U.S. Health and Human Services to Protect Texas Abortion Patients and Providers: “We Have Your Back,” Says Secretary Xavier Becerra

“HHS is taking actions to support and protect both patients and providers from this dangerous attack on Texans’ health care. … We are telling doctors and others involved in the provision of abortion care that we have your back.”

Health and Human Services (HHS) Secretary Xavier Becerra

HHS Secretary Xavier Becerra with Nancy Pelosi in 2016. (House Democrats / Flickr)

On Friday, Health and Human Services (HHS) Secretary Xavier Becerra announced new resources and actions to protect reproductive health care for Texans after the state banned abortion at six weeks and the U.S. Supreme Court allowed the ban to go into effect on September 1.

“Every American deserves access to health care no matter where they live—including access to safe and legal abortions,” said Becerra.

The Texas law bans virtually all abortions, with no exceptions for rape or incest, and empowers private citizens to sue anyone who helps a woman obtain an abortion, rewarding them a $10,000 bounty plus attorney fees if they win a case. 

The day after the ban went into effect, President Joe Biden launched a “whole-government-response” to explore options to bolster access to safe and legal abortions in Texas. Biden directed the Office of the White House Counsel and his Gender Policy Council to involve HHS and the Department of Justice (DOJ) to evaluate what “legal tools we have to insulate women and providers from the impact of Texas’ bizarre scheme of outsourced enforcement to private parties.”

On September 9, the DOJ filed a lawsuit against Texas, seeking to block the abortion ban, and on September 14 they filed a motion for a temporary restraining order or preliminary injunction to enjoin enforcement of S.B. 8

Secretary Becerra announced three measures HHS will take, including:

  • grant support for clinics,
  • resources to protect health care personnel, and
  • reinforcement of legal protections for pregnant individuals or persons experiencing pregnancy loss in Texas.

“In response to President Biden’s directive, HHS is taking actions to support and protect both patients and providers from this dangerous attack on Texans’ health care,” said Becerra.

Grants for Clinics

First, HHS announced it will award additional funding to Every Body Texas, which supports providers of sexual and reproductive healthcare in Texas. The funding is to help clinics in Texas respond to the anticipated increase in clients’ needs for family planning, counseling and contraceptives, including emergency contraceptives, as a result of S.B. 8.

Second, HHS will make available up to $10 million in grants to expand access to emergency contraception and family planning services to other organizations demonstrating need because of an influx of clients as a result of S.B. 8.

Protections for Health Care Providers

Secretary Becerra announced that the HHS Office for Civil Rights (OCR) will enforce the Church Amendments, which protect health care personnel from discrimination related to their employment because they performed or assisted with a lawful abortion.

HHS issued guidance outlining protections that prohibit recipients of grants, loans, contracts or loan guarantees under the Public Health Service Act from discriminating in the employment, promotion or termination of employment of any physician or other health care personnel because the individual performed or assisted in the performance of an abortion. Providers can file complaints directly with OCR if they believe they may have been discriminated against in violation of the Church Amendments.

Protections for Patients

Abortion rights protesters demonstrate outside the Texas State Capitol in Austin. (Roxy Szal)

Finally, HHS announced intentions to strongly enforce federal laws protecting patients’ rights to receive treatment under the Emergency Medical Treatment and Labor Act (EMTALA) and Medicare Conditions of Participation. The EMTALA statute requires that all patients receive an appropriate medical screening, stabilizing treatment and transfer if necessary, irrespective of any state laws or mandates that apply to specific procedures. The Act specifically includes pregnant patients.

Civil monetary penalties may be imposed against hospitals or individual physicians for EMTALA violations. Additionally, physicians may also be subject to exclusion from the Medicare and Medicaid programs. The Centers for Medicare & Medicaid Services also issued a memorandum to providers reinforcing EMTALA and their legal obligations specific to pregnant patients or patients experiencing pregnancy loss.

“Today we are making clear that doctors and hospitals have an obligation under federal law to make medical decisions regarding when it’s appropriate to treat their patients,” said Becerra. “And we are telling doctors and others involved in the provision of abortion care that we have your back.”

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Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman professor of American Studies and the chair of the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at cbaker@msmagazine.com or follow her on Twitter @CarrieNBaker.