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The Health 202: 'Heartbeat' bills illustrate rise of idealistic wing of antiabortion activists

May 8, 2019 at 7:54 a.m. EDT

with Paulina Firozi

THE PROGNOSIS

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With a law signed yesterday by Georgia GOP Gov. Brian Kemp, half a dozen states have now banned abortions once a fetus’s heartbeat can be detected. But federal judges are blocking the efforts at every turn, and there’s little reason to believe the Supreme Court – even with its new conservative majority – would be interested in weighing in.

As he signed the bill, Kemp said he recognizes it will be challenged but said “our job is to do what is right, not what is easy.”

“Georgia is a state that values life,” Kemp said. “We stand up for those who are unable to speak for themselves.”

Georgia Gov. Brian Kemp (R) signed a bill outlawing abortion if a doctor can detect a fetal heartbeat – one of the nation’s most restrictive abortion laws. (Video: Reuters)

Abortion rights advocates pounced. Planned Parenthood president Leana Wen: 

Guttmacher Institute:

Meanwhile, antiabortion groups focused on a video posted by Pennsylvania state representative Brian Sims, a Democrat. The eight-minute video shows Sims berating a female demonstrator outside a Planned Parenthood clinic in Philadelphia. 

“Shame on you. What you're doing here is disgusting. This is wrong. You have no business being out here,” Sims told the unidentified woman, calling her an “old white lady” and her protect “grotesque.”

President of Live Action:

Sen. Ted Cruz (R-Tex.): 

Sims later vowed to "do better" after the social media pushback:

Georgia's “heartbeat” bill and others like it – which would prohibit abortion before many women realize they’re pregnant – represent a striking shift in influence among antiabortion activists, long divided by tactical differences over whether to pursue a pragmatic or an idealistic strategy.

Until recently, more incremental measures limiting abortion had taken center stage, pushed by groups including Susan B. Anthony List, Americans United for Life and the National Right to Life. Chief among them were “pain-capable” or “20-week” bills banning abortions about halfway through pregnancy, which more than a dozen states have passed over the last half-decade.

It was a lot easier for leaders of these groups to envision the Supreme Court, with then-swing-vote Anthony Kennedy, upholding a moderate ban on abortion. They internally fumed over other antiabortion groups -- like Faith2Action, which is leading the charge on the heartbeat bills – that pushed for more extreme restrictions.

Indeed, there’s little dispute that laws effectively banning abortions around six weeks of pregnancy clearly violate the 1973 Roe v. Wade ruling, which only allows states to restrict abortion once a fetus is developed enough to survive upon birth. Courts have halted the heartbeat measures everywhere they’ve been passed, including in Iowa, Kentucky and North Dakota. Abortion rights advocates have also vowed to challenge recently-signed laws in Mississippi and Ohio.

“Legislators will use it to say, see how pro-life I am,” James Bopp Jr., an attorney who provides counsel to National Right to Life, told my colleague Sarah Pulliam Bailey. “It’s a completely futile effort that accomplishes nothing.”

Sue Liebel, state director for SBA List, told me the 20-week ban is still her organization’s top priority. But she said the group supports the heartbeat bills as one of many different types of state abortion restrictions that are “coming at Roe from a different angle.”

“I think states are sensing that Roe may be on the ropes,” Liebel said.

Despite President Trump’s two appointees to the Supreme Court  – Brett Kavanaugh and Neil Gorsuch – it seems unlikely the justices would consider the heartbeat bills, assuming they even want to hear an abortion-related case at all.

Federal appeals courts have split on the 20-week bans, a typical characteristic of cases the court hears. And the court has punted since January on an Indiana law prohibiting discrimination-based abortions and requiring fetal remains to be buried or cremated (I wrote about that law in this Health 202). Court-watchers say those types of abortion restrictions are more likely to get a hearing.

But the momentum behind the heartbeat bills does signal this: The idealist wing of the antiabortion movement is getting increasing attention from state lawmakers these days.

