Delphine O’Rourke, CEO, 8Fold Inc., speaks with Ramona Thomas, General Counsel & Vice President of Risk and Compliance, Planned Parenthood of Orange and San Bernardino Counties, about the legal landscape two years after the Dobbs decision and the two decisions expected from the Supreme Court related to reproductive health. They discuss FDA v. AHM and the potential impacts on medication abortion, Moyle v. United States and the federal-state conflict over emergency abortions, and potential future legislation and what to expect in upcoming elections.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
Delphine O’Rourke, CEO, 8Fold Inc., speaks with Ramona Thomas, General Counsel & Vice President of Risk and Compliance, Planned Parenthood of Orange and San Bernardino Counties, about the legal landscape two years after the Dobbs decision and the two decisions expected from the Supreme Court related to reproductive health. They discuss FDA v. AHM and the potential impacts on medication abortion, Moyle v. United States and the federal-state conflict over emergency abortions, and potential future legislation and what to expect in upcoming elections.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
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Speaker 2:This episode of A HLA speaking of health law is brought to you by A HLA members and donors like you. For more information, visit American health law.org.
Speaker 3:Welcome to Women's Health Watch . Today we're gonna be discussing SCOTUS Summer 2024 and what to expect. I'm Delino O'Rourke. I'm CEO of Eightfold, Inc. Strategic advisory firm, lead partner with Venture Capital firm Portfolio, where we're focusing on investing among other things in EmTech , an adjunct professor at Columbia Law School. I'm thrilled to welcome Ramona Thomas, general Counsel and VP of Compliance Planned Parenthood of Orange and San Bernard Counties, who many of you are familiar with, 'cause she's an active member of A HLA. Ramona, thank you so much for joining me today to talk about what we can expect. It's been almost two years since the Dobbs decision on June 24th. Um, we'll mark the two year anniversary and at the same time, we're expecting in this month, two very important decisions from the Supreme Court. It'll be the first time the Supreme Court will be weighing in on abortion since the Dobbs decision. And a lot of folks out there are, you know, need to get up to speed and are wondering what they should expect and what the impact will be of the Supreme Court decision. So again, thank you. It would great if you could tell us a great , if you could tell us thank you , um, a little bit more about the work that you're doing.
Speaker 4:Sure. Thank you so much, Delphine. So, as you mentioned, I'm the General Counsel and Vice President of Compliance here at or at Planned Parenthood of Orange and San Bernardino counties. As most folks know, planned Parenthood does provide abortion services, but we provide a lot more than that throughout the country. We are a passionate and advocate based supporter and provider of women's healthcare across the country, including everything from women's , uh, whole women health visits , uh, contraceptive services, STI, diagnosis and treatment, and a variety of other services to , uh, women and men and other , uh, individuals throughout the country. Basically anybody who needs care, we provide that care regardless of an individual's ability to pay.
Speaker 3:It's really help pull the place in context because, you know, for, for many people, planned Parenthood equals abortion only. And when we think about the downstream ripple effects of DO and some of the restrictive state laws that led to the closing of parent Planned Parenthood, we're we're seeing that impact. You mentioned whole women health services , um, sexually transmitted diseases, the care for men and women. Uh, the impact has been tremendous. So let's go back to Dobbs . So, as I said, you know, it's been two years. Um, I think there are two quotes that I'd like to pull from that I think are are really interesting. Um, so we can put this into context and that, you know, the, the Supreme Court in its opinion said the critical question is whether the constitution properly understood, confers a right to obtain an abortion. That was part of the reasoning of, of, and the analysis around , um, the Dobbs decision. And the second , um, which is the authority to regulate abortion is returned to the people and their elected representatives. And this vision that, you know, it's really up to the states to decide it's the elected official , the people who are going to decide. Yet in the past two years , um, we have seen such, such, I'll collect chaos at the state level , um, where we've had, you know, bans put into place, they've been challenged, they've been revealed, upheld. Um, you know, if you look at a map right now of the United States, we have some states that are banning , um, abortion inception , other six weeks, two states at 12 weeks. You know, we have one stated 18 weeks, three at 22 weeks, and it's really left this , um, you know, it's a patchwork of laws that make it very difficult for patients to understand what they can access, what their rights are, what the implications are, and very difficult for providers. Um, and to add to this, we have two Supreme Court decisions that we're expecting this month. Um, there's been a lot of the conversation about when we think they're going to drop and love to chat with you about that. And the first one is referred to as, as the FDA case. I'd love if we could start with that one. Um, and while it's done a lot more attention than , um, what we'll call the Idaho case, focusing on the conflict between a federal and a state law, the FDA case at the end of the day, might be decided on something called standing, which if you're a lawyer in the audience you're probably familiar with, but a lot of folks who aren't lawyers saying, you know, what is standing and what , what is gonna be the implications. So it'd be fantastic if we could start with the FDA case, then move to Idaho and discuss what the implications of both will be.
