KHN’s ‘What the Health?’
Episode Title: Part II: The State of the Abortion Debate 50 Years After ‘Roe’
Episode Number: 282
Published: Jan. 26, 2023

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Julie Rovner: Hi, it’s Julie Rovner from KHN’s “What the Health?” What follows is Part II of a great panel discussion on the state of the abortion debate 50 years after Roe v. Wade, featuring Alice Miranda Ollstein of Politico, Sandhya Raman of CQ Roll Call, and Sarah Varney of KHN. If you missed Part I, you might want to go back and listen to that first. So, without further ado, here we go.

We already talked a little bit about the difficult legal situation that abortion providers or just OB-GYNs have been put into, worried about whether what they consider just medical care will be seen as an abortion and they’ll be dragged into court. But in Tennessee, doctors would actually have to prove in court that an abortion was medically necessary, which seems a bit backwards. So, basically, it’s do it, see if you get arrested, and then you’ll have to present an affirmative defense in court. But the other thing that we’re starting to see is doctors leaving states, women’s health clinics closing, medical students and residents choosing to train elsewhere. This could really lead to a doctor drain in significant parts of the country, right?

Sandhya Raman: Yeah, I was looking at before where some of the states that have some of the highest rates of maternal mortality, maternal morbidity, and just lower maternal health outcomes overall are some of the same ones that don’t have Medicaid expansion and also do not have access to abortion right now. And it’s one of the things where, looking ahead, there have been people sounding the alarm at how this is going to get amplified. And as folks that might be interested in this discipline that are in medical school, school or readying for residency, or another type of provider that works in this space, if they choose to not train in these states — and a lot of folks that train in states often end up staying in those states — even if there are changes in some of these laws in the near term, it could have a huge effect in the future in terms of who’s training and who’s staying there and who’s able to provide not just abortions, but other terms of pregnancy care and maternal care.

Sarah Varney: And the workaround has become much more difficult because it used to be that if you’re in a state where abortion was very difficult to access or even, say, Texas during S.B. 8, these medical students could go to other states for the training. But now that you have these huge swaths of the South and the Plains and the Midwest where they are not allowed to do abortions, there’s just not enough places for OB-GYN residents and medical students to go to train. I did a story about this last year as well and looked at these students who were in medical school, who were coming up to Match Day and at the end, at the very end before the deadline, actually changed their match altogether or changed their list of priorities altogether because they didn’t want to be in Texas. So instead of doing an OB-GYN residency in Texas, this one young woman changed to a family medicine practice in Maryland. And I think the thing that’s important for people to remember is that these are the future OB-GYNs that will help many of us with our pregnancies and births for many decades to come. And as we have seen, pregnancy is very complicated and it oftentimes doesn’t end well. You know, about 10% of all confirmed pregnancies end in miscarriage; a far higher number end in miscarriage that are not confirmed pregnancies. And these will be the doctors that are supposed to actually know how to do these procedures. So if you’re in a state like Texas and you have a daughter who’s 15 and you anticipate in 15 years she may want to have a baby, you have to think about what kind of medical care she can have access to then.

Rovner: I’ve talked to a lot of people, a lot of women, who want to get pregnant, who want to get pregnant and have kids, but they are worried about getting pregnant because if something goes wrong, they’re afraid they won’t be able to get appropriate medical care. They would like to get pregnant, but they would actually not like to risk their own lives in trying to have a baby. And that’s actually what we’re looking at in a number of these states. I guess this is the appropriate place to bring up the idea of “personhood,” the declaration, not medically based, that a separate person with separate rights is created at the moment of conception. That could have really sweeping ramifications, couldn’t it? They’re talking about that, I know, in several states.

