The ruling, expected by the end of June, could create a powerful new legal precedent for how far states can go in limiting access to abortion — and push the deeply polarizing issue to the forefront of a presidential election year.
The Louisiana law, which requires admitting privileges at nearby hospitals for abortion clinic doctors, is nearly identical to a Texas restriction the court struck down four years ago. That law made it too hard for women to access an abortion by causing dozens of clinics to shutter — some women had to drive hundreds of miles just to reach one — and wasn’t necessary to protect their safety, the court ruled at the time.
But now the court includes two justices appointed by President Trump, who has promised to elevate judges against abortion rights. Most notably, Trump replaced swing vote Justice Anthony M. Kennedy with conservative favorite Brett M. Kavanaugh.
That has given the antiabortion movement fresh hope the court might rule favorably on the Louisiana law, which adherents argue is subject to different circumstances from the Texas law, and could go even further by cracking down on who can sue over abortion laws in the first place.
There are three chief ways the court could rule in June. Two of the possible outcomes would please abortion opponents, while a third would be good news for abortion rights supporters.
Scenario No. 1: Abortion providers can’t sue to get abortion restrictions overturned.
This is the worst-case scenario for abortion rights supporters. It means an appeals court decision upholding the Louisiana law stands. And it means the ability to sue over similar laws in other states would be severely limited.
The state of Louisiana is asking the court to rule that clinics — such as June Medical, which is bringing this lawsuit — don’t even have standing to sue on behalf of their patients. Only women should be able to bring such lawsuits, the state wrote in a brief.
“There is no reason to believe … patients are hindered in challenging the law if they wish to do so; women seeking abortions have litigated their own constitutional challenges many times before,” the state wrote.
This would be a dream scenario for antiabortion groups, because it would make it harder to challenge similar laws in other states. It would also overturn decades of precedent in which providers were able to sue to overturn regulations directly affecting them.
“You have a law that directly penalizes someone, it’s ludicrous they should not be able to sue,” said Michelle Banker, senior counsel for the National Women’s Law Center.
Scenario No. 2: June Medical has standing to sue. But the Louisiana law doesn’t place an “undue burden” on women seeking an abortion.
Under this scenario, Louisiana would be allowed to enforce its admitting privileges requirement, even as Texas can’t. To reach this conclusion, the justices would have to draw a distinction between the circumstances in Louisiana and those in Texas.
In Texas, more than half of the abortion clinics closed after the laws were passed. While defenders of the Louisiana law argue it wouldn’t force widespread clinic closures, a district judge found it would leave just one physician at one clinic to serve every woman seeking an abortion in the state.
During oral arguments, Kavanaugh appeared to explore this question of whether admitting privileges might be constitutional in one state but not another, depending on the practical outcomes.
“Are you saying admitting-privileges requirements are always unconstitutional, such that we don’t have to look at the facts state by state?” Kavanaugh asked attorney Julie Rikelman, senior litigation director of the Center for Reproductive Rights.
Scenario No. 3: June Medical has standing to sue. And the Louisiana law places an “undue burden” that is unconstitutional.
This is the nightmare scenario for abortion opponents. It would severely diminish their hopes of the conservative-led court significantly moving the needle on abortion rights. And it would erect a blockade for other states seeking to pass restrictions on abortion clinics.
“To say this law fails the undue burden test would be, I think, a disaster because it could almost prevent states from enacting basic health and safety standards to protect citizens,” said Denise Harle, legal counsel for Alliance Defending Freedom.
A ruling isn’t expected for months. But tensions over the case boiled over this week, as Senate Democratic leader Chuck Schumer appeared to threaten the Trump-appointed justices and then walked back his comments, under a scolding by Chief Justice John Roberts.
Schumer said this outside the court during oral arguments, referring to Justices Kavanaugh and Neil Gorsuch: “You have unleashed the whirlwind and you will pay the price. You won't know what hit you if you go forward with these awful decisions."
Roberts issued a highly unusual rebuke, calling Schumer’s comments “dangerous” and “inappropriate.” Republicans piled on, too.
