Sheela Ranganathan, Adjunct Professor, Georgetown University School of Health, speaks with Kim Mutcherson, Professor, Rutgers Law School, and Diana Kasdan, Legal and Policy Director, UCLA Law Center on Reproductive Health, Law, and Policy, about the current landscape of reproductive health law. They discuss the Supreme Court’s recent decision in Medina v. Planned Parenthood South Atlantic, the ongoing battles over mifepristone in the courts, the rapidly evolving patchwork of state-level shield laws that are designed to protect patient privacy, how the withdrawal of Biden-era EMTALA guidance is reshaping emergency abortion care, and what to expect going forward.
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Episode Transcript
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SPEAKER_00 (00:00):
For more information, visit
AmericanHealthLaw.org.
SPEAKER_03 (00:17):
Hello, and thanks for tuning in to HLA's Speaking
of Health Law podcast.
My name is Sheila Ranganathan,and I'm an in-house attorney as
well as an adjunct withGeorgetown University School of
Health.
Today, we're tackling therapidly evolving landscape of
reproductive health law.
I'm joined by two leadingexperts who have been at the
forefront of these developments,Kimberly Mutcherson and Diana
Kasten.
(00:37):
Together, we'll unpack theSupreme Court's recent decision
in Medina versus PlannedParenthood South Atlantic,
examine the ongoing battles overMifepristone in the courts,
explore how the withdrawal ofBiden-era EMTALA guidance is
reshaping emergency abortioncare, and discuss the rapidly
evolving patchwork ofstate-level shield laws that are
(00:57):
designed to protect patientprivacy.
So first, I'd like to start bygetting to know you both a
little bit better.
Kim and Diana, could you pleaseshare a bit about who you are,
your backgrounds, and whatyou're each working on these
days?
SPEAKER_02 (01:11):
So as you said, I'm Kim Utterson.
I'm a professor at Rutgers LawSchool in Camden, New Jersey.
So I am Philly adjacent, not NewYork City adjacent.
I'm a reproductive justicescholar.
I focus on a whole bunch ofissues under that umbrella, but
I particularly focus on abortionand assisted reproduction,
especially the intersectionbetween those two things.
(01:35):
I've been doing this work for 20plus years.
Seems like longer sometimes.
Thanks, Diana.
SPEAKER_01 (02:04):
Sure.
I'm Diana Kasdan.
I'm the Legal and PolicyDirector at UCLA Law's Center on
Reproductive Health Law andPolicy, which is an
interdisciplinary legal policythink tank.
We are lawyers and researchers,and we were really created to
address the crisis inreproductive rights, health, and
justice.
And we both develop our ownresources and theories.
(02:26):
We connect and convene academicscholars of different fields,
advocates, policymakers,researchers, and practitioners.
and lawyers to be part of this.
And one of the other things wedo is run the Southern
California's Legal Alliance forReproductive Justice, known as
SoCal Large.
And that is a network of localand national pro bono law firms
(02:49):
that can offer legal counsel probono for individuals, healthcare
providers, organizations.
You go to our website, there isa number, there's an email you
can call.
And we coordinate that withother similar helplines that are
run nationally.
And I came to this role afteralso about 20 years in the field
(03:09):
of reproductive rights inparticular, also doing some work
in the democracy space withlarger national litigation
organizations.
And really now I'm focused onfinding ways to help resource
the field, some of which I'lltalk about some of those
resources during thisconversation.
And one of the things Ipersonally am most invested in
is creating spaces for advocatesand scholars to think together
(03:33):
about how we do rebuildconstitutional frameworks over
the long term for reproductiverights and justice.
SPEAKER_03 (03:40):
Okay, thank you both so much.
I'm so excited to have you heretoday.
So let's dive right into it.
One headline that's been reallyhard to miss is the Supreme
Court's recent decision inMedina versus Planned
Parenthood, South Atlantic.
Kim, before we dig into thedetails, could you set the stage
for us?
What is this case all about?
SPEAKER_02 (03:59):
Sure.
So it's a case that comes out ofSouth Carolina and in In 2018,
which feels like centuries ago,frankly, the governor of South
Carolina issued an executiveorder that basically said that
the Department of Health andHuman Services was to cut all
Planned Parenthoods out of theirnetwork for Medicaid providers.
(04:21):
And so first, it's reallyimportant to note that Yes,
Planned Parenthood providesabortions, but Medicaid doesn't
pay for abortions except in avery small slice of cases.
So people were getting all kindsof care at Planned Parenthood,
whether it was pap smears,cancer screenings, you know,
well woman checks generally.
And so they got sued, right?
(04:43):
Because essentially what theysaid was anyone who is a
Medicaid patient can no longerpay for their care through
Medicaid if they are gettingtheir care out of Planned
Parenthood, which was a hugeblow to Planned Parenthood
inside South Carolina, and whicheventually led to this lawsuit.
SPEAKER_03 (04:59):
Thanks.
So just briefly then, what didthe Supreme Court actually
decide in Medina?
SPEAKER_02 (05:04):
So the central question was whether the folks
who sued, so it was a PlannedParenthood affiliate who sued,
and then a woman who had beenreceiving her gynecological care
at Planned Parenthood and whowanted to continue to receive
her care there, and she wasusing Medicaid to pay for her
care.
And so they sued, and basicallythe claim was that they were
(05:26):
being denied a civil right underSection 1983, which, as folks
know, is one of the most potentcivil rights statutes that
exists in the United States.
So they sued under 1983.
And the claim from SouthCarolina was, well, you don't
have a right to choose your ownprovider under Medicaid.
(05:47):
And so that was really the issuethat had to get sorted out in
the Supreme Court.
And what six justices of thatcourt said was that there is no
individual right to choose yourown provider if you are a person
who is receiving Medicaid.
And there are several casesprior that say that there is, in
fact, an individual right tochoose your own provider.
(06:09):
But the majority of the SupremeCourt in this particular case
said that that is not true.
And so therefore, South Carolinacan continue to cut Medicaid
patients off from getting accessto care at Planned Parenthood.
SPEAKER_03 (06:23):
Thanks so much for that summary.
So for all of us who probablyhaven't read the hundreds of
pages from the opinion, werethere any parts of the opinion
that really stood out to you orhave been on your mind since the
ruling?
SPEAKER_02 (06:37):
You know, I think that there were a lot of or some
very similar parallels to whathappened in Dobbs that I think
are worth talking about.
One was that we got aconcurrence from Justice Thomas,
who basically said, let'srethink this whole Section 1983
stuff in the first place.
We shouldn't be allowing peopleto have all of these cases
asserting civil rights based onSection 1983.
(06:59):
So that's a huge thing to putout into the world.
Very similar in Dobbs, where hebasically said, let's rethink
this whole concept of civilrights.
substantive due process.
So we had that.
And then we had a reallybeautiful dissent that was
written by Justice Jackson,joined by Justice Sotomayor and
Justice Kagan.
And the dissent basicallypointed out that essentially
(07:21):
what the court did here was rollback decisions that it had made
only two years ago in anothercase that was about Medicaid and
about Section 1983.
So one of the things that Ithink we really need to be
focused on and lots of ushaven't focused on it is what
Justice Jackson sort of referredto as the opposition to
individual rights that we'reseeing coming out of this
(07:43):
Supreme Court.
And that, of course, hasimplications far beyond
reproductive health andreproductive rights.
SPEAKER_03 (07:50):
So speaking of that, who do you think will feel the
most immediate effects of thisdecision most directly?
And then also, are there anyripple effects or broader
implications that you're keepingan eye on?
SPEAKER_02 (08:00):
Well, certainly the people who are going to feel
these effects the most are womenand others who get their primary
care in some cases from theirlocal Planned Parenthood.
So we're talking about peoplewho aren't going to get their
annual gynecological exams,they're not going to be getting
their pap smears, they're notgoing to be getting cancer
screenings, they're not going tobe getting access to
(08:20):
contraception.
They're not going to be gettingtreatment for sexually
transmitted infections.
So Planned Parenthood provides awhole host of care that goes far
beyond abortion care.
So all of those low-income folkswho are getting their care or
were getting their care at localPlanned Parenthood affiliates in
South Carolina are no longergoing to have access to that
care.
(08:40):
And that's something that Ithink we should all find to be
very worrisome.
But then, of course, the largertrend, as I said, is this trend
toward rolling back rights,sometimes rights that have been
in existence for decades.
And that is a thing that wethink that I think we all need
to be paying a lot of attentionto because it's not going to
just be when it comes toabortion.
(09:01):
It certainly is going to be moreexpansive than that.
SPEAKER_03 (09:04):
Thanks so much, Kim.
So with all of that, any finalthoughts or takeaways on Medina
before we move on?