Varney: Yes. You don’t have to probe far to find out that the pro-life movement is 100% behind a federal fetal rights … the Supreme Court last year didn’t take up a case about fetal rights yet, but many of the members of the court have expressed in previous writings, and even in the Dobbs [v. Jackson Women’s Health Organization] decision, you saw [Justice Samuel] Alito using the language of the state of Mississippi that essentially granted to the fetus all of the … even, like, personality of a full human being. So I think this is going to get really tricky because Kristan Hawkins and many of the leaders of the movement, Jeanne Mancini, they do believe that there is no distinction between a zygote and a fetus and a full human being. So now this is really a religious belief. And it was interesting. I really struggled last year. I had to … I was basically assigned to write a story about, you know, when does life begin? And I think it’s an interesting question we have to ask ourselves as journalists: Why should we do that story? Is that, in a sense, propaganda for the pro-life movement? When really what the question should be is, you have a full human being, the woman, at what point should her rights be impeded upon? Right? And that’s essentially what the Roe decision tried to do, was to strike that balance. But now we’re in a whole new world where fetal rights are really the … they almost have supremacy over women’s rights.

Rovner: Yeah, I did two stories on When Does Life Begin? And it turned into one of them is … really the question is when does pregnancy begin? One of the doctors I talked to said, rather, that pregnancy begins when we can detect it, which is in many ways true. A doctor can’t say that you’re pregnant unless they can detect it at that point. But that’s a really important distinction medically between, you know, when does life begin philosophically and when does a pregnancy actually begin. But, obviously, in places that are going to declare personhood, this is going to get really complicated really fast because it would mean that you mostly couldn’t do IVF, that you can’t create embryos and then not implant them. And of course, the way IVF works for most people who are infertile and would like to have children is that you take out the eggs, you fertilize them, you grow them to a certain cell size, and then you implant them back into the woman. But you don’t generally use all of the embryos. And that would be illegal if every one of those embryos was an actual person. Could you take tax deductions for children if the child hasn’t been born yet, but you’re pregnant? I think you can already do that in Georgia, right?

Varney: Correct. Yeah. The Department of Revenue did that there.

Rovner: Yeah. This could be really, really far-reaching.

Varney: I mean, that’s what’s been going on in Alabama for years. … When the Alabama state Supreme Court years ago agreed with this argument that a law that was put in place to try and go after parents who were bringing their children to meth labs, that the notion of the environment was no longer just the meth lab, but the womb itself. And a child also then meant a fetus in the womb. Now you’re in that territory already. So Alabama’s a very good way to look into the future, in a sense.

Rovner: So basically, if you’re pregnant and go into a bar, you could be threatening the fetus.

Varney: I mean, there’s kind of no limit, right? Like, did you drive recklessly? Did you slip or did you fall on purpose? I mean, that’s what I was saying earlier about it’s really going to be up to these local prosecutors to figure out how far they want to take this.

Rovner: And that’s not hypothetical. We’ve seen cases about a woman who fell down the stairs and had a miscarriage and was prosecuted for throwing herself down the stairs.

Varney: Or a woman who was pregnant and got into an altercation in a parking lot of a big-box store and got shot and the fetus died. And then she was arrested. I mean, eventually they dropped the charges, but. yeah.

Rovner: Well, moving on. So with narrow majorities in both houses of Congress for the party in charge, changing federal law in either direction seems pretty unlikely for the next two years, which leaves the Biden administration to try to reassure people who support abortion rights. But the Biden administration doesn’t have a long list of things that can be done by executive action either, beyond what they’ve done with the abortion pill, which we mentioned already — the FDA has loosened some of those restrictions. How has the Biden administration managed to protect abortion rights?