Speaker 4:Sure. So , uh, the FDA case is really an example where we see an ideologically driven case initiated that attempts to challenge the food and drug administration's 2016 and 2021 decisions that expanded access to Mitrione , which is one of the most safe and effective drugs available on the market for medication abortion. Essentially, a group of anti-abortion doctors challenged the FDA's approval and the , uh, essentially they're called rems, the, the risk mitigation strategies that the FDA puts in place to help ensure the safety and , um, usefulness of these drugs in the marketplace. This group challenged these drugs by essentially claiming that having to, the potential for a physician who objected to abortion to have to treat a patient who experienced complications from these drugs, somehow violated that individual's , uh, freedom of expression. And essentially, you know, the, the good news about this case really in terms of the Supreme Court's oral arguments, is that the Supreme Court did seem to really focus on standing in this matter. They really focused on the fact that there was nowhere in the evidence provided in this case where a declarant actually stated that they attempted to object to providing services to this patient, experiencing complications, but were unable to use their conscience objection to protect themselves. And so when we talk about standing, you know, basically the right to bring a lawsuit, one of the components of standing is whether or not this is the right remedy for the complaint of injury. And if you've got a physician who claims that, Hey, I object to abortion, I don't wanna have to provide services to people who are trying to terminate their pregnancies, they can voice what they call their conscious objection. So that's the objection that already exists under federal law. It's already a remedy available to these individuals. And it is designed to help ensure that anybody who truly religiously personally objects to the provision of services on their own religious grounds has an ability to refrain from providing these services. The court really focused on the fact that that conscious objection exists, and the potential for someone to experience a complication need medical treatment and put a provider in a position where they had to provide that medical treatment, that's an ethical dilemma that the provider has to go through, but it's already legally protected through the conscious objection. So, you know, especially , um, justice Jackson really focused on the concept that there's already a remedy for this. We don't need to entertain the argument that no one else in the country should have access to this drug. There is no standing here because you already have a solution. You don't need us to make a decision on these grounds. So everybody who was listening to those oral arguments took a little bit of comfort from the fact that there seemed to be a very strong potential that the case would be decided on standing grounds as opposed to any more robust, you know, dig deep evaluation of the FDA's scientific process and conclusions as part of those risk , uh, mitigation strategies. Because at that point, you're really into the weeds of what a , uh, an executive agency that has been , uh, granted authority to make these decisions, and the really truly scientists and medical professionals who work there, you would be having the court reevaluate those findings and those conclusions in a way that would kind of substitute the court's judgment for the judgment of those trained and expert professionals, which everyone was very concerned about, obviously, because it , it seems to be two completely different spheres.
Speaker 3:But you raise a great point , um, a lot of great points. Um, connection of the, you know, reviewing and questioning the FDA's scientific process, the , the rems now we're having potentially, if this were to move forward, we have , um, you know, we have no one's staying in their lane . You know, it's going over now and saying, okay, we're gonna , we're gonna , it's an administrative agency, but we're also going to second guess what the scientists have said with the medical professionals. Um, I often say when folks say, oh, well, it's just about abortion, I said , there is no just about abortion. This is about healthcare. This is about , uh, democracy in the United States. If you could speak a little bit more on what the implications would be, and again, appreciating it's unlikely this idea that the FDA because that's, you know, pretty shocking and the implications that it would have for so, and many other therapeutics basically opening the door for, oh, the FDA can be second guessed . Um, and when you think about the money that goes into developing pharmaceuticals that would openly potentially a, a wide open hole for , um, courts to go back in and say, no, you know, what, Humira or whatever other therapeutic we're gonna go back and , um, and reevaluate. I'd love to hear your thoughts on, on that piece of it.