I
SPEAKER_02 (09:09):
think Medina, one of the things that was really
interesting about Dobbs is thatessentially what the court said,
what the majority said is, we'regoing to get the Supreme Court
out of the business of abortion.
And the truth of the matter is,is we're going to be seeing
abortion cases in federal courtsfor decades and decades to come,
right?
This Dobbs in no way got thecourt out of the question of
(09:31):
abortion.
And there are all these othersort of peripheral issues Here
we have a funding issue.
There are also issues about whatare the exceptions that need to
be in abortion statutes.
If there are going to berestrictive abortion statutes,
there are going to be questionsabout punishing people who
travel outside of the state inorder to get abortions.
So we're going to see lots ofcomplicated legal issues that
(09:53):
are coming up to this court overand over and over again.
SPEAKER_03 (09:57):
Thanks.
Yeah, so speaking about abortionin the federal courts, let's
switch gears a little bit.
I know a lot of HLA members havebeen closely following the
various cases about Mifepristoneaccess.
Last year, the Supreme Courtruled an alliance for
Hippocratic medicine that theplaintiffs didn't have standing,
but then the case didn't endthere.
Three states stepped in to keepit alive in the lower courts.
(10:20):
Diana, could you give us a quickrefresher on what is at stake in
this case?
SPEAKER_01 (10:25):
Sure.
So as you just said, right, itwas a year ago, June 24, that
the Supreme Court said thePlaintiffs and Alliance didn't
have standing.
And I just point out it wasbecause it was an anti-abortion
association that was formed, youknow, for the purpose of
bringing this kind of lawsuitwhose members never prescribed
nifepristone, never experiencedharms.
And that was one of the issues.
(10:45):
So they lacked standing.
But in that case, there wasstill pending an intervention
motion in the lower court backin the Northern District of
Texas before Judge Kaczmarek.
And those states were grantedleave to specifically amend
their complaint, you know,because they needed to address
this issue of showing harm.
So that was back in October 24.
They did amend the complaint.
(11:06):
And that was Missouri, Kansas,and Idaho.
And notably, they stayed in theNorthern District of Texas.
Texas is not part of this case.
And their challenge, theiramended complaint, is basically
challenging everything exceptthe original approval of MIFI,
all the various rules anddecisions in 2016 21, 23, that
(11:27):
relax the restrictions on theprescription and distribution of
MIFI, as well as the 2019generic approval.
So they're claiming none of thiswas supported by adequate
evidence and all of thoserestrictions need to be put back
in place.
And they are also asking for aorder to prevent distribution or
prescription of MIFI toadolescents as well.
(11:47):
So that is a new piece.
And so obviously the harm ispretty severe if this were to be
successful.
We would see in-personrequirements again.
We would see the labeling goingback to only use up to seven
weeks instead of 10 weeks.
Only certified physicians couldprescribe.
And what we know is that thesewere unnecessary.
(12:08):
They were doing nothing toprotect patient safety.
And taking all these down isreally expanded access to
medication abortion,particularly in the wake of
DOPS, which has been hugelyimportant.
And I do have to point out thisclaim about adolescence is
particularly egregious.
And I'm just going to quote theclaim on this that the harm
these states would suffer istheir population interests the
(12:30):
loss of fetal life and potentialbirth by literally teenagers
they say quote remote dispensingof abortion drugs is depressing
expected birth rates for teenagemothers in plaintiff states so
that's kind of how extremethey've gone to show that they
have standing um And yeah, so asI mentioned, what's at stake is
really an attempt to ban telemedabortion nationally with this
(12:53):
lawsuit.
And right now we have about onein four abortions are by
telemedicine.
SPEAKER_03 (12:59):
Thanks for that.
So where do things stand rightnow with the case?
And do we have any clues abouthow the Trump administration
might approach it going forward?
SPEAKER_01 (13:07):
Yeah, actually, we do.
So the defendant, the UnitedStates FDA, has actually moved
to dismiss it.
And there is a decision stillpending on that.
So we don't know how the judgeis going to rule.
And interestingly, they do makepretty like institutionally
preserving typical argumentsthat it should be dismissed.
So they're saying the plaintiffscan't show a connection between
the FDA's decision making andthe harms they're alleging.
(13:30):
They cite the alliance decisionfor this.
They're saying they haven'texhausted the process, that
their claims are barred bystatute of limitations.
And most interestingly, they dosay they have no connection to
the Northern District in Texas.
In addition to being dismissed,if for any reason the case goes
forward, it should at least betransferred to another court.
(13:50):
And the one other thing theyemphasize is that the Supreme
Court has made clear that anypotential harms to the states
would be eliminated by thecorrect, excuse me, the correct
interpretation of conscientiouslaw protection laws.
So I think it's not surprisingthat the administration is now
trying to maintain FDA'sauthority and insulate it from
(14:13):
court review so that if theywere to make their own change to
the rules, they'd make thesesame kinds of arguments to keep
a challenge kind of on the otherside out of the court.
So I think it's not surprising,but it is an indication they are
not trying to help the stateskeep this kind of litigation in
the courts.
SPEAKER_03 (14:33):
Okay, interesting.
So Diana, I understand that yourteam is keeping tabs on so many
different cases and citizenpetitions that are related to
Mifepristone access.
So at a high level, can youshare a little bit about what
you're watching most closely?
SPEAKER_01 (14:47):
Yeah, sure.
So right now there are, that wehave identified or tracking
seven different cases, includingthe one we just talked about
that relates specifically to howmethadone is being regulated by
the FDA, the approval or theregulation of it.
So it might not include otherstate claims that in some way
involve telemedication ormedication abortion.
(15:08):
And what we're looking at iskind of the different legal
claims that cases present tokeep an eye on the types of
different legal issues thatcould percolate back up to this
Supreme Court, and of course,where they are.
And right now, there's only twoin the Court of Appeals.
And those are both cases thatbring preemption arguments,
right, saying how the states areregulating either abortion
generally or telehealth are inconflict with FDA's regulation
(15:34):
of how MIFI can be prescribedand distributed.
So those are both in the FourthCircuit Court of Appeals, and
then the rest are still at thelower courts.
And I'd say, you know, three,most of them are about FDA
regulation.
And the other interesting thingis, except for the Missouri
case, they all are actuallyabout expanding access, right?
These were cases that werebrought under the prior
administration, trying to takedown some of the still remaining
(15:57):
unnecessary restrictions.
And of those three that are bothkind of proactive, trying to
expand access, one was justdismissed.
That was a Washington state-ledcase on behalf of about 17
states.
Another one is in Hawaii.
It's still going to have oralargument, I think, in August.
Another one had an oral argumentin Virginia District Court back
(16:20):
in May.
So we still have three caseswe're going to see, excuse me,
two more cases we're going tosee decisions on FDA's
regulation.
The Washington one, I can comeback to what it said.
it wasn't a very in-depthdecision.
And as I said, the otherpreemption ones are briefed and
they're awaiting decisions inthe Court of Appeals.
SPEAKER_03 (16:39):
Okay, so there's a lot of movement there in the
SPEAKER_01 (16:40):
field.
Yeah, and I guess the other partof your question was about the
citizen petition, so I'm happyto answer that.
Yeah, there's three pendingright now with the FDA.
Two of those are actually,again, seeking to ensure that
the FDA has the full record, allthe new evidence and science and
research on the safety ofmedication abortion.
And part of the strategy thereis, were the FDA to move to
(17:01):
change the rules in any way,this evidence would now be in
front of it.
But the petitions do actuallyseek to eliminate the existing
REMs, right, those, you know,more onerous restrictions that
are being imposed on MIFI, andask that the FDA refrain from
enforcing them if they're notremoved or imposing any other
increases or burdens on MIFI.
(17:23):
So one of those comes from bluestates, California, New York,
Massachusetts, New Jersey.
Another one comes from onleading medical professionals.
professional associations likeACOG and Society for Family
Planning.
And like I said, they're bothputting all this evidence, real
solid evidence before the FDA.
They're very early.
They've been received.
So there's no response yet.
(17:44):
There is one that is from adoctor who's asking the FDA to
revoke the approval and conductnew studies.
And that also has just beenrecently filed.
I would just say a note thatback in June, the FDA did
dismiss an earlier citizenpetition from from the American
Association of Pro-LifeObstetricians and Gynecologists,
(18:05):
which was seeking to impose newREMS if MIFI was approved
specifically for miscarriagemanagement.
And I just mentioned that onebecause it's interesting.
Again, it was in June.
It's under the currentadministration.
And that one that was, you know,aligning with those interested
in restricting medicationabortion was rejected.
But so we have two positive onespending and this one out kind
(18:27):
of, I'm not sure.
It looks like a solo individual.
I'm not sure what's, you know,if there's any more
organizational effort behindthat one, but it might be
interesting to look.
And we have these all tracked onour website.
You can go to the center'swebsite.
There's a whole resource andwe'll be updating that.
