AHLA's Speaking of Health Law
The American Health Law Association (AHLA) is the largest nonprofit, nonpartisan educational organization devoted to legal issues in the health care field. AHLA's Speaking of Health Law podcasts offer thoughtful analysis and insightful commentary on the legal and policy issues affecting the American health care system.
AHLA's Speaking of Health Law
Reproductive Health Law Updates: Planned Parenthood, Mifepristone, Shield Laws, EMTALA, and More
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.
Watch this episode: https://www.youtube.com/watch?v=494HcIzfXVA
For more news and analysis on this topic, visit AHLA’s Reproductive Health Law Hub: https://www.americanhealthlaw.org/publications/health-law-hub-current-topics/reproductive-law
Essential Legal Updates, Now in Audio
AHLA's popular Health Law Daily email newsletter is now a daily podcast, exclusively for AHLA Premium members. Get all your health law news from the major media outlets on this podcast! To subscribe and add this private podcast feed to your podcast app, go to americanhealthlaw.org/dailypodcast.
Stay At the Forefront of Health Legal Education
Learn more about AHLA and the educational resources available to the health law community at https://www.americanhealthlaw.org/.
For more information, visit AmericanHealthLaw.org.
SPEAKER_03: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 with Georgetown University School of Health. Today, we're tackling the rapidly evolving landscape of reproductive health law. I'm joined by two leading experts who have been at the forefront of these developments, Kimberly Mutcherson and Diana Kasten. Together, we'll unpack the Supreme Court's recent decision in Medina versus Planned Parenthood South Atlantic, examine the ongoing battles over Mifepristone in the courts, explore how the withdrawal of Biden-era EMTALA guidance is reshaping emergency abortion care, and discuss the rapidly evolving patchwork of state-level shield laws that are designed to protect patient privacy. So first, I'd like to start by getting to know you both a little bit better. Kim and Diana, could you please share a bit about who you are, your backgrounds, and what you're each working on these days?
SPEAKER_02:So as you said, I'm Kim Utterson. I'm a professor at Rutgers Law School in Camden, New Jersey. So I am Philly adjacent, not New York City adjacent. I'm a reproductive justice scholar. I focus on a whole bunch of issues under that umbrella, but I particularly focus on abortion and assisted reproduction, especially the intersection between those two things. I've been doing this work for 20 plus years. Seems like longer sometimes. Thanks, Diana.
SPEAKER_01:Sure. I'm Diana Kasdan. I'm the Legal and Policy Director at UCLA Law's Center on Reproductive Health Law and Policy, which is an interdisciplinary legal policy think tank. We are lawyers and researchers, and we were really created to address the crisis in reproductive rights, health, and justice. And we both develop our own resources and theories. We connect and convene academic scholars of different fields, advocates, policymakers, researchers, and practitioners. and lawyers to be part of this. And one of the other things we do is run the Southern California's Legal Alliance for Reproductive Justice, known as SoCal Large. And that is a network of local and national pro bono law firms that can offer legal counsel pro bono for individuals, healthcare providers, organizations. You go to our website, there is a number, there's an email you can call. And we coordinate that with other similar helplines that are run nationally. And I came to this role after also about 20 years in the field of reproductive rights in particular, also doing some work in the democracy space with larger national litigation organizations. And really now I'm focused on finding ways to help resource the field, some of which I'll talk about some of those resources during this conversation. And one of the things I personally am most invested in is creating spaces for advocates and scholars to think together about how we do rebuild constitutional frameworks over the long term for reproductive rights and justice.
SPEAKER_03:Okay, thank you both so much. I'm so excited to have you here today. So let's dive right into it. One headline that's been really hard to miss is the Supreme Court's recent decision in Medina versus Planned Parenthood, South Atlantic. Kim, before we dig into the details, could you set the stage for us? What is this case all about?
SPEAKER_02:Sure. So it's a case that comes out of South Carolina and in In 2018, which feels like centuries ago, frankly, the governor of South Carolina issued an executive order that basically said that the Department of Health and Human Services was to cut all Planned Parenthoods out of their network for Medicaid providers. And so first, it's really important to note that Yes, Planned Parenthood provides abortions, but Medicaid doesn't pay for abortions except in a very small slice of cases. So people were getting all kinds of care at Planned Parenthood, whether it was pap smears, cancer screenings, you know, well woman checks generally. And so they got sued, right? Because essentially what they said was anyone who is a Medicaid patient can no longer pay for their care through Medicaid if they are getting their care out of Planned Parenthood, which was a huge blow to Planned Parenthood inside South Carolina, and which eventually led to this lawsuit.