Speaker 4:Absolutely. I , you know, solicitor General pro Lagar in the oral arguments really made a great point about this, is that the, the remedy that the Alliance was requesting would severely disrupt the federal system for approving drugs. Essentially, we would be in a situation where any drug that had, anyone who wanted to challenge it, whether they were challenging it from , uh, ideological grounds or their own kind of, you know, dispute of experts , uh, where they wanted to bring in somebody to second guess , the evaluations that were made, you could look at at other cases that would challenge politically controversial treatments, anything from HIV treatments to gender affirming care treatments to e essentially anything that anyone wanted to challenge , uh, from whatever position they wanted to raise, it would create this, this avenue to undermine the FDA's ability to approve drugs and to give guidance to the market as to how those drugs would be used. And that system, that that approval and guidance system that the FDA has had in place for many years , uh, has, you know, really not been challenged in this way before. And it's not just a question of kind of the scope of the executive agency or the administrative agency. It's really a question of whether or not these tasks , uh, should be litigated or determined by judges or by scientists. And ultimately from, you know, the perspective of, of the, the medical community, the scientific community, there was a fantastic amicus brief in the case written by a group of , uh, former FDA scholars , uh, and legal professors that just goes into some really beautiful language and , and really fantastic analysis of how critical it is for there to be a reliable and, and scientifically accurate approach to these matters, rather than allowing them to be decided based upon these, you know, judicial or legal battles that really don't focus as much on the science or the medicine, but focus more on the quality of the legal argument, which may creatively frame facts, may , um, you know, misinterpret the scientific evidence and ultimately could lead to bad outcomes from a variety of perspectives because of the actual legal process itself, rather than the, the scientific , uh, appropriateness of the medication or the use of the medication for patient needs,
Speaker 3:Or that theme of, you know, judicial over read or lawyers stepping into the medical realm. And we'll talk more about that. And we're seeing that on the ground as, as you know, physicians are trying to figure out, okay, how to interpret the state law, what's a medical emergency? What are the exceptions? And, and sometimes those definitions don't align with independent medical judgment. Um, you know, another is interesting. There's a , uh, op-ed, they in the Washington Code , um, entitled, if anybody wants to check it out, a scientific controversy at the Supreme Court discussing the need for scientific data to be supporting these, these claims. And that one of the studies that , uh, the Alliance relied on was in fact just retracted. So , um, we probably won't get to that in with this decision, but I think that's definitely worth digging into, and that's what needs to be the basis of it and, and not political opinion and individual's views on both sides. I mean, this is an , this is fundamental , um, to the FDA's work. Um, we're, we're not, you know, we're not substituting judge's opinion for what the Department of Defense , uh, determines and to really keep those, those lanes together regardless of where or lanes apart, regardless of where you are on the , uh, on the specific abortion stance. So what if, and again, we don't think this is where it's gonna be, but so our , our listeners understand the impact of if , if in fact , um, what we call a sort of two abortion drugs, were, were limited because as we know, there's been an expansion of , uh, providers that are able to, to prescribe , um, mestone . And, and if there was a pullback, that wouldn't necessarily mean that all abortion drugs would be outlawed across the country, or would it?
Speaker 4:No, currently in front of the Supreme Court, the actual availability of myth a person stone as a whole is not being questioned. The, what the Supreme Court is deciding is whether or not the sequence of rules that were issued beginning in 20 16, 20 19, 20 21 and 2023, whether those rules, those, those rems , um, are appropriate and whether or not those should stay in effect. So kind of the, not necessarily the worst case scenario, but, but one of the, you know, challenging outcomes that could come from the case would be if the Supreme Court determined that beginning with the 2016 rems, those rems were somehow inappropriately passed, or should no longer be, in effect, it would take the availability of the drug , um, back to a place where , uh, in 20, in 2016, prior to the rems that were issued, then for example, patients would have to make three in-person visits to a medical provider. Um, there would be a, a , a limit, you know, a gestational age limit on the drugs that would take the drug mitrione specifically back mm-hmm , <affirmative> to seven weeks of gestation. Um, and then there's some other cha , you know, challenges in terms of the way that the drug would be administered. However, those are the label instructions for the drug . So then it would come to a question of off-label use. And, you know, when medical decision making could scientifically and medically support , uh, the prescription and , uh, administration of the drug in a way that was not consistent with the label , uh, it would just, again, it wouldn't provide a whole lot of certainty or clarity. It would just create additional confusion as the Dobbs decision did, and would essentially put providers in a position where they were taking more risk in order to provide the drug in the way that they believe is the most medically beneficial and the most consistent with the current scientific evidence.
