The Supreme Court’s Likely to Make it More Dangerous to be Pregnant in a Red State
Vox, April 24, 2024
A federal law requires most US hospitals to provide an abortion to patients experiencing a medical emergency if an abortion is the proper medical treatment for that emergency. This law is unambiguous, and it applies even in red states with strict abortion bans that prohibit the procedure even when necessary to save a patient’s life or protect their health. Nevertheless, the Supreme Court spent Wednesday morning discussing whether to write a new exception into this federal law, which would permit states to ban abortions even when a patient will die if they do not receive one. Broadly speaking, the Court seemed to divide into three camps during Wednesday’s argument in Moyle v. United States. The Court’s three Democrats, Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, all argued – quite forcefully at times – that the Emergency Medical Treatment and Labor Act (EMTALA) means what it says and thus nearly all hospitals must provide emergency abortions. Meanwhile, the Court’s right flank – Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch – left no doubt that they will do whatever it takes to permit states to ban medically necessary abortions. That left three of the Court’s Republicans, Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett, in the middle. Kavanaugh and Barrett both asked questions that very much suggest they want states to be able to ban medically necessary abortions. But they also appeared to recognize, at times, that the arguments supporting such an outcome are far from airtight. Realistically, it is highly unlikely that EMTALA will survive the Court’s Moyle decision intact. The Court already voted last January to temporarily allow the state of Idaho to enforce its strict abortion ban, despite EMTALA, while this case was pending before the justices. And Kavanaugh and Barrett have both taken extraordinary liberties with the law in the past when necessary to achieve an anti-abortion outcome. Still, federal law is crystal clear that states cannot outright ban medically necessary abortions. So there is a chance that two of the Court’s Republicans will reluctantly conclude that they are bound by the law’s clear text.
Biden Administration Issues New Rule to Protect Privacy of Those Seeking Reproductive Health Care: ‘No One Should Have to Live in Fear’
CNN, April 22, 2024
Patients have a right to privacy when it comes to their medical information, even when they travel to another state for an abortion, IVF, birth control or other types of reproductive health care, federal officials declared in a new rule. The final rule, called HIPAA Privacy Rule to Support Reproductive Health Care Privacy, was announced Monday and prohibits the disclosure of a patient’s health information as it relates to reproductive health care, as well as strengthens privacy protections for that patient, their family and their doctors who are providing or facilitating the care. This means that the rule prevents medical records from being used against people for providing or receiving certain types of reproductive health care – even if a patient traveled to another state for that care, Melanie Fontes Rainer, director of the Office for Civil Rights, said in a news conference Monday. “This rule prohibits those regulated by HIPAA – health care providers, health plans, clearing houses and their business associates – from using or disclosing a person’s protected health information to conduct an investigation into or impose liability on any person for merely seeking, obtaining, providing or facilitating lawful reproductive health care, including abortion,” Rainer said, referring to the Health Insurance Portability and Accountability Act of 1996. “If a person receives reproductive health care, such as a pregnancy test or treatment for an ectopic pregnancy, and that reproductive health care is lawful in the state where the care is received, the information about the care cannot be disclosed or used by the health care provider or health plan for an investigation, or to impose liability by law enforcement on the patient or the provider,” she said. “And if reproductive health care like contraception is protected, required or authorized by federal law, including the Constitution, that may also not be used or disclosed based on this rule.” Overall, “no one should have to live in fear that their conversations with their doctor or that their medical claims data might be used to target or track them for seeking lawful reproductive health care,” Rainer said.