SPEAKER_03:Thanks. So just briefly then, what did the Supreme Court actually decide in Medina?
SPEAKER_02:So the central question was whether the folks who sued, so it was a Planned Parenthood affiliate who sued, and then a woman who had been receiving her gynecological care at Planned Parenthood and who wanted to continue to receive her care there, and she was using Medicaid to pay for her care. And so they sued, and basically the claim was that they were being denied a civil right under Section 1983, which, as folks know, is one of the most potent civil rights statutes that exists in the United States. So they sued under 1983. And the claim from South Carolina was, well, you don't have a right to choose your own provider under Medicaid. And so that was really the issue that had to get sorted out in the Supreme Court. And what six justices of that court said was that there is no individual right to choose your own provider if you are a person who is receiving Medicaid. And there are several cases prior that say that there is, in fact, an individual right to choose your own provider. But the majority of the Supreme Court in this particular case said that that is not true. And so therefore, South Carolina can continue to cut Medicaid patients off from getting access to care at Planned Parenthood.
SPEAKER_03:Thanks so much for that summary. So for all of us who probably haven't read the hundreds of pages from the opinion, were there any parts of the opinion that really stood out to you or have been on your mind since the ruling?
SPEAKER_02:You know, I think that there were a lot of or some very similar parallels to what happened in Dobbs that I think are worth talking about. One was that we got a concurrence from Justice Thomas, who basically said, let's rethink this whole Section 1983 stuff in the first place. We shouldn't be allowing people to have all of these cases asserting civil rights based on Section 1983. So that's a huge thing to put out into the world. Very similar in Dobbs, where he basically said, let's rethink this whole concept of civil rights. substantive due process. So we had that. And then we had a really beautiful dissent that was written by Justice Jackson, joined by Justice Sotomayor and Justice Kagan. And the dissent basically pointed out that essentially what the court did here was roll back decisions that it had made only two years ago in another case that was about Medicaid and about Section 1983. So one of the things that I think we really need to be focused on and lots of us haven't focused on it is what Justice Jackson sort of referred to as the opposition to individual rights that we're seeing coming out of this Supreme Court. And that, of course, has implications far beyond reproductive health and reproductive rights.
SPEAKER_03:So speaking of that, who do you think will feel the most immediate effects of this decision most directly? And then also, are there any ripple effects or broader implications that you're keeping an eye on?
SPEAKER_02:Well, certainly the people who are going to feel these effects the most are women and others who get their primary care in some cases from their local Planned Parenthood. So we're talking about people who aren't going to get their annual gynecological exams, they're not going to be getting their pap smears, they're not going to be getting cancer screenings, they're not going to be getting access to contraception. They're not going to be getting treatment for sexually transmitted infections. So Planned Parenthood provides a whole host of care that goes far beyond abortion care. So all of those low-income folks who are getting their care or were getting their care at local Planned Parenthood affiliates in South Carolina are no longer going to have access to that care. And that's something that I think we should all find to be very worrisome. But then, of course, the larger trend, 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 we think that I think we all need to be paying a lot of attention to because it's not going to just be when it comes to abortion. It certainly is going to be more expansive than that.
SPEAKER_03:Thanks so much, Kim. So with all of that, any final thoughts or takeaways on Medina before we move on? I
SPEAKER_02:think Medina, one of the things that was really interesting about Dobbs is that essentially what the court said, what the majority said is, we're going 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 courts for decades and decades to come, right? This Dobbs in no way got the court out of the question of abortion. And there are all these other sort of peripheral issues Here we have a funding issue. There are also issues about what are the exceptions that need to be in abortion statutes. If there are going to be restrictive abortion statutes, there are going to be questions about punishing people who travel outside of the state in order to get abortions. So we're going to see lots of complicated legal issues that are coming up to this court over and over and over again.
