In its last several months in office, the Trump-Pence administration quietly but systematically attacked sexual and reproductive health and rights through regulatory and administrative processes. The goal of this aggressive campaign was to restrict health care coverage, individuals’ ability to access sexual and reproductive health care, and the mechanisms that regulate and guide federal health programs. The Biden-Harris administration must address these actions in order to ensure high-quality and accessible health care for all and to preserve the integrity of the federal health policymaking process.
If these attacks are not addressed, their damage could linger long after the Trump-Pence administration has left office. This mixture of overt and insidious policy changes affects people in both the United States and abroad, and together has the potential to impact millions of people.
Fortunately, the Biden-Harris administration has multiple tools at its disposal to reverse or mitigate the previous administration’s last-minute attacks on health care, including:
- Freezing pending regulations by withdrawing all regulations that have not yet appeared in the Federal Register and delaying published regulations that have not yet taken effect (which the administration did on its first day in office)
- Blocking finalized regulations by working with Congress, under the Congressional Review Act, to reject regulations that were finalized during the last several months of the previous administration and block agencies from passing similar policies in the future without congressional authorization
- Issuing executive orders to reverse actions that the Trump-Pence administration itself took through that mechanism, such as the “global gag rule”
- Rescinding or revising regulations, public program guidance and other administrative actions from the previous administration, through regular (and sometimes lengthy) processes
- Supporting proactive legislation in Congress that offers long-term solutions to problems the previous administration exacerbated
Just as the Trump-Pence administration used every mechanism to attack and disrupt people’s access to essential health services, the Biden-Harris administration must use all available means to undo those harms, promote sexual and reproductive health, improve access to care, and restore faith in government.
Attacks on Sexual and Reproductive Health
The Trump-Pence administration went to intrusive and sometimes unprecedented lengths to solidify its agenda opposing sexual and reproductive health and rights for years to come.
- Attempted to further expand the global gag rule: Over the last four years, the Trump-Pence administration vastly expanded the global gag rule, which prevents foreign nongovernmental organizations from using non-U.S. funds to provide abortion-related counseling, referrals, services and advocacy. The outgoing administration sought to further expand the scope of this devastating policy from covering grant funds to also including contracts, which would ensnare even more programs and partners. The Trump-Pence administration accelerated review of the proposed expansion, claiming to have reviewed and responded to more than 7,000 comments in just a few weeks and denying organizations the chance to meet with officials to discuss the proposal, as would take place under the normal regulatory process.
- Required action: Upon taking office, the Biden-Harris administration must halt this regulation, fully rescind the global gag rule and support the Global HER Act, which would put an end to the rule once and for all.
- Punished California for ensuring abortion coverage: In December 2020, the Trump-Pence administration announced that it was penalizing California for its requirement that health insurance plans include abortion coverage by withholding $200 million each quarter in federal Medicaid reimbursements to the state, citing the Weldon Amendment as its justification. This policy amendment prohibits states from “discriminating” against health care providers and institutions that refuse to provide, pay for, provide coverage of or refer for abortion services, without requiring any mechanism for patients to get the coverage or care they need elsewhere.
- Required action: The Biden-Harris administration must lift this cruel sanction and indicate its support for congressional repeal of the Weldon Amendment—which has been misused to help justify a range of harmful policies intended to limit access to reproductive health care—by excluding it from the president’s budget proposal.
- Led international antiabortion coalition: In December 2020, the Trump-Pence administration entered the antiabortion Geneva Consensus Declaration into the official United Nations (UN) record. While this action has no legal standing, it may potentially complicate future UN negotiations, lends an air of legitimacy to the declaration and puts 34 countries on record as declaring that “abortion is not an international right.”
- Required action: The Biden-Harris administration should recognize the Geneva Consensus Declaration as the toothless, ideologically driven, political statement it is, refer back to previously agreed-upon language supporting sexual and reproductive health and rights in future negotiations, and take clear positions at UN events and convenings in support of abortion rights.
Attacks on Health Care Coverage
The Trump-Pence administration also attacked Medicaid and the Affordable Care Act (ACA), both of which are critical for people’s ability to access high-quality and affordable sexual and reproductive health care.
