Federal judges issue conflicting rulings in a pill used for medication abortion

Originally published by The 19th

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Federal judges have issued contradicting orders about whether mifepristone — one of two drugs used to induce a medication abortion — can be legally distributed.

A judge in Texas ruled Friday in a much-watched case, saying that the federal government’s approval of the drug must be blocked; his decision, he wrote, takes effect in one week, giving the Department of Justice time to appeal the decision.

But another federal judge, in Washington state, found the opposite in a separate case concerning the drug’s approval. That judge, who also ruled Friday, held that a nationwide injunction blocking mifepristone’s distribution would be “inappropriate.”

The conflicting federal rulings increase the likelihood that mifepristone’s legality will ultimately be decided by the Supreme Court. The stakes for people seeking abortions are significant.

If the Texas-based judge’s decision takes effect, people seeking a pill-based option would be forced to use a less effective, at times more painful medical regimen for medication abortions, which is the most common method to terminate a pregnancy. Some clinics told The 19th they will stop providing medication abortions altogether following the ruling. The decision is expected to be quickly appealed.

Medication abortions typically involve two medications: mifepristone, which is administered to stop a pregnancy from progressing, and then misoprostol, which is taken 24 to 48 hours later to empty the uterus. The protocol is only recommended for the first trimester of pregnancy, and has somewhere between a 95 and 99 percent effectiveness rate. The risk of complications is less than 1 percent.

With mifepristone potentially unavailable soon, some abortion providers have been preparing to offer medication abortions using only misoprostol. That regimen — which is used in most other countries, where mifepristone is often unavailable — is safe and effective, but research shows it has a higher failure rate than the two-drug option. (A recent study found misoprostol-only medications had an 88 percent effectiveness rate.) Patients who take only misoprostol also can experience heightened side effects, including greater pain and vomiting. Other providers have said they will distribute mifepristone for as long as they have the drug in stock.

Adjusting to the one-drug regimen would not be easy. Clinicians across the country told The 19th it would take time to adjust to a misoprostol-only protocol. Many clinicians have only ever provided mifepristone-misoprostol regimens up until now, and experts told The 19th that switching to misoprostol only could mean reduced capacity at clinics.

If mifepristone’s distribution is blocked, some providers will now only provide surgical abortions, which are also safe and effective. But surgical abortions can only be offered in clinics, and take more time and resources for abortion clinics to provide.

For patients traveling across state lines to get an abortion, a misoprostol-only abortion presents particular challenges. The higher failure rate means greater odds of needing follow-up care when people have already returned to their home state.

Mifepristone has been on the market since 2000, when it was first approved by the Food & Drug Administration to help induce abortions. Since Roe v. Wade was overturned last summer, allowing states to ban abortion, the mifepristone-misoprostol combination has become even more significant.

Health care providers in states that allow abortion, especially those that have seen a surge in out-of-state patients as states restrict or ban the procedure, have leveraged medication abortion as a way to serve more patients quickly. Medication abortions are cheaper to administer, and patients can safely take the pills from home. Some people who have been unable to leave their home states have ordered mifepristone and misoprostol online to perform medication abortions at home, a practice that is potentially legally risky but is medically safe. (The World Health Organization recommends people taking medications have access to professional medical support if needed.)

The ruling in Texas, issued by Judge Matthew J. Kacsmaryk from the Northern District of Texas, comes in an unusual case. Filed by an anti-abortion group, the lawsuit argues that the government should revoke the FDA’s approval of mifepristone, claiming that the drug was improperly approved. Legal experts have robustly criticized the substance of those arguments.

There is no precedent for a district judge effectively undoing the FDA’s approval of a drug, and it’s not clear if this ruling will spur similar lawsuits. Some reproductive rights advocates worry that Kaczmaryk’s ruling could open the door for challenges to the FDA’s approval of intrauterine devices or emergency contraception pills — methods of birth control that some influential anti-abortion groups also oppose.

Recent polling found that 62 percent of voters disapprove of efforts to block access to medication abortion, including the majority of independents and of women voters.

Texas denied abortions to these women when their lives were in danger. Now they’re suing the state.

Originally published by The 19th

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Amanda Zurawski never wanted to be here. Neither did Lauren Miller. Nor did Lauren Hall or Anna Zargarian.

But they didn’t feel like they had a choice.

The four women repeated that refrain, one by one, on a humid Tuesday afternoon, standing in the shadow of the Texas Capitol. It was the day after they — along with a fifth Texas woman, Ashley Brandt — sued the state after they tried to get abortions following medical complications that in some cases threatened their lives. They are the first people who had been denied abortions to challenge a state ban since Roe v. Wade was overturned.

Some were supposed to be at home — new moms on parental leave after nursing healthy, happy pregnancies. One was supposed to be prepared to give birth to twins, due in just a few weeks. But instead, they’ve become the faces of a case, regularly reliving the pain of losing their wanted pregnancies. It’s a duty they told The 19th that they take seriously. By sharing their stories, they hope they’ll be able to prevent others from being forced to experience the pain, fear and illness they’ve endured.

“I don’t want to look back at this time and not have done something,” said Zagarian, who lives in Austin. “It’s not a fun thing to talk about. But this is a pivotal moment in our politics.”

The five women are suing the state in an effort to seek clarity about what medical exceptions, if any, its three active abortion bans permit.

The case is spearheaded by the Center for Reproductive Rights, the law firm that represented abortion providers in Jackson, Mississippi, in the case that resulted in Roe’s overturn. Lawyers representing the women acknowledged that the case, filed Monday night in Texas court, is unlikely to result in a restoration of abortion rights in Texas, the largest state in the country to outlaw the procedure. Instead, they are seeking a ruling from the state court system that could allow physicians more latitude in determining when a patient might need an abortion to protect their health. Nancy Northup, head of the Center for Reproductive Rights, said she anticipates similar lawsuits will be filed in other states with abortion bans like Texas.

Texas’ abortion laws, like those in other states that have banned the procedure, have nominal exceptions if the procedure is deemed necessary to save a pregnant person’s life. But in practice, those exceptions have offered patients little recourse. Physicians in Texas and other states have said the way exceptions are written is often too narrow and too unclear — meaning that medical providers may have to wait until the patients’ condition becomes life-threatening before they can provide care.

The plaintiffs in the case, Zurawski v. State of Texas, all hoped to keep their pregnancies. But for each of them, complications developed that made it unsafe to stay pregnant. Four left the state for abortions — care their doctors recommended as medically advisable but said they were unable to provide under Texas law.

Zurawski was able to get her pregnancy terminated in Texas only when she developed sepsis, a life-threatening condition, even though doctors had known for days that she needed an abortion. Complications in her pregnancy meant her fetus wouldn’t survive.

“I’m still dealing with a lot of trauma and pain and grief — both psychologically but also physically,” Zurawski said. “We know there’s a pretty significant fight, and there’s a lot of people that can’t speak up or don’t want to speak up. I feel like I have to.”

