SCOTUS Adds Medicaid Exclusion of Planned Parenthood to its Docket

Add another case to my SCOTUS "roundup" (Dec. 1).

SCOTUSBlog notes that the Supreme Court has granted review of the 4th Circuit Court of Appeals's decision in Kerr v. Planned Parenthood, which involves "a dispute over whether a South Carolina woman can bring a lawsuit challenging that state’s decision to end Planned Parenthood’s participation in its Medicaid program. . . ." Amy Howe, Court adds Medicaid lawsuit to docket, SCOTUSblog (Dec. 18, 2024, 12:57 PM). It's a safe bet that the required four votes to grant the petition for review came from the 6-member conservative group of Justices, so this is an ominous development for Planned Parenthood (and the women who depend upon PP for a variety of healthcare needs). The note continues:

Under federal law, Medicaid funds cannot generally be used to provide abortions. But Planned Parenthood provides other medical services to women, including gynecological and contraceptive care but also screenings for cancer, high blood pressure, and cholesterol.

At two clinics in Charleston and Columbia, Planned Parenthood has tried to make it easier to lower-income patients, many of whom are covered by Medicaid, to use its services – by, for example, offering same-day appointments and extended clinic hours. One of those Medicaid patients is Julie Edwards, who suffers from diabetes. She went to Planned Parenthood for birth control but says she wants to return to receive other care in the future.

In 2018, South Carolina Governor Henry McMaster ordered the state’s Department of Health and Human Services to bar abortion clinics from participating in the Medicaid program. McMaster explained that the “payment of taxpayer funds to abortion clinics, for any purpose, results in the subsidy of abortion and the denial of the right to life.”

Edwards and Planned Parenthood went to federal court in South Carolina. They argued that McMaster’s order violated a provision of the Medicaid Act that allows any patient who is eligible for Medicaid to seek health care from any “qualified” provider.

A federal appeals court agreed with Edwards and Planned Parenthood and blocked the state from excluding Planned Parenthood from its Medicaid program. That decision prompted the state – represented by the conservative Alliance Defending Freedom – to come to the Supreme Court this summer, asking the justices to decide whether Edwards and Planned Parenthood have a legal right to sue to enforce the Medicaid Act.

The state told the justices that five federal courts of appeals “have wrongly subjected states to private lawsuits Congress never intended.” Moreover, it added, with 70 million Americans receiving Medicaid benefits and tens of thousands of health-care providers participating in the program, the question at the center of the case is “of great national importance.”

But Planned Parenthood and Edwards countered that the question does not come up very often these days. And most of the cases in which it did arise, they continued, “were efforts by states to target Planned Parenthood in ways courts have recognized are unwarranted and politically motivated.” But in any event, they concluded, as all three judges on the court of appeals agreed in this case, the Medicaid law is “clear and unambiguous in conferring a privately enforceable right.”

The justices considered the state’s petition at nine consecutive conferences before finally granting review on Wednesday. The case will likely be slated for argument in either March or April, with a decision to follow by summer.

A number of states have removed Planned Parenthood from their Medicaid programs, including Texas. Beyond that, the Texas Attorney General has sued PP for$1.8 billion in an attempt to bankrupt the organization. Details are here.

Health Affairs: "The Impact Of The Election On Health Policy And The Courts"

The nonpartisan and highly respected journal, Health Affairs, today posted an analysis of some of the more conspicuous (and worrying) changes to the health care scene we might expect to see once Donald Trump's administration is in place. It is, as usual, well worth reading in whole.

The areas that are discussed include:

• the Affordable Care Act (ACA) (primary concern: allowing premium tax credit enhancements to expire entirely after 2025, which could result in 4 million people losing their health insurance coverage; also -- whether by statute, agency regulation, or executive order -- any number of the ACA's protections are at risk)
• Medicaid (during the campaign Trump vowed to leave Social Security and Medicare alone; "experts noted that Medicaid was conspicuously absent from the conversation")
• reproductive health care (abortion, LGBTQ nondiscrimination, reviving the Comstock Act, changing the Administration's position in state and federal lawsuits)
• nondiscrimination and health equity ("Health care is a civil rights issue. . . . Anti-discrimination protections in health are also likely to suffer major blows going forward."
• Medicare Drug Negotiation Program (hard to believe that a program that will save the government and citizens billions will be watered down, but Big Pharma has hated this law from the beginning and it has some attentive allies in the new administration)
• public health (RFK, Jr. -- need I say more? He was named as Trump's nominee for Secretary of HHS; the mind reels)
• the courts (Yup. From the Supreme Court on down, expect change)

The end. (Take that any way you want.)

Reprise: Does EMTALA Pre-Empt Restrictive State Abortion Laws?

Back in June I discussed the applicability of the federal Emergency Medical Treatment and Labor Act to pregnant persons who come to hospital emergency departments with pregnancy-related emergency conditions for whom an abortion is the accepted standard of emergency medical treatment. Common sense should tell us that a federal statute that requires that emergency conditions be stabilized supersede state laws that provide otherwise. A passing familiarity with the Constitution's Supremacy Clause confirms common sense. And -- as stated in an article in the Journal of the American Medical Association ("JAMA") -- "[a contrary] argument [is] particularly absurd in that it turns the rule of law on its head—ignoring more than 200 years of well-settled legal principles that date back to the nation’s founding—namely, that federal law preempts contrary state law.

