\t\t\t<\/p>\n
\tJulie Rovner
\n\tKFF Health News<\/p>\n
\t\t\t \t\t\t \t\t\tJulie Rovner is chief Washington correspondent and host of KFF Health News\u2019 weekly health policy news podcast, \u201cWhat the Health?\u201d A noted expert on health policy issues, Julie is the author of the critically praised reference book \u201cHealth Care Politics and Policy A to Z,\u201d now in its third edition.\t\t<\/p>\n June means it\u2019s time for the Supreme Court to render rulings on the biggest and most controversial cases of the term. This year, the court has two significant abortion-related cases: one involving the abortion pill mifepristone and the other regarding the conflict between a federal emergency care law and Idaho\u2019s near-total abortion ban.<\/p>\n Also awaiting resolution is a case that could dramatically change how the federal government makes health care (and all other types of) policies by potentially limiting agencies\u2019 authority in interpreting the details of laws through regulations. Rules stemming from the Affordable Care Act and other legislation could be affected.<\/p>\n In this special episode of \u201cWhat the Health?\u201d, Laurie Sobel, an associate director for women\u2019s health policy at KFF, joins host Julie Rovner for a refresher on the cases, and a preview of how the justices might rule on them.\u00a0<\/p>\n The cases highlighted in this episode:<\/p>\n Previous \u201cWhat the Health?\u201d coverage of these cases:<\/p>\n \t\t\t\t\t\t\t\t\t\t\t\t\t\t\tKFF Health News’ ‘What the Health?’: Abortion \u2014 Again \u2014 At the Supreme Court\t\t\t\t\t\t\t\t\t\t\t\t\t<\/p>\n \t\t\t\t\t\t\t\tApr 24, 2024\t\t\t\t\t\t\t<\/p>\n \t\t\t\t<\/a>\n\t\t\t<\/li>\n \t\t\t\t\t\t\t\t\t\t\t\t\t\t\tKFF Health News’ ‘What the Health?’: The Supreme Court and the Abortion Pill\t\t\t\t\t\t\t\t\t\t\t\t\t<\/p>\n \t\t\t\t\t\t\t\tMar 28, 2024\t\t\t\t\t\t\t<\/p>\n \t\t\t\t<\/a>\n\t\t\t<\/li>\n \t\t\t\t\t\t\t\t\t\t\t\t\t\t\tKFF Health News’ ‘What the Health?’: Health Enters the Presidential Race\t\t\t\t\t\t\t\t\t\t\t\t\t<\/p>\n \t\t\t\t\t\t\t\tJan 25, 2024\t\t\t\t\t\t\t<\/p>\n \t\t\t\t<\/a>\n\t\t\t<\/li>\n \t\t\t\t\t\t\t\t\t\t\t\t\t\t\tKFF Health News’ ‘What the Health?’: The Supreme Court vs. the Bureaucracy\t\t\t\t\t\t\t\t\t\t\t\t\t<\/p>\n \t\t\t\t\t\t\t\tJan 18, 2024\t\t\t\t\t\t\t<\/p>\n \t\t\t\t<\/a>\n\t\t\t<\/li>\n<\/ul>\n Where to find Supreme Court opinions as they are announced:<\/p>\n \t\t\t\t\tClick to open the Transcript\t\t\t\t<\/p>\n \t\t\t\t\t\tTranscript: Waiting for SCOTUS<\/strong>\t\t\t\t<\/p>\n [Editor\u2019s note:<\/strong> This transcript was generated using both transcription software and a human\u2019s light touch. It has been edited for style and clarity.]<\/em>\u00a0<\/p>\n Mila Atmos:<\/strong> The future of America is in your hands. This is not a movie trailer, and it\u2019s not a political ad, but it is a call to action. I\u2019m Mila Atmos and I\u2019m passionate about unlocking the power of everyday citizens. On our podcast \u201cFuture Hindsight,\u201d we take big ideas about civic life and democracy and turn them into action items for you and me. Every Thursday we talk ato bold activists and civic innovators to help you understand your power and your power to change the status quo. Find us at FutureHindsight.com or wherever you listen to podcasts.<\/p>\n Julie Rovner:<\/strong> Hello, and welcome back to \u201cWhat the Health?\u201d I\u2019m Julie Rovner, chief Washington correspondent for KFF Health News. We\u2019re taping this week on Wednesday, May 29, at 1 p.m. As always, news happens fast and things might\u2019ve changed by the time you hear this. So here we go.<\/p>\n Because it\u2019s a holiday week and health news is a little bit slow, we\u2019re going to do something a little different. It\u2019s about to be June, and that means the Supreme Court is going to issue opinions in some of the biggest cases argued this past term, including two abortion-related cases and one that could literally disrupt the way the entire federal government operates. I\u2019m not sure I remember all the details of these cases, even though we have talked about them all on the podcast. So I\u2019ve asked someone here to remind us what they\u2019re about and give us a preview of how the court might rule in some of them. Laurie Sobel is associate director for women\u2019s health policy here at KFF, and one of our top in-house legal experts. Laurie, welcome to \u201cWhat the Health?\u201d Thanks for joining us.