Zurawski, along with the other three plaintiffs who spoke in Austin, told The 19th that she had long supported abortion rights. But none of these women ever expected to become the public representatives of what it means to lose access to this procedure.

“I’ve always been staunchly pro-choice. But I remember when [Roe] was overturned, I was like it’s horrible. I was outraged, I was furious,” said Zurawaski who was a guest at the recent State of the Union address. “I did not think it would impact me directly because I was at the time actively undergoing fertility treatment.”

She knows first-hand people whose minds have been changed about abortion because of her experience: friends and acquaintances from back home in Indiana who had previously supported abortion bans and have told her they now feel differently. It’s a responsibility she takes seriously, she said. Still, “it definitely does not get easier the more you talk about it.”

Miller learned when at 12 weeks into her pregnancy with twins that one fetus was likely not viable and she would need an abortion to improve the chances that the other one might live. After seeking an abortion in Texas, she traveled to Colorado. She worries about the people who didn’t have what she did: the $3,600 to leave the state, an employer who let her take time off, a doctor in Colorado who had the time to see her, and someone to take care of her other child at home.

“That’s part of why I’m doing this,” she said. “We’re not the only ones like this. There are others in our situation, and they’re not all coming out of this with their lives.”

Four out of the five plaintiffs in the lawsuit are White, but abortion laws have had a disproportionate impact on people of color, both in Texas and nationally. According to the Centers for Disease Control and Prevention, Black patients accounted for about 40 percent of all abortions in 2020. And the 13 states that have so far banned abortion — largely in the South and Midwest — have particularly large shares of Black and Latinx residents, compared with many other parts of the country.

In 2020, the last year that abortion was fully legal in Texas, 55,000 abortions were performed in the state. About 20,000 abortions were for Texas residents listed as Hispanic, and about 16,400 were for Black residents. The numbers were similar in 2019.

The federal government has attempted to intervene and provide doctors with more clarity that could help them act with confidence in medical emergencies. The Department of Health and Human Services issued guidance last summer arguing that, under the Emergency Medical Treatment and Labor Act, abortions are a protected medical procedure if they are necessary to treat a medical emergency. Texas Attorney General Ken Paxton, a defendant in the new CRR lawsuit, has challenged that guidance in court. It is currently not being enforced.

And people like the five plaintiffs and their families, in the meantime, are having to go to extraordinary lengths to receive care.

When Hall learned that her fetus was developing without a skull — a condition that meant it certainly would not live and also increased her risk of hemorrhaging — she was forced to travel to Seattle, the closest place she could find an abortion appointment.

“I’m very concerned for people who don’t have those resources, who will be forced to wait to get sick enough for a Texas hospital to be willing to treat them,” Hall said. “It feels like I’ve lived here my entire life, I’ve built my life around Texas, I pay taxes. Why doesn’t the state also care about me?”

Zargarian’s water broke when she was 19 and a half weeks pregnant; doctors told her her fetus could not survive and that without an abortion, she too might die. She flew to Colorado, where she received an abortion while registering a 101-degree fever. She still has symptoms of post-traumatic stress disorder from flying while afraid she might go into labor on the flight.

"It's really odd," Zagarian said of being a part of the lawsuit. "I wish I could be supporting women from the stands and not be one of them up there speaking about it."

Abortion bans are already incredibly unpopular, polling from the Public Religion Research Institute shows — including in Texas, where 57 percent of people say abortion should be legal in most or all cases, and only 14 percent support a ban with no exceptions. Across the country, 64 percent of people support abortion legality in most or all cases and only 9 percent of people believe abortion should be banned in all cases.

That’s what Hall said she is discovering — and as she talks about her experience, more and more people who don’t support abortion rights still say they disapprove of laws like Texas’.

“I have a lot of friends and family who consider themselves pro-life. They still choose to remain in that camp. However, I’ve not talked to a single person who thinks that a total ban is acceptable,” Hall said. “I would not say I know per se people whose minds have been changed from one side to the other, but it definitely makes them consider the gray areas a ban impacts.”

Kentucky is latest to test whether red states will keep voting for abortion rights

Originally published by The 19th

When Kansas voted two-to-one against a proposal that would have said there was no right to an abortion in the state, the resounding victory suggested that abortion bans are a losing issue. But it wasn’t clear whether that argument could apply to red states beyond Kansas.

Now comes the next test: Kentucky, which is already enforcing a near-total ban on the procedure.

Voters this November will weigh in on a measure nearly identical to what Kansans rejected. A yes vote would specify that the state’s constitution does not protect the right to an abortion. A no vote would leave the constitution as it is, allowing for the possibility that the state’s Supreme Court could strike down Kentucky’s abortion ban.

Currently, Kentucky’s abortion providers are challenging the state’s abortion ban in court, but the case is on hold until the election results come in. The state’s two clinics have already stopped offering abortions.

There is so far no public polling available on the race, which has already drawn more than $2 million, with the vast majority of money going to abortion rights organizations. (Updated finance numbers will be available Wednesday.) If Kentuckians reject the measure, the result could strengthen the argument that abortion providers are making: Voters of all political stripes oppose laws banning abortion.

“It would really drive home the narrative that abortion is a winning issue,” said Tamarra Weider, the state’s director of Planned Parenthood Alliance Advocates, an advocacy organization. “We have a real opportunity to change what, nationally, people think about Kentucky. And hopefully they’ll reconsider not only abortion rights in Kentucky but look across at those other red states that people don’t invest in.”

It’s an uphill battle. A 2018 poll from the Public Religion Research Institute suggests that Kentucky voters are evenly split on abortion, with about half believing it should be legal in most or all cases and half saying it should be banned in most or all cases.

“I don’t think Kentucky’s voters are as likely to express pro-choice preferences as Kansas voters did,” said Steven Voss, an associate professor at the University of Kentucky who specializes in state politics and voting behavior. “Yes, they’re both red states with typical Republican preferences. But the extent to which ‘moral conservatism’ — conservatism on moral and cultural issues — drives Republican affiliations here is stronger than you see in Kansas.”

But public opinion on abortion appears to have shifted since the Supreme Court overturned Roe v. Wade and abortion bans moved from a theoretical possibility to concrete reality. Nationally, abortion bans appear less popular than before, and more voters are likely to say abortion should be legal in most or all cases. Bans without exceptions for health, rape or incest are especially unpopular — a pattern abortion rights advocates hope to leverage this fall.

Polling conducted this summer for the Democratic Governors Association suggested that the vast majority of Kentuckians oppose a total ban on abortion, and that they generally oppose the state’s current law, which prohibits abortions with no exception for cases of rape or incest.

“Kentucky has already banned abortion,” said Rachel Sweet, campaign manager for Protect Kentucky Access, an abortion rights coalition opposing the amendment. “That being the case is in some ways changing the way I think Kentuckians are feeling about the ballot measure — because they’ve already seen the bad stuff that can happen when you support these extreme abortion restrictions.”

