AHLA's Speaking of Health Law
AHLA's Speaking of Health Law
Top Ten 2024: Reproductive Health Update
Based on AHLA’s annual Health Law Connections article, this special series brings together thought leaders from across the health law field to discuss the top ten issues of 2024. In the sixth episode, Carol Carden, Managing Principal, PYA, speaks with Joanne (Jody) Joiner, Senior Counsel, Tenet Healthcare, and Gina L. Bertolini, Partner, K&L Gates LLP, about the constantly changing reproductive health space. They discuss recent federal developments, the interplay between EMTALA and state laws, abortion access at the state level, the impact of the Cox case in Texas, litigation related to interstate travel, and issues related to privacy. Sponsored by PYA.
Watch the conversation here.
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A HLA is pleased to present this special series highlighting the top 10 health law issues of 2024, where we bring together thought leaders from across the health law field to discuss the major trends and developments of the year. Support for A HLA in this series is provided by PYA, which helps clients find value in the complex challenges related to mergers and acquisitions, clinical integrations, regulatory compliance, business valuations , and fair market value assessments, and tax and assurance. For more information, visit PYA pc.com.
Speaker 2:Hi, I am Carol Cardin . I'm a principal with PYA. Thanks for joining us today. This is the sixth episode and the a HLA top 10 podcast series, and today we're talking about the reproductive health update for 2024. I'm joined today with , uh, by Jody Joyner with Tenet Healthcare and Gina Bertini with KNL Gates. So thanks for joining me, ladies. Um, I read your article a couple of times because it's obviously so much going on in this area still, it doesn't look like anything's calmed down in the year or so since the Dobbs decision, so I was just wondering , um, from your all's perspective, and Gina , I'll let you start. Um, even since this article's been published, it seems like every day we're seeing something in the news that the news is being impacted by the Dobbs decision. Have things changed even since this article has been published earlier this year?
Speaker 3:Yes, thank you, Carol, for that question. There has been a lot happening even since our article was published, and in fact, as Jody and I prepared for today, I think one of the challenges we had was really discerning, you know, what to cover and what to leave out because there's so much happening. And if we think about that, there's both the federal and state levels that where there are things happening , um, related to the Dobbs decision and access to abortion and reproductive healthcare, there's really a lot to talk about. I'll focus right away on what's happening at the federal level because it's really actually quite fortuitous. The timing of this recording, which is January 24th, on January 22nd, just two days ago, was that was the , um, anniversary of the Roe versus Wade decision, and the Biden administration used that anniversary as an occasion to demonstrate its continued commitment to providing access to reproductive healthcare and including access to safe abortion and access to contraceptives and birth control , um, by really, you know, organizing several efforts at the federal level. So I'll talk about what some of those are , um, that just occurred in the last couple of days. First, president Biden issued a statement reiterating his and Vice President Harris's, excuse me, vice President Harris's commitment to providing access to safe healthcare for women, including reproductive healthcare, including access to contraceptives. And on that day, president Biden convened the White House task force on reproductive healthcare access. And his press secretary had a quite a lengthy , um, press conference to talk about all the initiatives that the Biden administration has taken and is taking. Also on that day , um, secretary Becerra issued a letter regarding access to contraceptives directed to federal healthcare plans and private payers, and reiterating what the law says around access to contraceptives. Also that day, HHS issued a statement saying that CMS, the Centers for Medicare and Medicaid services would launch a series of actions to educate the public on their rights to emergency medical care, as well as initiatives to support hospitals in complying with Tala , which is the Emergen Emergency Medical Treatment and Labor Act. Jody and I will talk a lot about that today, we'll call that, that's Tala known as Tala , and there's been a lot of focus on that , um, at the federal level. So there will be these renewed , um, you know, educational efforts rolled out by CMS, but also as many of our listeners will know, there is a case pending currently , um, it's a , a case out of Idaho that challenges Idaho's restrictive state laws that conflict with impala's requirements when an emergency medical condition exists. Jodi is going to talk more about that , so I'm just touching upon it briefly here. Um, but one thing I will mention is that , uh, since our article was released on January 5th, the US Supreme Court, actually I should say that the, I don't know when the article was released, that was earlier in January, but on January 5th, the US Supreme Court issued cert to hear that case. Um, and so we expect to hear that during the April oral argument session, also at the federal level, the , uh, department of Justice filed , uh, it a statement of interest, not a lawsuit, but a statement of interest , um, two lawsuits against the Alabama Attorney General that , uh, have been consolidated in Alabama District Court and they pertain to the right to interstate travel, and I'll talk more about that in a little bit. Um, there are also continuing efforts to protect the privacy of healthcare information through the Office for Civil Rights proposed rule, which is still pending, that would restrict the use and disclosure of reproductive healthcare . Um, there's also , um, activity happening at the federal trade with the