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KFF 国产精品视频 News' 'What the 国产精品视频?': Waiting for SCOTUS
Episode 349

The Host

Julie Rovner
KFF 国产精品视频 News
Julie Rovner is chief Washington correspondent and host of KFF 国产精品视频 News鈥 weekly health policy news podcast, 鈥淲hat the 国产精品视频?鈥 A noted expert on health policy issues, Julie is the author of the critically praised reference book 鈥湽肥悠 Care Politics and Policy A to Z,鈥 now in its third edition.

June means it鈥檚 time for the Supreme Court to render rulings on the biggest and most controversial cases of the term. This year, the court has two significant abortion-related cases: one involving the abortion pill mifepristone and the other regarding the conflict between a federal emergency care law and Idaho鈥檚 near-total abortion ban.

Also awaiting resolution is a case that could dramatically change how the federal government makes health care (and all other types of) policies by potentially limiting agencies鈥 authority in interpreting the details of laws through regulations. Rules stemming from the Affordable Care Act and other legislation could be affected.

In this special episode of 鈥淲hat the 国产精品视频?鈥, Laurie Sobel, an associate director for women鈥檚 health policy at KFF, joins host Julie Rovner for a refresher on the cases, and a preview of how the justices might rule on them. 

The cases highlighted in this episode:

  • and , about how much discretion federal agencies should have in interpreting laws passed by Congress.
  • , about whether the FDA exceeded its authority in relaxing restrictions on the abortion pill mifepristone.
  • and , about whether the federal Emergency Medical Treatment and Labor Act requirement for hospitals participating in Medicare to provide needed medical care overrides Idaho鈥檚 near-total abortion ban in emergency cases.

Previous 鈥淲hat the 国产精品视频?鈥 coverage of these cases:

Where to find Supreme Court opinions as they are announced:

  • The Supreme Court’s
  •  The (not an official government website but run by lawyers and journalists)

[Editor鈥檚 note: This transcript was generated using both transcription software and a human鈥檚 light touch. It has been edited for style and clarity.] 

Mila Atmos: The future of America is in your hands. This is not a movie trailer, and it鈥檚 not a political ad, but it is a call to action. I鈥檓 Mila Atmos and I鈥檓 passionate about unlocking the power of everyday citizens. On our podcast 鈥淔uture Hindsight,鈥 we take big ideas about civic life and democracy and turn them into action items for you and me. Every Thursday we talk ato bold activists and civic innovators to help you understand your power and your power to change the status quo. Find us at FutureHindsight.com or wherever you listen to podcasts.

Julie Rovner: Hello, and welcome back to 鈥淲hat the 国产精品视频?鈥 I鈥檓 Julie Rovner, chief Washington correspondent for KFF 国产精品视频 News. We鈥檙e taping this week on Wednesday, May 29, at 1 p.m. As always, news happens fast and things might鈥檝e changed by the time you hear this. So here we go.

Because it鈥檚 a holiday week and health news is a little bit slow, we鈥檙e going to do something a little different. It鈥檚 about to be June, and that means the Supreme Court is going to issue opinions in some of the biggest cases argued this past term, including two abortion-related cases and one that could literally disrupt the way the entire federal government operates. I鈥檓 not sure I remember all the details of these cases, even though we have talked about them all on the podcast. So I鈥檝e asked someone here to remind us what they鈥檙e about and give us a preview of how the court might rule in some of them. Laurie Sobel is associate director for women鈥檚 health policy here at KFF, and one of our top in-house legal experts. Laurie, welcome to 鈥淲hat the 国产精品视频?鈥 Thanks for joining us.

Laurie Sobel: Hi, Julie. It鈥檚 great to be here.

Rovner: So I thought we鈥檇 take the cases in the order they were argued before the court, although I know that鈥檚 not necessarily the order that we will see the opinions issued in. First up: In January, the justices heard arguments in two cases about, of all things, herring fishing. and . But these cases are about a lot more than herring and could affect a lot more than the Department of Commerce, right?

Sobel: Absolutely. These cases are about what鈥檚 called the Chevron doctrine [deference], which requires courts to defer to an agency鈥檚 interpretation of a law when the law is silent or ambiguous and the agency鈥檚 interpretation is reasonable.