- Issued regulations to weaken Medicaid: The Families First Coronavirus Response Act gave states a substantial boost in federal Medicaid funding through the end of the pandemic emergency in exchange for maintaining their current levels of Medicaid benefits, not disenrolling anyone from the program, and providing COVID-19 testing, treatment and vaccination without cost to enrollees. In regulations that took effect in early November, the Centers for Medicare and Medicaid Services (CMS) reinterpreted and weakened these protections by allowing states to cut some benefits, increase costs paid by enrollees and shift some enrollees to less comprehensive coverage, as well as by barring states from covering COVID-19 vaccinations for enrollees in Medicaid family planning expansions and other enrollees with limited coverage.
- Required action: The Biden-Harris administration should quickly reverse or revise these regulations.
- Approved harmful Medicaid experiments: Over the past four years, CMS has promoted and approved numerous harmful waivers of federal Medicaid law, allowing states to undermine enrollee protections and the program’s core goal of expanding health coverage. In its waning weeks, the Trump-Pence administration continued this push, most notably by approving Tennessee’s proposal to overhaul the program’s financial structure—the closest thing CMS has yet approved to a Medicaid block grant. If this waiver is allowed to stand, Tennessee will receive fixed federal funding (adjusted for enrollment increases and inflation) for the next 10 years in exchange for authority to ignore some federal requirements, less federal oversight and the chance to redirect any potential savings to health priorities outside of Medicaid. CMS has also made it harder for the incoming administration to reverse its harmful waiver approvals, by asking state Medicaid directors to sign new contracts that would set up a new, lengthy process for ending a waiver.
- Required action: The Biden-Harris administration should take immediate steps to reverse these actions, including by terminating waivers that are contrary to the purpose of the Medicaid program.
- Increased cost sharing in some ACA plans: In early December, the Departments of Labor, Treasury, and Health and Human Services (HHS) finalized a rule that will allow certain health insurance plans to impose higher cost-sharing requirements on enrollees. The rule applies to plans that were grandfathered into the ACA, meaning they are exempt from the vast majority of ACA provisions, including the ban on cost sharing for preventive services. The new rule would allow grandfathered plans to increase copayments on preventive services such as contraceptive care, breastfeeding support, and STI prevention and screening without risking their grandfathered status.
- Required action: This rule affects the health coverage of nearly 24 million people, and the Biden-Harris administration must swiftly begin the process of reversing it.
Attacks on Regulation and Guidance Procedures
The Trump-Pence administration also took steps to interfere with the very process of governing, in an apparent attempt to slow the gears of the U.S. government under the Biden-Harris administration.
- Finalized a rule to “sunset” older regulations: In January 2021, HHS finalized new regulations that would cause most of the department’s rules to automatically expire if they are not reviewed every 10 years. This would create a severe administrative burden on HHS staff, divert resources from positive rule making and threaten the stability of Medicaid and numerous other HHS programs.
- Required action: The incoming administration should not allow the rule to take effect, either via the Congressional Review Act or administrative action.
- Finalized a rule to weaken guidance: In December 2020, HHS issued new regulations—similar to ones issued earlier by other federal departments—that weaken the power of program guidance mechanisms such as letters to state officials, frequently asked questions documents, program manuals and notices to private entities. The rule asserts that HHS guidance does not have the force of law and does not “bind the public in any way,” sets up new bureaucratic requirements for approving guidance, and automatically rescinds any guidance not included in a new database on the HHS website. The federal government has long relied on guidance to run programs and interpret federal laws, including exceedingly complicated ones like Medicaid and the ACA. The new regulations could undermine these programs and lead to widespread confusion.
- Required action: The Biden-Harris administration should reverse this rule and similar rules created for other federal agencies.
- Enabling discrimination: The Trump-Pence administration discreetly rolled out a slew of new regulations and guidance in its final weeks that would allow government agencies and other actors to deny care and otherwise discriminate under the guise of religious freedom. It also quietly proposed a “midnight rule” that would severely restrict redress for discrimination under Title VI of the Civil Rights Act of 1964. Eviscerating such foundational protections imperils marginalized patients and communities, including those who face discrimination while seeking reproductive health care, because of their reproductive health decisions, or because they are LGBTQ.
- Required action: The Biden-Harris administration should immediately freeze or reverse these actions, issuing new regulations or guidance as appropriate to ensure robust protections against discrimination across federal agencies.