Speaker 3:That's really important on clinical fronts . One is there's the sensationalism, and I, I appreciate that it makes, you know, catch your headlines or like bait is that it's medicated abortion will not quote , go away or be illegal across the country. Uh , that is not the potential, as you say, challenging outcomes of the Supreme Court decision. And we get back to what we also call confusion is, you know, what I don't think we see enough is education. What does this mean? What does this mean for providers? You know, additional confusion for providers and for patients, I mean, it was in, in , in 2020 was the first time that medicated abortion was more than, it was like 52% of abortions. And again, these numbers are, are difficult to determine. They're never exact, because those are all, you know , legal abortions. Um, this has become, you know, again, more than half, and we've seen since dos more than half of abortions or medicated abortions. So while it's not gonna necessarily be this extreme outcome, it's really a deterrent. It is a, you know, we've talked about this. Everything from prep to obtaining primary care, it is , has this chilling effect , um, because people don't know . It's, it's confusing, you know, I need three in person visits before I didn't, is it seven weeks? Is it 18 weeks? And that not only has there been practical impact of blocking access, is it the sort of chilling effect , uh, across the country? And , um, you know, I think it's part of intentional strategy. Uh, and if lawyers who, you know already , even healthcare lawyers, like, okay , where are we now? What's gonna be the impact and understanding? So that's a huge opportunity is to have some really clear education, you know, who, who , uh, who would take the lead on that. Uh, but clear education for patients, and maybe we have a lot of , um, health systems that are part of A HLA and physician practices that might be a great place to explain, explain to patients so that care is accessible. So the next Supreme Court opinion date is this Thursday. Um, and, you know, we talked a little bit about, there's a lot of anticipation of, okay, we, we know that the Supreme Court is gonna drop these two decisions in the month of June. When is it gonna happen? Um, Supreme Court watchers and Women's Health Watchers are saying, okay, is it gonna be this week? Would, would they drop it , you know, on the 21st couple days before dos or, you know, would that be insensitive? Any thought for those who are , um, who are speculating from your perspective, whether it's that thought through or is it just, okay, we finished our opinion and it's been signed off on and we're gonna drop it with that thought of the overall political landscape?
Speaker 4:I think that the court does acknowledge the , uh, need for, for example, security. You know, when we saw the Dobbs decision dropped, it was dropped on a day that there were no other decisions announced, and the court itself was physically closed, they had additional security. Um , you know, they, they anticipated that there was going to be a strong reaction to that case. In this situation, I don't know that there's necessarily a whole lot of attention being paid to whether it would be better received by the public at large on the 13th or the 21st. Um , I think honestly, the content of the opinion is going to be what really , uh, affects the, the response to it. And so I think, for example, if the mi per stone case is decided on standing grounds, I don't think they're gonna care about when they, when they announce it, because ultimately the standing question is a much less politically attractive one. Mm-Hmm , <affirmative> , it's really, you know , down in the weeds of the, the legal process and, and what the existing constitutional law requirements are for standing. But if it does get into the DA , um, decision making process, and, and if it, if it in any significant way undercuts the FDA's authority, I think that they may want to be attentive to what the reaction to that will be . Because it's not just gonna be abortion advocates or women's health advocates who care about that . It's going to be be the AstraZenecas and the, the Pfizers and the Moderna of the world who are going to be thinking about how does this affect our bottom line, and what do we need to be worried about in terms of what impact this might have on future return on investment for research of drugs that may 10 years later be taken off the market for an ideological reason. So I , you know, it's hard to predict. I never wanna get into , uh, prospecting those, but I think the 13th is probably a, a safe, safer bet than the 21st. But I think it'll be one of those two days.
Speaker 3:You never know. And to your point, if it's standing, it's probably not gonna be the most exciting opinion unless you're sort civil procedure , um, you know , uh, enthusiast
Speaker 4:And the legal nerds among us will love it, but otherwise,
Speaker 3:Right. But if it starts hitting big pharma, then that's gonna be a very different, very different conversation. Um , so let's turn to what, again, on the issue of education , um, education , um, you know, this , I think what's also revealed that there's, when we talk about access to healthcare overall, there's been a big push for price transparency. Well , hospital price transparency, pharma, price transparency, consumer centered care, really empowering consumers with information, yet at the same time, there's a big gap. Okay? There's a big gap in just your average, you know, when I say average person, just the person who's not focusing, who's not a <inaudible> regulatory lawyer, when you throw out the term Impala, you know, that that sounds quickly very sort of Aris esoteric, yet the impact is tremendous. And that is at the center of the other big case , um, you know, Idaho , um, where we're gonna be looking at potential conflict between a very restrictive Idaho state law and the federal law, which we refer to as Tala , that requires emergency care for anybody who's coming through the emergency room, whether it's to stabilize or transfer. And that is both, you know, it's, it's again, bringing up federalism, bringing up , um, all the, the potential conflicts that we're seeing between state laws and federal laws, and then leaving providers , um, providers in particular saying, okay, well, what if I follow Impala , which is a federal law, and I provide stabilizing treatment or provide an abortion to a woman because I think that's necessary for her health, yet that's a violation of state law. And I then end up being, you know, have civil or even criminal exposure and really, you know, the physicians being at the sort of round zero of these state federal legal battles. So if you could talk to us a little bit more about the Idaho case , um, and the potential implications. 'cause in my opinion, you know, the FDA case is probably gonna go out on standing. Um, and where we're really gonna see some meat is in the , in the Idaho case, which Idaho is one state, but you could replicate this , uh, one restrictive state, you could replicate this issue , um, across the country.
