OVERTURNING ROE V. WADE CREATES IMMEDIATE CHALLENGES FOR HEALTHCARE
May 9, 2022
Politico broke its story at 8:32 pm last Monday: “Supreme Court has voted to overturn abortion rights, draft opinion shows.” Reporters Josh Gerstein and Alexander Ward’s article spread like wildfire subordinating coverage of the Ukrainian conflict and inflation through the week.
Their reporting was based on a leaked copy of the February 10, 98-page draft of Supreme Court Justice Samuel Alito’s opinion on behalf of the court’s 5 conservative justices calling Roe v. Wade “egregiously wrong from the start.”
Per Gerstein-Ward, “The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision —
Planned Parenthood v. Casey — that largely maintained the right. “
If the Alito draft is adopted, it would rule in favor of Mississippi in the closely watched case over that state’s attempt to ban most abortions after 15 weeks of pregnancy. This ruling would overturn a decision by the New Orleans-based 5th Circuit Court of Appeals that found the Mississippi law ran afoul of Supreme Court precedent by seeking to effectively ban abortions before viability
The final ruling is expected next month but the immediate implications for the healthcare industry are significant:
· In each state, legislative committees will be scrambling to evaluate their current abortion laws: if Roe is overturned as expected, each state must pass/re-authorize its laws be addressing access to abortion services, the state’s specifications for fetal personhood (viability) and medication abortions including access through tele-pharmacies, penalties/punishment for violators of its law including civil/criminal prosecution of patients and providers, and how medical migrants who cross state lines for abortion services will be served (or not). Each state will review, update/modify and pass its own law. In at least 20 states, it is expected to be illegal and virtually inaccessible and in 11 others less accessible.
· Hotlines to OB-GYN practices, FQHCs and hospitals will be jammed by curious consumers seeking clarity and anxious women seeking abortions. Messaging to patients by physicians and hospitals will be a priority. In tandem, messaging from insurers and employers to enrollees about coverage be necessary. Employers like Amazon, CitiGroup and others have already noticed their employees about their policy changes given the likelihood Roe is overturned. And clarity about coverage policies, prices, payment options and terms of access will be required of all providers.
· And this week, the Senate’s Democrats have vowed to pass a law to protect Roe though unlikely to pass due to their lack of the 60-votes needed to pass. Nonetheless, it’s a declaration of war for the moral high ground on abortion pitting Democrats who want to “own” the abortion rights and women’s health” against Republicans who want to own fetal personhood and the sanctity of life.
Longer term, this SCOTUS decision will have profound impact beyond abortion services:
· It is sure to be a critical issue in Campaign 2022 this November embedded in the larger issues of women’s health, access to contraception and the affordability of healthcare. It’s a vote-getter: opinions about abortion are strongly held for and against. Currently, the majority of women having abortions are mothers already and 3 in 4 live at/below the poverty level, so bigger issues involving social determinants of health, health coverage in state Medicaid programs, access to prenatal care and income disparities across the entire system are part of the narrative.
· The FDA’s procedures for assuring the safety, efficacy and effectiveness of abortion medications will be more closely scrutinized since medication abortions represent a growing percentage of all abortions (54%). The bigger context for telehealth services and scope of prescribing by advanced practice nurses and pharmacists will also get wider attention.
· Coverage specifications and denial policies in health plans offered by employers and insurers will require compliance with individual state laws re: abortion services including those offered out of state.
· The strict interpretation of the constitution will be scrutinized since the lack of specific reference to abortion is central to Justice Alito’s justification for overturning Roe. Alito wrote: “Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None. No state constitutional provision had recognized such a right.” Interpretation of the constitution is a range of other health-related issues will become more frequent in lower court challenges.
My take:
Regardless of this SCOTUS ruling, women will seek out abortion services. Abortion is a topic that requires every healthcare organization—payers, providers, drug and device manufacturers, HIT et al—to weigh in.
The healthcare industry considers the questions of when life begins, when life ends and how life is lived happily and safely. It should be circumspect and proactive in its response to this ruling.
Paul
Resources
Josh Gerstein, Alexander Ward Supreme Court has voted to overturn abortion rights, draft opinion shows Politico May 2, 2022
www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion
Midwest Abortion Providers Scramble to Prepare for a Post-Roe World New Yorker May 7, 2022
Medication Abortion Now Accounts for More Than Half of All US Abortions Guttmacher Institute February 24, 2022 /www.guttmacher.org/article/2022/02/medication-abortion-now-accounts-more-half-all-us-abortions
“Another Risk in Overturning Roe” New Yorker February 22, 2022
www.newyorker.com/news/daily-comment/midwest-abortion-providers-scramble-to-prepare-for-a-post-roe-world
www.paulkeckley.com