Rovner: And what would an example of that be?

Sobel: Oh, there鈥檚 many, many examples. Essentially, Congress doesn鈥檛 fill in the details of many laws, and they rely on agencies to fill in those details, assuming that the agency has the expertise to figure out what those details might be. And also, many times the details change as new scientific evidence becomes available or there鈥檚 changed circumstances, or there鈥檚 a pandemic or something in which the agency needs to respond to.

Rovner: This is basically the entire federal regulatory process we鈥檙e talking about here, right?

Sobel: That鈥檚 correct.

Rovner: And in health care, there鈥檚 a lot of places that regulation affects.

Sobel: Absolutely. So Congress relies on the agencies to implement laws, the ACA [Affordable Care Act], Medicare, Medicaid, CHIP [Children鈥檚 国产精品视频 Insurance Program]. So there鈥檚 a lot in health care. In addition, Title X is regulated by the Office of Population Affairs, and those also have regulations. So overturning Chevron would make it very difficult for Congress to continue to rely on agencies to fill in these gaps and to react to real-time situations.

Rovner: And there鈥檚 private entities that get regulated, are freaked out by the possibility that they won鈥檛 be able to rely on the agencies either.

Sobel: Absolutely. So everything from payment rates to providers and hospitals to negotiating prescription drug prices for the Medicare program. The ACA, I think, has probably more regulations than most laws. And relationship 鈥 we鈥檒l talk about the FDA [Food and Drug Administration] in the next case, but the FDA also sets out regulations as does CDC [Centers for Disease Control and Prevention], and we really rely on those agencies to have the scientific expertise to react to the situation. So if Congress has to either fill in all the gaps, which is by most people鈥檚 assessment impossible, it might really stall how things get implemented and/or create a whole lot of new litigation.

Rovner: And I would say it would give courts a whole lot more authority than they have now, right?

Sobel: Certainly. So right now, the rule is that the agency鈥檚 interpretation stands as long as the law is ambiguous or silent and the agency鈥檚 interpretation is reasonable. This would give that power back to the courts to then guess what Congress meant or to interpret what Congress meant.

Rovner: Somebody I was talking to about this case suggested that, I hadn鈥檛 really thought about before, that if Chevron were to get struck down, that those who had sued over regulations and lost might be able to go back and reopen those cases. I mean, it could just be a flood of litigation.

Sobel: Absolutely. And that came up during oral argument about what would that mean for all the settled cases. And both sides offered different interpretations with the solicitor general arguing that it would really open up this can of worms to tons of litigation, and the plaintiffs essentially saying, 鈥淣o, no, no, we could let those all stand and just going forward, the Chevron deference would be undone.鈥 And there were some hints that maybe some compromises like that between the justices as they were talking.

Rovner: Exactly. You鈥檙e anticipating my next question, which is did we get any hints from the oral arguments about where they might be going with this case? It鈥檚 hard to imagine them just completely overturning Chevron.

Sobel: It is hard to imagine, but there are some justices that have been known to wanting to overturn Chevron for quite some time. So in that category I would put Justices [Clarence] Thomas and [Samuel] Alito, as well as [Neil] Gorsuch, as justices that have really been critical of the Chevron deference. Justice [Brett] Kavanaugh highlighted that the rules change when administrations change, and so he tried to counter the argument that there鈥檚 a reliance on Chevron for stability. He said, 鈥淲ait, wait, wait a minute. Every time there鈥檚 a new president, the rules change. So what kind of stability is that?鈥

Chief Justice [John] Roberts and [Justice Amy Coney] Barrett were really harder to read, and that might be where the decision relies on, where they come out and whether or not they鈥檙e able to forge a compromise with the three liberal justices who indicated support for keeping Chevron; both because of precedent, as well as they pointed out examples where they said, 鈥淲e鈥檙e not subject matter experts here. We don鈥檛 want to be making these decisions.鈥 Justice [Elena] Kagan was talking about AI and how that would change, and 鈥渨e really don鈥檛 want to be in the position of Justice Kagan figuring out how that should be regulated.鈥

Rovner: Well, that seems to be an excellent segue to the next case, which is an abortion case concerning the availability of the abortion pill mifepristone. The case, which was argued in March, is called . Let鈥檚 start, because it鈥檚 about to become important, with what is the Alliance for Hippocratic Medicine? And what did their members have against the abortion pill?