Speaker 4:Absolutely. I mean, as you noted, Tala is really a law that is focused , uh, on providing emergency care to individuals who present themselves to an emergency department , um, regardless of their ability to pay. That's why Tala was passed back in the eighties. It requires hospitals with emergency departments that do participate in Medicare to provide screening Mm-hmm . <affirmative> and stabilization to any individual who presents with an emergency medical condition. And that can include women who are inactive labor, who need assistance , uh, you know, during that labor. Or it can include women who present to the emergency department with a significant complication arising from pregnancy and need intervention in order to , uh, help protect their life and their health. And ultimately, the, the question in the Tala case is whether the in requires the provision of stabilizing care , um, or whether MLA's requirement to provide stabilizing care has to be read in compliance with the state medical practice laws, even when those state medical practice laws criminalize abortion. And essentially, you know, what you're facing in those situations is that you've got a patient who would be presenting to the emergency department with a serious complication arising from pregnancy and a medical practitioner at that emergency department who makes the decision that in order to preserve this patient's health, in order to preserve this patient's future fertility, in order to preserve this patient's , uh, longevity and, and overall, you know , physical and , and medical position, the abortion is the best solution to the situation that the patient faces. If the Idaho , if Idaho wins in this case in states like Idaho, Texas, Oklahoma, that do not have an exception to their abortion bans for the health of the mother, the the providers would not be able to provide the abortions in those circumstances. And we just saw that, you know, we just saw the te , the Texas Supreme Court reaffirm its refusal to allow abortions when the abortion has the potential to help the health of the mother, because the exception in Texas is only to pro protect the life of the mother. So really, you know, this is another place where I will, I will fan girl over solicitor general pro Lagar for a moment, because she really emphasized that the, the threat of criminalizing , um, you know, the, the conduct of the providers and the decision making of the providers , um, creates a an absolutely untenable situation. You've got a situation where providers are going to have to be evaluating, not just, is this the medical best outcome for my patient, but am I gonna be challenged on religious grounds or ideological grounds? Is someone gonna come in? And second guess , is the state medical board gonna come in and re-litigate the determination that I made in this emergency situation? It really puts the providers in an absolutely unacceptable situation where they are forced to consider these , um, unrelated legal issues in their determination of what is in the best interests of this patient. Otherwise, we will just be seeing serious deterioration of patients' conditions, and we'll be seeing transfers of patients during emergencies, which is exactly what Impala was enacted to prevent. So that, that case is definitely more concerning to me now in states that have health exceptions and states that have , um, significantly broader abortion protections, this case where sure have as much of an impact, but in states like Idaho and Texas and Oklahoma where you've got these incredibly restrictive abortion bans, you could really see some very, very bad outcomes for pregnant people because of , uh, the potential decision in that matter.
Speaker 3:And I think it also, you know, and , and for those of you might not be as familiar with TAL , and you wanna look it up, it's Emergency Medical Treatment and Labor Act, E-M-T-A-L-A. And as Ramona referenced, and it was passed in the eighties and 1986, it sometimes it was referred to as the patient Anti-Dumping Act because hospitals would dump patients if they weren't able to pay. So the concept, this was not a law about care per se, it was a law about payment. And that if you were receiving federal money and a patient came through your doors in an emergency room and was in an emergent situation, the facility couldn't refuse to provide care because of an individual's ability to pay, either had to stabilize or transfer, you know, because, and transfer, because some , not every hospital's able to treat every condition. Um, and when we talk about this, I importance different important difference between health and life. Okay? So protect the health of a mother. You know , Ramona mentioned, you know, her inability potentially to, to have children in the future if there's impact on reproductive organs, that's not necessarily her life. So now we're valuing, okay , um, you know, maybe he's not provided care and , and he's no longer able to have children. Um, and there's really a how do you, how do you define that line? And that's what I'm hearing from physicians, and I think we all are, when we're talking to physicians in these situations. Um, a you're, you're, you're making judgmental quality of life. And then the second one is, well, how , where does it become, what's the line between health and life? I mean, I recently heard a horrific story about a woman who said, well, you know, once she has sepsis, they'd left the wait until the sepsis got bad enough so that it would be considered a threat on your life . And I just, you know, can't imagine any other situation, any other care. I mean , what would we say with , you know , end stage re renal dialysis, for example , um, or re end stage renal disease. You know, we're gonna get it, let it get so bad, but save you right before you die. Um, I mean, think about a diabetic coma, you know , what would we say? Oh , it's your , it's just your health here , but not your death. I mean, it's sort of shocking that we're even having these conversations from a healthcare perspective, if you pull back the , um, the opposition from a conscience or, or religious , uh, place, it's just not, not a conversation that we are used to having in the , in the healthcare sector, healthcare industry. So, you know, Tala , is there a potential, because I've gotten this question, well, okay, if the Supreme Court , um, rules that the state, state law trumps and not Impala , um, could we see sort of a slippery slope where, let's say you had a, and I , and I know we're sort of getting deviating a little topic , so if you haven't thought about this , um, you know, transgender, you know, gender affirming care , um, can we start seeing this type of state criminalizing care unless it is life threatening clip into other areas?