SPEAKER_03:Thanks. Yeah, so speaking about abortion in the federal courts, let's switch gears a little bit. I know a lot of HLA members have been closely following the various cases about Mifepristone access. Last year, the Supreme Court ruled an alliance for Hippocratic medicine that the plaintiffs didn't have standing, but then the case didn't end there. Three states stepped in to keep it alive in the lower courts. Diana, could you give us a quick refresher on what is at stake in this case?
SPEAKER_01:Sure. So as you just said, right, it was a year ago, June 24, that the Supreme Court said the Plaintiffs and Alliance didn't have standing. And I just point out it was because it was an anti-abortion association that was formed, you know, for the purpose of bringing this kind of lawsuit whose members never prescribed nifepristone, never experienced harms. And that was one of the issues. So they lacked standing. But in that case, there was still pending an intervention motion in the lower court back in the Northern District of Texas before Judge Kaczmarek. And those states were granted leave 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. And that was Missouri, Kansas, and Idaho. And notably, they stayed in the Northern District of Texas. Texas is not part of this case. And their challenge, their amended complaint, is basically challenging everything except the original approval of MIFI, all the various rules and decisions in 2016 21, 23, that relax the restrictions on the prescription and distribution of MIFI, as well as the 2019 generic approval. So they're claiming none of this was supported by adequate evidence and all of those restrictions need to be put back in place. And they are also asking for a order to prevent distribution or prescription of MIFI to adolescents as well. So that is a new piece. And so obviously the harm is pretty severe if this were to be successful. We would see in-person requirements again. We would see the labeling going back to only use up to seven weeks instead of 10 weeks. Only certified physicians could prescribe. And what we know is that these were unnecessary. They were doing nothing to protect patient safety. And taking all these down is really expanded access to medication abortion, particularly in the wake of DOPS, which has been hugely important. And I do have to point out this claim about adolescence is particularly egregious. And I'm just going to quote the claim on this that the harm these states would suffer is their population interests the loss of fetal life and potential birth by literally teenagers they say quote remote dispensing of abortion drugs is depressing expected birth rates for teenage mothers in plaintiff states so that's kind of how extreme they've gone to show that they have standing um And yeah, so as I mentioned, what's at stake is really an attempt to ban telemed abortion nationally with this lawsuit. And right now we have about one in four abortions are by telemedicine.
SPEAKER_03:Thanks for that. So where do things stand right now with the case? And do we have any clues about how the Trump administration might approach it going forward?
SPEAKER_01:Yeah, actually, we do. So the defendant, the United States FDA, has actually moved to dismiss it. And there is a decision still pending on that. So we don't know how the judge is going to rule. And interestingly, they do make pretty like institutionally preserving typical arguments that it should be dismissed. So they're saying the plaintiffs can't show a connection between the FDA's decision making and the harms they're alleging. They cite the alliance decision for this. They're saying they haven't exhausted the process, that their claims are barred by statute of limitations. And most interestingly, they do say 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 be transferred to another court. And the one other thing they emphasize is that the Supreme Court has made clear that any potential harms to the states would be eliminated by the correct, excuse me, the correct interpretation of conscientious law protection laws. So I think it's not surprising that the administration is now trying to maintain FDA's authority and insulate it from court review so that if they were to make their own change to the rules, they'd make these same kinds of arguments to keep a challenge kind of on the other side out of the court. So I think it's not surprising, but it is an indication they are not trying to help the states keep this kind of litigation in the courts.
SPEAKER_03:Okay, interesting. So Diana, I understand that your team is keeping tabs on so many different cases and citizen petitions that are related to Mifepristone access. So at a high level, can you share a little bit about what you're watching most closely?
SPEAKER_01:Yeah, sure. So right now there are, that we have identified or tracking seven different cases, including the one we just talked about that relates specifically to how methadone is being regulated by the FDA, the approval or the regulation of it. So it might not include other state claims that in some way involve telemedication or medication abortion. And what we're looking at is kind of the different legal claims that cases present to keep an eye on the types of different legal issues that could percolate back up to this Supreme Court, and of course, where they are. And right now, there's only two in the Court of Appeals. And those are both cases that bring preemption arguments, right, saying how the states are regulating either abortion generally or telehealth are in conflict with FDA's regulation of how MIFI can be prescribed and distributed. So those are both in the Fourth Circuit Court of Appeals, and then the rest are still at the lower courts. And I'd say, you know, three, most of them are about FDA regulation. And the other interesting thing is, except for the Missouri case, they all are actually about expanding access, right? These were cases that were brought under the prior administration, trying to take down some of the still remaining unnecessary restrictions. And of those three that are both kind of proactive, trying to expand access, one was just dismissed. That was a Washington state-led case on behalf of about 17 states. Another one is in Hawaii. It's still going to have oral argument, I think, in August. Another one had an oral argument in Virginia District Court back in May. So we still have three cases we're going to see, excuse me, two more cases we're going to see decisions on FDA's regulation. The Washington one, I can come back to what it said. it wasn't a very in-depth decision. And as I said, the other preemption ones are briefed and they're awaiting decisions in the Court of Appeals.