<\/p>\n Laurie Sobel:<\/strong> Hi, Julie. It\u2019s great to be here.<\/p>\n Rovner:<\/strong> So I thought we\u2019d take the cases in the order they were argued before the court, although I know that\u2019s not necessarily the order that we will see the opinions issued in. First up: In January, the justices heard arguments in two cases about, of all things, herring fishing. Loper Bright Enterprises v. Raimondo<\/em><\/a> and Relentless Inc. v. Department of Commerce<\/em><\/a>. But these cases are about a lot more than herring and could affect a lot more than the Department of Commerce, right?<\/p>\n Sobel:<\/strong> Absolutely. These cases are about what\u2019s called the Chevron doctrine [deference], which requires courts to defer to an agency\u2019s interpretation of a law when the law is silent or ambiguous and the agency\u2019s interpretation is reasonable.<\/p>\n Rovner:<\/strong> And what would an example of that be?<\/p>\n Sobel:<\/strong> Oh, there\u2019s many, many examples. Essentially, Congress doesn\u2019t fill in the details of many laws, and they rely on agencies to fill in those details, assuming that the agency has the expertise to figure out what those details might be. And also, many times the details change as new scientific evidence becomes available or there\u2019s changed circumstances, or there\u2019s a pandemic or something in which the agency needs to respond to.<\/p>\n Rovner:<\/strong> This is basically the entire federal regulatory process we\u2019re talking about here, right?<\/p>\n Sobel:<\/strong> That\u2019s correct.<\/p>\n Rovner:<\/strong> And in health care, there\u2019s a lot of places that regulation affects.<\/p>\n Sobel:<\/strong> Absolutely. So Congress relies on the agencies to implement laws, the ACA [Affordable Care Act], Medicare, Medicaid, CHIP [Children\u2019s Health Insurance Program]. So there\u2019s a lot in health care. In addition, Title X is regulated by the Office of Population Affairs, and those also have regulations. So overturning Chevron would make it very difficult for Congress to continue to rely on agencies to fill in these gaps and to react to real-time situations.<\/p>\n Rovner:<\/strong> And there\u2019s private entities that get regulated, are freaked out by the possibility that they won\u2019t be able to rely on the agencies either.<\/p>\n Sobel:<\/strong> Absolutely. So everything from payment rates to providers and hospitals to negotiating prescription drug prices for the Medicare program. The ACA, I think, has probably more regulations than most laws. And relationship \u2014 we\u2019ll talk about the FDA [Food and Drug Administration] in the next case, but the FDA also sets out regulations as does CDC [Centers for Disease Control and Prevention], and we really rely on those agencies to have the scientific expertise to react to the situation. So if Congress has to either fill in all the gaps, which is by most people\u2019s assessment impossible, it might really stall how things get implemented and\/or create a whole lot of new litigation.<\/p>\n Rovner:<\/strong> And I would say it would give courts a whole lot more authority than they have now, right?<\/p>\n Sobel:<\/strong> Certainly. So right now, the rule is that the agency\u2019s interpretation stands as long as the law is ambiguous or silent and the agency\u2019s interpretation is reasonable. This would give that power back to the courts to then guess what Congress meant or to interpret what Congress meant.<\/p>\n Rovner:<\/strong> Somebody I was talking to about this case suggested that, I hadn\u2019t really thought about before, that if Chevron were to get struck down, that those who had sued over regulations and lost might be able to go back and reopen those cases. I mean, it could just be a flood of litigation.<\/p>\n Sobel:<\/strong> Absolutely. And that came up during oral argument about what would that mean for all the settled cases. And both sides offered different interpretations with the solicitor general arguing that it would really open up this can of worms to tons of litigation, and the plaintiffs essentially saying, \u201cNo, no, no, we could let those all stand and just going forward, the Chevron deference would be undone.\u201d And there were some hints that maybe some compromises like that between the justices as they were talking.<\/p>\n Rovner:<\/strong> Exactly. You\u2019re anticipating my next question, which is did we get any hints from the oral arguments about where they might be going with this case? It\u2019s hard to imagine them just completely overturning Chevron.