Last Friday, President Biden signed executive order entitled Protecting Access to Reproductive Health Services, authorizing the Department of Health and Human Services to protect access to abortion drugs and services. A politician reported that under the order, the administration will also consider updating protections under the Emergency Medical Care and Labor Act that will better ensure access to life-saving emergency medical care, including abortion services.
The executive order comes two weeks after the decision Dobbs v. Jackson Women’s Healtha reflection of how little Democrats had prepared for post-Rowe world. In fact, the Republicans were “shocked” by the inaction of the Democrats. So far, the president has signaled support for setting aside the codification filibuster Rowe in law. But the delayed response from the highest levels of government has encouraged anti-abortion groups and their allies to try their luck in challenging multiple state-level bills limiting access to reproductive health services.
Those battles have so far led some hospitals to try to roll back access to reproductive health services. Dr. Jamila Perritt, president and CEO of Physicians for Reproductive Health, explained to perspective that the reversal of Rowe has caused confusion across the spectrum of reproductive health care. Perritt explained that by designating abortion as a state-level issue, it calls into question the procedures and protocols for other reproductive health services such as pregnancy prevention, family planning and miscarriage management.
“Abortion is the tip of the iceberg,” Perritt said.
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The focus of access to abortion services has so far been on the providers themselves. That’s why, Perritt said, hospital systems have responded to the reversal Rowe for fear of being sued against them. In Michigan, the day after Dobbs decision the state’s largest hospital system, Beaumont Health and Spectrum Health (BHSH), announced to employees that it will no longer perform abortions, except when the mother’s life is in danger. BHSH cites a State Act of 1931which would make abortion a crime, with no exception for cases of rape or incest.
However, the 1931 law is unenforceable due to an injunction issued by Michigan Claims Judge Elizabeth Glaicher. Attorney General Dana Nessel also vowed not to enforce the 1931 law.
The next day, BHSH backed away from its original position, telling officials it would continue to perform abortions when “medically necessary.” Although the majority of abortions are traditionally performed in outpatient clinics, Perritt explained to perspective that it is imperative that hospital systems do not react at this time, but instead redouble their commitment to providing reproductive health services. “Hospital systems are powerful entities,” Perritt said. “They shape the well-being of communities [they serve].”
Although state laws determine what is legal and what is not, the hospital systems themselves have a huge impact on the types of services offered in a given geographic region. For example, unless the Michigan circuit reverses its decision, those seeking an abortion at a Michigan hospital will have extremely limited choices. BHSH is a combination of two massive statewide hospital chains: Beaumont for the eastern part of the state and Spectrum for the western part of the state.
Hospital systems have responded to the reversal of Rowe for fear of being sued against them.
Before their merger earlier this year, Beaumont had pulled out of two acquisitions amid criticism from lawmakers and doctors that market concentration would degrade quality of care.
Only the order demarcates Michigan women’s legal right to have an abortion. Statewide Republicans in both chambers of the legislature filed appeals in state court to overturn it.
Although Michigan law focuses on abortion itself, as perspective reported earlier, the scope of the criminalization of abortion is not limited to what is officially illegal. In states that allow individuals to perform their own abortions, murder charges have still been filed against women seeking abortions, although the charges were later dropped.
Some hospital systems have made a decision and tried to protect themselves from potential lawsuits over emergency contraceptives like Plan B. For example, after Dobbs decision, Saint Luke’s Health System, a 17-hospital chain in the Kansas City area, announced it will no longer offer Plan B at its Missouri locations. Laurel Gifford, spokeswoman for St. Luke’s, said the decision was made out of an abundance of caution. “To ensure we comply with all state and federal laws – and until the law in this area is better defined – Saint Luke’s will not provide emergency contraception at our Missouri-based locations.”
The next day St. Luke reversed his decision, following comments from Missouri’s attorney general, clarifying that the state’s abortion ban does not apply to emergency contraceptives. But these preventative measures are exactly the kinds of incidents Perritt says hospitals should avoid.
Despite the twist, the Missouri case serves as a barometer for the potential legal battles ahead. In a statement to perspective distinguishing the difference between abortions and emergency contraceptives, the American College of Obstetricians and Gynecologists said: “The use of emergency contraception does not cause abortion. Abortion terminates an existing pregnancy. The statement continued: “Emergency contraception prevents pregnancy from occurring.”
What happened in Michigan and Missouri are not unique cases. Perritt explained that this is an example of how every single hospital system across the country is struggling with what to do next. In fact, uncertainty isn’t even limited to hospitals; Planned Parenthood clinics in Montana decided to they do not provide abortion drugs for out-of-state patients, citing the legal risk for abortion seekers coming from states with bans on self-administration abortions.
In addition to public pressure on state legislatures to expand access to reproductive health care, Perritt explained that physician and public pressure on hospital boards of directors is just as important, as they are the ones who decide what services are provided by hospital systems.
In post-Rowe There is no monolithic solution in the world to ensure access to reproductive health services. On Biden’s executive order, Perritt said it’s a step in the right direction, “but we need clear protections.” Although two hospital systems have lifted the restrictions, such measures should be viewed only as temporary fixes.