SPEAKER_03:Okay, so there's a lot of movement there in the
SPEAKER_01:field. Yeah, and I guess the other part of your question was about the citizen petition, so I'm happy to answer that. Yeah, there's three pending right now with the FDA. Two of those are actually, again, seeking to ensure that the FDA has the full record, all the new evidence and science and research on the safety of medication abortion. And part of the strategy there is, were the FDA to move to change the rules in any way, this evidence would now be in front of it. But the petitions do actually seek to eliminate the existing REMs, right, those, you know, more onerous restrictions that are being imposed on MIFI, and ask that the FDA refrain from enforcing them if they're not removed or imposing any other increases or burdens on MIFI. So one of those comes from blue states, California, New York, Massachusetts, New Jersey. Another one comes from on leading medical professionals. professional associations like ACOG and Society for Family Planning. And like I said, they're both putting all this evidence, real solid evidence before the FDA. They're very early. They've been received. So there's no response yet. There is one that is from a doctor who's asking the FDA to revoke the approval and conduct new studies. And that also has just been recently filed. I would just say a note that back in June, the FDA did dismiss an earlier citizen petition from from the American Association of Pro-Life Obstetricians and Gynecologists, which was seeking to impose new REMS if MIFI was approved specifically for miscarriage management. And I just mentioned that one because it's interesting. Again, it was in June. It's under the current administration. And that one that was, you know, aligning with those interested in restricting medication abortion was rejected. But so we have two positive ones pending and this one out kind 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 behind that one, but it might be interesting to look. And we have these all tracked on our website. You can go to the center's website. There's a whole resource and we'll be updating that.
SPEAKER_03:Thanks so much. Lots to track. And then also a lot to track on the shield law front. So on the state law level, we've seen a wave of new and strengthened shield laws aimed at protecting patient privacy, which is especially relevant now that the HIPAA 2024 reproductive health privacy rule was struck down last month. Diana, could you walk us through what shield laws are for those who might not be familiar? Okay. Yeah.
SPEAKER_01:So after the Supreme Court overruled Roe, going back to Dobbs, obviously, as we all know, lots of states move forward with banning abortion and imposing heavy restrictions. And in response, there were a set of states that wanted to protect access and preserve and expand it within their states and prevent any creep from these other states trying to extend their policies, which we see states like Texas doing. So the SHIELD laws were really designed to protect the patients, the healthcare providers, those who help them in accessing abortion that is legal in these protected states. So it's not just about protecting privacy and information, but actually protecting providers and help, helpers in accessing abortion care from being prosecuted or facing various kinds of civil or criminal lawsuits or subject to other investigations. And at this point, we have 22 states and Washington DC, which all have some form of shield law protections in place. And these extend to cover reproductive healthcare generally. And then 18 of those specifically include gender affirming care as well. And these have really had a huge impact. So if we look at the statistics we count, Society of Family Planning does this regularly, looking at abortion care and provision since Dobbs. By the end of 2024, as I said before, one in four abortions is by telehealth. 12,000 abortions per month were provided under SHIELD laws. And that meant in states where SHIELD law protected care legal in the state or including by telehealth, which might have reached a patient in another state, that kind of abortion care was made possible by SHIELD laws. And that, I should add, is because eight of the states have very specific provisions that explicitly protect provision of care regardless of patient location. So telehealth, including out of state. And the level of protections or the type of protections can vary a lot by state, but I will just kind of flag, I think, you know, five common categories. And then, again, you can go to our resource on our website. We have fact sheets on each state, a map. You can look at it in different ways. But the basic categories are protections against out-of-state investigations, subpoenas, and warrants. And we know this is really important because of the two attempts to prosecute and investigate a doctor in New York for providing telehealth to of patients located elsewhere, protections from professional discipline. Again, this is all for providing care that's legal in the state where the provider is practicing against civil liability, against kind of professional liability insurance or health care plans taking adverse action or excluding coverage because of provision of this care. And then what we're talking about protections of privacy of reproductive and gender affirming medical patient information.
