Depending on who Trump nominates, and whether Senate Republicans can gather enough votes to confirm him or her, the court could soon include a conservative majority, with huge ramifications for a range of issues — including how far states can go in restricting access to abortion.
Kennedy had a mixed record on abortion rights, siding two years ago with the court’s justices in striking stricter facility requirements Texas had placed on abortion clinics but upholding a ban on an abortion procedure in 2007.
In the 1992 Planned Parenthood v. Casey decision — which offered the court an opportunity to overturn Roe — Kennedy sided with the liberal justices in ruling that states can’t place an “undue burden” on women trying to obtain an abortion (although that decision also allowed states to ban abortions once a fetus could survive after birth, typically around 24 weeks).
But if Trump is able to replace Kennedy with a reliable conservative, it bodes extremely well for several dozen GOP-led states that have tried to place more limits on the procedure in recent years. Legally speaking, Kennedy’s retirement is a dream come true for abortion foes but a nightmare for abortion rights supporters.
“While Roe v. Wade has been the law of the land for years, extreme conservatives have continually tried to undermine the court’s decision by peddling ideological policies that would make it hard for women to exercise their reproductive rights,” Sen. Patty Murray (D-Wash.) said in a floor speech yesterday afternoon. “I am hopeful that President Trump takes this to heart as he thinks about this Supreme Court vacancy.”
NARAL President Ilyse Hogue said Kennedy’s retirement means women’s ability to access abortion “is in dire, immediate danger.” Nancy Northup, president of the Center for Reproductive Rights, called it “devastating news.”
“The stakes of the coming nomination fight are extraordinary,” Northup said in a statement. “The future of reproductive rights is on the line.”
Senate Minority Leader Chuck Schumer (D-N.Y.) via The Post's Seung Min Kim:
As for antiabortion activists, they’re chomping at the bit to get another major abortion case before the Supreme Court, once Trump’s new nominee is in place. It’s why they supported Trump during the election, after all.
“The most important commitment that President Trump has made to the pro-life movement has been his promise to nominate only pro-life judges to the Supreme Court, a commitment he honored by swiftly nominating Judge Neil Gorsuch,” said antiabortion group Susan B. Anthony List President Marjorie Dannenfelser.
Republican-led states had been enacting earlier and earlier limits on when abortions can occur in a woman's pregnancy with just this scenario in mind. Here are some of the most recent laws passed:
- Mississippi passed a new law in March banning abortions after 15 weeks of pregnancy.
- Around the same time, Kentucky passed a law banning an abortion procedure known as dilation and evacuation, which is typically used after 11 weeks of pregnancy.
- Last month, Iowa Gov. Kim Reynolds signed a bill banning abortions once a fetal heartbeat has been detected, which is usually around six weeks of pregnancy.
Such laws – many of which have been challenged in lower courts – are fair game for Supreme Court consideration at some point in the next year or so. If Kennedy’s replacement gives some indication he or she would be inclined to uphold more restrictions, abortion opponents will feel even more urgency to get one of these cases in front of the justices.
Of course, at least four justices would have to agree to consider more abortion restrictions. The court hasn’t always been willing; in 2014, it notably declined to review an Arizona law prohibiting most abortions after 20 weeks of pregnancy – part of a batch of similar laws more than a dozen states have passed over the past half-decade.
Mary Ziegler, a Florida State University law professor who specializes in the history of the abortion wars, also warned that Republican presidents haven’t always been able to tell how their Supreme Court nominees would land on abortion questions.
For example, Justice David Souter consistently disappointed conservatives by siding with the liberal side of the court, including in the Planned Parenthood v. Casey decision. He’d been appointed by President George H.W. Bush. Kennedy himself was appointed by President Ronald Reagan.
Still, Ziegler called the present moment the “biggest game changer in abortion law” since the 1992 Casey ruling. Overturning Roe is a possibility for the court, but so are more incremental decisions that could extend more leeway for states to restrict abortion earlier in pregnancy.
“I think there is way, way more of a chance that will happen now than there was yesterday,” Ziegler said.
Yale law professor Priscilla Smith, who directs the university’s Program for the Study of Reproductive Justice, agreed. “If this justice goes through, then abortion jurisprudence as we know it is toast,” she told me.
From New Yorker's Jeffrey Toobin:
Andy Slavitt, acting CMS administrator during the Obama administration's final two years:
And Ronald Klain, who worked as the Ebola response coordinator under President Barack Obama:
Much would have to happen first, however. Kennedy’s retirement sets up a “bitter partisan showdown” over his successor, my colleague Robert Barnes reports.
“Although Kennedy held the deciding vote on many issues, abortion is likely to be the key focus in what is expected to be a bruising nomination battle for whomever Trump chooses,” Robert writes. “While Senate Democrats lack the numbers to deny the seat to Trump’s picks, they will ratchet up the stakes of the choice.”
Senators to watch here include Susan Collins of Maine and Lisa Murkowski of Alaska, two Republicans who more or less support abortion rights, and three Democrats – Sens. Joe Manchin III of West Virginia, Joe Donnelly of Indiana and Heidi Heitkamp of North Dakota — who voted for Trump’s last nominee, Gorsuch.