Federal Trade Commission, FTC, and just , um, last week actually there was a letter written to the FTC asking them to initiate , um, an action enforcement action against Google for failing to protect location information, including information about people who access reproductive healthcare or visit abortion clinics. Um, also as we reported in our article, the Supreme Court in December granted FDA's petition for CERT in the Mifepristone case, that's Mifepristone is often referred to as the abortion pill. So that's the case that was brought by several healthcare providers, challenging FDA's approval and several FDA actions through the two thousands regarding the safety and efficacy of of Mone . Um, we expect that we will , um, that will be heard by the Supreme Court this term and likely a decision by June. Um, and then lastly, I'll just say there are several congressional , uh, bills pending regarding abortion and access to abortion. There are three bills pending that would actually ban abortion, and there's one that would codify Roe versus Wade. Um, so there's really quite, there's no shortage of activity. We do expect 2024 to be a very busy year, both at the state and federal levels.
Speaker 2:Oh , wow. When you said a lot had happened since the article was published, <laugh>, you were not kidding, <laugh> . That's right . So Jody Gina had mentioned the Tala case out of Idaho, but I also understand in the state of Texas there's been some challenge to Intella guidance and since you practice in Texas, could you , uh, give us a little more information on on that situation?
Speaker 4:Yes, yes. So the HHS through CMS PRO provided the guidance on Tala right after the Dobbs opinion, essentially saying that the Tala statute preempts any state abortion ban that is inconsistent with the tala provisions that mandate emergency medical care. So it's very, and and they got into some specific scenarios there, and the initial plan was they looked at situations where there was no exception under the state ban, or if the state ban had such a narrow definition of emergency, that it was more narrow than the Tala definition. And in those circumstances, this C-M-S-H-H-S Tala memo said, Tala , a preempt state law, and the hospitals and physicians have to follow tala, provide stabilizing treatment even if that stabilizing treatment is an abortion that may otherwise be in violation of state law. Which sounds pretty clear except that it's not because one Tala is a civil statute and most of the state laws that we're talking about regarding abortion are not civil in nature. Many are criminal, and physicians and hospitals who are concerned about criminal liability under the abortion statutes are gonna be more concerned about that than they are tala . So that's just kind of the underlying feeling around this. But then you get the politics involved . And so for example, in Texas, within just a few weeks of the Tala memo coming out, the Texas Attorney General filed a complaint in the nor northern District of Texas trying to enjoin enforcement of the Tala memo. And that was granted by the trial court. And also that granting of that was in , was affirmed by the Fifth Circuit Court of Appeals. So right now, Texas is, is the only state where the Tala memo doesn't have to be followed. So that's where we stand in Texas in the Wild West, we're doing our own thing out here in Idaho, you have a similar scenario where you have a complaint related to the MT memo versus the state abortion ban, but there it was the US Department of Justice that filed the complaint. So it was kind of the opposite scenario. They sought an injunction prohibiting the enforcement of the state abortion statute because of the conflict with Tala and that Tala mandates the emergency care, so just, just on the emergency care provision. So if there's tala mandated emergency care that would otherwise violate that statute, they wanted that enjoined so that the hospitals and physicians could provide that tala mandated emergency care. So that was what was filed in Idaho. And in that one, the court also sided with the plaintiff, but in this case, that was the government. So it was the opposite holding as in Texas in that, in that case they said, no , yep , you're right. We're gonna follow Tala goodness . So now we have these two opposing opinions in this about whether or not to follow Tala , whether or not tala preempts state law. So the Idaho case was affirmed by the Ninth Circuit, and now that is going up to the Supreme Court. Supreme Court has accepted cert , and that's gonna be argued , uh, this spring, probably in April or so. So we're gonna see an opinion on that, and that's hopefully going to also provide some guidance in the Texas issue. But that's, those are the m versus the abortion statute issue. And the reason that this is significant is a little bit, as I mentioned before, you have the issues of the chilling effect of these abortion statutes because many are criminal. And even the ones that are civil, you know, the bounty laws where they, Texas of course, originated that one as well, where they allow citizens to sue other citizens such as doctors who perform abortion. So they weren't, wasn't state enforcement at that point, this was pre Dobbs. So whatever the statute is that the, the physicians are concerned about, there is a chilling effect in terms of the physicians not wanting to do anything that's gonna put them at risk for liability. And that's a huge concern. So then we have a number of states where there are stories that are coming out where patients are coming in and they're struggling to get abortion care. And it is directly related to this Tala versus state statute situation. So Kansas , uh, and Missouri, those were the first two states that were , um, that had com tala complaints filed against them for this very reason that the , in those both of those states, the hospitals and physicians refused to provide the abortion care in an emergency because of the state law. And the memo had said the c the CMS Elliman memo had said, state law is not, that doesn't protect you from enforcement of emtala.
Speaker 3:And Jody , can I just add here? Bet mo You bet many of our listeners will hear that , will know this, but some may not. That tala is a very significant issue for hospitals and can result in loss of licensure. Um, but then you also have, in addition to the criminal enforcement that you mentioned, that some of the state laws have, there are licensure issues as well for those providers. Um, some of those laws would result in a loss of a license.
Speaker 4:That's exactly true. Yeah.
Speaker 2:I would imagine both of you advising people across the country, it's gotta be tough to keep up with the various state laws . So what are the current statistics in terms of abortion bans access to abortion care in the various states? Is it lit ?
Speaker 3:Yeah, so I'll mention, I can talk about that just briefly. Um, and I'm, I'm looking at , look at my notes here to make sure I get it right. So there are 21 states that have abortion bans in place currently. And according to Karine , Jean Pierre, who is the White House press secretary and had the press conference that I mentioned earlier, that's 27 million women of reproductive age living in states with bans. So that's more than one out of three women in the US living in states where there's a ban. Um, in 2023, there were over 380 state bills proposed that would, that would restrict access to abortion care. Those are proposed bills, so not all passed. And then at the federal level, I'll just mention as well, Jody , I'll talk a little bit more about what's happening , um, with Impala and at the state level. But at the federal level, there are three abortion bans pending. One is called Life at Conception Act. It's a zero week ban that would ban outright with no exceptions for rape ancestor to preserve the life of the mother. There are , uh, two other bills. One is a six week ban and one would be a 15 week ban proposed by , um, Senator Lindsey Graham of South Carolina. That 15 week ban would allow states to enact more restrictive laws . So it's, I find it very interesting because one of the fundamental underpinnings of dots was that each state could decide for itself. Um, you know, obviously that was the , the significant change from Roe versus Wade. So instead of having this sort of national , um, law or rules regarding the delivery of abortion care , it's now at the state by state basis, but yet there are these, you know, laws pending at the congressional level. There is also a law pending that would codify Roe versus Wade. And of course the Biden administration just on Monday, again, you know, requested Congress to, to pass that law.
Speaker 2:Wow . A lot to keep up with. I'm sure a lot of people listening to the podcast probably heard the story towards the end of 2023, where a woman in Texas was seeking a court order, granting her an exception to the abortion law. Jody , can you talk a little bit about the impact of that , um, in the Texas market? Yeah ,
Speaker 4:Yeah, unfortunately, Texas is in the news a lot in these , in this <laugh> in this area. Um, in , in this case , uh, Kate Cox was diagnosed with a condition that was, that her fetus was not vi didn't have a, had a condition that was not consistent with life outside the womb. So she was wanting to get an abortion, partly because the baby wasn't gonna survive, but partly because there were some other potential complications and concerns about future fertility and so forth. Uh, and in Texas, the requirement is that there be an emergency and it has to be an emergency for the mother, and either that her life is at risk or that she's at risk of substantial impairment of a major bodily function. So those are very specific parameters of the law. And again, because the physician was nervous about doing this abortion under the law, without having some guidance, they filed a request with the court to, with the Supreme Court of Texas to say, we, we wanna know if we can do this. We want to have guidance on whether or not this is okay. And the Supreme Court issued an opinion and essentially said, you know, you don't need a , you don't need a court's opinion on this because the statute says all you need is reasonable medical judgment. But the point of it was the physician didn't feel comfortable, the physician felt like there needed to be more guidance on what is an emergency and whether this fits in it. And the Supreme Court actually in its opinion, helped significantly by making reference to a few things that do clarify, like you don't have to wait until her death is imminent, which is a concern that has been raised by a lot of physicians. But what's interesting is that the Supreme Court basically called on the Texas Medical Board to issue regulations clarifying, providing some guidance for the physicians, and not none that did not occur yet. And so now we also, just in the last , uh, month or so, we have a private law firm who has filed a petition with the Texas Medical Board, urging them to issue regulations, and in fact, providing them with a sample, here's some regulations we think you could use. And they list for, you know, for example, certain emergency conditions that they think would fit the exception . And there would be sort of a, here's a list including these, but not limited to these, that sort of thing. So it's an interesting approach to get some guidance.