Alice Miranda Ollstein: First, along the lines of the FDA, the FDA has been called on by the pro-abortion rights side to drop the remaining restrictions on the abortion pill. So they’ve dropped some, but they still require a special certification for the doctors who prescribe it, a special certification for the pharmacies that are just newly allowed to dispense it. Patients have to sign something saying they understand the risks. These are called REMS. These are on drugs that are considered dangerous. And a lot of medical groups and advocates argue that there isn’t evidence that this is necessary, that the safety profile of these drugs is better than a lot of drugs that don’t have these kinds of restrictions. And so they said that it would improve access to drop these remaining rules around the pills. Some have even called for them to be available over the counter, although I don’t see that happening anytime soon. Along the lines of preventing unwanted pregnancies in the first place, the FDA also is sitting on a decision of whether or not to make just regular hormonal birth control available over the counter. So that’s one to watch as well. But the Biden administration have more things they could do. They have looked at providing abortions through the VA [ Department of Veterans Affairs]. That was a big one. Earlier this year, the president signed a memo just over the weekend directing the health secretary and others in the Cabinet to look at what they can do to improve access. We’ve seen similar statements and memos before. It’s not really clear what they’ll mean in practice. But I also want to go back to you saying that nothing is likely to happen in Congress. I agree on the legislative side, but I am watching closely on the appropriations side, because I think that’s where you could see some attempts to pull things in one direction or another in terms of where federal spending goes. And going back to the group’s wastewater strategy, one piece of that they want to do, the anti-abortion groups, is pressure Republican members of Congress to hold the FDA’s funding hostage until they do certain environmental studies on the impacts of the pills. That’s where I would watch.

Rovner: Yeah, and spending bills over the years have been the primary place to do legislating on abortion restrictions or take them off. It’s not just the Hyde Amendment that banned most federal spending for abortion. There are amendments tucked into lots of different spending bills restricting abortion and other types of reproductive health care. And when Democrats are in charge, they try to take them out. And when Republicans are in charge, they try to put them back in. So I agree with Alice. I think we’re going to see those fights, although it’s hard to imagine anything happening beyond the status quo. I don’t think either side has the ability to change it, but I suspect that they’re going to try. The administration has gone after some states on the federal EMTALA law, right? The Emergency Medical Treatment and Active Labor Act, which basically says that hospitals have to stabilize and take in women in active labor. And basically, if that conflicts with an abortion ban again, like with the FDA and drugs, federal law should supersede the state law. But we haven’t really seen any place where that’s come to a head, right?

Raman: Idaho has been the main one to watch with the lawsuit there. And the Justice Department did a briefing this week before their reproductive rights council met. And they had said that that was one of the cases they’re still doing — the Idaho, in addition to the lawsuit on the VA rule that Alice mentioned, and then also an FDA rule that we talked about earlier. But they’re monitoring different things going forward. But I think one of the interesting things is that they haven’t cast a very huge net in terms of the different things that they’ve been involved with in states. It’s mainly been these three situations. And even Idaho, they’ve already in that legislature introduced a bill that would amend their law as it is now, to deal with some of the nuances so that they would adhere to EMTALA. I don’t know how far that could go through or any of the logistics with that, but I mean, that sort of thing, the Idaho situation could be solved more quickly if they’re able to get that done. And DOJ [the Department of Justice] thinks that that aligns. But it is interesting that they haven’t dug into a lot of the other state efforts yet, but that they have that on their radar.

Varney: We have seen a sort of political battle being waged, of course. So on the anniversary of Roe v. Wade, Vice President Kamala Harris was in Florida, in Tallahassee, making the 50^th-anniversary-of-Roe speech. Clearly, she wants [Gov. Ron] DeSantis to be on notice that should he become a candidate in the presidential election, that Florida is very much in play. And Florida is interesting because they still have a 15-week ban. So it would not have been allowed under Roe, but it’s not as draconian as what these other states have, which is essentially nothing.

Rovner: Most of the surrounding states, too.

Varney: Correct. Yeah, exactly. So Florida has really become a receiving state for abortions, particularly in the last six months. I’m going to be interested to see if somebody like a DeSantis can even run for president from a state with a 15-week ban. I mean, he’s going to be under a lot of pressure, not simply just to do a six-week ban, but to do an outright ban altogether. So I think if he tries to thread that needle and try and get anti-abortion groups on board to support him, he’s going to have to show them more.

Rovner: That’s just about what we’re going to get to. But before we leave, what the Biden administration has done, I need to mention, because it’s my own personal hobbyhorse — that the FDA has finally come out and changed the label on the “morning-after pill” to point out that it is not an abortion pill, that it does not cause abortion, that the way it works is by preventing ovulation. So there is no fertilized egg and that at least we can maybe put that aside, finally. That label change happened in Europe 10 years ago, and for some reason it took the FDA until now to make that clarification.