Sweet came to Kentucky this August, after leading the Kansas effort to defeat its proposed constitutional amendment hoping to replicate abortion rights groups’ success in Kansas.

For two red states with Democratic governors, Kentucky and Kansas remain incredibly different. In Kansas, abortion remains legal, and in Kentucky, it is not. Kansas has more registered Republicans. But Kentucky, Voss noted, has a larger share of socially conservative Democrats. There is a deeper running evangelical culture, a group that polling shows is less likely to support abortion access.

Still, Sweet suggested, there may be some similarities in how to approach the issue.

“My job is not to convince someone who is adamantly pro-choice that Roe being overturned is bad. That’s not who I’m talking to because that’s a person who is already going to vote,” Sweet said. “This campaign is extremely targeted to you if you are somewhere in the middle, because that is most of the country, and it is a voting bloc that is very concerned about the state of affairs at the moment.”

The campaign is still in its early stages. Protect Kentucky Access has begun sending people door to door, and has so far run one TV ad highlighting a woman who could not receive an abortion after a wanted pregnancy developed unspecified medical complications.

Kentucky’s abortion ban technically has an exception if terminating a pregnancy will save the pregnant person’s life. But doctors across the country have reported that, even when abortions bans have life-saving exceptions for the pregnant person, the language is too vague for physicians to feel comfortable providing that care.

The emphasis on medical emergencies is deliberate, Sweet said, and will be a theme of the campaign.

“These are the cases that all these extreme restrictions don’t make an exception for,” Sweet said. “These laws really do impact situations and circumstances that are universally understandable. These laws are really outside the scope of everyone’s values.”

So far, Yes for Life, Kentucky’s main campaign arm supporting the amendment, has organized rallies across the state in favor of the amendment. It’s not clear what other activities they have planned, and when asked for comment, Yes for Life did not offer further specifics on campaigning, other than to say they are working “around the clock” to get people to vote for the amendment.

If the amendment passes, abortion is likely to remain unavailable in Kentucky. There will be few nearby options for people seeking one to travel. Only two of Kentucky’s neighboring states — Virginia and Illinois — do not have abortion bans on the books, though Ohio’s six-week ban and Indiana’s total prohibition are currently blocked by courts.

If the amendment fails, it’s still not clear what happens next. The state’s courts will still have to weigh in on whether to allow Kentucky’s abortion ban to stay in effect. And even if the state’s abortion ban is struck down, state lawmakers could pursue other restrictions when they return to Frankfurt next year.

Abortion bans like Lindsey Graham’s say they have rape and incest exceptions — in practice, they don’t work

Originally published by The 19th

Senate Republicans quickly distanced themselves from a national abortion ban introduced Tuesday by South Carolina’s Lindsey Graham. The bill, which seems unlikely to become law, would ban abortions across the country for people beyond 15 weeks of pregnancy.

Graham — who as recently as a month ago said abortion policy should be left up to the states — portrayed his bill as a compromise federal policy that does not prohibit all abortions, and pointed in particular to its written exceptions for people who become pregnant as a result of rape or incest.

“There will be exceptions for the life of the mother, for rape, for incest,” he said at a press conference Tuesday.

But exceptions for the life of the pregnant person are notoriously difficult to receive; physicians have said the requirement of providing abortions only in an emergency can force them to wait until a patient is in dire condition before providing them needed care. And the rape and incest exceptions written into the bill — much like the ones that exist in a handful of state abortion bans — are nominal at best, sexual violence and abortion policy experts said. They require reporting and paperwork that does not occur in the majority of sexual assault cases.

These exceptions require people to jump through significant logistical, legal and bureaucratic hoops that render them nearly impossible to utilize, experts said.

Accessing abortion through the rape or incest exceptions “would be exceedingly difficult legally — virtually impossible,” said Elizabeth Nash, who tracks state abortion policy at the Guttmacher Institute, including the impact of states’ alleged rape and incest exceptions. “These types of exceptions do a great disservice to sexual assault survivors.”

The Graham bill would require that adults who become pregnant after rape or incest receive “counseling” or “medical treatment” for the assault 48 hours before receiving an abortion. (The bill does not specify what kind of treatment, but that could include a forensic exam or treatment for physical injuries sustained during an assault.) If a minor who experiences rape or incest seeks an abortion, the assault must first have been reported to law enforcement or to “a government agency legally authorized to act on reports of child abuse.”

Abortions performed under those cases must be done “only in the manner which, in reasonable medical judgment, provides the best opportunity for the unborn child to survive.” This is a provision that is in many cases medically impossible to satisfy, Nash noted, since an abortion by definition terminates a pregnancy, and fetuses cannot live outside the womb until around 23 to 25 weeks. A requirement like this, she said, could discourage physicians from providing abortions even under these exceptions.

The majority of people who experience sexual assault are unlikely to meet the bill’s reporting requirement. In 2020, less than 1 in 3 cases of rape or sexual assault were reported to the police, per the Department of Justice. Many survivors do not report their assault to law enforcement for fear of being harassed, assaulted or having to go through a painful, traumatizing criminal prosecution process, noted Nicole Bedera, a sociologist who studies sexual violence.

Data also suggests that many people who experience rape or sexual assault do not go to the hospital or otherwise get medical treatment for the assault; those who do get care often do not immediately tell medical providers that they were assaulted. And minors in particular are often not equipped to navigate the legal reporting process, especially if assaulted or abused by someone known to them.

Rape-related pregnancy will affect 3 million women in the United States in their lifetimes, per the Centers for Disease Control and Prevention, and women raped by intimate partners are more likely to report rape-related pregnancy. (The data does not account for other people who can become pregnant.)

“These are crimes. Reporting them can be very, very difficult,” said Usha Ranji, associate director of women's health policy at the Kaiser Family Foundation. “The structures of both the health care system care for sexual assault as well as the judicial system for addressing the crimes of sexual assault and incest already have a lot of holes in them. And now you’re putting that as a condition for obtaining medical care that somebody is seeking.”

Waitlists for assault-related counseling can last months, even if someone requests that service immediately after being assaulted, Bedera said. People who experience rape or sexual assault often do not immediately process what has happened, in large part because of the stigma surrounding being raped. That means people would have to understand quickly their assault, wait months to get counseling, and then wait 48 hours more to get an abortion, pushing them later into pregnancy.

“I don’t expect that anyone will be able to access the exemption, just because of the standards that exist,” Bedera said.

Requiring people report rapes to the police or seek counseling or treatment could put them in danger. Some also may be afraid of their counseling records being subpoenaed if any legal proceedings do follow. Even asking for confirmation that what happened was indeed rape — a common question — could put them at further risk.

“Survivors’ counseling records are often subpoenaed and used against them,” Bedera said. “You could have a victim who maybe did clear all these hurdles and got an abortion, but after, when government officials got those records, they could say, ‘Wow, she did question whether she was assaulted.’ That could open her up to criminalization or legal risk.”