Speaker 2:Well, and you have to think from a human standpoint too, how long did that go on with the, the woman in limbo? Like that would be so, such a tough position to be in waiting for a court to make a decision about your care. So,
Speaker 4:Exactly, and, and in, in the case of , in her case, it's unclear whether or not she, I mean , I think the doctor was, was wanting some guidance, but also I think she ended up going to another state to get her abortion because she was not permitted to do that. And what's interesting is in the Tala cases that we were talking about a little bit ago, the woman that went to the Kansas and Missouri Hospital, because she, her water had broken and it was, she was only at 17 weeks, so baby wasn't viable. But when you're in a situation like that, the, there's a high risk that the woman's going to develop sepsis and die. I mean, that's a huge risk. But again, the question was does she have to be on death's door before somebody can intervene under the law? Mm-Hmm . And that was the, that that was the question. And that continues to be a concern among many states that are facing these sorts of laws with these emergency exceptions that maybe don't have guidance on what exactly that means. So in that case, that individual also traveled to another state where she could obtain the abortion. So in both cases, they drove hundreds of miles away to obtain the healthcare that they needed because the state they lived in was not able to provide it.
Speaker 3:And I'll just add, I think at the state level, we'll continue to see these kind of cases that really test what is an emergency. And it, it really will be fascinating to see what happens with the Idaho case and the Supreme Court and, you know, where both, where the Supreme Court lands in terms of that potential conflict of the state law definitions of emergency as compared to Impala's definition of emergency and how that might then affect, you know , uh, the guidance that healthcare providers will have available to them of , of how to comply. Um, I think we will continue to see these, these kinds of issues arise at the state level .
Speaker 4:Yes, we will. And, and another really concerning thing about the patient that had initially gone to the both Missouri and a Kansas hospital, that she was generally in the ca near the Kansas City area. So there's, you know, across state lines and that sort of thing was, was fairly easy there. Of course, then she went to Illinois, which is about 300 miles away. But, but the interesting thing is, is that about two months after this incident, she had a tubal ligation because it was just not safe for her to get pregnant again in a state where she lived. And that's, that's a really unfortunate consequence of these sorts of laws.
Speaker 2:This topic is a good segue. Gina, you had made reference in your opening , uh, answer to the Alabama case regarding interstate travel. Can you tell us a little bit more about that?