<\/p>\n Sobel:<\/strong> It is hard to imagine, but there are some justices that have been known to wanting to overturn Chevron for quite some time. So in that category I would put Justices [Clarence] Thomas and [Samuel] Alito, as well as [Neil] Gorsuch, as justices that have really been critical of the Chevron deference. Justice [Brett] Kavanaugh highlighted that the rules change when administrations change, and so he tried to counter the argument that there\u2019s a reliance on Chevron for stability. He said, \u201cWait, wait, wait a minute. Every time there\u2019s a new president, the rules change. So what kind of stability is that?\u201d<\/p>\n Chief Justice [John] Roberts and [Justice Amy Coney] Barrett were really harder to read, and that might be where the decision relies on, where they come out and whether or not they\u2019re able to forge a compromise with the three liberal justices who indicated support for keeping Chevron; both because of precedent, as well as they pointed out examples where they said, \u201cWe\u2019re not subject matter experts here. We don\u2019t want to be making these decisions.\u201d Justice [Elena] Kagan was talking about AI and how that would change, and \u201cwe really don\u2019t want to be in the position of Justice Kagan figuring out how that should be regulated.\u201d<\/p>\n Rovner:<\/strong> Well, that seems to be an excellent segue to the next case, which is an abortion case concerning the availability of the abortion pill mifepristone. The case, which was argued in March, is called Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration<\/em><\/a>. Let\u2019s start, because it\u2019s about to become important, with what is the Alliance for Hippocratic Medicine? And what did their members have against the abortion pill?<\/p>\n Sobel:<\/strong> Well, the Alliance for Hippocratic Medicine is a newly formed anti-abortion advocacy coalition. It was formed specifically for this litigation. And they contend that they have members, which are doctors and organizations and associations, in Texas and around the country, who have treated and will continue to treat people who have experienced a complication from medication abortion. So to be clear, none of their members prescribe mifepristone. They don\u2019t believe in abortion. They don\u2019t want to have anything to do with abortion. But their contention is that they are injured based upon having to divert their time and resources away from their regular patients when they have to treat somebody who has had a side effect from mifepristone. Similarly, the association and organizations contend that they\u2019ve had to divert their time to educate people about the dangers of medication abortion.<\/p>\n Rovner:<\/strong> So those are the plaintiffs. And, as you mentioned, some of them are in Texas and they sued in Texas very specifically to get a certain judge, right?<\/p>\n Sobel:<\/strong> Yes, to get Judge [Matthew] Kacsmaryk, who is known for being friendly to these types of cases.<\/p>\n Rovner:<\/strong> So Judge Kacsmaryk, who as you say, is known to be friendly to these types of cases, originally ruled that mifepristone\u2019s entire approval should be rescinded. It was approved in the year 2000, so it\u2019s been on the market for quite a long time. But that\u2019s actually not what\u2019s on the table at the moment before the justices. Explain how we got there.<\/p>\n Sobel:<\/strong> So that decision was then appealed to the 5th Circuit, and the 5th Circuit said, \u201cWe\u2019re not going to roll back the original approval of mifepristone to the year 2000, but instead we\u2019ll roll back the requirements to 2011 and say that those are the rules that should be enforced, and that the FDA exceeded their authority in changing the rules since 2011.\u201d<\/p>\n Rovner:<\/strong> And some of those changed rules basically made it easier to get, and you could use it a little bit later into pregnancy because it was found to be safe, right?<\/p>\n Sobel:<\/strong> Exactly. So what those new rules have done is said that you can use it up to 10 weeks instead of seven weeks, that you don\u2019t have to be in person to receive it. So the newest rules have opened up the possibility of using it for telehealth abortion, and also for pharmacists prescribing it. And so if the Supreme Court were to affirm the 5th Circuit\u2019s decision, that would eliminate these new protocols the FDA has established in removing the in-person dispensing requirement, permitting telehealth abortions, and establishing the process for pharmacies to become certified to dispense mifepristone. In addition, it would roll back the gestational ages you just said, from 10 weeks to seven weeks, which is significant because, according to the CDC data, more than 4 in 10 medication abortions occur at seven weeks or later.