SPEAKER_03:Thanks. So I guess you've already shared so much about it, but I guess what are some of the most notable updates or trends that you've seen with SHIELD laws in the past few months, or is there anything else you'd want to share?
SPEAKER_01:Sure. I'll try and be quick. I know it's been a lot. I think enhancing the protections for confidentiality of patient information has been the biggest trend and kind of way that the states are updating or strengthening their laws. So just this past June, four states did recently enact new components of their shield laws to do this and particularly to allow the prescription labels on medication abortion prescriptions to emit certain identifying information. This is important for protecting both providers and patients because we know sometimes it is access to people's literal like prescription pills that have led to reports to law enforcement or other investigations. Colorado, Maine, New York and Vermont have done this. I believe the bills in California and Massachusetts are still pending. And I would just say Still, we have about 10 states that don't have probably as much protection as we would like against disclosure of medical information by providers, plans, clearing houses, health networks, all those things that are covered by the HIPAA privacy rule, which we now know is at risk, right? So states could do more to kind of make their own version of that within SHIELD laws. And some states have done that, but there's a chunk that don't have that yet.
UNKNOWN:Yeah.
SPEAKER_03:Okay, thanks so much. So let's switch gears a little bit again. Another closely followed topic among HLA members is access to emergency abortions under EMTALA. Kim, for listeners who haven't been following this as closely, could you give us a quick primer on EMTALA, the Biden administration's guidance on emergency abortions, and the US v Idaho case? And I'm laughing already because I said quick, and I know that this can't be
SPEAKER_02:quick. I shall do my best. So, you know, if you are of a certain age, you probably Remember the 80s era of patient dumping and huge concerns about hospitals not wanting to provide care for patients who didn't have insurance and stories about people being put out on the street and at bus stops, just sort of awful. So EMTALA was passed basically to stop that from going on. And what EMTALA says is that when somebody shows up in your emergency room and they need to be provided with a certain type of care in order to be stabilized, you have to provide that care before you can do anything else, before you can transfer them, any of those things. And so basically the fight that is going on here is that we have states that have significant abortion restrictions with exceptions. And then you have the expectations that I was going to say, well, the Biden administration, I was going to say the federal government, but let's focus on the Biden administration. Expectations about what kind of care needs to be provided to somebody who shows up, who say is having a miscarriage and who needs an abortion in order to be stabilized. So the issue really came up because Idaho has an abortion statute that says that abortions can only be provided where there is a risk to the life of the person who is pregnant. The Biden administration had issued guidance post Dobbs that said that people would still have to provide abortions when they were needed in emergency situations, even if state statutes didn't seem to provide for that kind of care. And so that's where the conflict came in. Normally, we would say where there's a conflict in an area where there is federal law and state law that federal law predominates. Right. So we got into a situation here where there was a preemption question. So the U.S. ends up suing. We have a case that goes up to the U.S. Supreme Court. And it was there was a lot of people who are civil procedure nerds would love what went on in this case. I am not a civil procedure nerd. I'm not going to walk through all the different pieces. But basically what happened is it eventually went went up to the US Supreme Court because the Idaho law, they had been able to get a preliminary injunction, which stayed the enforcement of Idaho's law for a period of time. And so Idaho went up to the Supreme Court and said, you know, we want you to lift this day, which the Supreme Court did. And then the Supreme Court heard arguments. They hear these arguments. There's all this back and forth that's going on. And because lawsuits take a long time to wind their way through the courts. There had actually been changes to Idaho's law in the interim. And so eventually what the US Supreme Court said after arguments was we shouldn't have granted cert on this, that's our bad. So we're gonna let, we're gonna send it back down. We're gonna let it go through the process and then, you know, it'll come back to us with a better record and then we'll be able to make a decision. In the meantime, we had a change of 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, which would have helped us sort of sort out these questions about what is actually required under EMTALA, and also, frankly, preemption questions, right? Because this is, I mean, you could ask a 1L, right, how this should be resolved, and they would say, well, federal law has to prevail here. So that's kind of where we ended up with Amtala. And so I would say where we are right now is in this incredible in-between space of not really knowing what's going on on the ground. I will say one other thing before you move to your next question, which is because we did have those arguments, because there was some record that was created, one of the pieces of evidence that we got is that hospitals in Idaho were actually airlifting women out of Idaho to other states to provide them with emergency abortion care, which is not only incredibly expensive and deeply unnecessary, but can also be really traumatic for that person who needs that care.