Across the country, 11 states are already enforcing total abortion bans, and two more — Georgia and Ohio — do not allow the procedure after six weeks of pregnancy. A handful more states have abortion bans on the books that are currently blocked by state courts. A ban in Indiana is set to take effect this week. Another, passed Tuesday in West Virginia, has not yet been signed into law.

Only a few of those state laws retain exceptions for cases of rape or incest. But those that do follow a similar pattern to the Graham bill. In Georgia, Idaho and Mississippi, a rape must be reported to the police, and a copy of the police report made available before someone can receive an abortion. In Indiana, a physician must certify in writing that “the abortion is being performed at the woman's request because the pregnancy is the result of rape or incest.” If enacted, West Virginia’s abortion ban would also require people report to law enforcement to qualify for an exception.

Abortion bans in North Dakota, Utah and Wyoming — all currently blocked in court — contain rape and incest exceptions. North Dakota’s and Utah’s bans require rape or incest be reported to the police. Wyoming’s ban does not specify what is needed to qualify for a rape or incest exception.

Already, federal rape and incest exceptions have shown themselves to be ineffective, Ranji noted. The Hyde Amendment, which prohibits the use of federal Medicaid dollars to pay for abortions, has an exception for cases of pregnancy caused by rape or incest. States can determine how people qualify for those exceptions. Government analysis has shown that, though these exceptions exist on paper, people almost never receive them.

That is likely to repeat in bans like Graham’s bill, or in the state laws being enacted and enforced, Bedera said.

“My main takeaway from these exemptions is they are a way for the Republican Party to avoid scrutiny for bills that take away the autonomy of people who are pregnant,” she said. “They’re not meant to work. They’re symbolic.”

The Biden administration just hinted at how it could protect access to medication abortion

Originally published by The 19th

Following the Supreme Court’s decision to overturn Roe v. Wade — the case that guaranteed the right to an abortion — President Joe Biden and the Department of Justice have endorsed a legal theory that could weaken states’ efforts to ban access to medication abortion. Soon after the court’s 6-3 decision was released Friday, Attorney General Merrick Garland offered the first clues of how the federal government may attempt to shore up at least some level of abortion protections.

“We stand ready to work with other arms of the federal government that seek to use their lawful authorities to protect and preserve access to reproductive care,” Garland said.

In particular, the president and attorney general both pointed to the power of the federal government to maintain access to mifepristone, a pill used to manage miscarriages that is also part of a two-pill regimen to terminate many first-trimester pregnancies.

“My administration will also protect a woman’s access to medications that are approved by the Food and Drug Administration — the FDA — like contraception, which is essential for preventative health care, and mifepristone, which the FDA approved 20 years ago to safely end early pregnancies and is commonly used to treat miscarriages,” Biden told reporters soon after the decision was issued.

He added that he is directing the Department of Health and Human Services (HHS), which oversees the FDA, to ensure medications such as mifepristone are available “to the fullest extent possible.” In a separate statement, HHS Secretary Xavier Becerra said his adminstration would “use every lever” to protect access to abortion, singling out medication abortion in particular. When asked about mifepristone policy at the Aspen Ideas Festival on Friday, FDA commissioner Robert Califf said he would not contradict statements issued by the president and attorney general.

In his statement, Garland pointed to a legal theory known as preemption. The idea is that because the FDA has approved the use of mifepristone, states cannot further restrict access to the drug.

“States may not ban mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy,” Garland said in his statement.

So far, 13 states have laws on the books that would ban abortions following the end of Roe. As of this writing, five have taken effect. A preemption argument could also weaken laws banning abortions for people beyond six weeks of pregnancy.

If a court agrees that the FDA’s approval of mifepristone preempts state bans, then it should — at least theoretically — reject state laws banning access to mifepristone for people up to 10 weeks of pregnancy. That would effectively reverse a law banning access to the majority of first-trimester abortions.

“This shows that Garland is really thinking about some of the issues we’ve been screaming about in the media,” said Greer Donley, an assistant professor of law at the University of Pittsburgh Law School. “I’m very excited to see the Biden administration through the attorney general really thinking strongly about this issue.”

Still, it’s not clear if the administration will follow through on this promise or what that would look like. HHS or the DOJ could attempt to challenge state laws that ban using mifepristone for abortions up until 10 weeks of pregnancy, or the government could simply sign on in support to cases filed by other independent organizations making the same argument.

There is little legal history showing whether the preemption argument would hold. In only one circumstance has it really been tried: in Massachusetts, when a federal court struck down a state law banning access to opioids beyond what the FDA had approved.

And the outcomes are far from certain. The federal government would have the strongest claim of preemption if it challenged state laws that specifically regulated mifepristone based on claims of safety and efficacy, said Ameet Sarpatwari, assistant director of Harvard Medical School’s Program on Regulation, Therapeutics and Law. That’s because safety and efficacy of drugs fall strictly within the FDA’s purview. If the federal government used this argument to challenge a broader law — such as a blanket ban on abortions — courts might be less willing to carve out an exception to the ban for people using medications up to 10 weeks of pregnancy.

Still, he said, it’s an argument the Biden administration should consider if it is serious about maintaining abortion rights.

“It makes little sense to me how you can have an FDA-approved drug but not have it be able to be used at all within a state. I still think it’s worth trying to pursue that preemption argument,” Sarpatwari said. “At this point, it’s sort of all available tools in the arsenal need to be used if your desire is to promote reproductive rights.”

Any lawsuit leveraging the preemption argument would need to be filed against a state that has banned access to first-trimester abortions and that falls into a federal court circuit that might be sympathetic to the preemption argument, Donley said. That’s easier said than done. Under former President Donald Trump, the federal judiciary shifted far to the right, and conservative justices are largely considered less open to cases that would maintain abortion rights protections.

There certainly are states where this type of challenge could be viable, Donley said. But any relief issued by a federal court would likely be limited, blocking just the individual state’s laws banning access to mifepristone specifically for people terminating pregnancies up to 10 weeks. If a federal court tried to issue a nationwide injunction — using a preemption case to block first-trimester abortion bans across the country — that would likely be appealed quickly to the Supreme Court.

“Ideally this is a theory you could take all the way to the Supreme Court and win, but understandably many have argued that the Supreme Court that just overturned Roe might not be sympathetic to creating this huge exception,” Donley said.

These are the stories of life before Roe v. Wade transformed America

Originally published by The 19th

Saturday marks the 49th anniversary of the Supreme Court’s decision in Roe v. Wade, the landmark ruling that guaranteed the right to an abortion. It could very well be the last anniversary before it is overturned.

During oral arguments for Dobbs v. Jackson Women’s Health Organization last year, a majority of the court appeared ready to overturn Roe v. Wade, allowing states to ban abortion entirely. A decision is expected this summer.

Such a reversal would be historic. Prior to Roe v. Wade, people seeking abortions were forced to find clandestine clinics, borrow spare cash and travel hundreds of miles — sometimes under cover of darkness — for risky procedures that they learned about through word of mouth. There was the lingering worry that a procedure might not work. And, if it did, that it could result in medical complications — or even death.