As this foundational constitutional principle applies to emergency abortion cases, the article observes that "[s]ince the George W. Bush administration, the Department of Health and Human Services (HHS) has interpreted EMTALA to require pregnancy termination if it represents the stabilizing care necessary to save the pregnant patient’s life or prevent grave harm to health."

The federal district court in Idaho followed this precedent, history, and the statutory text and held that EMTALA applies when state law prohibits abortions in response to pregnancy-related emergencies, Moyle v. United States (Idaho), and entered an injunction against enforcement of the restrictive Idaho abortion law. The 9th Circuit Court of Appeals, sitting en banc, refused to stay the district court opinion, which left the district court's injunction in place. The Supreme Court granted review and then decided certiorari was improvidently granted and sent the case back the the 9th Circuit for further development, presumably for a full hearing and decision on the merits. For the time being, the district court's injunction remains effective, providing a small measure of sanity to apply in Idaho.

Not so much in the 5th Circuit, which includes Texas, Mississippi, and Louisiana, where EMTALA and the Supremacy Clause were brushed aside in Texas v, Becerra (5th Cir. 2024). The case involved a challenge to guidance from the U.S, Department of Health & Human Services, which advised in 2022 (within a couple of weeks of the Supreme Court's decision in Dobbs), that EMTALA supersedes state-level abortion bans and restrictions. The 5th Circuit's opinion is limited to its affirmance of the lower court's injunction prohibiting Texas officials from following the HHS guidance, but there is no doubt that a similar challenge to the HHS guidance by Mississippi or Louisiana would be equally successful.

The JAMA article makes a couple of key points that bear repeating here:

• "The idea of a pregnant person being turned away from an emergency department because they are not near enough to death betrays every core principle of medical ethics: beneficence, nonmaleficence, autonomy, and justice."
• "Maternal mortality and morbidity rates in states with abortion bans are so high that they surpass those of every high-income country. High rates of infant mortality and morbidity are now the norm in states with the strictest abortion bans. Indeed, research now confirms the troubling increase in infant deaths after the abortion ban in Texas. If abortion bans are supposed to protect pregnant persons and infants, as proponents of the laws suggest, they are failing miserably" [footnote omitted].

For the time being, the Supreme Court's docket for the Fall 2024 Term doesn't include a pregnancy/EMTALA case. As I noted yesterday, he Court has denied review in a Texas case that raised the issue whether the state's restrictive abortion law violates federal EMTALA law. Xavier Becerra, Secretary of Health and Human Services v. Texas, No. 23-10246. Similar challenges are likely to meet the same fate, so we will have to wait for the 9th Circuit to deliver a decision on the merits of the EMTALA issue. It's entirely likely that there will be four votes to grant certiorari to resolve a split among the circuits. I don't know whether to look forward to or to fear such a decision from the Court.

The Cruelty of Texas's Abortion Ban (SB 8)

A recent MSNBC News report (posted July 11, 2024, 4:19 PM CDT) illustrates the casual cruelty of Texas Senate Bill 8, which bans abortions after a fetal heartbeat is detectable except when continuing the pregnancy presents a threat to the life or major bodily function of the pregnant person.

When Samantha Casiano of East Texas found out she was pregnant with her fifth child, she was ecstatic. But at a 20-week ultrasound, she received shocking news. Her baby was diagnosed with anencephaly, a rare and fatal condition that prevents the skull and brain from fully forming. . . .

“I was told that it meant that my daughter was incompatible with life. And I wouldn’t be adding another little human to our family. It was really hard to hear that. It felt like it was a dream -- a really, really bad dream, Casiano, 30, recounted. . . . 

“Just imagine yourself waking up every morning, knowing that your daughter was going to die. You can feel her kick and move, but she’s going to die. So you have to plan her funeral while she’s inside of you,” said Casiano. “And that’s probably the hardest thing any mother has to go through…It was traumatizing and hard.. Just thinking about it now is just me makes my stomach hurt. And I was forced to go through it. It was torture.”

Torture. C'mon, Legislature. Think about it.

Texas is not alone in its lack of humanity. According to the authoritative Guttmacher Institute, only D.C. and 9 states do not restrict abortion based on gestational duration. The remaining 41 states either ban abortions with very limited exceptions (14 states) or impose a gestational ban of varying lengths:

• 6 weeks (3 states)
• 12 weeks (2 states)
• 15 weeks (1 state)
• 18-23 weeks (5 states)
• 24-26 weeks (16 states)

And as the Institute says about these gestational bans: "Anyone denied abortion access in their state must either overcome the logistical and financial hurdles of traveling out of state, navigate a self-managed abortion or carry an unwanted pregnancy to term."

The Casiano case is an example: "Casiano said she was unable to travel outside of the state for an abortion due to financial and logistical constraints. So, she was forced to go to term with her baby." 

Torture. C'mon, Texas Voters. Think about it.

Infant Mortality in Texas -- Already High -- Increased After SB 8 and Dobbs

A new study in JAMA Pediatrics (June 24, 2024) (abstract here, apparently free, at least for a while) finds that infant and neonatal deaths in Texas increased 12.9% after Texas banned nearly all abortions after an embryonic heartbeat could be detected (usually around the sixth week of gestation). The Texas law in question is Senate Bill 8, passed in 2021, and its restrictions are legally unassailable after SCOTUS's 2022 decision in Dobbs to wipe Roe v. Wade off the books, which eliminated federal constitutional protection for the right to choose to and a pregnancy. 