SPEAKER_03:Right. Thanks for that summary. So the Biden administration's guidance on EMTALA was then recently withdrawn. What does that mean in practice for patients and providers?
SPEAKER_02:I think it does the same thing that a lot of these anti-abortion statutes have done, which is create very muddy areas of law. So one thing that you can be pretty certain of if you were a hospital right now is that nobody from the DOJ is going to come sweeping into your hospital and say, you better be providing abortions in emergency circumstances, right? Nobody's sort of going to be paying attention to that in the way that the Biden administration was paying attention to that. So we, again, are in this sort of nether space where people who are providing health care aren't necessarily sure what they can do, when they can do it, and quite frankly, aren't always sure that they can provide what they know to be the medical standard of care because they're not sure if that medical standard of care conflicts with what the statute is in their particular jurisdiction. Thanks.
SPEAKER_03:So all of these challenges were focused on Idaho. What is the latest on the ground in Idaho right now?
SPEAKER_02: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 this EMTALA issue anymore. We're done with it. You know, we're happy for Idaho to do whatever they want to. St. Luke's, which is a health system in Idaho, sort of immediately stepped in. You know, people saw the writing on the wall and they immediately filed suit and said, we can't provide the care that we need to provide because of Idaho's statute. And so basically, what are we supposed to do? Right. We have EMTALA that tells us what to do. tells us one thing. And then we have Idaho statute, which tells us something else. So that is the new piece of litigation. And that's going to start widening its way through the federal courts and eventually almost certainly end up at the U.S. Supreme Court at some point.
SPEAKER_03:So the battle just continues. That's right.
SPEAKER_02:That's
SPEAKER_03:right.
SPEAKER_02:So there's no way federal courts were getting out of the business of abortion in that business for a long time to come.
SPEAKER_03:Right. So beyond those federal court battles, then we're also seeing a lot of movement at the state level to either protect or limit access to emergency abortions, as you mentioned a little bit earlier. Are there any recent developments from the past month or so that you think health care lawyers should have on their radar?
SPEAKER_02:Well, I don't know necessarily that I would say recent developments from the past month or so. I mean, I think that there is sort of constant on the ground movement, which is part of why this is such a really difficult space for people to be in, both if they're providing abortions or need abortions, or if they're trying to advise people who are providing abortions. So, you know, we have cases in various states that are trying to make sense of the exceptions in 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 people need to absolutely keep their eyes on. And then we also just have state legislatures that are changing their minds, right? And so they're going back and saying, okay, well, let's fiddle with this a little bit and let's fiddle with that a little bit. And so it's this constantly shifting landscape that I think makes it really hard to be, as I said, both a person who's providing care, a person who's receiving care, and a person who's trying to advise hospitals about what kind of care they're allowed to provide and when they can provide it.
SPEAKER_03:Thanks. So before we wrap up then, do either of you have any final thoughts or reflections that you'd like to share? What's top of mind for you as you're looking ahead? And maybe Diana, we can start with you.
