In response to the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, which concluded that the U.S. Constitution does not prohibit states from regulating or banning abortion (see our Checkpoint article), President Biden has issued an executive order intended to protect access to reproductive health care services. Among other things, the order instructs HHS to submit a report within 30 days identifying potential actions to protect and expand access to abortion (including medication abortion) and the full range of reproductive health care services (including emergency contraception).
The U.S. Attorney General and the Department of Homeland Security are also directed to consider actions to ensure the safety of patients, providers, and others delivering reproductive and related health care services. And the Federal Trade Commission must consider actions to protect individuals’ privacy when they seek information about reproductive health care services. Furthermore, HHS is instructed to consider actions, including guidance under HIPAA, to protect sensitive information related to reproductive health care services and patient-provider confidentiality and to educate consumers on steps to protect their health privacy and limit sharing of health information. The order also requires establishment of an Interagency Task Force on Reproductive Healthcare Access to coordinate federal agencies’ actions to protect and strengthen access to essential reproductive health care services.
EBIA Comment: The Biden administration has been openly critical of the Dobbs decision, and this order begins to translate the criticism into a policy framework. HHS has already issued guidance addressing HIPAA privacy protections around reproductive health care and tips for individuals to protect the privacy and security of their health information when using a personal cell phone or tablet (see our Checkpoint article). As employers consider possible responses to ongoing efforts by many states to limit or prohibit abortion, they will want to watch the federal response closely and consult with legal counsel. For more information, see EBIA’s HIPAA Portability, Privacy & Security manual at Sections XXIII (“How the Privacy and Security Rules Affect Group Health Plans and Plan Sponsors”) and XXVI (“Core Privacy Requirement #1: Use and Disclosure Rules”). See also EBIA’s ERISA Compliance manual at Section XXXIX (“ERISA Preemption of State Laws”), EBIA’s Group Health Plan Mandates manual at Section XXI.F (“Plan Coverage of Abortion Under Title VII, as Amended by the PDA”), and EBIA’s Self-Insured Health Plans manual at Section XI (“Designing Benefit Options in a Self-Insured Health Plan”).
Contributing Editors: EBIA Staff.