Before SB 8 was enacted, Texas accounted for slightly more than 10% of all neonatal and infant deaths in the United States, about 15% more than Texas's 8.7% percent of the total U.S, population. Significantly, the study observes that "[d]escriptive statistics by cause of death showed that infant deaths attributable to congenital anomalies in 2022 increased more for Texas (22.9% increase) but not the rest of the US (3.1% decrease)."

The study cites the increase in infant and neonatal mortality as one of the "unintended consequences" of SB 8, which is debatable if you believe that persons (including members of a legislative body) presumably intend the reasonably foreseeable consequences of their actions. Banning abortions for all intents and purposes guaranteed an increase in the number of fetuses with fatal anomalies and other conditions incompatible with life that would be carried to viability and then die. Anyone in the Texas legislature who didn't see this coming doesn't belong in public office. The same goes for any legislator who saw this coming and voted for SB 8 anyway.

The results of Texas's cruel abortion law -- cited as "important unintended consequences" by the authors of the study -- include "trauma to families and medical cost as a result of increases in infant mortality." Trauma to literally hundreds of families who have been harmed in this particular manner by SB 8. The impact on foster care has been significant. The economic burden for many families produces additional trauma. The cascade of effects of our laws is, in a word, ghastly.

Does EMTALA Require Medically-Appropriate Abortion Even in the Absence of a State Exception for Emergency Medical Conditions? [Updated June 27]

One of the most eagerly awaited opinions yet to be released by SCOTUS is -- or was (see below) -- Moyle v. United States, Docket No. 23-726. The question presented is "Whether the Supreme Court should stay the order by the U.S. District Court for the District of Idaho enjoining the enforcement of Idaho’s Defense of Life Act, which prohibits abortions unless necessary to save the life of the mother, on the ground that the Emergency Medical Treatment and Labor Act preempts it."

The federal district court for Idaho ruled that EMTALA pre-empts state law and requires hospitals to provide stabilizing medical care for emergency conditions, which federal law defines more broadly than life-threatening conditions.The U.S. Court of Appeals for the Ninth Circuit declined to stay the lower-court injunction against enforcement of Idaho's law pending appeal from the district court's ruling. 

This set up the appeal to SCOTUS. Merits briefs were filed and the case was argued in April. With the Supreme Court's term winding down, Moyle was one of the most anticipated cases left on the Court's docket, especially after a Fifth Circuit decision that rejected the EMTALA pre-emption argument (Texas v, Becerra, No. 23-10246, 5th Cir., Jan. 2, 2024).

SCOTUSBlog (free access) reports that Bloomberg (possible paywall) reports that earlier today, inadvertently and only briefly, SCOTUS posted an opinion in Moyle that dismisses the case on the ground that review was improvidently granted. Assuming no change after the premature release, this will keep the 9th Circuit's refusal to stay the district court's injunction pending appeal. 

Update: On Thursday, June 27, SCOTUS released the official order and concurring and dissenting opinions:

A. The effect of this order is to allow the district court's injunction against enforcement of the restrictive Idaho law, which means doctors and hospitals may provide EMTALA-mandated stabilizing treatment -- including abortions, as needed -- when continuing the pregnancy represents a threat to the pregnant person's health. Eventually the 9th Circuit will decide this case on the merits (assuming there's no problem with standing), the losing party will ask SCOTUS to review, and SCOTUS will decide in its discretion whether to grant the request.

B. A majority of the Court is unlikely to say this, but it's obvious that they view the Court's January actions to be a mistake. Which actions? All of them:

• Entering a stay that had the effect of negating EMTALA and allowing the restrictive Idaho law to be enforced;
• Skipping over the usual order of things, which would typically allow the Court of Appeals to rule on the merits before deciding whether to grant review; and
• Treating the petitioner's request for a stay as the equivalent of a petition for certiorari and then granting the "petition."

C. Some of the Justices weren't shy about calling out other Justices, either for entering a stay in the first place or for now changing their minds about the stay. There were lots of opinions, and they don't conform to the usual 6-3 lineup along party lines:

1. Opinion per curiam. 
2. Kagan, J., filed a concurring opinion, in which Sotomayor, J., joined, and in which Jackson, J., joined as to Part II. 
3. Barrett, J., filed a concurring opinion, in which Roberts, C. J., and Kavanaugh, J., joined. 
4. Jackson, J., filed an opinion concurring in part and dissenting in part. 
5. Alito, J., filed a dissenting opinion, in which Thomas, J., joined, and Gorsuch, J., joined as to Parts I and II.

Texas Medical Board Punts (Again) on Emergency Exception to Abortion Ban

This past Friday, June 21, the TMB issued a final rule "[that amends] 22 TAC 165 by adding . . . section[s] 165.7-165.9 concerning Exceptions to the Abortion Ban." 

Previous posts to this blog have commented on the vague and generally unhelpful nature of the rule as it was proposed by the TMB (here and here). After receiving what the TMB president describes as "hundreds of comments from private citizens, physicians, professional associations and private organizations," the Board's efforts have produced a final rule that is virtually identical to the proposed rule.

Doctors are left to determine what constitutes an "emergency condition" based upon reasonable medical judgment. Considering the criminal penalties for violating the abortion ban (a massive fine and up to life in prison), as well as the possibility that two (or more) doctors will disagree about diagnoses and treatments, this standard will predictably cause physicians in a number of situations to be overly cautious about performing an abortion.

Here's one of those situations: A pregnant woman is determined to have a medical condition that does not yet threaten her life or an injury to a major bodily function. But, if the pregnancy isn't terminated, the condition will predictably worsen and the woman will eventually be on death's doorstep. Does it make sense to wait until the last possible moment to intervene? But would the earlier version of this condition constitute a "medical emergency"? 