The vice president of government affairs for Club for Growth:
Sen. Ted Cruz (R-Tex.):
Schumer tried to walk back his comments yesterday morning, saying “I should not have used the words I used yesterday.”
“They did not come out the way I intended to. My point was that there would be political consequences, political consequences for President Trump and Senate Republicans if the Supreme Court ... stripped away a women's right to choose,” Schumer said.
Even a Democrat criticized Schumer, per CNN's Manu Raju:
But Schumer’s comments about the third branch of government raised many eyebrows.
“Even if you accept that Schumer wasn’t talking about a more nefarious threat, he was still talking about some kind of retribution or response,” my Washington Post colleague Aaron Blake writes.
“He was also deriding sitting justices as if they were his defined political opponents. His allies may sympathize with that, and perhaps we’re past the moment where Supreme Court justices will be viewed as anything other than political pawns. But that’s an extraordinary state of affairs.”
— The U.S. death toll rose to 12 as of Thursday, with another death in Washington state. Authorities there have made an urgent request for 233,000 respirators and 200,000 surgical masks from the federal government’s Strategic National Stockpile to help front-line workers who need protection. Worldwide, infections neared 100,000.
But the Trump administration's response raised serious concerns about whether the federal government is prepared: “Within 24 hours, Washington state’s liaison to the federal government, Casey Katims, was told his state would get assistance. But it would be less than half the amount they requested — 93,600 N95 respirators and 100,200 surgical masks,” our Post colleagues Lena H. Sun and Amy Goldstein report. “… After lawmakers criticized the shortages in recent days, the official at the Department of Health and Human Services in charge of coordinating materials for the stockpile announced Thursday that Washington state would receive more masks.”
State and local officials often rely on the federal stockpile for such public health emergencies, but the federal government “has not maintained the more than 1,000-plus items at the fullest levels in the stockpile. Biodefense experts blame bureaucracy and a lack of funding.”
— For the workers who are caring for the sick, protection from the novel coronavirus has become a top concern. They're almost always the hardest hit in widespread outbreaks, our Post colleagues Katie Mettler, Arelis R. Hernández, William Wan and Lenny Bernstein report. The health-care system is already experiencing shortages.
“Our job is to go and take care of people when they're sick. I'm willing to take care of anyone. That's why we got into this line of work,” Jenny Managhebi, a cardiology nurse at UC Davis Medical Center, told our colleagues. But she said if too many such workers get sick, “we aren't going to have a shot at fighting this thing.”
Via the Los Angeles Times's Matt Pearce:
— Some lawmakers and unions representing health-care workers have been pushing to expedite a proposed regulation from the Occupational Safety and Health Administration that’s stalled within the agency.
“The draft regulation would require employers to provide protective gear for health-care workers and to create infection-control plans, which could include building isolation rooms. The Obama administration was working to adopt the regulation, but the Trump administration in 2017 moved it to a less urgent, long-term agenda and work on it stopped,” our Post colleague Kimberly Kindy reports.
— Yesterday, Vice President Pence went to Washington state to meet with officials overseeing the outbreak response. He and Washington Gov. Jay Inslee greeted each other with an elbow bump.
Via KIRO7 reporter Michael Spears:
Pence acknowledged there aren't sufficient diagnostic tests to meet demand in the U.S.
He said officials “want to make sure they have access to a coronavirus test as well, and we’ve made real progress on that in the last several days" but added that “we don’t have enough tests today to meet what we anticipate will be the demand going forward.”
Major health insurers have announced they will cover the costs of coronavirus testing when ordered by a doctor.
America’s Health Insurance Plans, the nation’s largest health insurance trade association, said in a statement it will “cover needed diagnostic testing when ordered by a physician” and will “take action to ease network, referral, and prior authorization requirements and/or waive patient cost sharing.”
As our Post colleague Amy Goldstein noted: “The industry statement does not help the 27 million people in the United States who are uninsured. But it spans almost all the major insurers, including Aetna, Cigna, Humana, Anthem and others. UnitedHealthcare is no longer part of the trade group.”