Speaker 3:Yes, this is really interesting and yet another, I think really challenging area, and it really touches on both what's happening at the federal level, but also what may be happening at the state level. This involves a lawsuit , um, brought by , uh, two organizations, one called the Yellow Hammer Fund and the other West Alabama Women's Center against the Attorney General of Alabama. So they're Yellow Hammer Fund and West Alabama Women's Center versus Marshall are the cases they've been consolidated in Alabama. Um, these are organizations that seek to really fund and help women access , um, legal out of state abortions. And the organizations brought the suit against the Alabama Attorney General because of his , um, statements that he would prosecute anyone who assists residents of Alabama traveling out of state for legal abortions in those other states. The Department of Justice filed a statement of interest in these two lawsuits just late in 2023. And by the way, for those who may not be familiar with the statement of interest, I had to look it up. Um, it is pursuant to federal statute and it allows the Department of Justice to attend the interest of the United States in any suit pending in federal or state court. So that's what they've done here. The Justice Department's position is that the right to travel from one state to another is firmly embedded in the US Constitution. And what's really interesting is that's a point that Justice Kavanaugh made in his concurrence and the Dobbs decision. Um, when he said the question of barring a resident of one state from traveling to another state for illegal abortion is quote , not especially difficult. And it is no , that that is not permissible based on the constitutional right to interstate travel. Um, the Alabama Attorney General is contending that providing assistance within Alabama to a person , um, who seeks an out-of-state abortion would constitute a criminal conspiracy regardless of whether the abortion is legal in the state where the person is traveling to, if it's illegal, if performed in Alabama. Um, justice's position, as I mentioned, is that the constitutional right to interstate travel is firmly established in the US Constitution in Article four in the 14th amendment's privileges and immunities clause, and then also by US Supreme Court precedent , um, from some cases actually from the 1970s that addressed interstate travel to states where abortion was legal. Um, so sort of around the row era, pre-Roe and post row , um, DOJ contends that prohibiting third party assistance to traveling to other states, which the Alabama Attorney General apparently intends to do is not permissible and would severely undercut the right to travel itself. So this would certainly have a chilling effect on access to healthcare in states where abortion is legal. But one can imagine, you know, the precedent, there are a host of issues where states have determined for themselves what may or may not be legal. Marijuana is a good example. Gambling is another example. I'm pretty sure prostitution is still legal in one of our states, <laugh> . Um, and I've, I've never heard of an attorney general seeking to prosecute an individual of a state who traveled to another state to engage in, in behavior that's legal in that state. So I think the precedent here is significant. The um, case it was set for oral argument on the Alabama Attorney General's motion to dismiss, it was set for October 31st. And this is really interesting as well. The court actually canceled the hearing, said it would reschedule it, and when asked just recently , uh, there was an oral inquiry when , uh, the oral argument would be set. The court responded by saying that it needed to learn more about the issues before it could set oral argument and that it would set oral argument when it could do that. So it , um, I think it recognizes the significance of this issue. Um, so we will continue to watch that and I think there's great impact, you know, in other states there as well.
Speaker 2:And one last area I'd like to touch on in our time that we have left is , um, issues around privacy. So I understand there's been an FTCA complaint regarding Google. Can you tell us a little bit more about that? Because privacy showing up in the news in a lot of context right now. That's right. But not the least of which is healthcare information.
Speaker 3:Yes, that's ex a great point. Privacy is a really significant issue and we're hearing, you know , uh, regulators at the state and federal level , uh, very concerned about privacy including healthcare. There had actually been an FTC enforcement action previously against Google related to representations. It made to consumers about its use of data that it collected. Uh, recently though, just in the last week, two organizations, the Electronic Privacy Information Center known as Epic and another one called Accountable Tech filed, essentially they , uh, wrote a letter to FTC and they said that FTC should enforce Google's promise, which it made after the Dobbs decision, that it would not retain location data about consumers who seek reproductive healthcare , including who visit abortion clinics or , um, seek care at abortion clinics. Um, Google had indicated it would delete those entries from its location history soon after the visit is the quote, and they pledge to extend that courtesy to other locations, identifying where a user visited things like addiction treatment centers and domestic violence shelters, et cetera. So these organizations have actually noticed FTC, that Google's broken that promise and requested the commission to impose penalties and block these unlawful data practices. So that, and that's , uh, fairly recent. So the FTC has been pretty active , um, more active in 2023 than in any other year in terms of enforcing some of these privacy issues, including in the healthcare space. The only other thing I'll mention just briefly , um, for the sake of time, Carol, is that there is currently the proposed rule pending with the Office for Civil Rights related to amending HIPAA to protect reproductive healthcare. That is really aimed at a lot of the issues we've talked about during this podcast, which is to prevent access to information about lawful reproductive healthcare or abortion to be used against an individual who may reside in a state where abortion is, is not legal or where the, the ban would affect that person service. So that's still pending. We expect to see a final rule in 2024. OCR has a lot on its plate right now. Um, I would expect that potentially this would be rolled into a final rule in 2024 addressing not only this reproductive healthcare issue, but other issues that are currently pending with OCR.
Speaker 2:So we will end this episode. The summary we started it with there is so much going on in this area. So Gina and Jody , thank you so much for joining me on this episode. Um, this is a fascinating topic and I know we'll all be watching it closely during 2024 . We appreciate you for us .
Speaker 3:Thank you so much .
Speaker 1:Thank you for listening. If you enjoyed this episode, be sure to subscribe to a HLA speaking of health law wherever you get your podcasts. To learn more about a HLA and the educational resources available to the health law community, visit American Health Law .