Varney: But as you said, Julie, it doesn’t matter because it’s just what you believe about the drug. You know, and just to remind listeners that that drug I did — I mean, we’ve all done stories on Plan B over the years — but the one I did recently was how Plan B is actually owned by a private equity company, actually two private equity companies. And they would not go to the mat to the FDA to get this thing changed. They could have done it years ago. So now that the FDA has made this … it’s just like anything, any kind of misinformation, that people who don’t support it can just simply say, well, the FDA is biased or that’s not actually how it works.

Rovner: True.

Varney: But I don’t think it will put it to bed.

Rovner: Well, quickly, let us turn to 2023 and what we might see for the rest of this year. We’ll start with the anti-abortion side. Obviously, overturning Roe was not the culmination of their efforts. They have some pretty ambitious goals for the coming year, right? Things like travel bans and limiting exceptions in some of these states. Sandhya, I see you nodding.

Raman: There are so many things, I think, on my radar that I’m hoping to watch this year just because we are in this whole new era where it might have been three years ago a lot easier for us to predict which things might be caught up in litigation, which things might be struck down. But I think now, after the Dobbs decision, even after the Texas S.B. 8 law that we mentioned earlier, it’s a lot more difficult to see what sort of things will go in effect that might not have been able to go into effect before. And one thing I think has been interesting is that the anti-abortion movement had been in unison before this on some of their traditional Hyde exceptions — that abortions to save the life of the mother, in cases of rape and incest were something that was broadly on board, that those would be allowed. And I think we’ve seen a lot increasingly in different states, things that have been brought up by different state lawmakers that would chip away at that, that vary by state, whether or not what defines is medically necessary to save a life. And even when we were talking about Idaho earlier with the EMTALA requirements or … there was a great piece in The New Yorker last year about the anti-abortion activist who really wants to lobby against rape exceptions because she was born as a product of rape and is using her own experience in that. And so I think that will be a very interesting thing to watch because there is not a uniform agreement on that. Whereas some of the things that have been taken out, there’s a lot more strong backing for across the board.

Rovner: Yeah, that’s actually my next question, which is we’re starting to see not only a split within the anti-abortion community about what to pursue, but a little bit of distance between the Republicans and the anti-abortion forces. And I think there’s a lot of Republicans who are uncomfortable with going further or who are uncomfortable even in some of the states that don’t have exceptions. I mean, are we looking at a potential breakup of this Republican anti-abortion team that’s been so valuable to both sides over the last few decades?

Ollstein: I wouldn’t call it a breakup, but the tension is absolutely there. I mean, I wouldn’t call it a breakup just because, where else are they going to go? I mean, the Democratic Party is much more supportive of abortion rights as a whole than even just a few years ago. And so, really, they know Republicans are their best bet for getting these restrictions passed. But there is this interesting tension right now. I think a lot of it is competing interpretations of what happened in this most recent election. You have anti-abortion groups who insist that the takeaway should be candidates didn’t run hard enough on banning and restricting abortion and were too wishy-washy, and that’s why they lost. And then you have a lot of other Republicans and party officials, party leaders who feel that they were too aggressive on promoting abortion restrictions and that’s why they lost. Also, you know, I will say this isn’t purely, purely cynical politics. A lot of Republican state lawmakers have told us they’re genuinely concerned now that they’re actually seeing the laws they drafted and voted for take effect and have consequences that they maybe didn’t intend. And they’re hearing from these state medical groups who are pleading for changes to be made. And so some of them say, OK, we want to get this right. We want to go back and make fixes. And the anti-abortion groups are telling them, no, don’t create loopholes. Don’t water down these laws. And so you do have this really interesting tug of war playing out at the state level right now. And because of what you said about the federal level, the state level is really where it’s at.

Varney: And I was going to make two points. One is that the split is also really developing between the national groups and the state and local groups. So while the national groups may say, yes, we support a 15-week ban in Florida as a step to get to something else, the local groups are gung-ho. I mean, they’re in extremely gerrymandered districts. You look at Florida and Texas, they elected the most anti-abortion state legislature in history so far. And, you know, these are people coming from extremely safe seats. And then you’ll see that the city level — the city sanctuary of the unborn, I believe it’s called — that movement, they really see them going down to even the local-local level to try and get that in effect.