In the Cox case earlier this year, the Texas Supreme Court rejected a trial court's order prohibiting the Attorney General from enforcing the abortion ban against Kate Cox and her physician. The trial court's order was based upon the attending physician's "good faith belief [that] continuing the pregnancy puts her at high risk for severe complications threatening her life and future fertility, including uterine rupture and hysterectomy." The court faulted (implicitly) plaintiff's counsel for not eliciting a statement from the physician that her opinion was based upon reasonable medical judgment. Despite this narrow reading of the law, the court did offer some reasonably helpful commentary for future cases:

• Waiting until death is imminent: "[T]he statute does not require “imminence” or, as Ms. Cox’s lawyer characterized the State’s position, that a patient be “about to die before a doctor can rely on the exception.”  The exception does not hold a doctor to medical certainty, nor does it cover only adverse results that will happen immediately absent an abortion, nor does it ask the doctor to wait until the mother is within an inch of death or her bodily impairment is fully manifest or practically irreversible. (emphasis added) 
• Risk of liability based on a different physician's contrary opinion: "The exception does not mandate that a doctor in a true emergency await consultation with other doctors who may not be available.  Rather, the exception is predicated on a doctor’s acting within the zone of reasonable medical judgment, which is what doctors do every day.  An exercise of reasonable medical judgment does not mean that every doctor would reach the same conclusion. (emphasis added)   

One mystery is why the medical board didn't put these two issues to rest once and for all by explicitly including the Supreme Court's language. Instead, the new rule ends with a Delphic comment promising not to discipline a physician who exercises reasonable medical judgment, followed by a cross-reference to § 74.552 of the Texas Civil Practice and Remedies Code, which adds absolutely nothing to our understanding of that outcome-determinative phrase.

This is really the best the Texas Medical Board can do?

SCOTUS: Mifepristone Remains Available Despite 5th Circuit Ruling

A unanimous Supreme Court today reversed a Fifth Circuit opinion that held that various actions taken by the FDA with respect to its regulation of mifepristone were arbitrary and capricious.

The court's opinion -- which all nine justices joined -- found that the plaintiffs lacked Article III standing to press their claim that the FDA acted unlawfully when it approved, and then loosened, restrictions on the way the abortion drug may be prescribed. I usually feel that the Court uses (and misuses) standing doctrine to avoid deciding questions it would rather not decide. In this case, though, the plaintiffs' standing theories were pretty farfetched and the Court wasn't buying any of them.

The basic problem with this case was that the doctors couldn't point to any harm, injury, or hardship the FDA's approval imposed on them:

[T]he plaintiffs do not prescribe or use mifepristone. And FDA is not requiring them to do or refrain from doing anything. Rather, the plaintiffs want FDA to make mifepristone more difficult for other doctors to prescribe and for pregnant women to obtain.  Under Article III of the Constitution, a plaintiff ’s desire to make a drug less available for others does not establish standing to sue. [emphasis in original]

On the merits (which the Court did not address), I think the FDA's handling of the demonstrably safe and effective mifepristone was unassailable, but a win is a win.

The next question is: If these plaintiffs don't have standing to challenge the FDA's actions, who does? The answer might well be noöne:

For starters, it is not clear that no one else would have standing to challenge FDA’s relaxed regulation of mifepristone.  But even if no one would have standing, this Court has long rejected that kind of “if not us, who?” argument as a basis for standing. The “assumption” that if these plaintiffs lack “standing to sue, no one would have standing, is not a reason to find standing.” Rather, some issues may be left to the political and democratic processes: The Framers of the Constitution did not “set up something in the nature of an Athenian democracy or a New England town meeting to oversee the conduct of the National Government by means of lawsuits in federal courts.” [citations omitted]

That said, three states have intervened in this case, which is pending in federal district court in Amarillo. Why Amarillo? Because conservative plaintiffs know they have a judge there who will lend a sympathetic ear to their cause. See Texas Tribune, April 11, 2024. 

As reported by Bloomberg News:

Missouri, Idaho, and Kansas have already intervened in the case before the district court, alleging their own unique harms. The states claim their residents are suffering serious medical complications that require emergency care after taking mifepristone that they’ve obtained through the mail and the states are having to pay for much of that care through Medicaid.

Stay tuned . . . .

JAMA: Texas Medical Board Dropped the Ball with its Abortion "Exceptions" Rule

The authors of an opinion piece in the Journal of the American Medical Association (published on-line today) offer their critique of the "non-guidance guidance" concerning emergency exceptions to the Texas ban on abortions. In a previous post, I expressed disappointment with the "cut-and-paste job" that offered nothing of value to guide physicians who need to decide whether a patient is experiencing the sort of medical crisis that would satisfy Texas's vague exception for an "emergency." 

As the JAMA authors point out, the rule does add onerous reporting requirements with potentially lethal consequences:

"Although labeled as mere documentation, each of these requirements potentially heightens the danger of criminal prosecution for clinicians working in already challenging circumstances. A patient’s condition might generally indicate a risk to her life. But pointing to this rule, a prosecutor or complainant before the Texas Board might argue that a physician did not exercise reasonable medical judgment, because they did not obtain a second opinion, attempt every alternative, or seek transfer. The Board’s proposal could invite—rather than ward off—second-guessing clinical decisions in legal proceedings."

The authors' conclusion seems unassailable: "Like other Texas institutions, the Texas Medical Board was unwilling to provide guidance to the medical profession. . . . With a sword of Damocles hanging over their heads, physicians hesitate to provide standard-of-care medicine, and the steady stream of patients denied care continues, and increases."