Speaker 4:Absolutely. I think that's, that's absolutely possible. You know , uh, and a great example of this that we saw, you know, again, back in the eighties, early nineties, we saw challenges with HIV positive individuals being able to access care at the time due to a lack of good medical knowledge about transmissibility and what potential exposure to bloodborne pathogens looked like and how to minimize risks of exposure, things of that nature. Um, but that, that would be a perfect example of this, you know, if a , uh, an , uh, an organization or if a state wanted to put a law in place to say that they would not provide stabilizing treatment , um, by way of, you know, provision of certain retroviral or other drugs to an individual who is experiencing a significant complication or crisis arising from HIV or another sexually transmi transmittable disease , um, you know, essentially you could see cases like that. You could see laws like that that could potentially be justifiable under a ruling that said that state law, if it was not in clear, you know, explicit conflict with the exact words of the Tala law, that the state law could prevail in those circumstances. And again, that's not the point. EMALA was supposed to be a floor, it was supposed to be a minimum standard by which all individuals in, in inside the United States could expect that if they reported to an emergency department with an emergency condition, they would be screened and stabilized or transferred if the facility was not able to provide the level of care that they needed. But the problem is that if you're in a state like Texas and you need a , an abortion in order to stabilize you and prevent a, a serious complication like a, a stroke or a , an organ failure or blindness in the case of severe preeclampsia or gestational diabetes mm-hmm , <affirmative> , and you need one, you need a transfer in order for that to happen because the state won't provide it. You don't just have to be transferred to a hospital 30 miles away that has more capacity or better facilities. You have to be transferred out of state. And the ability to coordinate and, and affect that kind of transfer with the geographical and, you know, the, the cost of a transfer like that is just such a huge barrier to care and such a huge potential complicating factor for individuals. You could see this extend not just to the, to the abortion context, but to any care that's provided that, again, ideologically or religiously, some group of advocates opposes , uh, because they take a position that the care is not , um, you know, morally justifiable. And that is just simply not something that the, the courts or the, the medical practitioners , um, you know, are supposed to consider. You're not supposed to ask how this person got hurt, you're just supposed to treat them. And the , the concept that we can decline care, because we don't like the, the, the, you know, nature of the way that the, the need for the care arose is just so anathema to the, you know, the Hippocratic oath in the first place. It's just hard to believe that the, the, the court would uphold , uh, allowing states to say that they will simply let you know, women and , and pregnant people's health decline to this point where they have to be able to show that death is essentially imminent before they intervene. That just, that just does not seem like it, it should be the outcome in , in this case.