Rovner: Well, I think in a lot of places, states that are very affirmatively supportive of abortion rights or have it in their constitution, are trying to move that down to the local level, to the city level, to see if they can actually have success in limiting abortion locality by locality. All right. Well, meanwhile, what’s the other side doing? What’s the agenda for the abortion rights side? It’s going to be, as we pointed out, it’s gonna be kind of hard for them to advance very much.

Ollstein: Yes. I think that there is a lot of excitement around the results last year using state-level ballot initiatives in red and purple states, putting the question of abortion rights to the general public, because on all six ballots last year, the abortion rights side prevailed. Some of those were more offensive, some of those were more defensive. But in all six, they swept. And so they are really excited about trying to replicate that this year. Of course, it’s not possible in every state to put a constitutional amendment on the ballot for a popular vote. But in states where it is possible and where it could make a difference, including some states where abortion is already banned and they could try to unban it through the popular vote process, that’s really something they’re looking at. And then, of course, even though our federal judiciary has become a lot more conservative over time with the appointments, courts have still been convinced to block a lot of these state abortion restrictions. And so there are efforts to bring lots of different, interesting legal theories. You know, one that caught my attention is trying to make religious freedom arguments against abortion bans, saying these abortion bans infringe on the rights of religious people who believe in the right to abortion, which is sort of flipping that narrative there.

Rovner: There have been a bunch of Jewish groups who have filed cases saying that.

Ollstein: Exactly. Judaism, Islam, certain Christian denominations, all support abortion rights. And so there’s an interesting tactic there. Also pointing to language in state constitutions about privacy rights and arguing that should extend to abortion. And so a lot of interesting stuff there.

Raman: I would add to that, in terms of another tactic that’s kind of flipping what the other side has been doing, a long-term strategy of the anti-abortion movement has been prioritizing judicial elections and a long-term thing of … just in the Senate, we saw, you know, wanting to get a lot of judges confirmed that had pro-life beliefs. And you can even look to where the women’s march over the weekend, that the state … one that they were prioritizing was in Wisconsin, which was held there, to jump-start the fact that they have a state Supreme Court race coming up. They were 4-3 conservative majority right now. And the judge that is retiring is conservative. So getting a new judge that supports abortion rights could really open a path to overturn the ban there. Even though judicial elections are considered nonpartisan, there are often ways to tell clues about where someone might rule in the future. And so, I think, looking at things like that in different states as a way to dial back some of the things that the other side has been doing will be an interesting thing to watch, too.

Rovner: All right. Well, I think that’s it for our discussion. Thank you, for those of you who have hung with us this long. I hope we’ve given a good overview of the landscape. Now it’s time for our extra-credit segment. Usually that’s when we each recommend a story we read this week we think you should read, too. But this week I’ve asked each of the panelists to choose their favorite or most meaningful story about reproductive health from the last year. As always, don’t worry if you miss it; we will post the links on the podcast page at kffhealthnews.org and in our show notes on your phone or other mobile device. Alice, why don’t you go first this week?

Ollstein: Yes, I think I’ve promoted this story before, but I just can’t say enough good things about it. It’s really stuck with me. It’s from the New York Times Magazine by Lizzie Presser, and it’s called “She Wasn’t Ready for Children. A Judge Wouldn’t Let Her Have an Abortion.” And it really digs into what happens to teenagers who need to get their parent’s consent and can’t in order to have an abortion. They have this judicial bypass process where their lives, the fate of their lives are in the hands of an individual judge, who, in many cases, as this article demonstrates, come with their own biases and preconceptions about abortion. And then it just follows this one teenager who was denied an abortion, ended up having twins, and just completely struggled financially, her mental health. And she in the end said, you know, I knew what was right for me. I knew I needed an abortion. And it’s a very moving, painful story that shines a light on a piece of the story that I think is overlooked.