Spike in ER Refusals of Pregnancy-Related Emergency Care After Dobbs Decision

A story from the Associated Press (AP, 4/19/24) reports that "more than two dozen complaints about emergency pregnancy care were lodged in the months after the Dobbs decision was unveiled. It is not known how many complaints were filed last year as the [AP's FOIA] request only asked for 2022 complaints and the information is not publicly available otherwise."

Individual refusals are stunningly heartless:

One woman miscarried in the lobby restroom of a Texas emergency room as front desk staff refused to check her in. Another woman learned that her fetus had no heartbeat at a Florida hospital, the day after a security guard turned her away from the facility. And in North Carolina, a woman gave birth in a car after an emergency room couldn’t offer an ultrasound. The baby later died. . . .

Consider what happened to a woman who was nine months pregnant and having contractions when she arrived at the Falls Community Hospital in Marlin, Texas, in July 2022, a week after the Supreme Court’s ruling on abortion. The doctor on duty refused to see her.

“The physician came to the triage desk and told the patient that we did not have obstetric services or capabilities,” hospital staff told federal investigators during interviews, according to documents. “The nursing staff informed the physician that we could test her for the presence of amniotic fluid. However, the physician adamantly recommended the patient drive to a Waco hospital.”

Ethics. “It is shocking, it’s absolutely shocking,” said Amelia Huntsberger, an OB/GYN in Oregon. “It is appalling that someone would show up to an emergency room and not receive care -- this is inconceivable.” Why is this happening? 

Pregnant patients have “become radioactive to emergency departments” in states with extreme abortion restrictions, said Sara Rosenbaum, a George Washington University health law and policy professor.

“They are so scared of a pregnant patient, that the emergency medicine staff won’t even look. They just want these people gone,” Rosenbaum said. 

Law. Aren't the refusals of pregnancy-related emergency care illegal? Well, the federal Emergency Medical Treatment and Active Pregnancy Act requires Medicare-contracted hospitals to stabilize the emergency medical condition when a woman comes to the emergency department in labor. It's a Condition of Participation in the Medicare program. It shouldn't be complicated, but it is.

On Wednesday, April 24, the Supreme Court will hear oral arguments in the case of Moyle v. United States, No. 23-726, in which the issue is "[w]hether the Supreme Court should stay the order by the U.S. District Court for the District of Idaho enjoining the enforcement of Idaho’s Defense of Life Act, which prohibits abortions unless necessary to save the life of the mother, on the ground that the Emergency Medical Treatment and Labor Act preempts it." There are 45 amicus briefs in this case, an indication of the broad and strong interest in this case on both sides of the issue. (The district court's order in unpublished but can be found at pages 620-59 of Vol. 2 of the Joint Appendix filed in the Supreme Court matter.)

Texas Medical Board Publishes Proposed Rules Re: Exceptions to Texas's Abortion Ban

It took a strongly worded "suggestion" from the Texas Supreme Court (in its "know-nothing" opinion in the Kate Cox case [HealthLawBlog 12/12/23], but the TMB has finally published a proposed rule that provides some detail about the medical exceptions to the state's ban on abortions.

• Notice and Statement of TMB Chair
• Proposed Rule Amendment
• Official Form for Submission of Public Comments (optional but preferred method)

Most of the proposed rule is a cut-and-paste job, providing definitions of key terms such as:

1. abortion (copied from the Abortion Facilities Licensing law)
2. ectopic pregnancy (same)
3. reasonable medical judgment (copied from one of statutory bans on abortion)
4. medical emergency (same)
5. major bodily function (Texas Labor Code)

For 1, 2, and 5, the proposed rule would make clear that these definitions in other Texas codes apply to the medical exceptions to the abortion bans, which is guidance of a sort.

The remainder of the proposed rule describes the documentation that must be completed if an abortion is going to be performed when one of the exceptions applies as well as "the procedures that the Board will utilize in the event a complaint is received."

Biden's State of the Union Address: 13 Health Care Take-aways

Becker's Hospital Review takes a look at "13 healthcare takeaways" from President Biden's State of the Union address last evening. They include:

1. Expanding Medicare's drug price negotiation scope
2. Limiting drug costs
3. Expanding rebate requirement
4. Closing Medicaid coverage gap [for 10 states, including Texas, that haven't expanded eligibility]
5. Capping the cost of insulin
6. Abortion access
7. COVID-19
8. Affordable Care Act
9. Women's health
10. Taxes
11. Gun violence
12. PACT Act [Resources for Veterans]
13. ARPA-H (Advanced Research Projects Agency for Health ) 

JAMA On-line: Scorn for Approach of Texas Supreme Court and AG in Cases Involving Exceptions to Abortion Ban

In an excellent on-line (and free) commentary in JAMA (Jan. 22, 2024), three Harvard authors ask the question: "Whose Responsibility Is It to Define Exceptions in Abortion Bans?" (Disclosure: One of the authors, Louise King, M.D., J.D., is a friend and former colleague.)

The context for this question is not surprising:

Two Texas court cases were filed in late 2023 requesting clarification of the scope of the life exception. In the first case, In re State of Texas, the Texas Supreme Court indicated that clinicians or the Texas Medical Board have responsibility for defining that exception. In the second case, State [of Texas] v Zurawski, the Texas attorney general suggested during oral arguments that the scope would be defined through medical malpractice litigation.