<\/p>\n Rovner:<\/strong> I was going to say, and yeah, this could be super disruptive. I mean medication abortion is now more than half of all abortions in this country.<\/p>\n Sobel:<\/strong> Oh, it\u2019s two-thirds.<\/p>\n Rovner:<\/strong> So without banning it, making it harder to get could have a big impact.<\/p>\n Sobel:<\/strong> Oh, absolutely. Medication abortion now accounts for nearly two-thirds of all abortions, and telehealth abortions have become very common, from the latest data that we have from WeCount, 1 in 5 abortions was provided via telehealth in December of 2023. So that\u2019s one in all abortions, not one in medication abortions. So that\u2019s quite a big number.<\/p>\n Rovner:<\/strong> Now, this case, even though it could be very disruptive to abortion, is about a whole lot more than abortion. Drugmakers in general seem pretty concerned by the idea of judges making scientific decisions that overrule the FDA. This hearkens back to the last case we talked about, right?<\/p>\n Sobel:<\/strong> Oh, absolutely. So this is the first case to ask the Supreme Court to overrule an FDA decision that a drug is safe and effective. So the outcome of this case could really have very far-reaching implications for the FDA\u2019s authority to continue to regulate not only mifepristone, but a wide range of other drugs. And most likely the other drugs that are perceived to be controversial \u2014 gender-affirming care or PrEP \u2014 those are the drugs that are most likely to be litigated if this door is opened.<\/p>\n Rovner:<\/strong> And I know that there\u2019s nothing that makes drugmakers \u2026 I mean, patent issues and drugmakers and court issues are hard enough, the idea that they could be granted approval by the FDA and then somebody could just come in and sue and make that go away.<\/p>\n Sobel:<\/strong> Oh, absolutely. This got the attention of the entire industry. There were many, many amicus briefs that were filed.<\/p>\n Rovner:<\/strong> So normally you can\u2019t really tell from the oral arguments, as we said, how the justices are leaning. But in this case, the justices seemed fairly transparent about where we think they\u2019re going to go. What are we expecting here?<\/p>\n Sobel:<\/strong> Yes. I mean, as I said before, it\u2019s always dangerous to read the tea leaves too much, but this did seem more transparent than most, and that most justices seemed not convinced that the plaintiffs in this case have legal standing, which requires that you have an injury and that injury can be addressed by what the court decides. So even assuming that the plaintiffs have an injury, the question is what would happen if we roll back the rules that the FDA has back to 2011? Does that make it more or less likely that these plaintiffs would see people with side effects of mifepristone? It\u2019s not really clear. In addition, many of the justices, including Justice Barrett, really pushed back on the lawyer representing the Alliance for where in the doctors\u2019 affidavits it said they were actually participating in something they objected to. Notably, not really about necessarily this case, but about what might come up in the future, both Justice Thomas and Alito did bring up the Comstock Act and signaled that they would uphold the enforcement of the Comstock Act, pretty much inviting a future case or a future administration to enforce the Comstock Act.<\/p>\n Rovner:<\/strong> As much as we\u2019ve talked about it, remind us again what the Comstock Act is.<\/p>\n Sobel:<\/strong> Sure. So it\u2019s a law from 1873, which was an anti-obscenity law, and as part of it, it banned the mailing of any drug or device or instrument that could be used for abortion.<\/p>\n Rovner:<\/strong> Well, I guess during the entirety of Roe<\/em> [v. Wade<\/em>], it was irrelevant, right? Because abortion was legal,<\/p>\n Sobel:<\/strong> Right. And it\u2019s been dormant. I mean, we can\u2019t find any enforcement in any modern era.<\/p>\n Rovner:<\/strong> Yes, so it goes back a long ways, but it\u2019s top of mind for a lot of people.