“I think part of what you’re seeing with these bills is these idealists are more powerful than they’ve been in recent decades and more woven into the fabric of the GOP,” said Mary Ziegler, a professor at Florida State College of Law who has written on abortion.

That’s also true among abortion rights advocates and Democrats, who have pushed removing abortion restrictions late in pregnancy and have launched an effort to remove longstanding restrictions on using taxpayer funds for abortions.

New York recently passed a law allowing abortions to be performed up until birth and decriminalizing an act of violence causing death to a fetus. A Virginia measure, tabled by legislators amid controversy, would have required just one doctor to sign off on an abortion late in pregnancy instead of three doctors and removed language allowing late-term abortions only when the mother’s health is “substantially or irredeemably” harmed.

Some liberal states are taking action to protect abortion rights should the Supreme Court ultimately chisel them down. Yesterday the Vermont House voted to amend its constitution to ensure women can access abortions, a measure that would have to be approved again in the next legislative session and then passed in a statewide vote.

AHH, OOF and OUCH

AHH: Sen. Kirsten Gillibrand (D-N.Y.) vowed yesterday to only nominate judges who will uphold Roe v. Wade. She’s the first 2020 contender to state publicly that she would only consider judges who have declared they support abortion rights.

Gillibrand pointed to two dozen states that have introduced legislation this year to restrict abortions. “Republicans nationwide push these bills because they want a court ruling that guts abortion access nationwide, forever,” she wrote in a post on Medium. “We simply cannot let that happen. The decision about if and when to start a family should be made by a woman and her doctor — not Republican legislators, not Brett Kavanaugh and certainly not Donald Trump.”

She said any judge she nominates will have to “commit to upholding Roe v. Wade as settled law and protect women’s reproductive rights."

OOF: A bipartisan pair of senators sent a letter to Attorney General William Barr, calling on the Justice Department to reconsider its decision to argue that a federal appeals court strike down the entire Affordable Care Act.

Sens. Susan Collins (R-Maine) and Joe Manchin (D-W.Va.) warned that hundreds of thousands of their constituents and millions across the country could lose health coverage. They referred to U.S. District Judge Reed O’Connor’s initial decision to rule the health-care law unconstitutional as "legally flawed.”

“We are writing to express our grave concern over the Department of Justice’s recent decision to not only continue its refusal to defend protections for people with pre-existing conditions in the ongoing litigation challenging the Affordable Care Act (ACA) before the United States Court of Appeals for the Fifth Circuit, but also to argue in favor of repealing the entire ACA,” they wrote. “With so much at stake, we urge you and the Administration to reconsider this position and to defend the consumer protections for seniors, young adults, women, children, and working families.”

Collins and Manchin also signaled a hope that lawmakers could work together to “fix legislatively the parts of the law that aren’t working.”

The U.S. has the highest rate of pregnancy-related mortality among developed nations. Figures suggest that half of those deaths may have been prevented. (Video: Luis Velarde/The Washington Post, Photo: John Parks/The Washington Post)

OUCH: A new report out this week from the Centers for Disease Control and Prevention found that hundreds of women are dying each year of pregnancy-related complications in the United States, some up to a year after they give birth.  

About 60 percent of those deaths are preventable, our Post colleague Lindsey Bever writes. The leading cause, the CDC found, was cardiovascular conditions like heart disease and stroke, which made up about a third of pregnancy-related deaths. Another 13 percent occurred because of infections, 11 percent because of obstetric hemorrhage; 7 percent of deaths did not have a determined cause. Among the women who died more than a week after childbirth, 21 percent died seven to 42 days after they gave birth and about 12 percent died 43 to 365 days after childbirth.

“But the researchers not only looked at why the women died, but also who the women were — confirming racial disparities in maternal mortality across the United States,” Lindsey writes, a point which your Health 202 author noted in yesterday’s edition.

Emily Petersen, co-author of the report and medical officer in the CDC’s Division of Reproductive Health told our colleague: “The reason for this higher prevalence is still being explored and one emergent theory is the effect of weathering or early aging of the body due to chronic stress related to structural racism or systemic racism and its impact on health. There’s also a growing body of research on the role of structural racism and implicit bias in health care and its impact on patient care and outcomes.”