Few expect the United States to revert to 1972. Unlike before Roe v. Wade, many Democratic-led states are now likely to pass laws cementing abortion protections, creating oases of access to the procedure in safe, legal settings.

And the advent of medication abortion pills could give people a safer way to end a pregnancy at home, even if their state has ended legal access. But “self-managed abortions” are only possible before 10 weeks of pregnancy, and also may not be accessible to everyone who wants to end a pregnancy. For people who don’t have these options available, the memories of life before 1973 carry particular salience.

With national abortion protections hanging by a thread, stories of a pre-Roe v. Wade nation matter now perhaps more than ever. To better understand the decision’s impact The 19th spoke with people across the country about their memories of life before the 1973 decision, as well as how things have changed in the years since.

These are memories from women who received illegal abortions, those who campaigned against abortion rights, and those who worked as health care providers before and after 1973. Below are their stories, in their own words.

Susie Scott, 73, of Laramie, Wyoming

A photo illustration of Susie when she was young.(Rena Li for The 19th)

It was spring in my sophomore year in college [in 1968] and I was here in Laramie, at Wyoming University.The word was in Laramie — because we’re quite close to the Colorado-Wyoming border, it’s about 50 miles — that if you knew the right folks, you could drive to Colorado [where doctors might provide illegal abortions].

I was in a relationship with a man I had essentially been with since 7th grade. I did not take the decision of what to do lightly. When it became evident that we were not going to get married, I started inquiring as to what, how, when, where. I had a sorority sister at the time who was from Colorado, and I took her aside and we had a conversation. She had just had a friend who was in Denver who was in the same situation I was.

There was kind of a third party that I found out about this provider in Colorado. I called and of course the first thing, right up front, was that all procedures were to be paid in cash, up front. If I recall right, it was like $575. Where does a college student find an extra $575 in 1968?

It was my money, the young man’s money, and money from some of our friends. There were very, very few people who knew about the predicament. In those days, it was considered really risky. And so you can count on one hand the people that I was telling. A friend offered to drive me to Denver and the instructions were that I was to register at the hotel, motel thing not far from this provider’s office in northern Denver. Register there. And after the procedure, I was to go back and spend the evening in the motel and come back and see him in the morning.

I went in the back door, and I remember just being scared to death, absolutely scared to death because I didn’t know what to expect. They were going to inject me with some sort of solution that would in a few hours result in a miscarriage, if you will.

So I gave the money. I had the procedure. And my friend and I went back to the motel. A few hours into the evening, nothing was happening. Nothing. And I thought, ‘Oh dear, oh dear, oh dear, I’ve just handed this fellow $575 and maybe this whole thing was a hoax.’

I said to my friend, “I want to go back to Laramie. I’m incredibly uncomfortable here. I’m scared to death. Let’s just get back to Laramie.” So we got the car, drove back to Laramie, and about the time we got to the outskirts of town — which means it’s almost sunrise — I started having contractions that went through the entire day. The following night, without having passed a fetus, I got scared and thought, ‘What in the world?’

So my friend drove me to the hospital, and I spent the next two days in the hospital. Fortunately, it was the end of the school year, so people were moving out of the sorority house. Lots of activity, nobody really realized that I was gone for a couple of days. The physicians or the providers, the hospital kept pressuring me to tell them what had happened. They thought I had sought an abortion.

One of the providers — and he was a provider here for a long, long time — very well respected, he came to my bedside and said, ‘Susie. If you don’t pass the fetus here in the next few hours, we’re going to have to have a surgical procedure.’ You know, you’re there. What do you say? Luckily, I passed it. That was it.

The follow-up on that is then I had a hefty bill at the hospital. I went to the hospital, worked out a payment plan with them. And I think I paid over like a year and a half. I eventually got it all paid off. But just the whole process was frightening.

About four years later, I was working in Denver. I got on an elevator and there was the doctor [who had performed the abortion]. I remembered his face. I just, you know, punched the next floor and got off the elevator.

He was very scary. My take was that in a strange way, he got pleasure out of the fact that I was at his mercy.

Suzie H., 75, Lincoln, Nebraska

I lived in New York City. I went to nursing school there, and then I worked there for a couple years. But when I was there, there were rumblings. It was the early ‘70s — ‘71, ‘72. And of course, Roe v. Wade passed in, I believe it was ‘73. I really didn’t have any thoughts about it one way or another. I wasn’t really sure how I felt about it at that time.

Because of an illness of my mother, I moved. I had to leave my job teaching at Johns Hopkins School of Nursing in Baltimore, out to Crawford, Nebraska. And if you want to look on the map of Nebraska, it’s in the northwest part of the state, in the panhandle — very far away from any city.

I was planning to go back. And then I met my husband out there, and long story short, I got pregnant, and I was not married. I went to the doctor, and it was just after Roe v. Wade was passed in January. The doctor told me, “Well, I can refer you to a doctor up in South Dakota who does abortions.”

I came back and I told my husband-to-be, and we both decided that, no, that’s probably not a good idea. It’s our baby. We won’t do it.

I felt that it was my fault, my responsibility. And then when my daughter was born, it was like, “Oh, man, I would have felt terrible, I would have felt so guilty.”

From then on, I was very, very much a pro-life person. I joined a pro-life organization, and later on, when we moved to another town, I would give talks about [my experience].

One time, I was having lunch with a woman, she was actually a pastor’s wife. She was telling me that she was very much pro-abortion and was going on and on. I was very upset. I wanted to say something to her. And I said to myself, “OK, God, tell me what to say.” And he actually zipped my lips, and I just listened to her. Didn’t change my mind.

Then a couple years later, I was in Lincoln, Nebraska. I’m having lunch with some colleagues and the topic came up again. And one of my colleagues was talking about a relative who was getting an abortion. And I said to her, “Why are you supporting this?” She told me her story. And then she asked me my story and why I was so adamantly opposed. And I told her. The bottom line, we both kind of understood each other better. Over the years, I’ve come to understand that I am not the only one with a story — that other people have stories. There are sometimes good reasons.

Over the years, I’ve come to understand that I am not the only one with a story — that other people have stories.

Now, the other side of that coin is I still am not in favor of abortion as a means of birth control. But I think there are occasions when it is something that is the best choice, whether it be a health care issue or whatever. I do not have a condemning attitude, if you will. I’ve totally changed in how I feel toward people who have one, because I know the misery and the struggles of women who have had abortions, what they have gone through. It’s been terrible.

I don’t know if it’s a maturation in my mind, or if it’s just God telling me, “This is the real world. And this is how other people live their lives.”

I feel [abortion] still needs to remain a right. But one of the big things that needs to be offered more than anything is support for women who are pregnant. Say they were raped or they got pregnant, stupidly, like I did. We need to have more support than just say, “Oh, we’ll make an appointment, you can get an abortion.” We need to say “No, let’s have some counseling for you.” Let’s provide them with financial support, instead of just outright saying this is the only solution we have. There needs to be that right [to an abortion], but there needs to be constraints around that, and supportive measures.