In California, Gov. Gavin Newsom (D) announced the state ordered insurance companies to waive out-of-pocket costs for coronavirus testing.
The New York Times’s Margot Sanger-Katz:
— Yesterday the Senate voted 96 to 1 to approve $8.3 billion in emergency spending, sending the bill to President Trump's desk.
“The unusually swift and bipartisan action by both chambers of Congress underscored the pressure lawmakers are feeling to respond,” our Post colleague Erica Werner reports. “… The size of the package dwarfs the administration’s initial spending plan of $2.5 billion, which was split between $1.25 billion in new funding and $1.25 billion taken from other accounts including a program devoted to deterring Ebola. The congressional plan is all new money.”
— As public health experts from across the federal government try to send clear missives on the coronavirus, Trump is at times undercutting the message.
The president has sought to “downplay the outbreak with a mix of optimism, bombast and pseudoscience,” our Post colleague Toluse Olorunnipa writes. “Speaking almost daily to the public about an outbreak that has spread across states and rocked the markets, Trump has promoted his opinions and at times contradicted the public health experts tasked with keeping Americans safe.”
He has given false information about the timing of a vaccine development. He has misstated the number of Americans who have tested positive for the virus. He has claimed it will “miraculously” vanish in the spring.
And he has said Democrats and the media misconstrued comments he made on Fox News, where he said some people who get mild cases of the coronavirus could still go to work. Some intrepreted that as Trump saying these patients should go to work, but the president later said that's not what he meant.
Glenn Kessler, The Post's fact-checker, awards Trump “four Pinnochios” for blaming President Obama for the slow rollout of coronavirus testing.
Trump said this on March 4, at a roundtable with airline executives: "The Obama administration made a decision on testing that turned out to be very detrimental to what we’re doing. And we undid that decision a few days ago so that the testing can take place in a much more accurate and rapid fashion. That was a decision we disagreed with. I don’t think we would have made it, but for some reason it was made. But we’ve undone that decision.”
But there was no Obama rule, Glenn writes. It was simply “guidance" that was never acted on because Congress stepped in and decided it would craft the necessary legislation. “The Trump administration, in fact, has been working with Congress on such legislation,” Glenn notes.
Time magazine has a deep dive into how the administration's coronavirus reponse was “doomed from the start.”
And as you try keep up with all the coronavirus news, here’s a bit more to know:
- Politico’s Joanne Kenen writes that Trump's latest remarks have put scientists on edge. The president is “using his metaphorical black Sharpie to draw his own mental map of the spiraling coronavirus crisis — vastly complicating the work of public health officials scrambling to contain the spread of the deadly disease.”
- Health and Human Services Secretary Alex Azar was reportedly sidelined from a coronavirus task force briefing this week, which Politico’s Dan Diamond, Sarah Owermohle and Meredith McGraw report is the “latest sign of diminished standing for an official who was the face of the U.S. response to the disease just a week ago.”
- A top State Department official pointed fingers at Russia, our Post colleague Tony Romm writes, for being behind “swarms of online, false personas” that aimed to spread coronavirus misinformation on social media, adding that the “entire ecosystem of Russian disinformation is at play.”
- A dog in Hong Kong has a “low-level” infection of the coronavirus that causes covid-19 in humans, but experts say there's no cause yet for panic about interactions with pets, The Post's Karin Brulliard reports.
- And while people seem to be extra cautious about washing their hands and using hand sanitizer, Tito's Vodka tweeted yesterday warning people not to use the vodka as a DIY product:
It might be fun to combine drinking with sanitation, but Tito's Vodka – and the Centers for Disease Control -- urge against that:
AHH, OOF and OUCH
AHH: A new analysis from the Economic Policy Institute is welcome news for Medicare-for-all advocates. Research from the liberal think tank says a national single-payer health-care system would give the American labor market a boost.
“By decoupling employment from health care, economist Josh Bivens argues, workers would be able to find jobs that better match their skills and have more freedom to start their own businesses,” our Post colleague Chris Ingraham reports. “The job losses in health-care administration, while very real, are less of a concern in the context of normal amount of job creation and destruction in any given year, he says.”
