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."

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 ) 

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.

Reproductive Rights after Dobbs: New Article in SMU Law Review

"Pregnancy Risk and Coerced Interventions after Dobbs" [Free Download]
SMU Law Review, Vol. 76, No. 1 (2023)

ELIZABETH KUKURA, Drexel University Thomas R. Kline School of Law
Email: kukura@drexel.edu

Abstract:

Only nine months after the Supreme Court eliminated the federal constitutional right to abortion in Dobbs v. Jackson Women's Health Organization, fourteen states had banned abortion entirely, and experts estimate the ultimate number of states imposing complete or near-complete restrictions on abortion care will likely rise to twenty-four. Millions of people with the capacity for pregnancy now (or will soon) live in places where getting pregnant means there is no choice other than to carry the pregnancy to term and give birth. One underappreciated, though critically important, impact of Dobbs is the extent to which newly enacted abortion restrictions will increase both the number of people with high-risk pregnancies and, relatedly, the number of people who are coerced into medical treatment during labor and delivery. Such mistreatment in the form of coerced interventions will compound the harm of forced pregnancy after Dobbs with negative consequences for the physical and emotional well-being of birthing people and their babies.

Public Health Law Priorities to Pursue While Congress Recesses

The American Public Health Association (APHA) sent out its call to action during the current Congressional recess. In addition to providing advice on how to press your views on public-health issues while the Senators and Representatives are away, the APHA missive provides links to a wealth of policy papers, reports, and the like across a broad spectrum of public health. And its not only about Congress. As the APHA suggests, state and local officials -- traditional wielders of "police powers" -- also need to be educated about public health, about which so much misinformation and disinformation emerged during COVID. And there are op-ed opportunities. The list goes on . . . .

Congressional recess is here (July 31 – Sept. 11 for the House and July 31 – Sept. 4 for the Senate) which makes this month the perfect time to raise your public health voice and urge your members of Congress to take action. Join the Speak for Health campaign with APHA’s suggested advocacy activities:

•  Got a minute? Head over to APHA’s action alerts and send a quick message to your elected officials on a variety of topics including environmental health, reproductive rights, gun violence and public health funding.
• Schedule a meeting with your members of Congress, virtually or in person, to discuss public health priorities. You can call their local offices for details on scheduling a meeting.
• When speaking to elected officials, point to APHA’s 2023 advocacy priorities as key areas for action.
• Boost your advocacy efforts with issue fact sheets that summarize priority advocacy issues and state fact sheets that break down public health in each state.
• Write and submit an op-ed to your local paper. APHA offers op-ed writing tips and sample op-eds on gun violence, climate change, public health funding and reproductive health which you can request by emailing speakforhealth@apha.org.
• Engage elected officials on social media about their support for public health. You can include social media shareable images found on the Speak for Health page, and make sure you use the hashtag #SpeakForHealth!
• Attend a town hall and ask your elected official key questions about their commitment to supporting public health. You can contact their office to ask when the next town hall is scheduled.

Your voice helps shape how members of Congress view critical public health issues, and your community’s public health concerns deserve to be heard by our nation’s leaders. Join us and Speak for Health — for today and for future generations.

The APHA 2023 advocacy priorities cover a lot of territory and offer something for everybody:

• Increase and protect funding for vital public health agencies and programs and strengthen the nation’s public health infrastructure. 
• Uphold the Affordable Care Act and expand access to health coverage and services. 
• Address the health impacts of climate change. 
• Protect access to reproductive health care. 
• Pass a 2023 Farm Bill to protect nutrition security. 
• Protect nutrition standards for children. 
• Uphold and strengthen critical public health laws and regulations and reverse damaging rollbacks. 
• Address the nation’s gun violence epidemic.

For more information on APHA’s advocacy priorities, visit https://www.apha.org/advocacy or contact Don Hoppert at Donald.Hoppert@apha.org or Jordan Wolfe at Jordan.Wolfe@apha.org.   

Employers Can Improve Reproductive Health Equity

This is the third in this week's Health Affairs short series on Private Sector Solutions For Health Equity: "Employers Can Help Raise The Bar For Reproductive Health Equity" (July 20) by Sinsi Hernández-Cancio, JD,  vice president for health justice at the National Partnership for Women & Families.