I remember that before — there were illegal abortions going on that were deadly, to be honest. Back in the ‘70s, ‘60s. If they overturn Roe v. Wade, I am definitely concerned about that.

Lorraine Saulino-Klein, 72, Laramie, Wyoming

A groups of three women nurses in a photo illustration.Lorraine Saulino-Klein, middle, in a photo from nursing school.(Rena Li for The 19th)

I graduated in 1967 from high school, and I went straight into nursing. I wasn’t even aware of the abortion laws in New York. I mean, you heard stories of people who were going to some back rooms or doctors. We had heard stories about that happening.

Then somebody would disappear. There was a hush she was pregnant and she’d be away. So we didn’t know whether she went to an aunt to have a baby or was pushed off somewhere to have an abortion. But everything was hush hush. We didn’t talk about it at all.

When I was 18, I went right to nursing school at Brooklyn, New York: Kings County Hospital Center School of Nursing. It was a three-year diploma school. We got these pink lab coats and we were supposed to talk to [patients]. Everybody I knew in my circle of new friends got old people. I was assigned to a 16-year-old.

I walk into the room, and there were like six or eight doctors standing around this beautiful looking girl. I mean I’m 18, she’s 16. And her eyes are rolled back. She’s thrashing all over the bed. And all these docs are totally helpless. This kid was pregnant. She went for a pill. And then she went for a coat hanger, because she wasn’t sure it was working.

She was a Catholic kid. She didn’t have anybody or anywhere to go, she didn’t know where to look for help. And here are these doctors, and I’m in charge of taking temperature. The temperature is going up. It gets to 107.

Oh, it was the most horrible thing I have ever seen in my life.

She dies in front of all of these doctors, and they’re helpless to do anything to help. They wanted to. There was just nothing they could do.

I was a Catholic teen. I took the Eucharist from the minister, I was very participatory. However, up until that point, I had never heard the Catholic philosophy that life begins at conception. I mean, it was just never something that came up. And I didn’t even hear that until I was 21.

But right then and there I thought no one, no matter what kind of mistake or goof-up or whatnot they did in their life, they shouldn’t have to suffer and die like that. It’s not a baby, it’s a fetus. The fetus died. She died.

I will for my whole life never forget it. It traumatized me.

It was devastating doctors, devastating nurses to cry. It was a nightmare. And I will for my whole life never forget it. It traumatized me. But it made me firmly in the camp that no matter what you do in your life, nobody should have to go through that. I mean, it didn’t only hurt that kid and that fetus. The doctors and nurses, too — they were too paralyzed to do anything.

I had a talk with someone that I knew, it was a friend of mine. And I said to her, “Did you ever see somebody die of a septic abortion?” And she said, “Well, let me think about that.” And I said, “Oh no. No, no. If you see anybody die like that, you never forget it.”

Rosalyn Jonas, 75, Bethesda, Maryland

The illegal abortion was in 1966. I had just turned 20.

It was the first guy I slept with, and I did not know shit about birth control or any other thing. I was 19 when I got pregnant and 20 when I realized that. I was living at home and with deeply conservative parents who I simply could not tell. I had a very good friend who was at Goucher College, in Towson, Maryland. It was a girls’ school and they had a network, a pipeline to a gynecologist in Baltimore.

So I got myself to Baltimore. [The gynecologist] was a lovely lady. And she said, “Can you tell your parents?” And I said ‘No.’ Then she gave me a little tiny folded piece of paper with a phone number on it. And she said, “Call this number.”

So I drove home. And I have to go to a payphone of course, to dial the number, because my mother was given to listening in on my calls. I call the number and some guy answers, and the arrangements are made — it’s supposed to be $600 in cash. We agree on a date and a pickup point, which was on Eutaw Street in downtown Baltimore, in front of a movie theater. We pick the date and the time. And then I have to find $600. I don’t have $600. I mean, that was a lot of money in 1966.

So I borrowed $100 here and $50 there. The day before the abortion, I was $200 short. This boy was just a real prick, so I called his parents. They gave him $600 and he gave me $200 that I was short.

He did drive me to Eutaw Street, and I stood there waiting to be picked up. Finally, a man in a sedan with a dog in the backseat pulls up. He could have been a serial killer, but he had a dog. That’s how you knew it must be OK.

I get in the backseat, and we drive out to Baltimore County, I don’t know where, to a farmhouse. There was a couple in the farmhouse. They laid me down on a table and gave me a mask. I had no anesthesia. After a while somebody I presumed to be a doctor comes out wearing scrubs, and he performs the abortion. He leaves, and the people who are there give me some pills to dry up my milk, and some maxi pads.

And then the guy drives me back to the movie theater on Eutaw Street. I stayed with a friend. I didn’t go back to my parents at night. That was it. At the time, I had a job working on the Hill for a Maryland congressman. And I was absolutely crazed that I had done this. I had done this illegal thing, and was that going to come back and — you know? But nobody ever found out about it.

Was I scared? I was terrified on the operating table. I couldn’t stop shaking. Would I have changed my mind? No, I would have driven off a bridge before I would have had a baby. I would have been forced into a marriage with a completely unsuitable human being.

By the end, I was on the pill. I can still hear the doctor that I then went to, who gave me the pill — that would have been later in 1966 — said to me, ‘Don’t let anybody in without a rubber.’

Yeah, too late. That’s why I’m here for the pill.

Warren Hern, 83, of Boulder, Colorado

Dr. Warren Hern standing in front of his medical practice. (Rena Li for The 19th)

I began to get acquainted with this issue when I was a junior medical student — this is back in 1963. Every night that I was on call in the gynecology ward, my colleagues and I were up all night taking care of the women who had either self-induced or poorly done illegal, unsafe abortions. I didn’t really understand it, to tell you the truth.

About that time, there was a woman who had gone to the emergency room to see if they could end the pregnancy. She was several months pregnant. When they refused, she went home and shot herself in the uterus and then drove to the hospital.

This is an example of the kind of catastrophic things that women did to themselves. They would put lye in their vagina to induce an abortion. They used coat hangers. They literally used coat hangers and knitting needles. They died. Some went to Mexico and sometimes they survived, and sometimes they didn’t. Women were desperate. And I think I saw this all the way through medical school. I saw it in Panama, at an internship. I saw it in Brazil in 1966 or 1968, when I was a visiting physician.

I was a visiting physician in Brazil for two years and I became acquainted with the doctors in the local maternity ward. They took me to the maternity ward. There was one ward full of women recovering from delivery, having a baby. There were two wards of women recovering from illegal abortion. Fifty percent of those women died. They were usually too sick to save by the time they got to the hospital. In Latin America, abortion was the leading cause of death among women of reproductive age.

I came back to the United States and I began studying public health. What I decided to work in was epidemiology — specifically population epidemiology — and that included looking at the health effects of illegal abortion.