<\/p>\n All right, moving on to our last case. On April 24, the court heard Idaho v. United States<\/em><\/a> and Moyle v. United States<\/em><\/a>, both of which challenged the federal government\u2019s interpretation of the Emergency Medical Treatment and Active Labor Act, EMTALA, to override Idaho\u2019s near-complete abortion ban, at least in medical emergencies. Let\u2019s start by explaining what EMTALA is and how it relates to abortion?<\/p>\n Sobel:<\/strong> Sure. So EMTALA requires hospitals that participate in Medicare, which is pretty much every acute hospital, to provide stabilizing treatment within the hospital\u2019s capability when there\u2019s an emergency medical condition, which includes when the absence of immediate medical attention could reasonably be expected to place the health of the individual in serious jeopardy or serious impairments of bodily functions. So it was really intended as an anti-dumping law initially so that people who were uninsured weren\u2019t just transferred or sent away to another hospital because they didn\u2019t have the capacity to pay.<\/p>\n Idaho\u2019s abortion ban only has an exception for life. It doesn\u2019t have an exception to preserve the health of the pregnant person. And so the Biden administration sued Idaho and said this law then, essentially, puts these hospitals that have this requirement, because they accept Medicare payments, to stabilize patients. And when that care includes abortion care, they\u2019re required to provide that under federal law. So the question is, does the EMTALA preempt the Idaho abortion ban?<\/p>\n It\u2019s clear from the oral argument that Idaho\u2019s position is that there is no conflict because they read into the EMTALA law that \u201cwithin the hospital\u2019s capability\u201d includes the laws of Idaho and that Idaho gets to set the standard of care, and that that\u2019s up to states, not up to the federal government. Whereas the federal government, the Biden administration\u2019s position, is that, no, EMTALA specifically was an antidumping law, and that includes stabilizing all patients regardless of the care. And we don\u2019t have to say including abortion in order for it to include abortion, it includes all care that\u2019s required to stabilize patients.<\/p>\n Rovner:<\/strong> Of course, a lot of anti-abortion activists will say that the only time abortion is medically necessary is when it threatens life and that would be covered. But we\u2019re seeing that that\u2019s not necessarily the case, right? I mean, we\u2019re seeing individual instances of this these days.<\/p>\n Sobel:<\/strong> Yeah. I mean, we know from Idaho that many patients have been helicoptered out of the state into nearby states that also have some abortion restrictions but just aren\u2019t as restrictive as Idaho is, because they\u2019re going to become septic or they\u2019re going to lose kidney function, or they\u2019re going to lose their reproductive organs. So they\u2019re not in danger of losing their life immediately, but they\u2019re in danger of losing serious bodily functions.<\/p>\n The other question that came up during oral argument was about just how imminent the life needs to be. And this comes down to how this is putting doctors in a pretty uncomfortable place. So yes, the doctors are permitted to provide abortion care in Idaho when they can certify in good faith that without the abortion care, the person\u2019s life is endangered. But they\u2019re concerned that, after the fact, attorneys for the state could come back and say, \u201cOh, wait a minute, that wasn\u2019t your really good-faith decision and we\u2019re going to prosecute you and we\u2019re going to bring in our own expert.\u201d And the question is really, how much should doctors have on the line? It\u2019s a criminal statute, so there\u2019s jail time involved. Of course, there\u2019s a loss of license. And so how far out should doctors be required to go? And this is, again, it\u2019s making people really uncomfortable, and there are anecdotes of people leaving the state because of this and not feeling comfortable practicing there.<\/p>\n Rovner:<\/strong> More than anecdotes of people leaving the state, there are people who come forward and said they\u2019re leaving the state. And as a result, some hospitals are having to shut down their OB services. I mean, because when the doctors, OB-GYNs who are leaving, so in the ironic position of people who are having babies not being able to find someone who can deliver their baby at the same time.