SPEAKER_03 (18:42):
Thanks so much.
Lots to track.
And then also a lot to track onthe shield law front.
So on the state law level, we'veseen a wave of new and
strengthened shield laws aimedat protecting patient privacy,
which is especially relevant nowthat the HIPAA 2024 reproductive
health privacy rule was struckdown last month.
Diana, could you walk us throughwhat shield laws are for those
(19:04):
who might not be familiar?
Okay.
Yeah.
SPEAKER_01 (19:08):
So after the Supreme Court overruled Roe, going back
to Dobbs, obviously, as we allknow, lots of states move
forward with banning abortionand imposing heavy restrictions.
And in response, there were aset of states that wanted to
protect access and preserve andexpand it within their states
and prevent any creep from theseother states trying to extend
their policies, which we seestates like Texas doing.
(19:31):
So the SHIELD laws were reallydesigned to protect the
patients, the healthcareproviders, those who help them
in accessing abortion that islegal in these protected states.
So it's not just aboutprotecting privacy and
information, but actuallyprotecting providers and help,
helpers in accessing abortioncare from being prosecuted or
facing various kinds of civil orcriminal lawsuits or subject to
(19:55):
other investigations.
And at this point, we have 22states and Washington DC, which
all have some form of shield lawprotections in place.
And these extend to coverreproductive healthcare
generally.
And then 18 of thosespecifically include gender
affirming care as well.
And these have really had a hugeimpact.
So if we look at the statisticswe count, Society of Family
(20:17):
Planning does this regularly,looking at abortion care and
provision since Dobbs.
By the end of 2024, as I saidbefore, one in four abortions is
by telehealth.
12,000 abortions per month wereprovided under SHIELD laws.
And that meant in states whereSHIELD law protected care legal
(20:39):
in the state or including bytelehealth, which might have
reached a patient in anotherstate, that kind of abortion
care was made possible by SHIELDlaws.
And that, I should add, isbecause eight of the states have
very specific provisions thatexplicitly protect provision of
care regardless of patientlocation.
So telehealth, including out ofstate.
(21:01):
And the level of protections orthe type of protections can vary
a lot by state, but I will justkind of flag, I think, you know,
five common categories.
And then, again, you can go toour resource on our website.
We have fact sheets on eachstate, a map.
You can look at it in differentways.
But the basic categories areprotections against out-of-state
investigations, subpoenas, andwarrants.
(21:23):
And we know this is reallyimportant because of the two
attempts to prosecute andinvestigate a doctor in New York
for providing telehealth to ofpatients located elsewhere,
protections from professionaldiscipline.
Again, this is all for providingcare that's legal in the state
where the provider is practicingagainst civil liability, against
kind of professional liabilityinsurance or health care plans
(21:46):
taking adverse action orexcluding coverage because of
provision of this care.
And then what we're talkingabout protections of privacy of
reproductive and genderaffirming medical patient
information.
SPEAKER_03 (21:58):
Thanks.
So I guess you've already sharedso much about it, but I guess
what are some of the mostnotable updates or trends that
you've seen with SHIELD laws inthe past few months, or is there
anything else you'd want toshare?
SPEAKER_01 (22:06):
Sure.
I'll try and be quick.
I know it's been a lot.
I think enhancing theprotections for confidentiality
of patient information has beenthe biggest trend and kind of
way that the states are updatingor strengthening their laws.
So just this past June, fourstates did recently enact new
components of their shield lawsto do this and particularly to
(22:29):
allow the prescription labels onmedication abortion
prescriptions to emit certainidentifying information.
This is important for protectingboth providers and patients
because we know sometimes it isaccess to people's literal like
prescription pills that have ledto reports to law enforcement or
other investigations.
Colorado, Maine, New York andVermont have done this.
I believe the bills inCalifornia and Massachusetts are
(22:52):
still pending.
And I would just say Still, wehave about 10 states that don't
have probably as much protectionas we would like against
disclosure of medicalinformation by providers, plans,
clearing houses, healthnetworks, all those things that
are covered by the HIPAA privacyrule, which we now know is at
risk, right?
So states could do more to kindof make their own version of
(23:14):
that within SHIELD laws.
And some states have done that,but there's a chunk that don't
have that yet.
UNKNOWN (23:19):
Yeah.
SPEAKER_03 (23:20):
Okay, thanks so much.
So let's switch gears a littlebit again.
Another closely followed topicamong HLA members is access to
emergency abortions underEMTALA.
Kim, for listeners who haven'tbeen following this as closely,
could you give us a quick primeron EMTALA, the Biden
administration's guidance onemergency abortions, and the US
v Idaho case?
(23:40):
And I'm laughing already becauseI said quick, and I know that
this can't be
SPEAKER_02 (23:45):
quick.
I shall do my best.
So, you know, if you are of acertain age, you probably
Remember the 80s era of patientdumping and huge concerns about
hospitals not wanting to providecare for patients who didn't
have insurance and stories aboutpeople being put out on the
street and at bus stops, justsort of awful.
So EMTALA was passed basicallyto stop that from going on.
(24:08):
And what EMTALA says is thatwhen somebody shows up in your
emergency room and they need tobe provided with a certain type
of care in order to bestabilized, you have to provide
that care before you can doanything else, before you can
transfer them, any of thosethings.
And so basically the fight thatis going on here is that we have
states that have significantabortion restrictions with
(24:31):
exceptions.
And then you have theexpectations that I was going to
say, well, the Bidenadministration, I was going to
say the federal government, butlet's focus on the Biden
administration.
Expectations about what kind ofcare needs to be provided to
somebody who shows up, who sayis having a miscarriage and who
needs an abortion in order to bestabilized.
(24:54):
So the issue really came upbecause Idaho has an abortion
statute that says that abortionscan only be provided where there
is a risk to the life of theperson who is pregnant.
The Biden administration hadissued guidance post Dobbs that
said that people would stillhave to provide abortions when
(25:14):
they were needed in emergencysituations, even if state
statutes didn't seem to providefor that kind of care.
And so that's where the conflictcame in.
Normally, we would say wherethere's a conflict in an area
where there is federal law andstate law that federal law
predominates.
Right.
So we got into a situation herewhere there was a preemption
question.
So the U.S.
(25:36):
ends up suing.
We have a case that goes up tothe U.S.
Supreme Court.
And it was there was a lot ofpeople who are civil procedure
nerds would love what went on inthis case.
I am not a civil procedure nerd.
I'm not going to walk throughall the different pieces.
But basically what happened isit eventually went went up to
the US Supreme Court because theIdaho law, they had been able to
(25:59):
get a preliminary injunction,which stayed the enforcement of
Idaho's law for a period oftime.
And so Idaho went up to theSupreme Court and said, you
know, we want you to lift thisday, which the Supreme Court
did.
And then the Supreme Court heardarguments.
They hear these arguments.
There's all this back and forththat's going on.
And because lawsuits take a longtime to wind their way through
(26:20):
the courts.
There had actually been changesto Idaho's law in the interim.
And so eventually what the USSupreme Court said after
arguments was we shouldn't havegranted cert on this, that's our
bad.
So we're gonna let, we're gonnasend it back down.
We're gonna let it go throughthe process and then, you know,
it'll come back to us with abetter record and then we'll be
able to make a decision.
(26:40):
In the meantime, we had a changeof administration and we went
from Biden to Trump.
And when Trump came into office,they decided to actually drop
that lawsuit.
And so that lawsuit, Moyo, whichwould have helped us sort of
sort out these questions aboutwhat is actually required under
EMTALA, and also, frankly,preemption questions, right?
(27:03):
Because this is, I mean, youcould ask a 1L, right, how this
should be resolved, and theywould say, well, federal law has
to prevail here.
So that's kind of where we endedup with Amtala.
And so I would say where we areright now is in this incredible
in-between space of not reallyknowing what's going on on the
(27:23):
ground.
I will say one other thingbefore you move to your next
question, which is because wedid have those arguments,
because there was some recordthat was created, one of the
pieces of evidence that we gotis that hospitals in Idaho were
actually airlifting women out ofIdaho to other states to provide
them with emergency abortioncare, which is not only
(27:46):
incredibly expensive and deeplyunnecessary, but can also be
really traumatic for that personwho needs that care.
SPEAKER_03 (27:51):
Right.
Thanks for that summary.
So the Biden administration'sguidance on EMTALA was then
recently withdrawn.
What does that mean in practicefor patients and providers?
SPEAKER_02 (28:03):
I think it does the same thing that a lot of these
anti-abortion statutes havedone, which is create very muddy
areas of law.
So one thing that you can bepretty certain of if you were a
hospital right now is thatnobody from the DOJ is going to
come sweeping into your hospitaland say, you better be providing
abortions in emergencycircumstances, right?
(28:24):
Nobody's sort of going to bepaying attention to that in the
way that the Bidenadministration was paying
attention to that.
So we, again, are in this sortof nether space where people who
are providing health care aren'tnecessarily sure what they can
do, when they can do it, andquite frankly, aren't always
sure that they can provide whatthey know to be the medical
standard of care because they'renot sure if that medical
(28:46):
standard of care conflicts withwhat the statute is in their
particular jurisdiction.
Thanks.
SPEAKER_03 (28:52):
So all of these challenges were focused on
Idaho.
What is the latest on the groundin Idaho right now?
SPEAKER_02 (28:58):
So when the Trump administration came in and said,
we're going to drop this case,the case was called Moyle versus
United States.
We're not going to fight thisEMTALA issue anymore.
We're done with it.
You know, we're happy for Idahoto do whatever they want to.
St.
Luke's, which is a health systemin Idaho, sort of immediately
stepped in.
You know, people saw the writingon the wall and they immediately
(29:19):
filed suit and said, we can'tprovide the care that we need to
provide because of Idaho'sstatute.
And so basically, what are wesupposed to do?
Right.
We have EMTALA that tells uswhat to do.
tells us one thing.
And then we have Idaho statute,which tells us something else.
So that is the new piece oflitigation.
And that's going to startwidening its way through the
federal courts and eventuallyalmost certainly end up at the
(29:41):
U.S.
Supreme Court at some point.
SPEAKER_03 (29:43):
So the battle just continues.
That's right.
SPEAKER_02 (29:45):
That's
SPEAKER_03 (29:45):
right.
SPEAKER_02 (29:45):
So there's no way federal courts were getting out
of the business of abortion inthat business for a long time to
come.
SPEAKER_03 (29:53):
Right.
So beyond those federal courtbattles, then we're also seeing
a lot of movement at the statelevel to either protect or limit
access to emergency abortions,as you mentioned a little bit
earlier.
Are there any recentdevelopments from the past month
or so that you think health carelawyers should have on their
radar?
SPEAKER_02 (30:10):
Well, I don't know necessarily that I would say
recent developments from thepast month or so.
I mean, I think that there issort of constant on the ground
movement, which is part of whythis is such a really difficult
space for people to be in, bothif they're providing abortions
or need abortions, or if they'retrying to advise people who are
providing abortions.
So, you know, we have cases invarious states that are trying
(30:33):
to make sense of the exceptionsin abortion and abortion
statutes.
So we've had cases in Texas,we've We've had cases in Idaho.
We've had cases in Georgia.
So those are things that peopleneed to absolutely keep their
eyes on.
And then we also just have statelegislatures that are changing
their minds, right?
And so they're going back andsaying, okay, well, let's fiddle
(30:56):
with this a little bit and let'sfiddle with that a little bit.
And so it's this constantlyshifting landscape that I think
makes it really hard to be, as Isaid, both a person who's
providing care, a person who'sreceiving care, and a person
who's trying to advise hospitalsabout what kind of care they're
allowed to provide and when theycan provide it.
SPEAKER_03 (31:14):
Thanks.
So before we wrap up then, doeither of you have any final
thoughts or reflections thatyou'd like to share?
What's top of mind for you asyou're looking ahead?
And maybe Diana, we can startwith you.
SPEAKER_01 (31:26):
Sure.
I guess I was just thinkingabout one of the other big
Supreme Court cases we haven'tmentioned and discussed on this
call is the Scrimetti decision,in which the court said it was
perfectly fine for Tennessee toprevent the provision of
gender-affirming care toadolescents, minors in that
state.
And they said it wasn't sexdiscrimination, because even
(31:48):
though the law specificallymentioned sex and classifies it
based on sex, it was about atype of medical care and is
about youth, right?
So it said there's two otherthings at work, not sex.
And we all know a law can beabout multiple things and that
if one of them is related tosex, you still should at least
give it heightened scrutiny.
But the court took it out of theheightened scrutiny framework
(32:08):
and said this is just not a formof sex discrimination.
And so why that concerns me isthere's a lot of things in that
decision that indicate what thecourt would have to say and what
federal courts will now have tolook to as a standard about, you
know, laws or state actions thatdiscriminate against people
because their pregnancy or theyhave the capacity for pregnancy
(32:29):
or other biological differences.
All of those things are thingsthat Scrimetti says aren't a
form of sex discrimination.
And that is really problematicin terms of having recourse to
that area of law in the courts.
And they even pointed to an FDAreport that says some medical
treatments and procedures areuniquely bound up in sex.
(32:51):
And if it's a medical concern ormedical treatment, that's the
object.
That's the but-for cause thatwe're not considering as an
issue of sex or genderdiscrimination.
So that has me worried.
And I think that's something tokeep an eye on how lower courts
are responding to any claims ofsex discrimination or pregnancy
discrimination, because Grimettihas a lot of implications beyond
(33:15):
the transgender care, whichthose implications were bad
enough to be clear.
But there's more to come onthat.
Thanks,
SPEAKER_02 (33:22):
Kim.
So a couple of things.
One of the things that JusticeJackson talked about in her
dissent in Medina is that, youknow, as the court is spitting
out all of these cases, thatthere are real people whose
lives will be impacted,sometimes very negatively by
these decisions.
So I want to talk about thoseimpacts really quickly.
(33:42):
So one that I think that weshould really keep our eye on is
prosecutions of women, eitherwomen who actually do get
abortions and then have anadverse outcome and show up at a
hospital for care and then findsomebody at the hospital calls
the police and next thing youknow, they're being arrested.
Women who have miscarriages orwomen who have stillbirths.
(34:06):
Our country has one of thehighest stillbirth rates of any
developed nation.
And are those women gonna startgetting prosecuted?
We've seen some of thoseprosecutions for how people have
dealt with fetal remains, right?
So those are things that I'mvery concerned about.
I can't imagine how devastatingit is to have a miscarriage and
(34:27):
then have a police officer showup at your door and say, hey,
what did you do with the remainsof that miscarriage?
It's a pretty awful thing tohappen.
So I'm very worried aboutincreased criminalization
efforts, but I'm also simplyworried about the number of
women who are going to haveadverse health outcomes.
So ProPublica has done a reallyamazing series about
reproductive health in the wakeof dobs and restrictive abortion
(34:51):
laws.
And one of the pieces that theydid not so long ago was about
the increase in sepsis ratespost-dob.
So women who end up gettinginfections because they don't
get the care that they need asquickly as they need it after
they have had a miscarriage.
Texas is a sort of great exampleof this because the increase in
(35:13):
sepsis was really extraordinarypost-OBs.
So the other thing that I'mreally spending a lot of time
thinking about and worryingabout is not just women who will
die, and we know that women havedied and that women will
continue to die, but also thewoman who loses her uterus and
so isn't able to get pregnant,isn't able to get pregnant again
(35:33):
because she wasn't provided carethat was needed at the time that
it was needed.
are things that I'm really,really focused on, who are the
individual people who areexperiencing all kinds of harms
as a consequence of not havingclarity in what these abortion
statutes require or what theyallow.
SPEAKER_03 (35:52):
Thanks so much.
So there's so much going on hereand, you know, it's kind of hard
to keep up with all of it.
Are there any resources that youwould recommend for listeners
who, you know, want to stayinformed and how can folks find
your work?
Diana, we can start with you.
SPEAKER_01 (36:08):
Yes, as I already mentioned a couple times, if
you're interested in moreinformation specifically on
SHIELD laws or what's going onwith the litigation around FDA
regulation of mifepristone orother federal actions, we have
two dedicated webpages withresources, charts, maps.
You can go to the UCLA Center onReproductive Health Law and
Policy and find those there.
(36:30):
And beyond that, we have anewsletter.
You could get more information,but those would be the main
things I'd point to.
SPEAKER_02 (36:36):
Thanks.
Kim?
So I would say if you're aperson who likes data, and I
think data is really helpful,Guttmacher Institute is a really
wonderful resource just fornumbers, both in terms of what
kind of legislation is beingintroduced, what's passing, what
does it say, numbers on how manypeople are getting abortions,
(36:59):
where are they getting thoseabortions, what kind of
abortions are they having.
That's always really helpful.
And then the other site that Iuse a lot in my own research is
Kaiser Family Foundation, whichdoes some very similar work in
terms of just pulling togetherall of these incredibly
disparate strings of what'shappening in the abortion space
in this country in a way thatreally makes sense, right?
(37:21):
At least the data collectionmakes sense, even if the rules
don't make sense.
So that's helpful too.
SPEAKER_03 (37:26):
Thanks so much.
I'll be sure to check those out.
AHLA members, whether you'readvising healthcare systems,
representing patients, or simplytrying to stay current in this
complex area of law, I'm hopingtoday's conversation has given
you some helpful insights andupdates.
I know we just touched the tipof the surface and there's so
much more, but reallyappreciate.
Kim and Diana, thank you so muchfor joining me today and
(37:49):
covering so much ground.
And again, thanks to ourlisteners for tuning in.
SPEAKER_00 (37:57):
To subscribe and add this private podcast feed to
your podcast app, go toAmericanHealthLaw.org slash
(38:26):
Daily Podcast.
you
For more information, visit
AmericanHealthLaw.org.
SPEAKER_03 (00:17):
Hello, and thanks for tuning in to HLA's Speaking
of Health Law podcast.
My name is Sheila Ranganathan,and I'm an in-house attorney as
well as an adjunct withGeorgetown University School of
Health.
Today, we're tackling therapidly evolving landscape of
reproductive health law.
I'm joined by two leadingexperts who have been at the
forefront of these developments,Kimberly Mutcherson and Diana
Kasten.
(00:37):
Together, we'll unpack theSupreme Court's recent decision
in Medina versus PlannedParenthood South Atlantic,
examine the ongoing battles overMifepristone in the courts,
explore how the withdrawal ofBiden-era EMTALA guidance is
reshaping emergency abortioncare, and discuss the rapidly
evolving patchwork ofstate-level shield laws that are
(00:57):
designed to protect patientprivacy.
So first, I'd like to start bygetting to know you both a
little bit better.
Kim and Diana, could you pleaseshare a bit about who you are,
your backgrounds, and whatyou're each working on these
days?
SPEAKER_02 (01:11):
So as you said, I'm Kim Utterson.
I'm a professor at Rutgers LawSchool in Camden, New Jersey.
So I am Philly adjacent, not NewYork City adjacent.
I'm a reproductive justicescholar.
I focus on a whole bunch ofissues under that umbrella, but
I particularly focus on abortionand assisted reproduction,
especially the intersectionbetween those two things.
(01:35):
I've been doing this work for 20plus years.
Seems like longer sometimes.
Thanks, Diana.
SPEAKER_01 (02:04):
Sure.
I'm Diana Kasdan.
I'm the Legal and PolicyDirector at UCLA Law's Center on
Reproductive Health Law andPolicy, which is an
interdisciplinary legal policythink tank.
We are lawyers and researchers,and we were really created to
address the crisis inreproductive rights, health, and
justice.
And we both develop our ownresources and theories.
(02:26):
We connect and convene academicscholars of different fields,
advocates, policymakers,researchers, and practitioners.
and lawyers to be part of this.
And one of the other things wedo is run the Southern
California's Legal Alliance forReproductive Justice, known as
SoCal Large.
And that is a network of localand national pro bono law firms
(02:49):
that can offer legal counsel probono for individuals, healthcare
providers, organizations.
You go to our website, there isa number, there's an email you
can call.
And we coordinate that withother similar helplines that are
run nationally.
And I came to this role afteralso about 20 years in the field
(03:09):
of reproductive rights inparticular, also doing some work
in the democracy space withlarger national litigation
organizations.
And really now I'm focused onfinding ways to help resource
the field, some of which I'lltalk about some of those
resources during thisconversation.
And one of the things Ipersonally am most invested in
is creating spaces for advocatesand scholars to think together
(03:33):
about how we do rebuildconstitutional frameworks over
the long term for reproductiverights and justice.
SPEAKER_03 (03:40):
Okay, thank you both so much.
I'm so excited to have you heretoday.
So let's dive right into it.
One headline that's been reallyhard to miss is the Supreme
Court's recent decision inMedina versus Planned
Parenthood, South Atlantic.
Kim, before we dig into thedetails, could you set the stage
for us?
What is this case all about?
SPEAKER_02 (03:59):
Sure.
So it's a case that comes out ofSouth Carolina and in In 2018,
which feels like centuries ago,frankly, the governor of South
Carolina issued an executiveorder that basically said that
the Department of Health andHuman Services was to cut all
Planned Parenthoods out of theirnetwork for Medicaid providers.
(04:21):
And so first, it's reallyimportant to note that Yes,
Planned Parenthood providesabortions, but Medicaid doesn't
pay for abortions except in avery small slice of cases.
So people were getting all kindsof care at Planned Parenthood,
whether it was pap smears,cancer screenings, you know,
well woman checks generally.
And so they got sued, right?
(04:43):
Because essentially what theysaid was anyone who is a
Medicaid patient can no longerpay for their care through
Medicaid if they are gettingtheir care out of Planned
Parenthood, which was a hugeblow to Planned Parenthood
inside South Carolina, and whicheventually led to this lawsuit.
SPEAKER_03 (04:59):
Thanks.
So just briefly then, what didthe Supreme Court actually
decide in Medina?
SPEAKER_02 (05:04):
So the central question was whether the folks
who sued, so it was a PlannedParenthood affiliate who sued,
and then a woman who had beenreceiving her gynecological care
at Planned Parenthood and whowanted to continue to receive
her care there, and she wasusing Medicaid to pay for her
care.
And so they sued, and basicallythe claim was that they were
(05:26):
being denied a civil right underSection 1983, which, as folks
know, is one of the most potentcivil rights statutes that
exists in the United States.
So they sued under 1983.
And the claim from SouthCarolina was, well, you don't
have a right to choose your ownprovider under Medicaid.
(05:47):
And so that was really the issuethat had to get sorted out in
the Supreme Court.
And what six justices of thatcourt said was that there is no
individual right to choose yourown provider if you are a person
who is receiving Medicaid.
And there are several casesprior that say that there is, in
fact, an individual right tochoose your own provider.
(06:09):
But the majority of the SupremeCourt in this particular case
said that that is not true.
And so therefore, South Carolinacan continue to cut Medicaid
patients off from getting accessto care at Planned Parenthood.
SPEAKER_03 (06:23):
Thanks so much for that summary.
So for all of us who probablyhaven't read the hundreds of
pages from the opinion, werethere any parts of the opinion
that really stood out to you orhave been on your mind since the
ruling?
SPEAKER_02 (06:37):
You know, I think that there were a lot of or some
very similar parallels to whathappened in Dobbs that I think
are worth talking about.
One was that we got aconcurrence from Justice Thomas,
who basically said, let'srethink this whole Section 1983
stuff in the first place.
We shouldn't be allowing peopleto have all of these cases
asserting civil rights based onSection 1983.
(06:59):
So that's a huge thing to putout into the world.
Very similar in Dobbs, where hebasically said, let's rethink
this whole concept of civilrights.
substantive due process.
So we had that.
And then we had a reallybeautiful dissent that was
written by Justice Jackson,joined by Justice Sotomayor and
Justice Kagan.
And the dissent basicallypointed out that essentially
(07:21):
what the court did here was rollback decisions that it had made
only two years ago in anothercase that was about Medicaid and
about Section 1983.
So one of the things that Ithink we really need to be
focused on and lots of ushaven't focused on it is what
Justice Jackson sort of referredto as the opposition to
individual rights that we'reseeing coming out of this
(07:43):
Supreme Court.
And that, of course, hasimplications far beyond
reproductive health andreproductive rights.
SPEAKER_03 (07:50):
So speaking of that, who do you think will feel the
most immediate effects of thisdecision most directly?
And then also, are there anyripple effects or broader
implications that you're keepingan eye on?
SPEAKER_02 (08:00):
Well, certainly the people who are going to feel
these effects the most are womenand others who get their primary
care in some cases from theirlocal Planned Parenthood.
So we're talking about peoplewho aren't going to get their
annual gynecological exams,they're not going to be getting
their pap smears, they're notgoing to be getting cancer
screenings, they're not going tobe getting access to
(08:20):
contraception.
They're not going to be gettingtreatment for sexually
transmitted infections.
So Planned Parenthood provides awhole host of care that goes far
beyond abortion care.
So all of those low-income folkswho are getting their care or
were getting their care at localPlanned Parenthood affiliates in
South Carolina are no longergoing to have access to that
care.
(08:40):
And that's something that Ithink we should all find to be
very worrisome.
But then, of course, the largertrend, as I said, is this trend
toward rolling back rights,sometimes rights that have been
in existence for decades.
And that is a thing that wethink that I think we all need
to be paying a lot of attentionto because it's not going to
just be when it comes toabortion.
(09:01):
It certainly is going to be moreexpansive than that.
SPEAKER_03 (09:04):
Thanks so much, Kim.
So with all of that, any finalthoughts or takeaways on Medina
before we move on?
I
SPEAKER_02 (09:09):
think Medina, one of the things that was really
interesting about Dobbs is thatessentially what the court said,
what the majority said is, we'regoing to get the Supreme Court
out of the business of abortion.
And the truth of the matter is,is we're going to be seeing
abortion cases in federal courtsfor decades and decades to come,
right?
This Dobbs in no way got thecourt out of the question of
(09:31):
abortion.
And there are all these othersort of peripheral issues Here
we have a funding issue.
There are also issues about whatare the exceptions that need to
be in abortion statutes.
If there are going to berestrictive abortion statutes,
there are going to be questionsabout punishing people who
travel outside of the state inorder to get abortions.
So we're going to see lots ofcomplicated legal issues that
(09:53):
are coming up to this court overand over and over again.
SPEAKER_03 (09:57):
Thanks.
Yeah, so speaking about abortionin the federal courts, let's
switch gears a little bit.
I know a lot of HLA members havebeen closely following the
various cases about Mifepristoneaccess.
Last year, the Supreme Courtruled an alliance for
Hippocratic medicine that theplaintiffs didn't have standing,
but then the case didn't endthere.
Three states stepped in to keepit alive in the lower courts.
(10:20):
Diana, could you give us a quickrefresher on what is at stake in
this case?
SPEAKER_01 (10:25):
Sure.
So as you just said, right, itwas a year ago, June 24, that
the Supreme Court said thePlaintiffs and Alliance didn't
have standing.
And I just point out it wasbecause it was an anti-abortion
association that was formed, youknow, for the purpose of
bringing this kind of lawsuitwhose members never prescribed
nifepristone, never experiencedharms.
And that was one of the issues.
(10:45):
So they lacked standing.
But in that case, there wasstill pending an intervention
motion in the lower court backin the Northern District of
Texas before Judge Kaczmarek.
And those states were grantedleave to specifically amend
their complaint, you know,because they needed to address
this issue of showing harm.
So that was back in October 24.
They did amend the complaint.
(11:06):
And that was Missouri, Kansas,and Idaho.
And notably, they stayed in theNorthern District of Texas.
Texas is not part of this case.
And their challenge, theiramended complaint, is basically
challenging everything exceptthe original approval of MIFI,
all the various rules anddecisions in 2016 21, 23, that
(11:27):
relax the restrictions on theprescription and distribution of
MIFI, as well as the 2019generic approval.
So they're claiming none of thiswas supported by adequate
evidence and all of thoserestrictions need to be put back
in place.
And they are also asking for aorder to prevent distribution or
prescription of MIFI toadolescents as well.
(11:47):
So that is a new piece.
And so obviously the harm ispretty severe if this were to be
successful.
We would see in-personrequirements again.
We would see the labeling goingback to only use up to seven
weeks instead of 10 weeks.
Only certified physicians couldprescribe.
And what we know is that thesewere unnecessary.
(12:08):
They were doing nothing toprotect patient safety.
And taking all these down isreally expanded access to
medication abortion,particularly in the wake of
DOPS, which has been hugelyimportant.
And I do have to point out thisclaim about adolescence is
particularly egregious.
And I'm just going to quote theclaim on this that the harm
these states would suffer istheir population interests the
(12:30):
loss of fetal life and potentialbirth by literally teenagers
they say quote remote dispensingof abortion drugs is depressing
expected birth rates for teenagemothers in plaintiff states so
that's kind of how extremethey've gone to show that they
have standing um And yeah, so asI mentioned, what's at stake is
really an attempt to ban telemedabortion nationally with this
(12:53):
lawsuit.
And right now we have about onein four abortions are by
telemedicine.
SPEAKER_03 (12:59):
Thanks for that.
So where do things stand rightnow with the case?
And do we have any clues abouthow the Trump administration
might approach it going forward?
SPEAKER_01 (13:07):
Yeah, actually, we do.
So the defendant, the UnitedStates FDA, has actually moved
to dismiss it.
And there is a decision stillpending on that.
So we don't know how the judgeis going to rule.
And interestingly, they do makepretty like institutionally
preserving typical argumentsthat it should be dismissed.
So they're saying the plaintiffscan't show a connection between
the FDA's decision making andthe harms they're alleging.
(13:30):
They cite the alliance decisionfor this.
They're saying they haven'texhausted the process, that
their claims are barred bystatute of limitations.
And most interestingly, they dosay they have no connection to
the Northern District in Texas.
In addition to being dismissed,if for any reason the case goes
forward, it should at least betransferred to another court.
(13:50):
And the one other thing theyemphasize is that the Supreme
Court has made clear that anypotential harms to the states
would be eliminated by thecorrect, excuse me, the correct
interpretation of conscientiouslaw protection laws.
So I think it's not surprisingthat the administration is now
trying to maintain FDA'sauthority and insulate it from
(14:13):
court review so that if theywere to make their own change to
the rules, they'd make thesesame kinds of arguments to keep
a challenge kind of on the otherside out of the court.
So I think it's not surprising,but it is an indication they are
not trying to help the stateskeep this kind of litigation in
the courts.
SPEAKER_03 (14:33):
Okay, interesting.
So Diana, I understand that yourteam is keeping tabs on so many
different cases and citizenpetitions that are related to
Mifepristone access.
So at a high level, can youshare a little bit about what
you're watching most closely?
SPEAKER_01 (14:47):
Yeah, sure.
So right now there are, that wehave identified or tracking
seven different cases, includingthe one we just talked about
that relates specifically to howmethadone is being regulated by
the FDA, the approval or theregulation of it.
So it might not include otherstate claims that in some way
involve telemedication ormedication abortion.
(15:08):
And what we're looking at iskind of the different legal
claims that cases present tokeep an eye on the types of
different legal issues thatcould percolate back up to this
Supreme Court, and of course,where they are.
And right now, there's only twoin the Court of Appeals.
And those are both cases thatbring preemption arguments,
right, saying how the states areregulating either abortion
generally or telehealth are inconflict with FDA's regulation
(15:34):
of how MIFI can be prescribedand distributed.
So those are both in the FourthCircuit Court of Appeals, and
then the rest are still at thelower courts.
And I'd say, you know, three,most of them are about FDA
regulation.
And the other interesting thingis, except for the Missouri
case, they all are actuallyabout expanding access, right?
These were cases that werebrought under the prior
administration, trying to takedown some of the still remaining
(15:57):
unnecessary restrictions.
And of those three that are bothkind of proactive, trying to
expand access, one was justdismissed.
That was a Washington state-ledcase on behalf of about 17
states.
Another one is in Hawaii.
It's still going to have oralargument, I think, in August.
Another one had an oral argumentin Virginia District Court back
(16:20):
in May.
So we still have three caseswe're going to see, excuse me,
two more cases we're going tosee decisions on FDA's
regulation.
The Washington one, I can comeback to what it said.
it wasn't a very in-depthdecision.
And as I said, the otherpreemption ones are briefed and
they're awaiting decisions inthe Court of Appeals.
SPEAKER_03 (16:39):
Okay, so there's a lot of movement there in the
SPEAKER_01 (16:40):
field.
Yeah, and I guess the other partof your question was about the
citizen petition, so I'm happyto answer that.
Yeah, there's three pendingright now with the FDA.
Two of those are actually,again, seeking to ensure that
the FDA has the full record, allthe new evidence and science and
research on the safety ofmedication abortion.
And part of the strategy thereis, were the FDA to move to
(17:01):
change the rules in any way,this evidence would now be in
front of it.
But the petitions do actuallyseek to eliminate the existing
REMs, right, those, you know,more onerous restrictions that
are being imposed on MIFI, andask that the FDA refrain from
enforcing them if they're notremoved or imposing any other
increases or burdens on MIFI.
(17:23):
So one of those comes from bluestates, California, New York,
Massachusetts, New Jersey.
Another one comes from onleading medical professionals.
professional associations likeACOG and Society for Family
Planning.
And like I said, they're bothputting all this evidence, real
solid evidence before the FDA.
They're very early.
They've been received.
So there's no response yet.
(17:44):
There is one that is from adoctor who's asking the FDA to
revoke the approval and conductnew studies.
And that also has just beenrecently filed.
I would just say a note thatback in June, the FDA did
dismiss an earlier citizenpetition from from the American
Association of Pro-LifeObstetricians and Gynecologists,
(18:05):
which was seeking to impose newREMS if MIFI was approved
specifically for miscarriagemanagement.
And I just mentioned that onebecause it's interesting.
Again, it was in June.
It's under the currentadministration.
And that one that was, you know,aligning with those interested
in restricting medicationabortion was rejected.
But so we have two positive onespending and this one out kind
(18:27):
of, I'm not sure.
It looks like a solo individual.
I'm not sure what's, you know,if there's any more
organizational effort behindthat one, but it might be
interesting to look.
And we have these all tracked onour website.
You can go to the center'swebsite.
There's a whole resource andwe'll be updating that.
SPEAKER_03 (18:42):
Thanks so much.
Lots to track.
And then also a lot to track onthe shield law front.
So on the state law level, we'veseen a wave of new and
strengthened shield laws aimedat protecting patient privacy,
which is especially relevant nowthat the HIPAA 2024 reproductive
health privacy rule was struckdown last month.
Diana, could you walk us throughwhat shield laws are for those
(19:04):
who might not be familiar?
Okay.
Yeah.
SPEAKER_01 (19:08):
So after the Supreme Court overruled Roe, going back
to Dobbs, obviously, as we allknow, lots of states move
forward with banning abortionand imposing heavy restrictions.
And in response, there were aset of states that wanted to
protect access and preserve andexpand it within their states
and prevent any creep from theseother states trying to extend
their policies, which we seestates like Texas doing.
(19:31):
So the SHIELD laws were reallydesigned to protect the
patients, the healthcareproviders, those who help them
in accessing abortion that islegal in these protected states.
So it's not just aboutprotecting privacy and
information, but actuallyprotecting providers and help,
helpers in accessing abortioncare from being prosecuted or
facing various kinds of civil orcriminal lawsuits or subject to
(19:55):
other investigations.
And at this point, we have 22states and Washington DC, which
all have some form of shield lawprotections in place.
And these extend to coverreproductive healthcare
generally.
And then 18 of thosespecifically include gender
affirming care as well.
And these have really had a hugeimpact.
So if we look at the statisticswe count, Society of Family
(20:17):
Planning does this regularly,looking at abortion care and
provision since Dobbs.
By the end of 2024, as I saidbefore, one in four abortions is
by telehealth.
12,000 abortions per month wereprovided under SHIELD laws.
And that meant in states whereSHIELD law protected care legal
(20:39):
in the state or including bytelehealth, which might have
reached a patient in anotherstate, that kind of abortion
care was made possible by SHIELDlaws.
And that, I should add, isbecause eight of the states have
very specific provisions thatexplicitly protect provision of
care regardless of patientlocation.
So telehealth, including out ofstate.
(21:01):
And the level of protections orthe type of protections can vary
a lot by state, but I will justkind of flag, I think, you know,
five common categories.
And then, again, you can go toour resource on our website.
We have fact sheets on eachstate, a map.
You can look at it in differentways.
But the basic categories areprotections against out-of-state
investigations, subpoenas, andwarrants.
(21:23):
And we know this is reallyimportant because of the two
attempts to prosecute andinvestigate a doctor in New York
for providing telehealth to ofpatients located elsewhere,
protections from professionaldiscipline.
Again, this is all for providingcare that's legal in the state
where the provider is practicingagainst civil liability, against
kind of professional liabilityinsurance or health care plans
(21:46):
taking adverse action orexcluding coverage because of
provision of this care.
And then what we're talkingabout protections of privacy of
reproductive and genderaffirming medical patient
information.
SPEAKER_03 (21:58):
Thanks.
So I guess you've already sharedso much about it, but I guess
what are some of the mostnotable updates or trends that
you've seen with SHIELD laws inthe past few months, or is there
anything else you'd want toshare?
SPEAKER_01 (22:06):
Sure.
I'll try and be quick.
I know it's been a lot.
I think enhancing theprotections for confidentiality
of patient information has beenthe biggest trend and kind of
way that the states are updatingor strengthening their laws.
So just this past June, fourstates did recently enact new
components of their shield lawsto do this and particularly to
(22:29):
allow the prescription labels onmedication abortion
prescriptions to emit certainidentifying information.
This is important for protectingboth providers and patients
because we know sometimes it isaccess to people's literal like
prescription pills that have ledto reports to law enforcement or
other investigations.
Colorado, Maine, New York andVermont have done this.
I believe the bills inCalifornia and Massachusetts are
(22:52):
still pending.
And I would just say Still, wehave about 10 states that don't
have probably as much protectionas we would like against
disclosure of medicalinformation by providers, plans,
clearing houses, healthnetworks, all those things that
are covered by the HIPAA privacyrule, which we now know is at
risk, right?
So states could do more to kindof make their own version of
(23:14):
that within SHIELD laws.
And some states have done that,but there's a chunk that don't
have that yet.
UNKNOWN (23:19):
Yeah.
SPEAKER_03 (23:20):
Okay, thanks so much.
So let's switch gears a littlebit again.
Another closely followed topicamong HLA members is access to
emergency abortions underEMTALA.
Kim, for listeners who haven'tbeen following this as closely,
could you give us a quick primeron EMTALA, the Biden
administration's guidance onemergency abortions, and the US
v Idaho case?
(23:40):
And I'm laughing already becauseI said quick, and I know that
this can't be
SPEAKER_02 (23:45):
quick.
I shall do my best.
So, you know, if you are of acertain age, you probably
Remember the 80s era of patientdumping and huge concerns about
hospitals not wanting to providecare for patients who didn't
have insurance and stories aboutpeople being put out on the
street and at bus stops, justsort of awful.
So EMTALA was passed basicallyto stop that from going on.
(24:08):
And what EMTALA says is thatwhen somebody shows up in your
emergency room and they need tobe provided with a certain type
of care in order to bestabilized, you have to provide
that care before you can doanything else, before you can
transfer them, any of thosethings.
And so basically the fight thatis going on here is that we have
states that have significantabortion restrictions with
(24:31):
exceptions.
And then you have theexpectations that I was going to
say, well, the Bidenadministration, I was going to
say the federal government, butlet's focus on the Biden
administration.
Expectations about what kind ofcare needs to be provided to
somebody who shows up, who sayis having a miscarriage and who
needs an abortion in order to bestabilized.
(24:54):
So the issue really came upbecause Idaho has an abortion
statute that says that abortionscan only be provided where there
is a risk to the life of theperson who is pregnant.
The Biden administration hadissued guidance post Dobbs that
said that people would stillhave to provide abortions when
(25:14):
they were needed in emergencysituations, even if state
statutes didn't seem to providefor that kind of care.
And so that's where the conflictcame in.
Normally, we would say wherethere's a conflict in an area
where there is federal law andstate law that federal law
predominates.
Right.
So we got into a situation herewhere there was a preemption
question.
So the U.S.
(25:36):
ends up suing.
We have a case that goes up tothe U.S.
Supreme Court.
And it was there was a lot ofpeople who are civil procedure
nerds would love what went on inthis case.
I am not a civil procedure nerd.
I'm not going to walk throughall the different pieces.
But basically what happened isit eventually went went up to
the US Supreme Court because theIdaho law, they had been able to
(25:59):
get a preliminary injunction,which stayed the enforcement of
Idaho's law for a period oftime.
And so Idaho went up to theSupreme Court and said, you
know, we want you to lift thisday, which the Supreme Court
did.
And then the Supreme Court heardarguments.
They hear these arguments.
There's all this back and forththat's going on.
And because lawsuits take a longtime to wind their way through
(26:20):
the courts.
There had actually been changesto Idaho's law in the interim.
And so eventually what the USSupreme Court said after
arguments was we shouldn't havegranted cert on this, that's our
bad.
So we're gonna let, we're gonnasend it back down.
We're gonna let it go throughthe process and then, you know,
it'll come back to us with abetter record and then we'll be
able to make a decision.
(26:40):
In the meantime, we had a changeof administration and we went
from Biden to Trump.
And when Trump came into office,they decided to actually drop
that lawsuit.
And so that lawsuit, Moyo, whichwould have helped us sort of
sort out these questions aboutwhat is actually required under
EMTALA, and also, frankly,preemption questions, right?
(27:03):
Because this is, I mean, youcould ask a 1L, right, how this
should be resolved, and theywould say, well, federal law has
to prevail here.
So that's kind of where we endedup with Amtala.
And so I would say where we areright now is in this incredible
in-between space of not reallyknowing what's going on on the
(27:23):
ground.
I will say one other thingbefore you move to your next
question, which is because wedid have those arguments,
because there was some recordthat was created, one of the
pieces of evidence that we gotis that hospitals in Idaho were
actually airlifting women out ofIdaho to other states to provide
them with emergency abortioncare, which is not only
(27:46):
incredibly expensive and deeplyunnecessary, but can also be
really traumatic for that personwho needs that care.
SPEAKER_03 (27:51):
Right.
Thanks for that summary.
So the Biden administration'sguidance on EMTALA was then
recently withdrawn.
What does that mean in practicefor patients and providers?
SPEAKER_02 (28:03):
I think it does the same thing that a lot of these
anti-abortion statutes havedone, which is create very muddy
areas of law.
So one thing that you can bepretty certain of if you were a
hospital right now is thatnobody from the DOJ is going to
come sweeping into your hospitaland say, you better be providing
abortions in emergencycircumstances, right?
(28:24):
Nobody's sort of going to bepaying attention to that in the
way that the Bidenadministration was paying
attention to that.
So we, again, are in this sortof nether space where people who
are providing health care aren'tnecessarily sure what they can
do, when they can do it, andquite frankly, aren't always
sure that they can provide whatthey know to be the medical
standard of care because they'renot sure if that medical
(28:46):
standard of care conflicts withwhat the statute is in their
particular jurisdiction.