It became clear to me that the effects of illegal abortion and the abortion laws were visited particularly upon women who were poor or many members of minority groups. The death rate due to illegal abortion was nine times higher among Black women than it was among White women.

Women were desperate.

I saw this across the country. When I was working in Washington, D.C., I was helping run a family planning program for the poor. We were taking care of several hundred thousand women across the country. And they were begging for abortion services and facilitation services.

I was in a preterm clinic in Washington, D.C., in 1971, and I learned how to do an early first-trimester abortion. I wasn’t really planning to practice medicine because I was recruited into epidemiology. But then I was in Colorado in 1973, when the Roe v. Wade decision came down. And I had been writing letters to the editor supporting this and pointing out how important this was for women, and for public health.

There was a group in Boulder that wanted to start a private nonprofit abortion clinic. And they got my name and called me and asked me if I would be willing to help them start this clinic. I had no intention of doing something like that. But when they invited me, I accepted the invitation, because I thought it was an important thing to do. Implementing the Roe v. Wade decision was extremely important. The decision itself didn’t get anybody an abortion; it was only meaningful if doctors were willing to perform the abortion.

We started performing abortions in November 1973. I immediately became the target of hatred by not only some anti-abortion people in the public, but members of medical community. I was subjected to a lot of abuse, and a lot of obscene death threats in the middle of the night. I was living up in the mountains in a cabin I got with my father, and I was very, very frightened. I expected to be assassinated anytime.

I love seeing patients and enjoy talking with them. And they tell me their stories. And every, every single one has an important story to tell.

Most of my patients now or at least at least half of them, sometimes more, are patients who have desired pregnancies that have a terrible complication of fetal disorder, genetic disorder. And they’ve decided to end the pregnancy, even though it’s a desired pregnancy. We see a lot of patients with those circumstances. We see patients who are extremely young, 11 and 12 years old, who’ve been raped or sexually abused. Victims of incest. These young girls should not have to carry a pregnancy to term. It’s very dangerous for them. They’re not prepared to be a parent.

But in any case, right now as we speak, we have anti-abortion fanatics in front of my office. There’s a man that comes and stalks me every Tuesday morning. And I think he wants to kill me. I have to assume that, because five of my medical colleagues have been assassinated.

What you need to know about the Supreme Court case that could overturn Roe v. Wade

Originally published by The 19th

The Supreme Court will hear arguments on Wednesday in a case that could end almost 50 years of guaranteed abortion rights. Audio from the arguments will be streamed on the Supreme Court’s website, beginning at 10 a.m.

Dobbs v. Jackson Women’s Health Organization examines the constitutionality of a law from Mississippi that would ban abortions after 15 weeks of pregnancy, with no exceptions for rape or incest. The law has been blocked by lower courts and has not taken effect.

Mississippi’s law appears to directly violate several decades of legal precedent on abortion rights. In 1973, the Supreme Court held in Roe v. Wade that the Constitution guaranteed the right to an abortion up until a fetus can live independently outside the womb, a stage known as “fetal viability” that typically occurs around 24 weeks of pregnancy.

That decision was affirmed in a 1992 case, Planned Parenthood v. Casey, which allowed for states to restrict abortion access as long as those laws did not impose an “undue burden” for people looking to end a pregnancy. Such an “undue burden” could involve a requirement that abortions be performed in ambulatory surgical centers — a stipulation that has been shown to have little medical benefit but that has resulted in clinics closing down, making it functionally impossible for many people to get an abortion.

The court has heard cases on specific types of abortion laws, weighing in on whether different types of restrictions and regulations violate that “undue burden” standard.

But this case poses a different kind of question. It’s an outright challenge to the core protections established in 1973. In its legal filings, the state of Mississippi has argued that the court should overturn Roe v. Wade entirely and allow states to individually determine whether abortion remains legal or not.

Such a ruling could spell the end of national abortion rights — resulting in a patchwork system across the country, where someone’s ability to access an abortion easily depends entirely on where they live.

Both anti-abortion and abortion rights advocates believe that the court, which has a 6-3 conservative majority, may be receptive to Mississippi’s arguments. Three members — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were appointed by former President Donald Trump, who vowed to fill the court with justices who would vote to overturn Roe v. Wade.

All three justices voted earlier this fall to allow Texas’ six-week abortion ban to take effect. In the court’s most recent abortion case, June Medical Services LLC v. Russo, Kavanaugh and Gorsuch both dissented from the majority opinion that struck down Louisiana’s abortion restrictions. In her confirmation hearings, abortion rights advocates emphasized Barrett’s historical skepticism toward Roe v. Wade.

A decision on the case is expected at the end of the court’s term next summer.

The case could have stakes beyond abortion rights. A separate brief filed by Texas Right to Life, an anti-abortion group, argues that overturning Roe v. Wade could also pave the way to undoing two separate landmark court decisions: a 2003 case known as Lawrence v. Texas that said states could not criminalize sexual conduct between two people of the same sex, and the 2015 case Obergefell v. Hodges, which found a constitutional right to LGBTQ+ marriage.

The brief argues that Roe v. Wade’s abortion rights guarantee is a “court-invented right” without constitutional basis and claims that there is no legal basis for the rights protected in Lawrence or Obergefell either.

“Lawrence and Obergefell, while far less hazardous to human life, are as lawless as Roe,” the brief argues.

But it’s not clear how the court’s justices will receive those arguments, or whether they will be a subject of discussion in Wednesday’s hearing.

A decision to overturn Roe v. Wade would have monumental impact. According to the Kaiser Family Foundation, 18 states have laws on the books that would ban abortion entirely in the event that Roe v. Wade were to be overturned.

Entire regions of the country — particularly the South and the Midwest — would likely become abortion deserts. States like Illinois, California, Colorado and Kansas could become havens for the procedure, with people traveling hundreds of miles to access care.

In Mississippi, where Jackson Women’s Health is the only abortion-providing clinic, the next closest places to seek an abortion would be Florida, Illinois and North Carolina.

The court could find another way to uphold Mississippi’s law without giving states full authority to ban abortions completely. But such a decision would still require somehow undoing Roe v. Wade’s guarantee of abortion rights up until fetal viability — suggesting that more pre-viability abortion bans may stand legal scrutiny and allowing states to enact and enforce greater restrictions.

Meanwhile, the court is still weighing arguments in two other abortion cases, examining whether either abortion providers or the federal government have the right to challenge a Texas law that bans abortions after six weeks of pregnancy. That law, which has been in effect since September 1, has offered a cursory preview of the potential impact of overturning Roe v. Wade.

The court heard arguments in those cases on November 1. It has not yet issued a decision in either.

Here’s how Texas Republicans are harming neighboring states with their extremism

Texas' six-week abortion ban is causing wait times at clinics in surrounding states to surge, according to a new analysis.

Researchers from the Texas Policy Evaluation Project at the University of Texas at Austin conducted “mystery client calls" to clinics in Oklahoma, Louisiana and New Mexico, as well as in Arkansas, to schedule abortion-related visits. The calls were placed in the middle of September, soon after the Texas law had taken effect.