<\/p>\n Sobel:<\/strong> Right, right.<\/p>\n Rovner:<\/strong> That\u2019s obviously one ramification within Idaho, but there could be ramifications outside just on the idea: Isn\u2019t federal law supposed to trump state law? Isn\u2019t that sort of a basic foundation of how we work?<\/p>\n Sobel:<\/strong> Yes. The supremacy clause is pretty basic when you go to law school. So yes. And I think how they word this decision will be very interesting to see because it\u2019s a question of, is there a conflict or is there not? And the attorneys for Idaho were basically suggesting that there\u2019s no conflict. So you don\u2019t even need to say that there\u2019s a preemption. You just have to find that there\u2019s no conflict between Idaho law and EMTALA.<\/p>\n However they rule, if they rule for Idaho and say that you\u2019re allowed to continue having this abortion ban that only has a life exception with no health exception, immediately, there\u2019s four additional states with abortion bans that do not make exceptions for health as well. And those states are Arkansas, Mississippi, Oklahoma, and South Dakota. So in those states, like Idaho, a hospital cannot legally provide an abortion as stabilizing treatment when a person presents with a health endangerment and not a life endangerment. And so again, those risks can include sepsis, kidney failure, loss of fertility, they\u2019re serious risks, even though they may not be life-threatening at the moment.<\/p>\n And even in the states that do have exceptions for health, we have seen that those exceptions are often very narrow and vague and hard to be implemented in real time. So pregnant people can still be denied emergency abortion care that\u2019s needed to preserve their health, even in states that have a health exception. And if EMTALA doesn\u2019t act as a backstop to say, \u201cBut wait, hospital, you\u2019re violating this federal law,\u201d then people are stuck with the state law that is narrow and vague.<\/p>\n Rovner:<\/strong> So I mean, overturning Roe<\/em>, the justices says, \u201cOh, great, we won\u2019t have to deal with abortion anymore. It\u2019s all about the states.\u201d But as we can see, it\u2019s not all about the states. The Supreme Court is going to have to continue to deal with this issue.<\/p>\n Sobel:<\/strong> Right. Definitely.<\/p>\n Rovner:<\/strong> All right, well, finally, just a couple of housekeeping issues. We don\u2019t actually know when these decisions will come, right? People who don\u2019t follow the court on a regular basis often think that opinions are scheduled the same way oral arguments are, but it\u2019s always a surprise.<\/p>\n Sobel:<\/strong> Unfortunately, they are not. Right now, the court lists their decision days on their website, which is on their calendar. Right now Thursdays seem to be the popular day, they have Thursdays through June listed. They most likely will add more decision days. On decision days, they start posting decisions at 10 a.m. Eastern Time, and you can follow along either on the Supreme Court\u2019s website<\/a> or many people go to SCOTUSblog<\/a>, which also has a live blog that interprets some of what\u2019s happening for people who are new to the court.<\/p>\n Rovner:<\/strong> And I will put both of those links in the show notes. Laurie Sobel, this has been so helpful. Thank you so much for joining us.<\/p>\n Sobel:<\/strong> Thank you for having me, Julie.<\/p>\n Rovner:<\/strong> OK, that is our show. As always, if you enjoy the podcast, you can subscribe wherever you get your podcasts. We\u2019d appreciate it if you left us a review; that helps other people find us, too. Special thanks as always to our technical guru, Francis Ying, and our fill-in editor this week, Rebecca Adams. As always, you can email us your comments or questions. We\u2019re at whatthehealth@kff.org, or you can still find me at X @jrovner<\/a>. We will be back in your feed next week with the news. Until then, be healthy.<\/p>\n \tFrancis Ying \tRebecca Adams To hear all our podcasts,\u00a0click here<\/a>.<\/em><\/p>\n And subscribe to KFF Health News\u2019 \u201cWhat the Health?\u201d on\u00a0Spotify<\/a>,\u00a0Apple Podcasts<\/a>,\u00a0Pocket Casts<\/a>, or wherever you listen to podcasts.<\/em><\/p>\n KFF Health News<\/a> is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF\u2014an independent source of health policy research, polling, and journalism. Learn more about KFF<\/a>.<\/p>\n
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