In short, both the Texas Supreme Court and the AG punted on the essential and inescapable issue of the scope of "life exception" to Texas's abortion ban.

Is that a problem?

At first glance, the Texas Supreme Court and attorney general may seem to defer to the expertise of clinicians and the medical system for when abortions are necessary to save a patient’s life. But upon closer analysis, these proposed ways to define the exception’s scope are neither workable nor constitutional. Putting the burden of defining a crime on the person who may commit it violates the US Constitution. Demanding that patients be injured and sue for malpractice to clarify a criminal statute is beyond draconian.

Legislating medical care means clinicians could risk prosecution if they act according to their ethics and training and follow the standard of care. But if they decline to provide care out of fear of legal consequences, they risk injuring a patient and facing a potential malpractice claim. It is for these very reasons that professional societies like the American College of Obstetricians and Gynecologists and the American Medical Association argue strongly against all legislation that interferes with the patient-clinician relationship.2 Texas and other states that criminalize abortion should consider the tremendously harmful effect that comes from interfering in clinical decision-making. 

This short but compelling commentary is worth reading in its entirety. It offers a fine illustration of the hall of mirrors created by the Texas legislature, Supreme Court, and Attorney General. 

 

JAMA: Increased Depression & Anxiety in Trigger States After Dobbs Decision

In a free article in the Journal of the American Medical Association (JAMA. 2024;331(4):294-301. doi:10.1001/jama.2023.25599) (PDF), researcher report that "[l]iving in states with trigger abortion bans compared with living in states without such bans was associated with a small but significantly greater increase in anxiety and depression symptoms after the Dobbs abortion opinion." The authors conclude:

The findings provide new evidence about the relationship between the changing abortion policy landscape and mental health following the Dobbs opinion. Although there were increases in symptoms of anxiety and depression for the general population after the opinion, changes in symptoms of anxiety and depression were greater among those living in states with trigger abortion bans, and in particular, among females within the age range generally used to compute lifetime abortion incidence. This finding could be related to many factors, including fear about the imminent risk of abortion denial; uncertainty around future limitations on abortion and other related rights, such as contraception; worry over the ability to receive lifesaving medical care during pregnancy; and a general sense of violation and powerlessness related to loss of the right to reproductive autonomy.

How Much Does the Fifth Circuit Care About Public Health?

The 5th Circuit Court of Appeals has handed down a couple of decisions this week that surprised me a lot (except that this 5th Circuit is the most conservative federal appellate court in the country):

1. Abortion. The Texas Tribune has a good story on the history of this litigation and Tuesday's ruling (State of Texas et al. v. Becerra, No. 23-10246  (Jan. 2, 2024). The court upheld a permanent injunction against an HHS injunction against DHHS's post-Dobbs guidance that the Emergency Medicine & Active Labor Act (EMTALA) requires Medicare providers to perform an abortion when that is necessary to stabilize a pregnant woman's emergency (life- or limb-threatening) condition. The court concluded that Congress did not intend for the statute to require performance of a procedure that was forbidden by state law. The court went on, asserting that Texas law provides plenty of protection for procedures, including abortion, when continuing the pregnancy poses a threat to the pregnant woman's life or a major bodily function. This is the same line taken by the Texas Supreme Court in its opinion that denied Kate Cox's bid for an abortion under the same exception to the state's abortion ban. 

Meanwhile, according to Kate Riga at TalkingPointsMemo.com, the same issue is in front of the 9th Circuit Court of Appeals. Depending on the outcome of that case, the issue may land at SCOTUS's doorstep soon.

2. E-cigarettes. The case is Wages and White Lion Investments, L.L.C. v. Food & Drug Administration, No. 21-60766 (Jan. 3, 2024). This was an en banc proceeding of the Court of Appeals, with a majority opinion by Judge Oldham (and joined by nine others) and a dissenting opinion by Judge Haynes (joined by four others). The result of the case is that the FDA is ordered to review over 1 million pre-market tobacco applications (PMTAs) against the backdrop of clear and convincing evidence that e-cigs represent a serious health threat, especially to minors, with no countervailing health benefits. 

This is Judge Haynes' take on the majority opinion (emphasis added):

It is against this backdrop that the FDA reviewed the PMTAs of Wages and White Lion Investments, LLC, d/b/a Triton Distribution (“Triton”) and Vapetasia LLC (“Vapetasia”) (collectively, “Petitioners”) and issued marketing denial orders (“MDOs”) to Petitioners.  The FDA denied Petitioners’ PMTAs because they did not contain any reliable evidence suggesting the benefits of Petitioners’ flavored products outweighed the significant risks to youth—an outcome that aligned with both the guidance the FDA had given to applicants and its statutory mandate under the TCA.  But the majority opinion erroneously concludes that the FDA changed the evidentiary standards applied to Petitioners’ PMTAs and wholly ignored Petitioners’ marketing plans, and thus acted in an arbitrary and capricious manner.  Unfortunately, based on a misreading of the law and a misconstruing of the relevant facts, the majority opinion supersedes the FDA’s work by remanding instead of denying the petition, which cuts the FDA’s legs out from under it in the middle of a dangerous and constantly evolving public health crisis.  