Rovner: Yeah. Sandhya.

Raman: For my extra credit, I picked a story that also has stuck in my head for a long time, kind of like Alice. So it’s “‘We Need to Defend This Law’: Inside an Anti-Abortion Meeting with Tennessee’s GOP Lawmakers,” from Kavitha Surana from ProPublica. I really thought this was one of the most interesting pieces on this topic that I read last year. The author got audio from a webinar in Tennessee hosted by the Tennessee Right to Life on strategy on the movement going ahead in their state. They talk a lot about the Tennessee ban and how it has narrow life exceptions as a model for other states and how the burden of proof would be on the doctor. And then they have some quotes from a Tennessee lawmaker who suggests things that I think the other side has sounded the alarm about: mining data to investigate doctors, how to push back against rape and incest exceptions. And I think one of the things that really struck me was when they brought up IVF, some of the advocates during the meeting that they had said that two years from now, next year, or three years from now, IVF and contraception can be regulated on the table. But that’s like next steps.

Rovner: Absolutely. That was a great scoop, that story. Sarah.

Varney: So I actually picked a radio segment. It’s about a 12-minute-long radio segment that I did with Science Friday. On “Why Contraceptive Failure Rates Matter in a Post-Roe America.” So one of the things I kept hearing was, well, women are just going to have to really double up on contraception or make sure that they’re being responsible about taking their contraception. So it turns out that there’s a textbook on contraceptive technology and in that is a whole page on contraceptive failure rates, which show you what contraceptive failure rates should be in a laboratory and what they are actually out in the real world. So, for instance, the typical-use failure rate for birth control pills is 7%. So that means that seven out of 100 women on pills could experience pregnancy in the first year of use. So then I went and found the data that shows us the number of women ages 15 to 49 who are on specific methods of birth control, everything from the Depo-Provera to the contraceptive ring and patch to male condoms, to IUDs, to birth control pills. And you’ll see on both the Science Friday and the KHN website, we have these wonderful graphics where you can see that in one year of people using male condoms, because of their failure rate is about 13% in the real world, that could lead to up to 513,000 wanted pregnancies. Birth control pills, based on the number of women using birth control pills, up to 460,000 pregnancies a year in people who are actually using contraception to not get pregnant. So I think these data visualization is really important. And you can hear interviews that I did with the researcher and the physician who actually is the author of this textbook, as well as one of the world’s leading reproductive endocrinologists who talks about what’s next in contraceptive efficacy.

Rovner: Yes, I loved that story. Well, my story is also a radio story. It’s from NPR by Carrie Feibel. And it’s called “Because of Texas’ Abortion Law, Her Wanted Pregnancy Became a Medical Nightmare.” And it’s from July. And the events that it chronicles happened before the overturn of Roe v. Wade, because, as we’ve said, Texas’ abortion ban was already in effect. By now, we’ve heard this story many times. A woman with desired pregnancies, water breaks prematurely, which would normally result in a quote-unquote “medical termination.” Except the doctors and hospitals aren’t sure how sick the mom needs to be before the pregnancy actually threatens her life. And any other abortion is illegal, and they could get in legal trouble. So they put her through days of hell and sickness before she starts to show signs of sepsis and just before she and her husband were actually going to fly out of the state to get the pregnancy terminated. But this was the first of these stories that I read. And it hit me very hard. And I have such respect for the couple here who were willing to come forward and publicize all that the women called these gray areas of abortion, which lawmakers often think of as black-and-white. It was just one of those stories that sticks with you.

All right. That is our show for this week. As always, if you enjoyed the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left us a review; that helps other people find us, too. Special thanks, as always, to our ever-patient producer, Francis Ying. Also, as always, you can email us your comments or questions. We’re at whatthehealth — all one word — @kff.org. Or you can tweet me. I’m @jrovner. Sandhya?

Raman: @SandhyaWrites

Rovner: Alice?

Ollstein: @AliceOllstein

Rovner: Sarah.

Varney: And @SarahVarney4

Rovner: Will be back in your feed with our regular news rundown next week. Until then, be healthy.