AGENCY ALERT

— A new report from the Kaiser Family Foundation found that individual market insurers had their most profitable year ever last year under the ACA. The analysis signals insurers are returning to the profitability or even surpassing the levels they experienced before the ACA took effect in 2014.

They were so profitable that KFF found they will have to return about $800 million in excess premiums to consumers, which is a record total. Those rebates are returned to consumers when the insurance companies don’t meet the ACA medical loss ratio threshold, “which requires them to spend at least 80% of premium revenues on health care claims or quality improvement activities,” according to KFF.

From KFF senior vice president Larry Levitt: 

From the NYT's Margot Sanger-Katz: 

HEALTH ON THE HILL

— About a year after the Trump administration began separating families at the U.S. border with Mexico, Sen. Tom Udall (D-N.M.) sent a letter to HHS Secretary Alex Azar calling on the Trump administration to provide more information publicly about the migrant children still in federal custody.

“Given the scope of the human tragedy and public interest of the Administration’s cruel family separation policy, and the chaotic execution and various false statements that accompanied it, the public deserves transparency about the number and fate of the children in HHS’s Office of Refugee Resettlement’s (ORR) care,” Udall writes.

He pointed to language included in the 2019 Labor-HHS appropriations bill that requires the department to disclose information about the status of migrant children. “To date, your department has failed to comply with all of these important transparency requirements,” he adds, calling on HHS to release information about the children currently in the agency’s care, the average length of stay and other information to “enable the Committee to track the progress of HHS and DHS in reuniting separated children with their families.”

From Udall: 

MEDICAL MISSIVES

— Days after health officials in the Democratic Republic of Congo said the number of deaths from Ebola had topped 1,000, the World Health Organization announced it would expand the number of people who will be offered the Ebola vaccine.

The experimental Ebola vaccine manufactured by Merck will now be available to an additional set of people who are further removed from people who have contracted the virus, and another vaccine produced by Johnson & Johnson’s Janssen division will be offered to people who are determined to be at some risk of being exposed to the virus, Stat’s Helen Branswell reports.

“Responders, including the WHO and other organizations, will also set up more pop-up vaccination clinics to allow people who want to be vaccinated to go outside their neighborhoods to get the shots,” Helen writes.

—  Our Post colleague Emily Tamkin has more details on the proposal from Germany’s health minister to fine parents up to 2,500 euros, or about $2,800, if they don’t get their school-age children vaccinated against measles.

The proposal would block very young children who have not been vaccinated from going to preschool, which is mandatory there beginning at 6 years old. Health minister Jens Spahn has submitted his legislation for consideration by the government.

In an interview with broadcaster ZDF, Spahn lamented the ongoing debate over vaccination. “We have been having this debate every few months over the past 10, 20 years,” he said. “Whenever there is an outbreak and children or students have to be kept away from lessons, everyone says we could, we should do something — but not enough happens.”

—  And here are a few more good reads: 

TRUMP TEMPERATURE

Trump Considers Poverty-Gauge Change That Could Trim Rolls on Aid Programs (Wall Street Journal )

Melania Trump marks the first anniversary of Be Best (Mary Jordan and and Emily Heil)

The U.S. has slashed its refugee intake. Syrians fleeing war are most affected. (Katie Zezima)

INDUSTRY RX

At a big hearing on drug patents, Congress got distracted by small tweaks (Stat)

FDA approval may dampen controversy over a high-priced drug (Stat)

U.S. disaster preparedness slows, illustrating fragile healthcare safety net (Modern Healthcare)

STATE SCAN

Louisiana voters could get a say on abortion issue if this advancing legislation is successful (The Advocate)

DAYBOOK

Today

  • The Senate Finance Committee holds a hearing on Medicare physician payment reform.
SUGAR RUSH

Melania Trump announces the expansion of her 'Be Best' initiative:

On the first anniversary of her anti-bullying campaign, first lady Melania Trump said she would expand her “Be Best” initiative to include online safety. (Video: Reuters)
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