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Abortion Ruling Leaves ‘No Magic Bullet’ as HHS Mulls Options (1)

June 28, 2022, 5:36 PMUpdated: June 28, 2022, 7:30 PM

President Joe Biden’s top health official said there’s “no magic bullet” to respond to the Supreme Court’s decision overturning Roe v. Wade, adding that the administration is exploring all options while offering little in the way of specific policies.

Health and Human Services Secretary Xavier Becerra told reporters Tuesday that the department would increase access to medication abortion, ensure patient privacy and nondiscrimination in reproductive health care, and safeguard the clinical judgment of doctors and hospitals under an emergency treatment law.

When asked for details, Becerra was unable to provide any. The “Supreme Court decision was despicable. But it was not unpredictable. HHS has been preparing for this for some time,” he said.

Becerra said the HHS would “support” the Food and Drug Administration and let it respond to what it will do in regard to medication abortion access.

“Even though it’s a law that I personally believe jeopardizes the health of women, we will stay within the confines of the law,” he said. “We’re not interested in going rogue and doing things just because.”

Many of the policy changes that would expand abortion access at the federal level would require congressional action, which is unlikely to happen. Becerra previously told lawmakers that the HHS will do whatever it can within its authority the protect access to abortions.

Biden has repeatedly urged lawmakers to enshrine the protections of Roe v. Wade into U.S. law ahead of the Supreme Court’s decision, but attempts to do so failed.

When asked if the Biden administration was considering creating clinics for abortions on federal lands, as some members of Congress have suggested they do, Becerra said, “We are aware of a number of ideas and proposals, many of which we have been considering internally ourselves. We have made no decisions yet.”

Mifepristone Access

The FDA’s regulation of mifepristone, a drug that can be used to induce an abortion, won’t change with the Supreme Court’s decision. But there could be an increase in state laws regulating the drug and lawsuits over that authority. Mississippi currently faces a lawsuit from GenBioPro, the manufacturer of generic mifepristone, over that exact issue.

Becerra said the HHS would work with the Justice Department to “ensure that states may not ban medication abortion based on a disagreement with the FDA expert judgment about the drug’s safety and efficacy.”

When asked if the government would sue states that ban mifepristone, he said “it’s tough to answer some of these questions more precisely until we know exactly what the states are doing.”

“I would think that using every tool available would mean HHS directly challenging Mississippi’s absurd restrictions on mifepristone,” said Matt Cortland, a senior resident fellow at Data for Progress working on disability and health care.

GenBioPro’s lawsuit against Mississippi argues that FDA regulations preempt the state’s stricter requirements, including that a licensed physician prescribe the pill in person.

“I don’t see a strategic reason to not participate in that litigation and to strengthen the case that the manufacturer’s making that Mississippi is acting unlawfully by imposing requirements above and beyond what FDA has already imposed,” Cortland said.

‘Post-Roe Hellscape’

Much of Becerra’s remarks focused on educating the public on the rights they already have.

He said the the HHS’s Office for Civil Rights would “ensure patient privacy and nondiscrimination for patients seeking reproductive health care as well as for providers offering” it. Becerra wouldn’t detail specific forthcoming actions.

Becerra didn’t address the Health Insurance Portability and Accountability Act of 1996, which allows health-care providers to disclose protected health information to law enforcement when they believe it’s evidence of a crime. Some state laws require that disclosure.

The problem with HIPAA is that it “contains a very broad exception that allows health care providers, health care workers to snitch on patients to law enforcement,” Cortland said.

“HHS has existing legal authority to update the Privacy Rule for this post-Roe hellscape Americans now find themselves in. They must do so. And I didn’t hear the Secretary today say anything that gives me confidence that they will,” they said.

Becerra said the HHS would also look at its authority under the Emergency Medical Treatment and Labor Act, which requires any patient in an emergency department to be stabilized and treated, to “ensure that clinical judgment of doctors and hospitals is supported in treating pregnant patients.”

Doctors and other health-care workers are concerned about getting in trouble with the law for providing reproductive care and want to know how the HHS will support them, said Kavita Patel, former health policy adviser to President Barack Obama and a primary care physician.

—With assistance from John Tozzi

(Updated with additional reporting.)

To contact the reporter on this story: Shira Stein in Washington at sstein@bloomberglaw.com

To contact the editors responsible for this story: Alexis Kramer at akramer@bloomberglaw.com; Brent Bierman at bbierman@bloomberglaw.com; Cheryl Saenz at csaenz@bloombergindustry.com