ACP believes that individuals have the right to make their own decisions, in partnership with their physician or health care professional, on matters affecting their individual reproductive health, including about types of contraceptive methods they use or whether or not to continue a pregnancy. ACP strongly opposes medically unnecessary government restrictions on any health care services and has joined with over 75 health care organizations to oppose such legislative interference.
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On June 24, 2022, the U.S. Supreme Court overturned Roe v. Wade, the landmark 1973 case that guaranteed the federal right to abortion services in this country. The court’s decision in Dobbs v. Jackson Women’s Health Organization stated that “the Constitution does not confer a right to abortion; Roe and [Planned Parenthood v.] Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”
The decision to overturn Roe v. Wade represented a monumental setback to reproductive rights, and ACP condemned the ruling alongside other medical groups. Since the Dobbs decision, abortion policy varies on a state-by-state basis, and more than a dozen states have entirely banned or severely curtailed access to abortion services, with other states contemplating additional restrictions to state law and multiple legal challenges are ongoing. Patients have faced a dramatic increase to already significant barriers to accessing time-sensitive and essential services, with tens of thousands of patients who are able to travel seeking care in states where abortion rights are protected and many more unable to obtain care at all. As a result of traveling patients, appointment waiting times in those states receiving them have skyrocketed, making it more difficult to obtain services even in those states taking steps to protect reproductive rights. As states actively consider additional restrictions, ACP will continue to speak out in opposition to attacks on the patient-physician relationship.
The growing restrictions on abortion have come as the maternal mortality crisis in the United State continues to escalate, as the COVID-19 pandemic drove a 40% increase in pregnancy-related deaths in 2021, according to data from the U.S. Centers for Disease Control and Prevention (CDC). Health inequities and racism are determining factors in the United States having the highest maternal mortality rate in the developed world, with Black and Indigenous women facing mortality rates multiple times those of white women regardless of local availability of maternity care. Though the link between a higher incidence of maternal mortality and abortion restrictions has been long established, this connection has heightened in some states post-Dobbs. In Idaho, multiple hospitals have ended all labor and delivery services citing staffing shortages that have intensified since Dobbs, with a recent survey showing 45% of OBGYN physicians considering or exploring leaving the state. Idaho’s abortion ban is one of the strictest in the country, criminalizing abortion without exception and requiring doctors to defend medical decision-making in court for performing an abortion in the case of a life-threatening medical emergency. The harm to patients and clinicians in Idaho and across the country demonstrates the danger of political interference in evidence-based care.
In March 2023, the Annals of Internal Medicine published Reproductive Health Policy in the United States: An American College of Physicians Policy Brief assessing the post-Dobbs legal landscape and reaffirming ACP’s opposition to undue and unnecessary governmental interference in the patient-physician relationship that criminalizes the provision of health care.
At present, there is no clear legislative path in Congress to protect abortion rights at the federal level, though lawmakers will likely continue making attempts to pass legislation in the coming weeks and months that will be largely symbolic. ACP has advocated vigorously for federal legislation protecting reproductive rights, including H.R. 3755/S. 4132, the Women’s Health Protection Act, which would codify abortion rights under federal law but does not have the support it needs to pass the U.S. Senate. ACP also supported a modified version of the Women’s Health Protection Act, H.R. 8296, that was passed by the U.S. House subsequent to the Court’s decision to overturn Roe v. Wade. Unfortunately, this legislation does not have the necessary support to pass in the U.S. Senate. Other actions on the federal level have included:
- Lawmakers Petition Biden Administration: On June 7, 25 Senators wrote to President Biden urging him to use executive authority to protect abortion access, including expanding access to medication abortion, clarifying privacy rights in digital security, and using federal resources and property to facilitate abortion care.
- Administration Guidance on HIPAA & Reproductive Health Information Disclosure: On June 29, 2022, the Office of Civil Rights (OCR) of the US Department of Health and Human Services (HHS) released guidance for disclosures of information relating to reproductive health care in the context of the Health Insurance Portability and Accountability Act (HIPAA). See ACP’s 2021 paper on Health Information Privacy, Protection, and Use in the Expanding Digital Health Ecosystem.
