On July 19, 2022, the U.S. House of Representatives passed the “Respect for Marriage Act,” which would enshrine same-sex marriage into law and repeal the 1996 Defense of Marriage Act, a federal law that defines marriage as the legal union between a man and a woman. The Senate is not expected to vote on the bill until September 2022.
The Executive Branch
1. This month, the HHS Affordable Care Act contraceptive mandate proposed rule (RIN 0938-AU94) was sent to OIRA, with an expected publication date of August 2022.
2. On July 11, 2022, Secretary Becerra published an open letter to American health care providers warning that, in light of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, HHS will be enforcing the Emergency Medical Treatment and Active Labor Act (EMTALA) to require a physician to perform abortions “regardless of the restrictions in the state where you practice,” if that physician is treating a pregnant patient in an emergency department who is experiencing an emergency medical condition as defined by EMTALA, and if the physician believes that “abortion is the stabilizing treatment necessary to resolve that condition.”
3. On July 11, 2022, the Centers for Medicare and Medicaid Services published guidance on EMTALA echoing Sec. Becerra’s warnings about the duty of physicians to perform abortions, stating, “When a state law prohibits abortion and does not include an exception for the life and health of the pregnant person—or draws the exception more narrowly than EMTALA’s emergency medical condition definition—that state law is preempted.”
4. On July 12, 2022, the U.S. Department of Education (ED) published in the Federal Register its notice of proposed rulemaking (NPRM), “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance.” The NPRM revises its Title IX regulations regarding the scope of sex discrimination by expanding the definition of sex under Title IX to include gender identity and sexual orientation, and eliminating many of the due process protections for both complainants and respondents in sexual harassment complaint hearings.
All public comments are due on or before September 12, 2022. Any individual or organization can submit a public comment by clicking the button on the proposed rule’s webpage in the Federal Register labeled, “Submit a Formal Comment.”
5. On July 13, 2022, HHS’s Office for Civil Rights published guidance for American pharmacies warning that federal nondiscrimination laws require pharmacies to fill abortion pill prescriptions regardless of state law requirements. The guidance states, “If the pharmacy otherwise provides contraceptives (e.g., external and internal condoms) but refuses to fill a certain type of contraceptive because it may prevent a pregnancy, the pharmacy may be discriminating on the basis of sex.”
6. On August 2, 2022, DOJ filed a lawsuit against the State of Idaho alleging that its abortion law violates EMTALA because it lacks a health exemption to its prohibition on abortion. DOJ asks for a preliminary injunction enjoining Idaho’s law to the extent it conflicts with EMTALA.
8. On August 4, 2022, the Centers for Medicare & Medicaid Services (CMS), a subagency of HHS, published its notice of proposed rulemaking, “Nondiscrimination in Health Programs and Activities,” which provides explicit protections for gender transition services, gives OCR the power to decide “at any time” whether a religious entity is exempt from certain discrimination requirements, states that incorporating Title IX’s religious exemption would compromise access to health care, and asks for public comments about whether to incorporate Title IX’s abortion neutrality provision.
All public comments are due on October 3, 2022. Any member of the public—either individuals or organizations—can submit a public comment on the NPRM’s Federal Register page.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us at firstname.lastname@example.org.