Analysis | Abortion providers are turning to state courts to halt bans – The Washington Post

Welcome to Tuesday’s Health 202. Come for the health policy, stay for the tips on how to juggle multiple TV streaming services without missing a beat. Return the favor, and send us your best tips at rachel.roubein@washpost.com.

Today’s edition: A growing number of Democrats want the Biden administration to take more aggressive action to protect abortion access. Former vice president Mike Pence is leaning in on abortion, while other potential 2024 candidates are more cautious. But first …

Some state courts are blocking abortion bans

Abortion providers have filed a flurry of lawsuits against bans on the procedure in red states. And more lawsuits are on the way. 

“It will be a state-by-state fight, and we will be fighting that fight,” said Helene Krasnoff, the vice president of public policy litigation and law at Planned Parenthood, who added the legal battle was just beginning.

The Supreme Court’s decision to strike down Roe v. Wade sparked a new fight, one that will play out in state courthouses across the country. Abortion providers are contesting an array of state restrictions on the procedure that are now allowed to go into effect — everything from bans passed decades ago to “trigger laws” to gestational limits.

The effort is part of abortion rights supporters’ three-part strategy to attempt to blunt the impact of the high court’s ruling as much as they can. It’s unclear how successful the new legal effort will be in the long run, but as of this morning, federal courts have temporarily blocked bans in Louisiana and Utah. The legal tussle underscores the complex tangle of rules abortion providers are attempting to decipher on the ground in real time. 

• “Every state is different — and every state has a bunch of different laws to consider. And so it’s all getting really messy really fast,” said Greer Donley, an assistant professor of law at the University Pittsburgh Law School.

More from Planned Parenthood:

The latest

At least a half dozen lawsuits have been filed since Friday’s ruling striking down Roe’s decades-old constitutional right to an abortion. In some instances, the lawsuits are challenging multiple abortion restrictions in the same state.

As The Post’s John Wagner and Caroline Kitchener explain, some antiabortion groups expected that courts may block trigger laws, designed to go into effect shortly after Roe was overturned. So the groups had been encouraging Republican-led states to pass multiple laws banning abortion, so states can have backup legislation if their first law gets shot down. 

Here’s a snapshot of the legal battles:

• Utah’s Planned Parenthood swiftly filed a lawsuit against a trigger ban that took effect Friday. Yesterday, a state court issued a temporary restraining order blocking the ban from being enforced for two weeks.
• Louisiana abortion providers challenged the state’s trigger law yesterday, arguing it was “constitutionally vague.” Soon afterward, a state judge temporarily blocked the ban, and a hearing is pending next week.
• Planned Parenthood in Idaho and Kentucky, along with other partners, also filed lawsuits yesterday. So did the last abortion clinic in Mississippi, which is fighting against a trigger law set to go into effect in 10 days and a potential six-week ban.
• Texas abortion providers will have a hearing today in an attempt to block enforcement of an old ban on abortion from before the 1973 landmark Roe decisions.

Texas Attorney General Ken Paxton:

Their arguments

Each states’ case is different — and so the legal arguments vary. 

For instance: In Utah, the lawsuit contends that the state constitution protects women’s rights to determine when and whether to have a family. The court challenges in multiple states, such as Idaho and Kentucky, assert that the state’s constitution protects the right to privacy, and therefore, the right to access an abortion.

• The challenges against the bans “are generally that the state’s constitution does not allow the state to ban abortion,” Krasnoff said. But the specific arguments — such as the right to privacy or a bodily autonomy claim — depend on a state’s constitution and the case law interpreting it.

Some say they’re not surprised abortion rights supporters are scrambling to block restrictions through the courts. Particularly when it comes to pre-Roe bans, “if it wasn’t repealed or declared unconstitutional … there’s no essential reason why it can’t be brought back into effect,” said Thomas Jipping, a senior legal fellow at the Heritage Foundation, a conservative think tank.

White House prescriptions

🚨 On tap this morning: Health and Human Services Secretary Xavier Becerra will outline the agency’s response to the Supreme Court ruling overturning Roe v. Wade.

Frustration, anger rising among Democrats over Biden’s caution on abortion

A growing number of congressional Democrats are voicing their anger at what they say has been an inadequate response from the Biden administration to the high court’s ruling overturning Roe, our colleagues Yasmeen Abutaleb, Cleve R. Wootson Jr. and Marianna Sotomayor report. 

They’re frustrated with the idea that it’s up to voters to turn out in November when Democrats are unwilling to push the envelope and upend the system to defend hard-won civil liberties. Some progressive lawmakers, including Sen. Elizabeth Warren (D-Mass.) and Rep. Alexandria Ocasio-Cortez (D-N.Y.), have outlined several measures they want to see Democrats embrace, such as setting up abortion clinics on federal lands.