Sobel: Well, the Alliance for Hippocratic Medicine is a newly formed anti-abortion advocacy coalition. It was formed specifically for this litigation. And they contend that they have members, which are doctors and organizations and associations, in Texas and around the country, who have treated and will continue to treat people who have experienced a complication from medication abortion. So to be clear, none of their members prescribe mifepristone. They don鈥檛 believe in abortion. They don鈥檛 want to have anything to do with abortion. But their contention is that they are injured based upon having to divert their time and resources away from their regular patients when they have to treat somebody who has had a side effect from mifepristone. Similarly, the association and organizations contend that they鈥檝e had to divert their time to educate people about the dangers of medication abortion.

Rovner: So those are the plaintiffs. And, as you mentioned, some of them are in Texas and they sued in Texas very specifically to get a certain judge, right?

Sobel: Yes, to get Judge [Matthew] Kacsmaryk, who is known for being friendly to these types of cases.

Rovner: So Judge Kacsmaryk, who as you say, is known to be friendly to these types of cases, originally ruled that mifepristone鈥檚 entire approval should be rescinded. It was approved in the year 2000, so it鈥檚 been on the market for quite a long time. But that鈥檚 actually not what鈥檚 on the table at the moment before the justices. Explain how we got there.

Sobel: So that decision was then appealed to the 5th Circuit, and the 5th Circuit said, 鈥淲e鈥檙e not going to roll back the original approval of mifepristone to the year 2000, but instead we鈥檒l roll back the requirements to 2011 and say that those are the rules that should be enforced, and that the FDA exceeded their authority in changing the rules since 2011.鈥

Rovner: And some of those changed rules basically made it easier to get, and you could use it a little bit later into pregnancy because it was found to be safe, right?

Sobel: Exactly. So what those new rules have done is said that you can use it up to 10 weeks instead of seven weeks, that you don鈥檛 have to be in person to receive it. So the newest rules have opened up the possibility of using it for telehealth abortion, and also for pharmacists prescribing it. And so if the Supreme Court were to affirm the 5th Circuit鈥檚 decision, that would eliminate these new protocols the FDA has established in removing the in-person dispensing requirement, permitting telehealth abortions, and establishing the process for pharmacies to become certified to dispense mifepristone. In addition, it would roll back the gestational ages you just said, from 10 weeks to seven weeks, which is significant because, according to the CDC data, more than 4 in 10 medication abortions occur at seven weeks or later.

Rovner: I was going to say, and yeah, this could be super disruptive. I mean medication abortion is now more than half of all abortions in this country.

Sobel: Oh, it鈥檚 two-thirds.

Rovner: So without banning it, making it harder to get could have a big impact.

Sobel: Oh, absolutely. Medication abortion now accounts for nearly two-thirds of all abortions, and telehealth abortions have become very common, from the latest data that we have from WeCount, 1 in 5 abortions was provided via telehealth in December of 2023. So that鈥檚 one in all abortions, not one in medication abortions. So that鈥檚 quite a big number.

Rovner: Now, this case, even though it could be very disruptive to abortion, is about a whole lot more than abortion. Drugmakers in general seem pretty concerned by the idea of judges making scientific decisions that overrule the FDA. This hearkens back to the last case we talked about, right?

Sobel: Oh, absolutely. So this is the first case to ask the Supreme Court to overrule an FDA decision that a drug is safe and effective. So the outcome of this case could really have very far-reaching implications for the FDA鈥檚 authority to continue to regulate not only mifepristone, but a wide range of other drugs. And most likely the other drugs that are perceived to be controversial 鈥 gender-affirming care or PrEP 鈥 those are the drugs that are most likely to be litigated if this door is opened.

Rovner: And I know that there鈥檚 nothing that makes drugmakers … I mean, patent issues and drugmakers and court issues are hard enough, the idea that they could be granted approval by the FDA and then somebody could just come in and sue and make that go away.

Sobel: Oh, absolutely. This got the attention of the entire industry. There were many, many amicus briefs that were filed.

Rovner: So normally you can鈥檛 really tell from the oral arguments, as we said, how the justices are leaning. But in this case, the justices seemed fairly transparent about where we think they鈥檙e going to go. What are we expecting here?