In so doing, the majority opinion also departs from all but one of our sister circuits that have addressed the same issue.  See, e.g., Magellan Tech., Inc. v. FDA, 70 F.4th 622 (2d Cir. 2023) (unanimous denial); Liquid Labs LLC v. FDA, 52 F.4th 533 (3rd Cir. 2022) (unanimous denial); Avail Vapor, LLC v. FDA, 55 F.4th 409 (4th Cir. 2022) (unanimous denial), cert. denied, No. 22-1112, 2023 WL 6558399 (U.S. Oct. 10, 2023); Gripum, LLC v. FDA, 47 F.4th 553 (7th Cir. 2022) (unanimous denial), cert. denied, 143 S. Ct. 2458 (2023); Lotus Vaping Techs., LLC v. FDA, 73 F.4th 657 (9th Cir. 2023) (unanimous denial); Prohibition Juice, 45 F.4th 8 (unanimous denial); see also Breeze Smoke, LLC v. FDA, 18 F.4th 499 (6th Cir. 2021) (denying motion for stay), app. for stay denied, 142 S. Ct. 638 (2021).  The only circuit that granted a petition for review in a comparable context did so on much narrower grounds than the majority opinion embraces today.  See Bidi Vapor, 47 F.4th at 1195 (remanding based on the FDA’s failure to consider marketing and sales-access-restriction plans); but see id. at 1208–18 (Rosenbaum, J., dissenting).  Despite the Eleventh Circuit’s opinion, however, it is telling that the Supreme Court recently denied certiorari for two cases in which other circuits considered similar facts to those before us and denied the petition for review.  See Gripum, LLC v. FDA, 143 S. Ct. 2458 (2023) (mem.); Avail Vapor, LLC v. FDA, No. 22-1112, 2023 WL 6558399 (U.S. Oct. 10, 2023) (mem.); see also Breeze Smoke, LLC v. FDA, 142 S. Ct. 638 (2021) (mem.) (denying application for stay of FDA’s denial, without any recorded dissent). 

Reevaluating this case en banc, I would reach the same determination that the merits panel did and deny the petitions for review before us.

I concur. 

Ruth Marcus: Calling Out the Texas Supreme Court for its Opinion in the Kate Cox Case

Ruth Marcus is one of the most acute observers of political cultural and political life in this country. Now add legal commentary to her toolkit (she's a 1984 graduate of Harvard Law School). There's no better example than her column in the Washington Post eviscerating the Texas Supreme Court's opinion in the Kate Cox case. There's a paywall, but there may also be a quota of free articles that non-subscribers can tap into. If not, here are a few highlights:

• "Women of Texas, now you know: The state’s abortion law will not protect you in the case of a medical emergency. Not only will the state’s attorney general come after you, the all-Republican, Texas Supreme Court will contort itself to find that your situation doesn’t constitute an emergency that would allow an abortion to proceed. Never mind what your doctors say — courts know best, even as they purport to be deferring to medical judgment."
• "The court’s brief ruling — seven pages almost entirely devoid of legal reasoning — is a masterpiece of intellectual dishonesty masquerading as judicial deference."
• "[T]he craft of judging is about applying the law to specific facts, and here is where the Texas justices fell woefully short. The court’s opinion never explains why it is not a reasonable medical judgment that abortion is advisable in this situation, in which Cox would otherwise be forced to continue with a doomed pregnancy and incur the risk of a repeat C-section or uterine rupture from vaginal delivery. It acts as if Cox’s obstetrician hadn’t determined that an abortion would be in her best medical interest, when in fact she had found just that. It all but writes the provision about impairment of a major bodily function out of the law."
• "Theoretical exceptions are cold comfort to real women in excruciating circumstances, and without hope of getting the care they desperately need."

Harsh but fair. 

Kaiser: Who Decides When a Patient Qualifies for an Abortion Ban Exception? Doctors vs. the Courts

 Here's a thoughtful brief from the Kaiser Family Foundation on abortion-ban exceptions around the country.

It starts with a quick summary of the Texas Supreme Court's opinion in the Kate Cox case and follows with some observations that somehow escaped the attention of Texas's high court:

• "The case in Texas highlights the impossible situation that many doctors and patients find themselves in when faced with a pregnancy that may qualify for an exception."
• "[I]f doctors are prosecuted for providing abortions under an exception, the courts will nonetheless end up determining whether the abortions qualified for an exception and physicians will still be vulnerable to having their judgment second-guessed by judges and juries. Unable to get a determination from a court ahead of providing care, yet vulnerable to prosecution after providing care, doctors and their patients caught in a 'Catch-22.' In this case, Ms. Cox was reportedly able to leave the state to receive the abortion care her doctor believed she needed, but others may not have the resources to travel out of state to get medically-indicated care."
• "All 20 states with abortion and gestation bans currently in effect contain exceptions to 'prevent the death' or 'preserve the life' of the pregnant person. Like Texas, these exceptions are not clear how much risk of death or how close to death a pregnant patient may need to be for the exception to apply, and the determination is not explicitly up to the physician treating the pregnant patient."
• "The Texas abortion ban specifies that the physician must determine that the abortion is necessary based on their 'reasonable medical judgement.' This standard leaves physicians in a legally vulnerable situation and understandably reluctant to certify a pregnancy as qualifying for a life or health exception. This reluctance stems from the concern of being found guilty of violating the law if the court relies on the testimony of other medical experts that say that the treating physician didn’t meet the standard for “'reasonable medical judgement.'"

The brief includes an interactive that shows the exceptions for life, health, rape/incest, and fatal fetal anomalies in states that have them:

Texas Supreme Court Puts an Exclamation Point on Kate Cox's Doomed Quest for Reproductive Health Care in Texas

Late yesterday (12/11) the Supreme Court of Texas issued a seven-page per curiam opinion that reversed the trial court's order in the action Kate Cox brought against the State of Texas. 