CNN congressional correspondent Phil Mattingly:
Vox's Andrew Prokop:
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AHH: White, abortion-opposing evangelicals were pleased this week when Kennedy and the Supreme Court's conservatives issued the NIFLA v. Becerra decision saying California can't require crisis pregnancy centers to provide information about abortions to patients. Tuesday's decision could help patch things up between these evangelicals and Trump, who displeased many of them with his policy of separating migrant children from their parents, The Post's Eugene Scott writes.
“Politically, the decision will probably affirm for white evangelicals that the gamble they made on Trump is paying off,” Eugene writes. “Neil M. Gorsuch, Trump's only appointee to the court thus far, was part of the majority that ruled that the California law in question violated the First Amendment . . . Wins like these during a time where culture wars seem to be ongoing may give this community hope that the Trump era's lasting legacy won't be one solely of chaos.”
OOF: The HHS inspector general said yesterday it will review conditions at shelters for migrant children, after Democrats had asked the agency to take a close look at how the detained kids were being treated while separated from their parents. The IG said it will focus on concerns around safety and health, along with the training and qualifications of federal contractors running the shelters, per the AP. Of the 12,000 migrant children currently being cared for in these shelters, about 2,000 initially arrived with their parents at the border but were separated as a result of the administration's "zero tolerance" policy.
OUCH: Hospitals across the country are facing a shortage of injected opioid painkillers, commonly used to treat patients undergoing surgery, fighting cancer or who are suffering severe burns. As a result, physicians are rationing these painkillers for use on more severe cases, and offering alternatives such as slower-acting or less effective medications to other cases, the Associated Press’s Linda A. Johnson reports.
“Injected opioid shortages have happened before, in 2001 and 2010, but they weren’t as acute and long-lived," Linda writes. "This one started almost a year ago and is expected to last into next year. The shortages started hitting hospitals last summer, after the Food and Drug Administration found sterility and other serious problems at a Pfizer factory in Kansas. The company, which makes 60 percent of the country’s injected opioids, had to slash production to fix the problems.”
Hospitals and medical groups have also tried extending opioid supplies by splitting the painkillers into smaller vials, but “some worry such workarounds invite mistakes," Linda writes.
— As part of the White House’s wide-ranging proposal to overhaul parts of the federal government, the administration has called for slashing a corps of public health professionals who are especially critical following natural disasters, disease outbreaks and humanitarian crises. The plan calls for cutting almost 40 percent of the U.S. Public Health Service Commissioned Corps, reducing its numbers from 6,500 staffers to no more than 4,000, our colleague Lena H. Sun reports. The plan doesn't indicate how much money the reductions would save.
“Administration officials, who have said the officers are ‘more expensive’ than equivalent civilians, want a ‘leaner and more efficient organization’ better prepared to respond to public health emergencies,” Lena writes. “The proposal would also create a Reserve Corps of government employees and private citizens, similar to that used by other uniformed services, to be mobilized in a public health emergency or to backfill critical positions left vacant during regular Corps deployment.”
The little-known U.S. Public Health Service Commissioned Corps, which dates back over two centuries, is part of HHS. "It is one of the seven uniformed services; members receive military pay and benefits but are unarmed. They wear uniforms that look like those of the Navy and Coast Guard except for the insignia," Lena explains. "The service’s officers fought yellow fever, cholera and plague in the early years of the 20th century and examined immigrants at Ellis Island."
— The Trump administration has 30 days to reunite migrant families that have been separated at the U.S.-Mexico border, a federal judge ordered late Tuesday. The U.S. District Court for the Southern District of California also ordered children under 4 years old to be reunited with their families in just 14 days, and parents be allowed to speak with their children within 10 days, The Post’s Isaac Stanley-Becker and Devlin Barrett report. The ruling sent Trump administration officials scrambling yesterday to determine how to respond -- the Justice Department would not say said whether it will appeal the decision.
“Sabraw’s ruling is the latest complication in a controversy that has already proved politically perilous for President Trump, who last week issued an executive order ending the forced-separation policy, replacing it with indefinite family detention,” they write. “Still, about 2,000 children remain split from their parents. The government had urged Sabraw not to grant the nationwide injunction, saying Trump’s order, which followed days of bipartisan outcry, had resolved the concerns animating the suit.”
— The First Lady seems not to have been fazed by backlash over her jacket last week. Spokeswoman Stephanie Grisham said Melania Trump is set to visit “additional facilities” this week, after she made a surprise visit to the Upbring New Hope Children’s Shelter in McAllen, Tex., CNN reports.
Grisham said Melania “wants to continue to check on children” that are being kept in immigration facilities. “The first lady is moved by what she is hearing, and what she saw in Texas, and she wants to again see and listen for herself what is happening in these places,” Grisham added, per CNN.
The first lady sparked confusion and criticism when she wore a jacket that read “I really don’t care, do u?” on the back on her way to and from the visit to McAllen. “It’s a jacket. There was no hidden message,” Grisham said in a statement to reporters following the visit. “After today’s important visit to Texas, I hope the media isn’t going to choose to focus on her wardrobe.”