Sobel: Yes. I mean, as I said before, it鈥檚 always dangerous to read the tea leaves too much, but this did seem more transparent than most, and that most justices seemed not convinced that the plaintiffs in this case have legal standing, which requires that you have an injury and that injury can be addressed by what the court decides. So even assuming that the plaintiffs have an injury, the question is what would happen if we roll back the rules that the FDA has back to 2011? Does that make it more or less likely that these plaintiffs would see people with side effects of mifepristone? It鈥檚 not really clear. In addition, many of the justices, including Justice Barrett, really pushed back on the lawyer representing the Alliance for where in the doctors鈥 affidavits it said they were actually participating in something they objected to. Notably, not really about necessarily this case, but about what might come up in the future, both Justice Thomas and Alito did bring up the Comstock Act and signaled that they would uphold the enforcement of the Comstock Act, pretty much inviting a future case or a future administration to enforce the Comstock Act.

Rovner: As much as we鈥檝e talked about it, remind us again what the Comstock Act is.

Sobel: Sure. So it鈥檚 a law from 1873, which was an anti-obscenity law, and as part of it, it banned the mailing of any drug or device or instrument that could be used for abortion.

Rovner: Well, I guess during the entirety of Roe [v. Wade], it was irrelevant, right? Because abortion was legal,

Sobel: Right. And it鈥檚 been dormant. I mean, we can鈥檛 find any enforcement in any modern era.

Rovner: Yes, so it goes back a long ways, but it鈥檚 top of mind for a lot of people.

All right, moving on to our last case. On April 24, the court heard and , both of which challenged the federal government鈥檚 interpretation of the Emergency Medical Treatment and Active Labor Act, EMTALA, to override Idaho鈥檚 near-complete abortion ban, at least in medical emergencies. Let鈥檚 start by explaining what EMTALA is and how it relates to abortion?

Sobel: Sure. So EMTALA requires hospitals that participate in Medicare, which is pretty much every acute hospital, to provide stabilizing treatment within the hospital鈥檚 capability when there鈥檚 an emergency medical condition, which includes when the absence of immediate medical attention could reasonably be expected to place the health of the individual in serious jeopardy or serious impairments of bodily functions. So it was really intended as an anti-dumping law initially so that people who were uninsured weren鈥檛 just transferred or sent away to another hospital because they didn鈥檛 have the capacity to pay.

Idaho鈥檚 abortion ban only has an exception for life. It doesn鈥檛 have an exception to preserve the health of the pregnant person. And so the Biden administration sued Idaho and said this law then, essentially, puts these hospitals that have this requirement, because they accept Medicare payments, to stabilize patients. And when that care includes abortion care, they鈥檙e required to provide that under federal law. So the question is, does the EMTALA preempt the Idaho abortion ban?

It鈥檚 clear from the oral argument that Idaho鈥檚 position is that there is no conflict because they read into the EMTALA law that 鈥渨ithin the hospital鈥檚 capability鈥 includes the laws of Idaho and that Idaho gets to set the standard of care, and that that鈥檚 up to states, not up to the federal government. Whereas the federal government, the Biden administration鈥檚 position, is that, no, EMTALA specifically was an antidumping law, and that includes stabilizing all patients regardless of the care. And we don鈥檛 have to say including abortion in order for it to include abortion, it includes all care that鈥檚 required to stabilize patients.

Rovner: Of course, a lot of anti-abortion activists will say that the only time abortion is medically necessary is when it threatens life and that would be covered. But we鈥檙e seeing that that鈥檚 not necessarily the case, right? I mean, we鈥檙e seeing individual instances of this these days.

Sobel: Yeah. I mean, we know from Idaho that many patients have been helicoptered out of the state into nearby states that also have some abortion restrictions but just aren鈥檛 as restrictive as Idaho is, because they鈥檙e going to become septic or they鈥檙e going to lose kidney function, or they鈥檙e going to lose their reproductive organs. So they鈥檙e not in danger of losing their life immediately, but they鈥檙e in danger of losing serious bodily functions.