The main focus of the article is on maternal health, which the author frames this way:

We need to solve the maternal health crisis for three main reasons. First and foremost, we must put an end to our status as the most dangerous place to give birth among high-income countries. Second, this crisis is the clearest example of the impact of racism and other structural inequities on the lives and well-being of women and their families. Finally, we know that the healthiest start possible for every person supports a positive life trajectory, while poor maternal and infant health can have long-reaching negative consequences on the health and well-being of both mom and baby.

 Her solutions are multi-tiered, mostly long-term, and hard to read without feeling some despair, e.g.:

• "expand[] their employee health coverage to include out-of-state services for those seeking reproductive care, and also gender-affirming care"
• "invest[] philanthropic dollars in reproductive health advocacy groups such as Planned Parenthood" and in general increase advocacy efforts aimed at improving, not destroying, their employees health care option
• "focus on improving clinical care–especially providing culturally centered, whole-person care that considers the patient’s life context. But health care institutions can and should do more, including aligning their hiring and workplace policies with equity goals, collaboratively partnering with community-based organizations, and pushing for improved policies at various decision making tables"
• diversify "their workforce, especially at leadership levels. According to a 2020 report from Mercer, a business consulting company, 64 percent of corporate entry-level positions were held by white employees; at the executive level that number jumped to 85 percent. The health care industry is no exception. Roughly nine out of ten hospital CEOs are white. Only 15 percent of health care CEOs are women, despite women comprising a large majority of health care workers, including the maternal health workforce."
• "focus[] on the dignity, personal agency, and bodily autonomy of birthing people. Among the recommendations: screening for and helping to meet patients’ physical, mental, and social health needs, and measuring respectful care for internal improvement and accountability. This includes understanding and addressing how structural inequities undermine people’s health."
• "collaborate and co-create with community-based partners"

The basic lesson here is that maternal health won't get significantly better if we wait for initiatives and funding to come from the public sector, nor can it happen without the public sector. One engine for change is companies that are willing to put resources -- including time and money -- into improving health for their employees.

Almost four years ago, Texans Care for Children (TCC) issued a report, Healthy Moms Raising Healthy Babies: Central Texas and Statewide Challenges and Opportunities to Support Maternal Behavioral Health During the First Year After Childbirth (Oct. 2019). One section addressed "What Factors Contribute to Racial Disparities in Maternal Health Outcomes?" The factors include:

• Implicit biases in our health care system can affect the quality of health care provided, decision making, and how health programs are carried out. 
• Chronic stress, including the physical toll of stress related to structural racism, increases health risks for mothers and babies. 
• Discrimination, both past and present, negatively affects social determinants of health — such as housing, food scarcity, and education, among others. 
• Lack of access to health insurance disproportionately affects people of color and limits the ability to manage health conditions before and after pregnancy. 

The depth and complexity of social and cultural roots of the problem reinforce the conclusion I drew from Ms. Hernández-Cancio's article: It's going to take a lot of work, a lot of investment, and a lot of time to improve maternal health in this country. 

One thing the legislature and Governor Abbott could do with the stroke of a pen and at almost no cost to the state is take up the federal government's invitation to expand Medicaid eligibility and let the United States pay for nearly all of the additional cost. As the TCC report noted:

In Texas, Black and Hispanic women are more likely to be uninsured than White women. Seventeen percent of nonelderly Black adults in Texas, 29 percent of nonelderly Hispanic adults, and 12 percent of nonelderly White adults in the state were uninsured in 2017.

Recent research found that states that offer Medicaid insurance to cover low-wage adults who do not have insurance through their job experienced a decrease in disparities for Black families with respect to maternal mortality, infant death, preterm birth, and low birth weight babies. Specifically:

Analysis of data from 2010 to 2016 found that infant deaths have declined across most states, but the decline was more than 50 percent greater in states that offer health coverage before, during, and after pregnancy — with the decline in infant deaths greatest among Black infants.

Research found that coverage for low-wage workers before, during, and after pregnancy was associated with “significant improvements in disparities for black infants relative to white infants for the four outcomes studied: preterm birth, very preterm birth, low birth weight, and very low birth weight.” 

Is a drop of empathy too much to ask of our state leaders? This is the question I've been asking on this blog for years (here, here, here, here, and here). When we find that our leaders are unmoved by the deaths of women who need life-saving abortions and women dying during and after childbirth, it ought to be a question that decides elections.

FDR's Four Freedoms on the 4th of July 2023

In his State of the Union speech on Jan. 6, 1941, FDR famously offered up "the Four Freedoms" to explain why the United States was at war abroad and on a war footing at home. He introduced the Four Freedoms with this eerily familiar list of goals for the country: 

[T]here is nothing mysterious about the foundations of a healthy and strong democracy. The basic things expected by our people of their political and economic systems are simple. They are:

Equality of opportunity for youth and for others.

Jobs for those who can work.

Security for those who need it.

The ending of special privilege for the few.

The preservation of civil liberties for all.

The enjoyment of the fruits of scientific progress in a wider and constantly rising standard of living.

These are the simple, basic things that must never be lost sight of in the turmoil and unbelievable complexity of our modern world. The inner and abiding strength of our economic and political systems is dependent upon the degree to which they fulfill these expectations.

Many subjects connected with our social economy call for immediate improvement.

As examples:

We should bring more citizens under the coverage of old-age pensions and unemployment insurance.

We should widen the opportunities for adequate medical care. [emphasis added -- this is a HealthLawBlog, after all]

We should plan a better system by which persons deserving or needing gainful employment may obtain it.

Then FDR got to the part of his speech that made it so enduring:

In the future days, which we seek to make secure, we look forward to a world founded upon four essential human freedoms.

The first is freedom of speech and expression--everywhere in the world.

The second is freedom of every person to worship God in his own way--everywhere in the world.

The third is freedom from want--which, translated into world terms, means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants-everywhere in the world.

The fourth is freedom from fear--which, translated into world terms, means a world-wide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor--anywhere in the world. 

As the Smithsonian has noted:

The public response? Crickets. Congress barely applauded. The next day most newspapers didn't even mention the “Four Freedoms.” Those who were still talking about the phrase in the weeks and months that followed did so to lambaste its “hollow, empty sound.” The government hired [E.B.] White and other A-list scribes to drum up some buzz, but White’s boss called his pamphlet “dull.” The “Four Freedoms,” in the words of one federal administrator, were a “flop.”

Ever the optimist, FDR concluded the list with this: "That is no vision of a distant millennium. It is a definite basis for a kind of world attainable in our own time and generation." Eighty-two years later the Four Freedoms are still aspirational, not real, for much of the world and for many of our fellow citizens. 

Sen. Cruz (+ 20) Makes a Move on Women's Health

Kudos to The Dallas Morning News for this article on the senator's letter urging the head of the FDA to pull Mifeprex (a/k/a mifepristone, RU-486, or "the abortion pill") from the market. The DMN story quotes the senator as saying "Pregnancy is not a life-threatening illness, and the abortion pill does not cure or prevent any disease. Make no mistake, Mifeprex is a dangerous pill." The story explains the background: 

As the COVID-19 pandemic limited access to in-person doctor appointments, abortion-rights advocates called for the FDA to alter its risk evaluation strategy for the pill, arguing that the policy, which required a woman be prescribed the pill in person, made it more difficult for a woman to acquire it. A federal judge suspended the rule in July.

The article offers this lesson in basic reproductive biology: 

Pregnancy can be especially deadly to Black and American Indian women. From 2011 to 2016, there were 42.4 deaths per 100,000 live births for Black non-Hispanic women and 30.4 deaths per 100,000 live births for American Indian and Alaskan Native non-Hispanic women.

The CDC reported in [2019] that since Mifeprex’s approval in 2000, there were 24 recorded maternal deaths associated with the drug.

The article ends with this great Twitter quote from Democratic congressional candidate (TX-4) Russell Foster: "If you dont have a uterus, you shouldn't have a say in a womans healthcare. You lack basic knowledge. Viagra doesnt prevent any disease but I'm sure you have a full bottle at home. Please stay out of women's healthcare decisions unless you want them to start legislating mens."