortion under the state’s near-total ban, despite a potentially life-threatening pregnancy complication. Federal officials rejected the woman’s EMTALA complaint and said the hospital did nothing wrong.
The administration has faced challenges implementing its strategy, given the oft-circuitous nature of EMTALA enforcement. There is a months-long process of determining whether a violation occurred, which involves investigations conducted by state health agencies in the antiabortion states where the events took place. Officials have said there are numerous opportunities for the process to break down, such as state workers who are confused by whether an incident constitutes an EMTALA violation — or are simply not inclined to aggressively pursue the complaint, The Washington Post previously reported.
Biden and his allies are eager to make abortion a defining debate in the 2024 election cycle, with this week’s announcements part of Democrats’ broader political push to focus on the issue.
About 3 in 5 voters — including 1 in 5 Republicans — say they trust Democratic politicians more than GOP leaders to handle abortion, according to polling conducted by KFF, a health policy research organization. The issue contributed to recent Republican defeats in Kansas, Ohio and other states that have favored GOP politicians.
Former president Donald Trump, who is seeking the Republican presidential nomination, has said that Republicans should consider moderating their focus on abortion bans. “You have to win elections,” he said at a Fox News town hall in January.
Seeking to defuse the potency of the issue, Republican politicians have homed in on Biden’s personal views, noting that he is a practicing Catholic who raised doubts about abortion earlier in his career, and have argued that Democrats’ approach to abortion is too permissive.
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