— Robert Wilkie, Trump’s pick to lead Veterans Affairs, told senators during his confirmation hearing yesterday that he welcomes “scrutiny of my entire record.” Wilkie specifically cited a report in The Post that highlighted polarizing figures he had worked for decades earlier, saying: “The Washington Post seemed to stop at my record about 25 years ago. If I had been what The Washington Post implied, I don't think I would have been able to work for Condoleezza Rice or Bob Gates or Jim Mattis.”
Wilkie was referring to a deep look from our colleagues Lisa Rein and Paul Sonne that detailed how Wilkie had served under Sens. Jesse Helms and Trent Lott earlier in his career and had defended some of their more controversial positions. Lisa and Paul also wrote that he had defended Confederate symbols and was previously a member of the Sons of Confederate Veterans.
Wilkie was also warned by Senate Veterans’ Affairs Committee Chairman Johnny Isakson (R-Ga.) that the troubled agency is in need of fixing, Lisa reports. “Of all the challenges we have at VA, morale may be the biggest problem,” Isakson said. “There are no excuses anymore. Failure is not an option. We want to fix it before things fester.”
The nominee described how he would run the agency, pledging to make VA “agile and adaptive” to a new generation of veterans calling for better customer service. “When an American veteran comes to VA it is not up to him to employ a team of lawyers to get VA to say yes,” Wilkie told the panel. “It is up to VA to get the Veteran to yes — that is customer service.”
Wilkie also vowed to fix the agency's “administrative and bureaucratic” issues by “modernizing VA’s cumbersome medical appointment system, shifting its paper-based disability claims to an electronic system and improving an antiquated human resources operation to serve a changing population of veterans, half of whom are under 65.”
— Yesterday, the Centers for Medicare & Medicaid Services rejected Massachusetts’ request for a waiver that would have allowed the state to choose which drugs it covers under Medicaid. But the federal agency left the door open to the possibility, writing that it would consider the request to “exclude certain Medicaid covered outpatient drugs from coverage under its Medicaid program” under certain conditions.
Massachusetts had argued that the flexibility would save taxpayer dollars by giving the state greater power to negotiate the cost of prescription drugs. But CMS said if it gave Massachusetts the ability to do that then the state would have to “forgo all manufacturer rebates available under the federal Medicaid Drug Rebate Program.”
As it works now, most FDA-approved drugs are covered by Medicaid, and the drug manufacturers offers them to the government at a discount. But even the lower rate hasn't made up for the rising cost of prescription drugs. For some additional context, here's what Kaiser Health News explained in November 2017 when the Massachusetts proposal first came up:
"It's clear why states are interested. On average, between 25 and 30 percent of state budgets go to Medicaid, and program directors across the country identify rising drug costs as a major contributor to spending increases, according to a recent survey by the Kaiser Family Foundation.
In Massachusetts, Medicaid accounts for about 40 percent of the state's budget. Prescription-drug spending has in the past seven years more than doubled — from about $917 million in 2010 to about $1.94 billion last year, according to figures provided by the state health department."
Sharon Torgerson, a spokeswoman for Massachusetts' health department, told the Boston Globe the CMS decision was "disappointing," but the state would "remain committed to finding more innovative state-based solutions to reduce the growth in drug spending while maintaining access to necessary medications."
— Could the election victory of a young Latina socialist over a member of the Democratic Party’s old guard be a sign that progressive health-care ideas such as Medicare-for-all are viable?
Alexandria Ocasio-Cortez campaigned in New York’s 14th congressional District on a platform that advocated for single-payer health insurance, a position that many Democrats have adopted this midterm election year. Even Ocasio-Cortez’s opponent, 10-term-incumbent Rep. Joe Crowley (D-N.Y.) eventually signed on to House legislation supporting Medicare for all — although as our Post colleague Jeff Stein noted, only after Ocasio-Cortez made it a cornerstone of her campaign.
Democrats expect health care to be a winning issue for them come November. A Kaiser Family Foundation tracking poll released this week found half of American voters say a candidate’s support for Medicare for all is very or most important in choosing who to vote for this fall.
Ocasio-Cortez isn’t the only single-payer proponent to emerge victorious, though hers is certainly the most stunning upset. Several other Medicare-for-all supporters beat more traditional Democratic candidates in primaries across the country.
Republicans will try to turn Democrats’ embrace of a universal health care program into a weakness before the general election, but progressives argue it's time for Democrats to coalesce around big ideas. In March, pollsters told our colleague David Weigel that it’s hard to know whether Medicare for all is a winning issue because it has never really been tested in an election.
— A few more good reads from The Post and beyond:
- The Alliance for Health Policy holds its 2018 Signature Series Congressional Briefing on Health Care Costs in America.
Trump says he's "honored"Justice Kennedy chose to retire during his term:
Trump on Justice Kennedy's replacement: We have to pick a great one
Senators react to Kennedy’s retirement announcement: