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The Health 202: The Supreme Court could review state abortion restrictions. Here's what to expect.

with Paige Winfield Cunningham

Amy Coney Barrett, the Supreme Court’s newest justice, has helped to uphold one abortion restriction so far.

But there’s a pipeline of challenges to state abortion laws that could eventually be heard by the nation’s highest court — and legal experts predict the newly empowered conservative majority could expand the ability of states to restrict the procedure.

In a 6-3 decision last month, in which Barrett sided with the other five conservative justices, the court reinstated a Food and Drug Administration requirement for women to pick up medication abortion drugs in a medical setting, instead of obtaining them through the mail.

A federal district judge had suspended the requirement on the grounds that such visits were risky and burdensome during the coronavirus pandemic. The majority, without explaining its reasoning, reinstated the rule while the legal challenge continues.

Barrett will likely get more chances to express her views on abortion rights.
Amy Coney Barrett was sworn in to the Supreme Court by Justice Clarence Thomas at an outdoor White House ceremony on Oct. 26. (Video: The Washington Post, Photo: Jabin Botsford/The Washington Post)

While it remains to be seen what cases the Supreme Court might decide to hear,  a number of pending cases may put to the test experts' predictions that the court could narrow abortion rights granted by the 1973 Roe v. Wade decision.

Here are some possibilities: 

Banning abortion early in pregnancy.

The Supreme Court could indicate as soon as today whether it will hear a case on Mississippi’s ban on almost all abortions after 15 weeks’ gestation.

Mississippi is asking the court to reinstate the ban, which was struck down by lower courts. If the justices heard the case — and sided with Mississippi — it would represent a major shift for the court, which has consistently ruled since Roe v. Wade that states cannot ban women from having abortions before a fetus would have a good chance of survival outside the womb.

So far, the court has punted on the case. Some experts think the court may ultimately decide not to take it up — perhaps because it directly challenges Roe. Steve Aden, the chief legal officer for Americans United for Life, an antiabortion legal group, said he’s not sure the court is ready to take up a case that challenges Roe v. Wade “head on.”

“We do believe this court could overturn Roe v. Wade,” Aden said. But, he added, “they want to move incrementally.”

Putting more restrictions around accessing abortions.

Abortion clinics in Arkansas and Kentucky have an opportunity to appeal to the Supreme Court over laws placing restrictions on abortion providers – although they haven’t done so yet.

Arkansas passed four restrictive abortion laws in 2017, including a ban on a common second trimester abortion procedure, known as dilation and evacuation, and a law governing how abortion providers dispose of fetal remains after an abortion. In Kentucky, a 1998 law requiring abortion providers to have transfer agreements with ambulance providers and hospitals sparked opposition in 2017 after the state’s Republican administration cited the law in an effort to shut down an abortion clinic.

Federal appeals courts have upheld both laws: The Eighth Circuit Court of Appeals revived the Arkansas laws following an injunction by a lower court, while the Sixth Circuit Court similarly lifted a block on Kentucky’s transfer law.

A key question in both cases is what standard the courts should use to determine when abortion provider regulations are overly restrictive.

Abortion rights advocates celebrated last summer when the Supreme Court struck down a Louisiana law requiring abortion clinics to have admitting privileges at a nearby hospital. But it was that very case that the Eighth Circuit Court and the Sixth Circuit Court later cited as a justification for upholding restrictions on abortion providers.

Those courts referred to an opinion by Chief Justice John Roberts, who sided with the liberal justices against the Louisiana law, yet issued a separate opinion that called for more deference to states on abortion restrictions. This is where abortion opponents see an opening.

But it could be risky for abortion providers to appeal the cases. Barrett’s addition to the court makes it even more conservative than it was last summer.

“They don’t have to outright overturn Roe v. Wade,” said Heather Shumaker, the director of State Abortion Access at the National Women’s Law Center, a group, which supports abortion rights. In fact, she said, overturning the landmark case may be less likely than “chipping away” at abortion access.

Restricting the reason for choosing an abortion.

A number of lower courts have struck down state laws banning abortions based on sex, race or disability, such as a prenatal diagnosis of Down syndrome.

But so far, the Supreme Court has mostly sidestepped the issue.

In 2019, it did consider a Seventh Circuit Court of Appeals ruling that invalidated an Indiana law banning abortions aimed at selecting the race or sex of a child or avoiding having a child with a genetic abnormality.

The court let the ruling stand — but not because the justices had weighed the merits of the case. Instead, the court said that it was holding off until additional courts of appeals had considered the issue.

Justice Clarence Thomas, writing separately, in the case said, “Although the court declines to wade into these issues today, we cannot avoid them forever.” 

At least one lower court has urged the Court to weigh in. Last month, the Eighth Circuit Court of Appeals took up a similar case in Arkansas and also ruled it unconstitutional based on Supreme Court precedent, but two of the three judges did so reluctantly, calling on the Supreme Court to take up the issue.

Ahh, oof and ouch

AAH: The White House is reiterating that teachers don't need to be vaccinated against the coronavirus before schools can reopen.

The stance is in line with scientific guidelines but puts the Biden administration at odds with some teachers unions that have insisted members will not return to the classroom until they receive the vaccine.

“White House officials had for weeks given conflicting answers about whether teachers needed to be vaccinated before schools are reopened,” Amy B. Wang and Peter Whoriskey report. “On Sunday, White House press secretary Jen Psaki echoed guidelines released earlier this month by the Centers for Disease Control and Prevention, which state that vaccinating teachers is not a prerequisite for reopening schools, though it advised that teachers should have priority access to coronavirus vaccines.”

“The CDC is saying in order to be safe, there are a number of steps that can be taken. Vaccinating teachers is one of them,” Psaki said Sunday on ABC’s “This Week,” before listing an array of other measures, including smaller class sizes, separating children on school buses, providing personal protective equipment to schools and making testing facilities more available.

“Our secretary of education will work with school districts to implement that,” Psaki continued. “So [teachers] should be prioritized. But our science experts are saying it’s not a prerequisite and that’s the guidelines that we follow.”

OOF: Half a million Americans have died from covid-19.

It's a milestone that would have seemed unbelievable a year ago. At this point in 2020, covid-19 had killed just a handful of people in the United States. 

“Now, the pandemic’s official death toll equals the size of a major city, more than the population of Kansas City, Mo., and nearly as many as Atlanta or Sacramento,” Artur Galocha and Bonnie Berkowitz write in this piece, which explores different ways to visual the death toll. “It can be hard to grasp the enormity — almost half a million people, gone. What if we imagined them traveling as one group? Or killed in action? Or all buried together?"

Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, called the milestone “stunning."

“We haven't seen anything even close to this for well over a hundred years since the 1918 pandemic of influenza,” Fauci said yesterday on NBC. “This is a devastating pandemic, and it's historic. People will be talking about this decades and decades and decades from now.”

OUCH: Vivek Murthy earned millions from coronavirus-related consulting as he advised Biden's campaign.

Murthy, whose nomination for surgeon general is being considered this week by the Senate health committee, maintained a lucrative side business as coronavirus consultant to the private sector, Dan Diamond reports.

“Murthy was paid millions of dollars last year in coronavirus-related consulting for Carnival Corporation’s cruise lines, Airbnb’s rental properties and other firms, in addition to collecting hundreds of thousands of dollars in speaking fees from dozens of organizations, according to ethics documents that Murthy filed this month,” Dan writes.

“The disclosure caught the attention of longtime health policy hands — saying that Murthy has the most financial entanglements of any surgeon general pick in recent history — and of watchdogs who raise questions about how credible he would be as a spokesperson on the pandemic response and presidential adviser,” he adds.

“We didn’t have a full window into how enmeshed he was in the selling-advice process,” said Jeff Hauser, who leads the Revolving Door Project, part of the Center for Economic and Policy Research, a progressive think tank. “There are large questions in the minds of the public about the health and safety risks that might exist in areas like the cruise industry, and we want the surgeon general to give people completely impartial advice.”

This week is full of confirmation hearings for Biden health nominees.

At 10 a.m. tomorrow, California Attorney General Xavier Becerra, nominated as secretary of the Department of Health and Human Services, will sit before the Senate Health, Education, Labor and Pensions Committee for a confirmation hearing. He is scheduled to appear before the Senate Finance Committee at 2 p.m. on Wednesday.

And on Thursday, the committee will hold a confirmation hearing for both Murthy and Rachel Levine, nominated as assistant secretary for health at HHS.

The hearings took longer to schedule than originally expected, as the Senate was taken up with a second impeachment trial for former President Trump this month.

Dozens of anti abortion leaders are urging the Senate to reject Becerra.

Becerra “has demonstrated complete disregard for the religious and moral convictions of those opposed to the brutal act of abortion,” Susan B. Anthony List President Marjorie Dannenfelser and more than 60 other anti abortion leaders wrote in a letter to health committee leaders. 

The letter, provided first to The Health 202, notes that Becerra, as a member of Congress, voted twice against legislation to ban abortion midway through pregnancy and against the 2003 ban on partial-birth abortion. It also points to a California law backed by Becerra which required crisis pregnancy centers to tell their patients about the availability of abortion services. That law was struck down by the Supreme Court in 2018.

“We understand that the president needs to assemble a cabinet; however, Mr. Becerra has proven himself to be an enemy of the health of women and the unborn,” the letter says. "He…is not qualified to serve as Secretary of Health and Human Services.” 

Sugar rush