- President Biden Signs Executive Orders: On July 8 and August 3, the president signed two executive orders directing HHS and other federal departments to take steps to protect access reproductive health care services. The July order’s provisions include protecting access to medication abortion and contraception, promoting patient privacy rights, and establishing an Interagency task force to coordinate the federal response. See ACP’s reaction to that order here. The August order directed HHS to consider increasing access to reproductive health services under Medicaid for patients who must travel out of state, apply federal non-discrimination laws to prevent delays in accessing medically necessary care, and improve maternal health data collection. ACP’s statement in response to the August order can be found here.
- New EMTALA Guidance Released: On July 11, HHS announced new guidance noting that under the 1986 federal Emergency Medical Treatment and Labor Act (EMTALA) patients have the right to emergency medical care, including abortion in medical emergencies, and that federal law preempts any state abortion bans that do not make exceptions for the life of the patient. It remains unclear exactly what protections this action will offer patients and clinicians, particularly from criminal liability, as legal challenges are ongoing.
- New Guidance for Retail Pharmacies: On July 13, 2022, OCR released guidance to retail pharmacies clarifying that if they participate in Medicare or Medicaid, they are prohibited from denying an individual a benefit under their health plan on the basis of sex or disability, including with regards to supplying medications, or advising a patient regarding the suitability of medication or how to take them. The guidance follows cases of pharmacies refusing to fill prescriptions for abortion pills and other medications, such as methotrexate, that could possibly used for abortion.
Given current limitations on the federal level, the battle for abortion rights will shift mainly to the states where we expect a groundswell of activity. Action to further restrict abortion-related services or protect access to such services will vary on a state-by-state basis. ACP has identified the following trends and will continue to monitor developments as they occur.
Given current limitations on the federal level, the battle for abortion rights has shifted mainly to the states where there has been a groundswell of activity. While abortion has long been one of the most actively legislated issues at the state level, many states have also taken action to alter state laws that came into effect upon the overturn of Roe. ACP is tracking more than 250 abortion-related bills introduced by state legislators in 2023, with every state in the country considering legislation on the topic of abortion. New legislative trends have developed following the Dobbs decision in both states that have sought to restrict and to protect abortion services. Many restrictive states have recently acted to expand abortion bans, adopt-state level restrictions on medication abortion, and seek to prevent patient travel to states where abortion is legal. Conversely, those states supportive of abortion rights have generally moved to establish reproductive rights or to remove pre-Roe restrictions on abortion from their state laws, and at least 15 states have introduced legislation that would protect patients and/or clinicians from legal punishment for seeking abortion services in their state. Legal challenges in state courts have determined the legal status of abortion in numerous states post-Dobbs, and multiple state-level cases concerning abortion restrictions are ongoing.
In response to high maternal mortality rates, 49 states, DC, and Puerto Rico have established maternal mortality review committees to investigate pregnancy-related deaths, with 42 states adopting a standard review process developed by the CDC. As the federal government has encouraged states to expand Medicaid coverage post-partum, 42 states have chosen to expand Medicaid coverage for some period of time following birth, including at least 38 states and DC that have implemented or plan to implement twelve months post-partum coverage in their states.
- Reproductive Health Policy in the United States: An American College of Physicians Issue Brief
- ACP Statement on Dobbs v. Jackson Women’s Health Organization & Joint Statement with Physician Organizations
- ACP Statement of Principles on the Role of Governments in Regulating the Patient-Physician Relationship
- U.S. Department of Health and Human Services: Know Your Rights: Reproductive Health Care
- Guttmacher Institute: State Legislation Tracker
- National Advocates for Pregnant Women: “Confronting Pregnancy Criminalization: A Practical Guide for Healthcare Providers, Lawyers, Medical Examiners, Child Welfare Workers, and Policymakers”