Speaker 3:And where did it stop? You know, I mean, you and I have both, you were with crime with Cleveland, I was with Ascension. I mean, where did it stop? You would see a lot going on in , you know, patients coming into hospitals for a variety of different areas. And, and it can't be, well, my first question is , let me judge what you've done, and then I'll decide whether I'm gonna fix your leg. You know, did you wear your seatbelt or not? And , uh, were you driving a motorcycle or, or whatever. And then I'll decide, you know, were you smoking? Were you this, that, and the other? And, you know, from a practical perspective, which you point out, if you look at a map right now of the, of the state , um, restrictions, it's just not practical. I mean, you're in Texas and you need to be transferred , uh, you know, what, are you gonna take a helicopter out? Are you gonna take a plane out? These are not just transferred down the street, to your point. Um, and then you obviously have the added cost issue, but it's not like you're just saying, okay. I mean, maybe in an urban area like Manhattan where you could say, okay , I'll go to, even though this is not ideal, but I can go to New Jersey, et cetera. I mean, when you look at Louisiana and it's now like literally landlocked , um, by, by states that have, you know, 12 , um, you know, we're working where , uh, abortion is banned. It's just, just not a practical solution. And , um, and it's just going to , um, become more so as, as more and more states are restrictive. So that brings me to, you know, we focus on the state laws, and a lot of this has been even starting with the , with jobs , um, oh my, you know, never thought that this could happen. Um, laws coming at the state level. And then, you know, recently a software example, an Arizona law that was trying to revive a pre-state 1864 abortion law, which, you know, may go back to, to the Supreme Court. This, this attempt to just keep it at the state level doesn't seem to be working as well as the Supreme Court justices thought. Uh, but just in the past couple months, I mean, so we've had Arizona, we had the Alabama in February going after , um, IVF, although that one was quashed pretty quickly. Um, but we have Louisiana that's now outlaw or , um, lifting thery stone and miso cristol is controlled substances. I mean , sort of , it's like nothing's off the table. So, you know, two things I'd love to touch on, and the first is as much as , um, I, you know, this would be troubling for so many reasons , um, but it's a possibility is the Comstock Act. And it's, you know, as you know , Comstock Act in 1873 law really focused on, on sexual purity, which goes well beyond abortion, it might seem , um, so unlikely. Yet at the same time, if we look back, I think nothing's off the table. It's the language is so broad, you know , um, banning the mailing or shipping of every obscene lewd, recidivous, indecent filthier, vile article matter thing , device or substance. I mean , you could have the entire sort of adult porn industry in that you can have so much that would fall into this, and it's going back to the repercussions that aren't anticipated. Um, quick thoughts on Comstock .
Speaker 4:Yeah, I mean, I think that you, you basically covered it, but the concept of , uh, an anti obscenity law from the 18 hundreds being effectively revived to prevent , um, any material from being disseminated through, you know, common courier or thorough males, any, you know, any interstate commerce. Um, it , it's not just about abortion. It's also, it also, like you said, it would affect pornography, but it would also affect things like sexual health , uh mm-Hmm . <affirmative> sexual education, birth control. Mm-Hmm . <affirmative> , um, you know, at , in the 1870s, obscenity was a pretty broad concept. Uh, I mean, I, I don't know for sure, but we could be looking at whether or not short skirts should be able to be mailed from Amazon. I mean, effectively the concept is that this
Speaker 3:<crosstalk> there's a lot on Amazon that probably wouldn't <inaudible> <laugh>.
Speaker 4:Right? Right. Very true. But, but ultimately, you know, the , the concept is that these, these laws were, you know, created and promulgated during periods when the expectations and the understandings of women's rights, women's autonomy , uh, our, our ability to express ourselves, our interest in our sexual healths and our sexual wr reproductive lives we're just not , uh, a , a part not respected as a part of our day-to-day human rights and, and lived experiences. And so the concept of trying to reintroduce that act to effectively undermine the availability, availability of anything to do with sexual health or reproductive health , um, is, is very scary, because like you identified, it just goes so much further than abortion.
Speaker 3:That's been, you know, over and over the theme, you know, we saw this with Tobbs , is it's not quote just about abortion. Um , you have an employee, this is gonna impact you, you know, you're involved in transportation. I mean, it's just across the board. And , um, and, and just creating divisions, cultural divisions across the country. Which leads me to the question of a, a federal ban on abortion or a, you know, federal right to abortion. That's a question I get quite a bit. What is the possibility that either the Biden administration would try to pass a, a federal right to an abortion, or that a Trump administration would try to pass a ban? And I note that, you know, Senator , um, Conley already tried to pass a ban , um, about a year and a half ago , and he said, I know it's not gonna pass. Um, but I wanted to put it out there. And we have the long view. Any thoughts on that?
Speaker 4:I think it is hard to, you know, predict the viability of a ban in either direction or a ban or a , a , you know , permanent protection in either direction. Until we know the outcome of the next election, we know that based upon the makeup of the current legislature and, you know, and the , the presidency, this, this is not a group that is likely to be able to get something passed either way. Um, so once we see the outcome of the November election, I think we would have a better ability to predict whether or not something like that would be politically tenable. And that, obviously, that election's gonna be incredibly influenced by the fact that we have so many states who have state initiatives to protect access to abortion on the ballot. Um , we know Florida, Maryland , uh, Colorado and South Dakota now at least ha , definitely have , um, laws related to enshrining, the right to abortion , um, proposed on their ballots for November. And then I think there are like six other states currently, like Arkansas, Missouri, Montana, Nebraska, and Nevada, maybe Arizona, depending on mm-Hmm , <affirmative> , whether or not the , uh, the ban slash um , governor signed bill get, which one goes into effect first. Um, those things all need to get resolved before it is determined whether or not Arizona is gonna go on the ballot. But , um, but yeah, I think once we see the outcome of that election, we'll have a better ability to decide , uh, whether or not we think it's likely because it's going to be just such a heavily debated issue. It's not something that's gonna be easy to pass either direction. So there's gonna need to be a strong majority, or there's just going to have to be a lot of work that goes into it before we see anything actually get codified.