A few key points: A Medicare-for-all system would save money by eliminating private insurance jobs. Those job losses — about 1.8 million — is less than a tenth of the typical number of layoffs in a year. (In 2018, there were 21.8 million of them.) There would also be increased demand for health-care sector jobs to counteract industry losses, “due to millions of newly and adequately insured patients catching up on their care.”
OOF: For decades the Department of Veterans Affairs has unlawfully turned away thousands of so-called “bad paper” veterans with other-than-honorable discharges from receiving care, according to a study from the Veterans Legal Clinic at Harvard Law School.
“Systemic misunderstanding of the law within VA about which veterans it should care for — and which should be denied services — has triggered improper mass denial of care since 1980,” our Post colleague Alex Horton reports. The practice has left about 400,000 more at risk of “never gaining access to health care they may have earned.”
“Generally, other-than-honorable discharges make it less likely that veterans will qualify for VA services,” Alex writes. “But the agency is required by law to accept applications, look for mitigating circumstances that could grant them services, issue written decisions and provide appeal information to veterans.”
Advocates have pushed for VA to properly determine eligibility that can save lives. Mental health care for veterans with bad paper can lower suicide risks, the American Journal of Preventive Medicine has found.
OUCH: Rep. Abby Finkenauer, a freshman Iowa Democrat, will announce today she’s forming a new caucus focused on addressing endometriosis. It’s a condition that impacts 1 in 10 women "whose uterine lining, endometrium, grows outside the uterus,” the Des Moines Register’s Christal Hayes reports.
Finkenauer shared details of her own struggle with endometriosis in an interview with Christal. She talked about pain that felt like “getting stabbed with a knife,” about searching online about hysterectomies, one solution to the condition, which doesn’t have a cure. “Finkenauer had two surgeries in which doctors burned off the endometrium, which she said later grew back,” she adds.
She reached out to colleagues in Congress to talk about pushing for more funding for researching and raising awareness about the condition. There will be more than two dozen inaugural members.
HEALTH ON THE HILL
— Senate Finance Committee Chairman Chuck Grassley (R-Iowa) says he and Sen. Ron Wyden (D-Ore.) plan on reintroducing their bipartisan drug pricing bill “very soon” and that more Republicans will imminently announce they are supporting it.
“So far, a dozen Senate Republicans have announced publicly that they support this bipartisan bill,” Grassley said on the Senate floor yesterday. “A dozen more Republican senators have indicated to me that they would vote for it on the Senate floor … I'm optimistic that we’ll continue to gain support as senators learn more.”
“It deserves a vote on the Senate floor soon,” Grassley added.
The Grassley/Wyden bill, which would cap senior spending on prescription drugs and penalize drug companies for hiking prices too quickly, has been passed by the Finance Committee, but Grassley has met with resistance from Senate Majority Leader Mitch McConnell (Ky.) and other Republicans.
— A group of medical organizations sent a letter to the chairs and ranking members of three House committees, calling on members to avoid a benchmark payment approach to settling billing disputes as they move forward with finding compromise surprise medical billing legislation.
Nineteen groups, which included the American Medical Association, the American College of Emergency Physicians and the American College of Surgeons, wrote to lawmakers on the House Energy and Commerce, Education and Labor, and Ways and Means Committees.
“[W]e sincerely appreciate the continued improvements to the legislation, including the more accessible baseball-style dispute resolution process. As you work to reconcile the different committee approaches, we urge you to build on this structure by ensuring references to median in-network rates are avoided,” the groups wrote.
They listed several “essential provisions,” which include keeping patients out of the middle of payment disputes and providing an “open negotiation period to encourage physicians and health plans to voluntarily resolve payment disputes.”
— And here are a few more good reads:
- The House Appropriations Subcommittee on Departments of Labor, Health and Human Services, Education, and Related Agencies holds a hearing on the CDC's budget request for fiscal year 2021 on March 10.
- The House Oversight and Reform Subcommittee on National Security holds a hearing on the response to the coronavirus outbreak on March 10.