Thanks.
SPEAKER_03 (28:52):
So all of these challenges were focused on
Idaho.
What is the latest on the groundin Idaho right now?
SPEAKER_02 (28:58):
So when the Trump administration came in and said,
we're going to drop this case,the case was called Moyle versus
United States.
We're not going to fight thisEMTALA issue anymore.
We're done with it.
You know, we're happy for Idahoto do whatever they want to.
St.
Luke's, which is a health systemin Idaho, sort of immediately
stepped in.
You know, people saw the writingon the wall and they immediately
(29:19):
filed suit and said, we can'tprovide the care that we need to
provide because of Idaho'sstatute.
And so basically, what are wesupposed to do?
Right.
We have EMTALA that tells uswhat to do.
tells us one thing.
And then we have Idaho statute,which tells us something else.
So that is the new piece oflitigation.
And that's going to startwidening its way through the
federal courts and eventuallyalmost certainly end up at the
(29:41):
U.S.
Supreme Court at some point.
SPEAKER_03 (29:43):
So the battle just continues.
That's right.
SPEAKER_02 (29:45):
That's
SPEAKER_03 (29:45):
right.
SPEAKER_02 (29:45):
So there's no way federal courts were getting out
of the business of abortion inthat business for a long time to
come.
SPEAKER_03 (29:53):
Right.
So beyond those federal courtbattles, then we're also seeing
a lot of movement at the statelevel to either protect or limit
access to emergency abortions,as you mentioned a little bit
earlier.
Are there any recentdevelopments from the past month
or so that you think health carelawyers should have on their
radar?
SPEAKER_02 (30:10):
Well, I don't know necessarily that I would say
recent developments from thepast month or so.
I mean, I think that there issort of constant on the ground
movement, which is part of whythis is such a really difficult
space for people to be in, bothif they're providing abortions
or need abortions, or if they'retrying to advise people who are
providing abortions.
So, you know, we have cases invarious states that are trying
(30:33):
to make sense of the exceptionsin abortion and abortion
statutes.
So we've had cases in Texas,we've We've had cases in Idaho.
We've had cases in Georgia.
So those are things that peopleneed to absolutely keep their
eyes on.
And then we also just have statelegislatures that are changing
their minds, right?
And so they're going back andsaying, okay, well, let's fiddle
(30:56):
with this a little bit and let'sfiddle with that a little bit.
And so it's this constantlyshifting landscape that I think
makes it really hard to be, as Isaid, both a person who's
providing care, a person who'sreceiving care, and a person
who's trying to advise hospitalsabout what kind of care they're
allowed to provide and when theycan provide it.
SPEAKER_03 (31:14):
Thanks.
So before we wrap up then, doeither of you have any final
thoughts or reflections thatyou'd like to share?
What's top of mind for you asyou're looking ahead?
And maybe Diana, we can startwith you.
SPEAKER_01 (31:26):
Sure.
I guess I was just thinkingabout one of the other big
Supreme Court cases we haven'tmentioned and discussed on this
call is the Scrimetti decision,in which the court said it was
perfectly fine for Tennessee toprevent the provision of
gender-affirming care toadolescents, minors in that
state.
And they said it wasn't sexdiscrimination, because even
(31:48):
though the law specificallymentioned sex and classifies it
based on sex, it was about atype of medical care and is
about youth, right?
So it said there's two otherthings at work, not sex.
And we all know a law can beabout multiple things and that
if one of them is related tosex, you still should at least
give it heightened scrutiny.
But the court took it out of theheightened scrutiny framework
(32:08):
and said this is just not a formof sex discrimination.
And so why that concerns me isthere's a lot of things in that
decision that indicate what thecourt would have to say and what
federal courts will now have tolook to as a standard about, you
know, laws or state actions thatdiscriminate against people
because their pregnancy or theyhave the capacity for pregnancy
(32:29):
or other biological differences.
All of those things are thingsthat Scrimetti says aren't a
form of sex discrimination.
And that is really problematicin terms of having recourse to
that area of law in the courts.
And they even pointed to an FDAreport that says some medical
treatments and procedures areuniquely bound up in sex.
(32:51):
And if it's a medical concern ormedical treatment, that's the
object.
That's the but-for cause thatwe're not considering as an
issue of sex or genderdiscrimination.
So that has me worried.
And I think that's something tokeep an eye on how lower courts
are responding to any claims ofsex discrimination or pregnancy
discrimination, because Grimettihas a lot of implications beyond
(33:15):
the transgender care, whichthose implications were bad
enough to be clear.
But there's more to come onthat.
Thanks,
SPEAKER_02 (33:22):
Kim.
So a couple of things.
One of the things that JusticeJackson talked about in her
dissent in Medina is that, youknow, as the court is spitting
out all of these cases, thatthere are real people whose
lives will be impacted,sometimes very negatively by
these decisions.
So I want to talk about thoseimpacts really quickly.
(33:42):
So one that I think that weshould really keep our eye on is
prosecutions of women, eitherwomen who actually do get
abortions and then have anadverse outcome and show up at a
hospital for care and then findsomebody at the hospital calls
the police and next thing youknow, they're being arrested.
Women who have miscarriages orwomen who have stillbirths.
(34:06):
Our country has one of thehighest stillbirth rates of any
developed nation.
And are those women gonna startgetting prosecuted?
We've seen some of thoseprosecutions for how people have
dealt with fetal remains, right?
So those are things that I'mvery concerned about.
I can't imagine how devastatingit is to have a miscarriage and
(34:27):
then have a police officer showup at your door and say, hey,
what did you do with the remainsof that miscarriage?
It's a pretty awful thing tohappen.
So I'm very worried aboutincreased criminalization
efforts, but I'm also simplyworried about the number of
women who are going to haveadverse health outcomes.
So ProPublica has done a reallyamazing series about
reproductive health in the wakeof dobs and restrictive abortion
(34:51):
laws.
And one of the pieces that theydid not so long ago was about
the increase in sepsis ratespost-dob.
So women who end up gettinginfections because they don't
get the care that they need asquickly as they need it after
they have had a miscarriage.
Texas is a sort of great exampleof this because the increase in
(35:13):
sepsis was really extraordinarypost-OBs.
So the other thing that I'mreally spending a lot of time
thinking about and worryingabout is not just women who will
die, and we know that women havedied and that women will
continue to die, but also thewoman who loses her uterus and
so isn't able to get pregnant,isn't able to get pregnant again
(35:33):
because she wasn't provided carethat was needed at the time that
it was needed.
are things that I'm really,really focused on, who are the
individual people who areexperiencing all kinds of harms
as a consequence of not havingclarity in what these abortion
statutes require or what theyallow.
SPEAKER_03 (35:52):
Thanks so much.
So there's so much going on hereand, you know, it's kind of hard
to keep up with all of it.
Are there any resources that youwould recommend for listeners
who, you know, want to stayinformed and how can folks find
your work?
Diana, we can start with you.
SPEAKER_01 (36:08):
Yes, as I already mentioned a couple times, if
you're interested in moreinformation specifically on
SHIELD laws or what's going onwith the litigation around FDA
regulation of mifepristone orother federal actions, we have
two dedicated webpages withresources, charts, maps.
You can go to the UCLA Center onReproductive Health Law and
Policy and find those there.
(36:30):
And beyond that, we have anewsletter.
You could get more information,but those would be the main
things I'd point to.
SPEAKER_02 (36:36):
Thanks.
Kim?
So I would say if you're aperson who likes data, and I
think data is really helpful,Guttmacher Institute is a really
wonderful resource just fornumbers, both in terms of what
kind of legislation is beingintroduced, what's passing, what
does it say, numbers on how manypeople are getting abortions,
(36:59):
where are they getting thoseabortions, what kind of
abortions are they having.
That's always really helpful.
And then the other site that Iuse a lot in my own research is
Kaiser Family Foundation, whichdoes some very similar work in
terms of just pulling togetherall of these incredibly
disparate strings of what'shappening in the abortion space
in this country in a way thatreally makes sense, right?
(37:21):
At least the data collectionmakes sense, even if the rules
don't make sense.
So that's helpful too.
SPEAKER_03 (37:26):
Thanks so much.
I'll be sure to check those out.
AHLA members, whether you'readvising healthcare systems,
representing patients, or simplytrying to stay current in this
complex area of law, I'm hopingtoday's conversation has given
you some helpful insights andupdates.
I know we just touched the tipof the surface and there's so
much more, but reallyappreciate.
Kim and Diana, thank you so muchfor joining me today and
(37:49):
covering so much ground.
And again, thanks to ourlisteners for tuning in.
SPEAKER_00 (37:57):
To subscribe and add this private podcast feed to
your podcast app, go toAmericanHealthLaw.org slash
(38:26):
Daily Podcast.
you
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