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Protesters march in downtown Detroit to protest the Supreme Court’s decision to overturn Roe v. Wade, June 25, 2022.
Last Friday, President Biden signed an executive order titled “Protecting Access to Reproductive Healthcare Services,” empowering the Department of Health and Human Services to protect access to abortion medications and services. Politico reported that under the order the administration would also consider updating protections under the Emergency Medical Treatment and Labor Act, which would better guarantee access to lifesaving emergency medical care, including abortion services.
The executive order comes two weeks after the ruling in Dobbs v. Jackson Women’s Health, a reflection of how little Democrats had prepared for a post-Roe world. In fact, Republicans were “shocked” by the Democrats’ inaction. So far, the president has signaled support for a filibuster carve-out to codify Roe into law. But the delayed response from the highest levels of power has emboldened anti-abortion groups and their allies to test their luck at challenging a host of bills at the state level restricting access to reproductive health care services.
These battles have so far led some hospitals to attempt to roll back access to reproductive health care services. Dr. Jamila Perritt, president and CEO of Physicians for Reproductive Health, explained to the Prospect that the reversal of Roe has caused confusion across the entire spectrum of reproductive health care. Perritt explained that by designating abortions as a state-level issue, it puts into question the procedures and protocols for other reproductive health care services such as pregnancy prevention, family planning, and miscarriage management.
“Abortion is the tip of the iceberg,” Perritt said.
The focus of access to abortion services has so far been on providers themselves. That’s why, Perritt said, hospital systems have reacted to the reversal of Roe out of fear of having a lawsuit filed against them. In Michigan, the day after the Dobbs decision, the state’s largest hospital system, Beaumont Health and Spectrum Health (BHSH), announced to employees that it would no longer perform abortions, with an exception for when the mother’s life is in danger. BHSH cited a 1931 state law, which would make abortions a felony, with no exception for cases of rape or incest.
However, the 1931 law is unenforceable because of an injunction set by Michigan Court of Claims Judge Elizabeth Gleicher. Attorney General Dana Nessel has also vowed not to enforce the 1931 law.
The following day, BHSH walked back its original stance, telling employees that it would continue performing abortions when “medically necessary.” Although the vast majority of abortions have traditionally been performed at outpatient clinics, Perritt explained to the Prospect that it’s imperative for hospital systems to not be reactive in this moment, and instead double down on their commitment to providing reproductive health services. “Hospital systems are powerful entities,” Perritt said. “They shape the well-being of the communities [they serve].”
Although state laws determine what is legal or not, hospital systems themselves are immensely influential in the types of services that are available in a geographic region. For example, if the Michigan chain did not reverse its decision, those seeking an abortion in a Michigan hospital would have extremely limited choices available to them. BHSH is a combination of two massive statewide hospital chains: Beaumont for the eastern side of the state and Spectrum for the western side of the state.
Hospital systems have reacted to the reversal of Roe out of fear of having a lawsuit filed against them.
Before their merger earlier this year, Beaumont had pulled out of two acquisitions over criticisms from lawmakers and doctors that the market concentration would worsen the quality of care.
Only the injunction distinguishes the legal right for women in Michigan to have an abortion. State-level Republicans in both legislative chambers have filed appeals to the state’s court to repeal it.
Although Michigan’s law focuses on abortions themselves, as the Prospect previously reported, the scope of criminalization for abortion services is not limited to just what is officially illegal. In states that allow individuals to self-manage an abortion, murder charges have still been brought against women seeking an abortion, even though the charges were later dropped.
Some hospital systems have jumped the gun and attempted to protect themselves from potential lawsuits over emergency contraceptives such as Plan B. For example, after the Dobbs ruling, Saint Luke’s Health System, a chain of 17 hospitals in the Kansas City area, announced that it would no longer provide Plan B at its Missouri locations. Laurel Gifford, a spokesperson for Saint Luke’s, said the decision was made out of an abundance of caution. “To ensure we adhere to all state and federal laws—and until the law in this area becomes better defined—Saint Luke’s will not provide emergency contraception at our Missouri-based locations.”
The following day, Saint Luke’s reversed its decision, following comments from Missouri’s attorney general, clarifying that the state’s abortion ban did not apply to emergency contraceptives. But these preemptive measures are exactly the sorts of incidents that Perritt says hospitals must avoid falling into.
Despite the reversal, the Missouri case serves as a barometer for what potential legal battles lie ahead. In a statement to the Prospect distinguishing the difference between abortions and emergency contraceptives, the American College of Obstetricians and Gynecologists said, “Using emergency contraception does not cause an abortion. An abortion ends an existing pregnancy.” The statement continues, “Emergency contraception prevents pregnancy from occurring.”
What’s happened in Michigan and Missouri are not unique cases. Perritt explained that this is a sample of how every single hospital system across the country is grappling with what to do next. Indeed, the uncertainty is not even limited to hospitals; Planned Parenthood clinics in Montana have decided to not provide abortion medication to out-of-state patients, citing legal risk to abortion seekers coming from states with bans on self-managed abortions.
Aside from public pressure on state legislatures to widen reproductive health care access, Perritt explained that doctors and the public applying pressure to the boards of directors of hospitals is just as important, since they are the ones who decide what services are provided by hospital systems.
In a post-Roe world, there is no monolithic solution for ensuring access to reproductive health care services. On Biden’s executive order, Perritt said it was a step in the right direction, “but we need clear protections.” Even though two hospital systems have reversed restrictions, such measures should only be seen as temporary fixes.