The trial court enjoined state officials from enforcing statutory abortion prohibitions based upon the "good faith belief" of Ms. Cox's physician that "continuing the pregnancy puts her at high risk for severe complications threatening her life and future fertility, including uterine rupture and hysterectomy" [Complaint ¶ 1]. A reasonable interpretation of this language would conclude that Ms. Cox's pregnancy "places [her] at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced," the statutory exception to Texas's abortion prohibition., TEX. HEALTH & SAFETY CODE § 170A.002(b)(2). That is not the Supreme Court's interpretation.

Ms. Cox's physician's "good faith belief" is presumably based upon two subsidiary considerations: [1] a medical conclusion based upon reasonable medical judgment combined with [2] uncertainty as to the scope of the vague language of the statutory exception. There is no other way to read ¶¶ 138-139 of the Complaint:

138. Dr. Karsan has met Ms. Cox, reviewed her medical records, and believes in good faith, exercising her best medical judgment, that a D&E abortion is medically recommended for Ms. Cox. 

139. It is also Dr. Karsan’s good faith belief and medical recommendation that the Emergent Medical Condition Exception to Texas’s abortion bans and laws permits an abortion in Ms. Cox’s circumstances, as Ms. Cox has a life-threatening physical condition aggravated by, caused by, or arising from her current pregnancy that places her at risk of death or poses a serious risk of substantial impairment of her reproductive functions if a D&E abortion is not performed. 

[emphasis added]

This was not good enough for the Supreme Court, though:

Dr. Karsan did not assert that Ms. Cox has a “life-threatening physical condition” or that, in Dr. Karsan’s reasonable medical judgment, an abortion is necessary because Ms. Cox has the type of condition the exception requires. . . .  The exception requires a doctor to decide whether Ms. Cox’s difficulties pose such risks [i.e., to the pregnant woman's life or substantial bodily function].  Dr. Karsan asked a court to pre-authorize the abortion yet she could not, or at least did not, attest to the court that Ms. Cox’s condition poses the risks the exception requires.    

Does the outcome in this case really turn on a physician's attestation that she exercised reasonable medical judgment? If the verified petition in this case doesn't meet that standard, does the Court require three "magic words" to establish a woman's right to necessary medical care? Is there a difference between "best medical judgment" and "reasonable medical judgment"? The Court writes that "[a]  pregnant woman does not need a court order" to get an abortion in Texas. But if the scope of the statutory exception is uncertain, does the Court seriously expect physicians to risk a 99-year prison sentence and a $100,000 fine without first obtaining a court's authorization? 

And on the vagueness argument, the Court concludes:

The Texas Medical Board, however, can do more to provide guidance in response to any confusion that currently prevails.  Each of the three branches of government has a distinct role, and while the judiciary cannot compel executive branch entities to do their part, it is obvious that the legal process works more smoothly when they do.

The Legislature pretty clearly intended the in terrorem effect that SB 8 and post-Dobbs enactments have produced. And in terrorem effects work best when the law is vague, its application is potentially broad, and the penalties for being wrong are draconian. Unfortunately, the Court's opinion in the Cox case -- whether wittingly or not -- plays into this cynical strategy. 

Kate Cox Leaves Texas to Obtain an Abortion

I put up a series of posts last week to illustrate the tortuous path taken by Kate Cox in order to terminate a pregnancy that posed a threat to her health and future reproductive prospects. By the end of the week, the Texas Attorney General was threatening civil and criminal action against her doctor and any hospital that allowed the procedure to be performed there AND the Texas Supreme Court stayed the order of a Texas trial judge that was based on the judge's conclusion that Ms. Cox fell within the statutory exception to Texas's abortion ban.

As reported this afternoon by the Washington Post, the New York Times, NBC, ABC, and the Guardian, Ms. Cox has left the state to obtain the abortion that has so far been denied her in her home state: 

“Kate desperately wanted to be able to get care where she lives and recover at home surrounded by family,” Nancy Northup, the chief executive for the Center for Reproductive Rights, which was representing Ms. Cox in her case, said in a statement on X. “While Kate had the ability to leave the state, most people do not, and a situation like this could be a death sentence.”

Ms. Cox describes last week's legal developments as "hellish." It's a fit description of a society that meets a very human loss such as hers with motions, briefs, opinions, orders, and sabre-rattling by an indicted Attorney General. It reminds me of Grant Gilmore's great quote from The Ages of American Law (1977):

Law reflects, but in no sense determines the moral worth of a society…. The better the society, the less law there will be. In Heaven, there will be no law, and the lion will lie down with the lamb…. The worse the society, the more law there will be. In Hell, there will be nothing but law, and due process will be meticulously observed.

Unfortunately, last week was Kate Cox's introduction to hell. 

Texas Supreme Court Stays Trial Court's Abortion Order

The court entered an "administrative stay" pending review of the TxAG's request for mandamus in the Cox case. In almost any other case, this would be a routine, even benign, development. In this case, though, it's far from routine or benign.

• Kate Cox is entering her 21st week of pregnancy. She's not far from her third trimester, when  termination of a pregnancy will be considered a "late term" abortion and nearly impossible to obtain.
  
  
• Every delay increases the risk to Kate Cox's health, including her ability to have a child in the future. There is no such thing as "maintaining the status quo" in this case.
  
  
• This case vividly illustrated the human cost of a GOP-dominated legislature and Republican AG torning abortion into a political football. One can only hope that the all-GOP Supreme Court sees this case as the trial judge did . . . and without delay.