SPEAKER_01:Sure. I guess I was just thinking about one of the other big Supreme Court cases we haven't mentioned and discussed on this call is the Scrimetti decision, in which the court said it was perfectly fine for Tennessee to prevent the provision of gender-affirming care to adolescents, minors in that state. And they said it wasn't sex discrimination, because even though the law specifically mentioned sex and classifies it based on sex, it was about a type of medical care and is about youth, right? So it said there's two other things at work, not sex. And we all know a law can be about multiple things and that if one of them is related to sex, you still should at least give it heightened scrutiny. But the court took it out of the heightened scrutiny framework and said this is just not a form of sex discrimination. And so why that concerns me is there's a lot of things in that decision that indicate what the court would have to say and what federal courts will now have to look to as a standard about, you know, laws or state actions that discriminate against people because their pregnancy or they have the capacity for pregnancy or other biological differences. All of those things are things that Scrimetti says aren't a form of sex discrimination. And that is really problematic in terms of having recourse to that area of law in the courts. And they even pointed to an FDA report that says some medical treatments and procedures are uniquely bound up in sex. And if it's a medical concern or medical treatment, that's the object. That's the but-for cause that we're not considering as an issue of sex or gender discrimination. So that has me worried. And I think that's something to keep an eye on how lower courts are responding to any claims of sex discrimination or pregnancy discrimination, because Grimetti has a lot of implications beyond the transgender care, which those implications were bad enough to be clear. But there's more to come on that. Thanks,
SPEAKER_02:Kim. So a couple of things. One of the things that Justice Jackson talked about in her dissent in Medina is that, you know, as the court is spitting out all of these cases, that there are real people whose lives will be impacted, sometimes very negatively by these decisions. So I want to talk about those impacts really quickly. So one that I think that we should really keep our eye on is prosecutions of women, either women who actually do get abortions and then have an adverse outcome and show up at a hospital for care and then find somebody at the hospital calls the police and next thing you know, they're being arrested. Women who have miscarriages or women who have stillbirths. Our country has one of the highest stillbirth rates of any developed nation. And are those women gonna start getting prosecuted? We've seen some of those prosecutions for how people have dealt with fetal remains, right? So those are things that I'm very concerned about. I can't imagine how devastating it is to have a miscarriage and then have a police officer show up at your door and say, hey, what did you do with the remains of that miscarriage? It's a pretty awful thing to happen. So I'm very worried about increased criminalization efforts, but I'm also simply worried about the number of women who are going to have adverse health outcomes. So ProPublica has done a really amazing series about reproductive health in the wake of dobs and restrictive abortion laws. And one of the pieces that they did not so long ago was about the increase in sepsis rates post-dob. So women who end up getting infections because they don't get the care that they need as quickly as they need it after they have had a miscarriage. Texas is a sort of great example of this because the increase in sepsis was really extraordinary post-OBs. So the other thing that I'm really spending a lot of time thinking about and worrying about is not just women who will die, and we know that women have died and that women will continue to die, but also the woman who loses her uterus and so isn't able to get pregnant, isn't able to get pregnant again because she wasn't provided care that was needed at the time that it was needed. are things that I'm really, really focused on, who are the individual people who are experiencing all kinds of harms as a consequence of not having clarity in what these abortion statutes require or what they allow.
SPEAKER_03:Thanks so much. So there's so much going on here and, you know, it's kind of hard to keep up with all of it. Are there any resources that you would recommend for listeners who, you know, want to stay informed and how can folks find your work? Diana, we can start with you.
SPEAKER_01:Yes, as I already mentioned a couple times, if you're interested in more information specifically on SHIELD laws or what's going on with the litigation around FDA regulation of mifepristone or other federal actions, we have two dedicated webpages with resources, charts, maps. You can go to the UCLA Center on Reproductive Health Law and Policy and find those there. And beyond that, we have a newsletter. You could get more information, but those would be the main things I'd point to.
SPEAKER_02:Thanks. Kim? So I would say if you're a person who likes data, and I think data is really helpful, Guttmacher Institute is a really wonderful resource just for numbers, both in terms of what kind of legislation is being introduced, what's passing, what does it say, numbers on how many people are getting abortions, where are they getting those abortions, what kind of abortions are they having. That's always really helpful. And then the other site that I use a lot in my own research is Kaiser Family Foundation, which does some very similar work in terms of just pulling together all of these incredibly disparate strings of what's happening in the abortion space in this country in a way that really makes sense, right? At least the data collection makes sense, even if the rules don't make sense. So that's helpful too.
SPEAKER_03:Thanks so much. I'll be sure to check those out. AHLA members, whether you're advising healthcare systems, representing patients, or simply trying to stay current in this complex area of law, I'm hoping today's conversation has given you some helpful insights and updates. I know we just touched the tip of the surface and there's so much more, but really appreciate. Kim and Diana, thank you so much for joining me today and covering so much ground. And again, thanks to our listeners for tuning in.
SPEAKER_00:To subscribe and add this private podcast feed to your podcast app, go to AmericanHealthLaw.org slash Daily Podcast. you