Speaker 3:So what should we look out for between now and the elections and , and agree, we , it's gonna be on the ballot, we're gonna see we, healthcare is always a top issue, but we'll see how this, how this plays out, but we know it's gonna be there. Um, obviously there's real political concerns, inflation, but healthcare is, you know, as much to say it's the economy, stupid healthcare is, is right behind it. What else should we look out for between now and, and November?
Speaker 4:I mean, I think it's obviously for, for everyone paying attention to the changes to your own state's laws , uh, is critical because there's just been so much volatility in this area. Arizona's just such a fantastic example from month to month . People in Arizona didn't know what their laws were, and , and it was just changing so rapidly. You had no idea what was legal , uh, on today versus tomorrow. So paying attention to, you know, what your, your own state's laws are on this topic is obviously critical paying attention. You know, once we get those decisions from the Supreme Court, it'll be really interesting to read the dicta. I'm sure regardless of the majority, there are gonna be some interesting dissenting opinions, and those should help , um, really anticipate what later litigation we're going to see, because that's going to give a little bit of a roadmap to , uh, some arguments that perhaps weren't successful in this time, but are , uh, in, in a situation where they could be differently framed and maybe successful in later litigation. So , uh, you know, obviously just continuing to pay attention to the developments in the, the women's health movement is critical. And there are places like New York that actually have an equal protection amendment back on their ballots that , you know, that's, that's phenomenal to see. So things like that , uh, just, just keeping a apprised of what's going on it . If you're passionate about supporting , um, the protections, signing where the states are still collecting signatures in order to get legislative approval or to get something on the ballot, you know, definitely participate in those citizen initiate , initiate initiated , um, ballot initiatives.
Speaker 3:Any last thoughts that you think, you know, from your perspective, you are living this , um, you know, you seeing the implications on patients, you are seeing, you know, the various approaches , um, passive and aggressive that folks are taking. You shared one with me that I'd love for you to share with the group. Um, you're really on the front lines , anything other than the story, and that might be a great way to wrap up that you'd like to share with us from your perspective. 'cause this is not theoretical, it's not academic for you, it's not esoteric. This is, this is a large part of your day in and your day out.
Speaker 4:Absolutely. I mean, I think that these, these topics, these , um, these ideas, these issues, if you aren't, you know, a essentially if you aren't a person who's capable of becoming pregnant , um, you know, they, they tend to just be ide ideolog , you know, just ideas, just like you said, esoteric concepts, philosophical concepts that you ponder in your mind. But there are a lot of people who are affected by these in their daily lived experience. Um, you know, reading about the Center for Reproductive Rights and their case in Texas and the plaintiffs and what they went through. Mm-Hmm, <affirmative> , it is just absolutely heartbreaking. And, and that's in Texas. I mean, even in states like California, which are phenomenally protective, wonderful legislatures, wonderful protective laws that are in place, even here, we face challenges. You know , uh, one of the things that we dealt with , uh, fairly recently was our affiliate Planned Parenthood of Orange and San Bernardino counties. Uh, actually we rented a , a a a location that we were going to remodel and turn into a beautiful new health center inside the city of Fontana. It's already zoned for medical use. It was a perfect spot. We submitted all of our applications. We finally got the verbal approval. It was about to go on the city council meeting agenda, and then all of a sudden they passed a moratorium that said no new construction. And when we asked for public records, the public records they produced said, oh, funny enough, you were the only ones to be affected by this. So it was obvious that this was an effort to keep us out, to keep a provider of a , of , in that location medication, abortion services out of the city. And that's just such a phenomenal example of how every single election matters. Yeah, you can feel like it doesn't matter, but that city council, it was a vote that required for , uh, they needed four votes and they managed to keep one individual who should have recused themselves. They managed to keep them out by kind of circumventing a conflict issue so that they had four votes. If we had one more , uh, council member who had been supportive of abortion access, we probably would already be open and seeing 2000 patients a month to help them with STI diagnosis, treatment, women's health visits, and abortions.
Speaker 3:Uh , you are as always nominal. Every time I hear you speak , uh, I learned so much and am inspired and wanna thank you on behalf of a HLA .
Speaker 4:Thank you so much. It was wonderful speaking with you and talking about these important topics. Really appreciate the time.
Speaker 2:Thank you for listening. If you enjoyed this episode, be sure to subscribe to a HLA speaking of health law, wherever you get your podcasts. To learn more about AHLA and the educational resources available to the health law community, visit American health law.org.