The other question that came up during oral argument was about just how imminent the life needs to be. And this comes down to how this is putting doctors in a pretty uncomfortable place. So yes, the doctors are permitted to provide abortion care in Idaho when they can certify in good faith that without the abortion care, the person鈥檚 life is endangered. But they鈥檙e concerned that, after the fact, attorneys for the state could come back and say, 鈥淥h, wait a minute, that wasn鈥檛 your really good-faith decision and we鈥檙e going to prosecute you and we鈥檙e going to bring in our own expert.鈥 And the question is really, how much should doctors have on the line? It鈥檚 a criminal statute, so there鈥檚 jail time involved. Of course, there鈥檚 a loss of license. And so how far out should doctors be required to go? And this is, again, it鈥檚 making people really uncomfortable, and there are anecdotes of people leaving the state because of this and not feeling comfortable practicing there.

Rovner: More than anecdotes of people leaving the state, there are people who come forward and said they鈥檙e leaving the state. And as a result, some hospitals are having to shut down their OB services. I mean, because when the doctors, OB-GYNs who are leaving, so in the ironic position of people who are having babies not being able to find someone who can deliver their baby at the same time.

Sobel: Right, right.

Rovner: That鈥檚 obviously one ramification within Idaho, but there could be ramifications outside just on the idea: Isn鈥檛 federal law supposed to trump state law? Isn鈥檛 that sort of a basic foundation of how we work?

Sobel: Yes. The supremacy clause is pretty basic when you go to law school. So yes. And I think how they word this decision will be very interesting to see because it鈥檚 a question of, is there a conflict or is there not? And the attorneys for Idaho were basically suggesting that there鈥檚 no conflict. So you don鈥檛 even need to say that there鈥檚 a preemption. You just have to find that there鈥檚 no conflict between Idaho law and EMTALA.

However they rule, if they rule for Idaho and say that you鈥檙e allowed to continue having this abortion ban that only has a life exception with no health exception, immediately, there鈥檚 four additional states with abortion bans that do not make exceptions for health as well. And those states are Arkansas, Mississippi, Oklahoma, and South Dakota. So in those states, like Idaho, a hospital cannot legally provide an abortion as stabilizing treatment when a person presents with a health endangerment and not a life endangerment. And so again, those risks can include sepsis, kidney failure, loss of fertility, they鈥檙e serious risks, even though they may not be life-threatening at the moment.

And even in the states that do have exceptions for health, we have seen that those exceptions are often very narrow and vague and hard to be implemented in real time. So pregnant people can still be denied emergency abortion care that鈥檚 needed to preserve their health, even in states that have a health exception. And if EMTALA doesn鈥檛 act as a backstop to say, 鈥淏ut wait, hospital, you鈥檙e violating this federal law,鈥 then people are stuck with the state law that is narrow and vague.

Rovner: So I mean, overturning Roe, the justices says, 鈥淥h, great, we won鈥檛 have to deal with abortion anymore. It鈥檚 all about the states.鈥 But as we can see, it鈥檚 not all about the states. The Supreme Court is going to have to continue to deal with this issue.

Sobel: Right. Definitely.

Rovner: All right, well, finally, just a couple of housekeeping issues. We don鈥檛 actually know when these decisions will come, right? People who don鈥檛 follow the court on a regular basis often think that opinions are scheduled the same way oral arguments are, but it鈥檚 always a surprise.

Sobel: Unfortunately, they are not. Right now, the court lists their decision days on their website, which is on their calendar. Right now Thursdays seem to be the popular day, they have Thursdays through June listed. They most likely will add more decision days. On decision days, they start posting decisions at 10 a.m. Eastern Time, and you can follow along either on the or many people go to , which also has a live blog that interprets some of what鈥檚 happening for people who are new to the court.

Rovner: And I will put both of those links in the show notes. Laurie Sobel, this has been so helpful. Thank you so much for joining us.

Sobel: Thank you for having me, Julie.

Rovner: OK, that is our show. As always, if you enjoy the podcast, you can subscribe wherever you get your podcasts. We鈥檇 appreciate it if you left us a review; that helps other people find us, too. Special thanks as always to our technical guru, Francis Ying, and our fill-in editor this week, Rebecca Adams. As always, you can email us your comments or questions. We鈥檙e at whatthehealth@kff.org, or you can still find me at X . We will be back in your feed next week with the news. Until then, be healthy.

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