But Biden and his team have shied away from some such ideas. A senior White House official said that while the proposal is a “well-intentioned” one, it could put patients and providers who aren’t federal employees at risk of being prosecuted — and Vice President Harris said the proposal wasn’t being discussed in an interview with CNN’s Dana Bash yesterday. White House officials also worry that the tactic would violate the Hyde Amendment, which prohibits the use of federal funds for most abortions.

The Post’s Yasmeen Abutaleb:

Potential GOP presidential candidates are split on the emerging abortion debate

Potential 2024 Republican presidential candidates are divided about the nation’s path forward following the Supreme Court’s ruling overturning Roe v. Wade, a decision that animates their base but could alienate other parts of the electorate, our colleagues Hannah Knowles and Josh Dawsey report. 

Roughly half of all states are likely or certain to ban or restrict abortion without Roe. Among them are battleground states like Arizona, Wisconsin and Michigan that will be crucial in 2024. Messaging about how to navigate the aftermath of last week’s ruling among potential GOP presidential candidates so far has largely fallen into three camps:

• A nationwide ban: Former vice president Mike Pence has called for the procedure to be outlawed in the United States, a firm position he’s expected to focus on in the coming weeks.
• State’s rights: Some Republicans, including former president Donald Trump, have emphasized that states should set their own laws rather than advocate for an outright ban.
• Upholding abortion rights: Republican leaders in liberal-leaning states like Maryland Gov. Larry Hogan and New Hampshire Gov. Chris Sununu have pledged to keep abortion legal in their states.

Former vice president Mike Pence:

Meanwhile, at the agencies …

• HHS’s Becerra and Department of Labor Secretary Marty Walsh met with over a dozen of the nation’s major insurers and other groups yesterday to ensure they’re providing contraceptives without costs to enrollees as required by the Affordable Care Act amid reports of noncompliance.
• Federal workers can now use sick leave if they have to travel longer distances — including out of state — to receive medical care, the Office of Personnel Management announced yesterday, Bloomberg News reports.

Reproductive wars

Companies paying workers’ abortion travel costs likely to face legal challenges

A growing number of large companies have pledged to cover travel costs for employees to obtain an abortion, but those new policies could expose businesses to lawsuits and potential criminal liability, Reuters reports. 

Walt Disney, JPMorgan Chase and Amazon are among the companies who said they’d provide the benefit. 

For many large companies that fund their own health plan, lawyers say the federal law prohibiting states from adopting requirements that “relate to” employer-sponsored coverage will shield them from civil lawsuits, Reuters’ Daniel Wiessner writes. 

But that rule likely wouldn’t protect them from bills like the one lawmakers outlined in Texas, which if enacted would bar companies from doing business in the state if they pay for residents to receive abortions elsewhere.

In the courts

Supreme Court sides with doctors convicted of overprescribing opioids

The Supreme Court yesterday made it more difficult for the government to prosecute doctors who overprescribe drugs, unanimously sending the convictions of two physicians accused of operating opioid “pill mills” back to the lower courts, our colleague Ann E. Marimow reports. 

The justices were deciding how to distinguish valid medical conduct from illegal overprescription of highly addictive drugs like opioids that are fueling a crisis in the United States. The court held that prosecutors must prove beyond reasonable doubt that the doctor knew or intended to prescribe the drugs in an unauthorized manner to be convicted. 

“We normally would not view such dispensations as inherently illegitimate; we expect, and indeed usually want, doctors to prescribe the medications that their patients need,” Justice Stephen G. Breyer wrote for the court. But former prosecutors said the court’s new standard will likely have a “chilling effect” on how the federal government assesses and pursues health-care fraud cases. 

Also on Monday …

The Biden administration’s covid-19 vaccine mandate for federal workers will not take effect at least until the fall. The U.S. Court of Appeals for the 5th Circuit is reconsidering a ruling from a three-judge panel that would have let the mandate go into effect, The Post’s Eric Yoder reports.

Chart check

Americans react to the overturning of Roe v. Wade

In other health news

• On tap today: A panel of independent advisers to the Food and Drug Administration will consider whether the country should offer omicron-specific boosters this fall.
• An extension of enhanced Obamacare subsidies is at risk of falling out of an effort to revive Democrats’ long stalled economic package, per The Post’s Tony Romm.
• Three of the nation’s largest retailers will limit the amount of over-the-counter emergency contraceptive pills customers can buy following a spike in demand after last week’s Supreme Court ruling, the Wall Street Journal reports.

Health reads

Vivek Murthy wants to fix our mental health crisis. But how much can he do? (Roxanne Roberts l The Washington Post)

In states that allow abortion for rape and incest, finding a doctor may prove impossible (By Megan Messerly | Politico)

What Ruth Bader Ginsburg really said about Roe v. Wade (By Aaron Blake | The Washington Post)

Sugar rush

Thanks for reading! See y’all tomorrow.