Divided Supreme Court Wrestles with Idaho Abortion Ban and Federal Law for Emergency Care
CBS News, April 24, 2024
The Supreme Court on Wednesday appeared divided as it wrestled with a case pitting Idaho’s near-total ban on abortion against a federal law that requires hospitals to provide stabilizing care to patients experiencing medical emergencies. During more than 90 minutes of arguments, the justices grappled with whether Idaho’s law allows for emergency abortion care in circumstances where it would be required under EMTALA. The four women on the Supreme Court dominated the first half of arguments, pressing Joshua Turner, who argued on behalf of the state, about the situations under which abortions could be provided by Idaho physicians. Federal law “says that you don’t have to wait until the person is on the verge of death,” Justice Elena Kagan said. “If the woman is going to lose her reproductive organs, that’s enough to trigger this duty on the part of the hospital to stabilize the patient and the way to stabilize patients in these circumstances, all doctors agree.” Justices Brett Kavanaugh and Amy Coney Barrett focused on whether there is a conflict between Idaho’s law and EMTALA. Turner argued there is not, since an abortion would be allowed in certain emergency circumstances if the physician determined in “his good faith medical judgment” that it was necessary to save the life of the mother. Such a standard, he said, is “subjective.” When asked to identify where EMTALA’s stabilization requirement did conflict with Idaho law, Turner raised mental health, suggesting that a pregnant woman could come in and say that a mental health issue demanded the termination of her pregnancy. Echoing Turner’s assertion that the Biden administration’s position would allow emergency room doctors to perform abortions when necessary to avoid a risk to the mother’s mental health, Justice Samuel Alito asked Solicitor General Elizabeth Prelogar whether “health” under EMTALA included mental health. But Prelogar, who represents the U.S. government before the Supreme Court, said that a pregnant woman suffering from a mental health emergency would never be treated with an abortion “because that is not the accepted standard of practice.” She would be stabilized and transferred under EMTALA, Prelogar said.
Arizona House Votes to Repeal Civil War-Era Abortion Ban
The Washington Post, April 24, 2024
The Arizona House voted Wednesday to repeal a Civil War-era ban on nearly all abortions that is set to take effect as early as June 8. The measure now heads to the state Senate, which could grant final passage next week. The 1864 abortion law took effect briefly after Roe v. Wade was overturned in 2022 but was soon blocked by the courts. It was later revived by the state’s highest court April 9, inciting national uproar and political panic among Republicans who worry that the ban will hurt their chances of winning elections this year, including the presidential contest. GOP anxieties about the politics of a near-total abortion ban have led to an unlikely, albeit temporary, alliance between Democrats, a small number of Republican lawmakers mostly in swing districts and allies of former president Donald Trump – including U.S. Senate candidate Kari Lake, who had initially reversed her position on the ban and made personal appeals to GOP lawmakers, urging them to repeal the law. Trump, the presumptive Republican presidential nominee who has bragged about his role in overturning Roe, quickly voiced his dissatisfaction with the Arizona ruling, saying the state Supreme Court had gone too far and promising that it would be “straightened out” by “the governor and everybody else.” Despite that high-level pressure, Republicans in the Arizona House blocked two previous attempts to vote to repeal the law. Last week, state House Speaker Ben Toma (R) urged his colleagues to slow down and carefully consider what he called a “very complicated topic.”
As Abortion Bans Loom, Black Families Are Left Vulnerable
The 19th, April 18, 2024
Abortion attacks aren’t slowing down as the clock ticks on Florida’s six-week ban and Arizona’s Supreme Court has paved the way to reinforce a Civil War-era law that criminalizes nearly all abortions. The consequences could be catastrophic for Black reproductive health, exacerbating existing disparities in access to care and alarming rates of maternal mortality, advocates and health-care providers fear. In the Southeast, Florida’s Supreme Court decided to allow the ban, which Gov. Ron DeSantis signed into law last year, to take effect 30 days after the announcement, on May 1. The same day, they also allowed Floridians to decide through an amendment on the November ballot whether to enshrine abortion protections in the state’s constitution. It’s a consequential decision for all of the American South, where over half of the country’s Black population resides, and where many of the country’s strictest abortion laws have taken hold, backed largely by Republican lawmakers. In May, access to abortion care in Florida will shrink from 15 weeks to six weeks. The move further shrinks access to abortion care in the region, at least until voters decide the ban’s fate at the ballot box. Black women are more likely than white women to get abortions, data from the Centers for Disease Control and Prevention shows, and they are also at least three times more likely nationwide to die due to pregnancy-related causes. In Florida, the disparity between Black and white pregnancy-related deaths doubled between 2010 to 2020. Any decision about reproductive health care leaves Black women particularly vulnerable. “This ban, shrouded in white supremacy, is another attempt to take away our autonomy,” said Alexia Rice-Henry, co-executive director of ARC-Southeast, an abortion fund covering many of the southern states.
ICYMI: In Case You Missed It
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