According to the analysis, wait times longer than two weeks were common, and the length of time it took to get an appointment were longer in most cases compared to July 2020 (the most recent data available).

The analysis confirms reports from clinics in Texas' neighboring states, which have seen their patient loads soar since Senate Bill 8 took effect, with some saying the increase in volume may not be sustainable if it continues.

“There is early evidence, in the form of long wait times for appointments, that Texans seeking out-of-state abortion care are straining capacity at the small number of facilities in nearby states," the report said.

Delays can result in more complex procedures — and more expensive ones. Medication abortions, for instance, are often cheaper and less invasive than surgical abortions, but they are not recommended after 10 weeks of pregnancy.

A two-week delay could push someone from being able to consider a medication option to the point at which only surgery is the only viable option.

In Oklahoma City, for instance, a medication abortion costs $650 at Trust Women, an abortion clinic that has reported a surge in Texas-based patients. Patients further than 10 weeks may receive a surgical abortion instead. The procedure still costs $650 if the patient is earlier than 11.6 weeks. If the patient is later in pregnancy, though, the price goes up.

“Given that they have fewer clinics and needed to take on so many additional patients, it is not surprising to see the wait times go up. It is really putting stress on these facilities," said Kari White, the lead investigator of the Texas Policy Evaluation Project.

In Oklahoma, which has four abortion clinics, wait times ranged from five days to 23, per the report. That's about double the range that existed in July 2020, when wait times ranged between two days and 12. In Louisiana, which has three clinics, patients calling for a first visit might experience a wait time of between eight and 19 days. In July of 2020, the typical wait time was eight days.

Both Oklahoma and Louisiana require patients make two appointments for an abortion — an initial one for counseling, following by a waiting period (three days in Oklahoma and one in Louisiana) before the patient can come for an actual abortion. In Oklahoma, the first visit can be over the phone, but Louisiana's must be in person. The drive to a clinic in either state is typically hundreds of miles. Between the cost of lost wages, travel, child care, lodging and gasoline, such a trip could cost more than $1,000, per the report.

In New Mexico, which has six abortion clinics, including one only 20 miles from El Paso, wait times for an appointment in September ranged from one day to 20. In July of last year, wait times were between one days and 4.

New Mexico is the only one of Texas' neighbors not to be considering new abortion restrictions. If Oklahoma, Louisiana or other states in the region successfully implement new limitations on the procedure, that could force patients to travel even further, going hundreds of miles each way. Those journeys will likely not be affordable for many patients, the report notes.

The Texas law is currently being challenged before the Supreme Court by some of the state's abortion providers and by the Department of Justice. Oral arguments in the case are scheduled for Monday.

Originally published by The 19th

'We need every tool in our toolbox': COVID-19 Delta surge threatens to overwhelm school nurses

Originally published by The 19th

Lisa Kern thought she had a few more years left before retiring.

She had worked as a school nurse across an entire district in Central Florida for 32 years, helping kids get flu shots, managing medical concerns and crafting food allergy safety plans. She loved her job and felt deeply tied to the community. Both her children graduated from the Pasco County School District, where she worked. Her granddaughter is a student there now.

But after 2020, Kern, 62, realized she couldn't keep going.

“The circumstances we were faced with, that probably pushed me in the direction of retirement a bit sooner," she said. “Nurses across the spectrum — not just school — are leaving the field. Teachers, too. It's been hard. It's been very difficult."

Many school nurses say they — like health care professionals in all sectors — have burned out after a year of running point on coronavirus mitigation, other responsibilities, and addressing indirect health consequences of the pandemic, such as delays in kids getting other critical vaccines or soaring mental health concerns. Per CDC data, children's vaccinations dropped precipitously in 2020, as more families skipped regular wellness checks. That adds to the risk of spreading other preventable infections through the classroom.

Now, as schools reopen even with a surging Delta variant, those challenges are reemerging. Many school nurses say they are afraid, exhausted and unsure how to plan for the year ahead.

“Some days I want to stay in bed with the covers over my head. I was looking at the calendar today and I was like, 'OK, four weeks from today I'll be back in school.' And I'm like, 'What's it going to look like? Do I want to go?'" said Robin Cogan, a New Jersey-based school nurse. “I'm concerned about my colleagues. I'm concerned about kids. I'm concerned about the community."

School nurses — a workforce of almost entirely women, who are typically paid less than their hospital-based counterparts — serve as a one-stop shop for any assortment of ailments students might face: mental health concerns, chronic illnesses, playground scrapes. They monitor cases of strep throat and other common childhood infections to keep it from spreading through the school.

But in 2020, they became schools' first line of defense against COVID-19 outbreaks: serving as full-time contact tracers, coronavirus testers, disease-mitigation specialists and, eventually, vaccine administrators. Last year, Kern said, COVID-19 consumed her job. Finally, the nursing team figured out a system to make in-person schooling during a pandemic tenable, if not sustainable.

“We had mask mandates in place. We had specific protocols in place that we were following for social distancing. There was a lot of work the district did to create a safe environment for students," she said.

The COVID-19 vaccine offered a glimmer of hope of that by fall of 2021. But a new surge in cases coupled with a lagging American vaccination campaign has dimmed that optimism. As schools across the country reopen, and parents worry about the risk to children, school nurses are facing a workload once again overwhelmed by efforts to keep the pandemic at bay.

Students younger than 12 are not yet eligible for the COVID vaccine. And even among middle and high school students, vaccination rates remain low: Just more than 40 percent of kids aged 12 to 14 have gotten at least one dose of a COVID-19 vaccine, per data from the Centers for Disease Control and Prevention. About 50 percent of people between ages 15 and 16 have gotten at least one shot. While most states are not tracking how vaccination rates of young people compare across races, what little data exists suggests that White children are far more likely to have gotten their shots than Black or Latinx kids.

The Biden administration is calling on school districts to host on-site vaccination clinics for students and eligible family members, a policy also endorsed by the National Association of School Nurses. School nurses would likely play a lead role in those efforts.

Many told The 19th they are unsure about what role they can play in encouraging students and parents to get vaccinated — they don't know how to persuade vaccine-resistant families to get a shot. If a school even has a nurse (between a fifth and a quarter of schools have no part- or full-time nurse on staff), many work in states such as Texas, Florida and Iowa, whose governments have prohibited in-school mask requirements and otherwise limited what they can do to address COVID-19.

Others don't believe it is their job to argue in favor of vaccination, but simply to make families aware of the option — even though a vast body of evidence clearly shows the shots offer high levels of protection that outweigh any risks.

“Our nurses run the spectrum from feeling like they're vaccine advocates, or trying to advocate where students can receive vaccines, all the way to the end of their jobs is just simply to report vaccination statistics," said Jennifer Kraschnewski, a professor at Penn State College of Medicine, who has studied ways the COVID-19 pandemic affected school nurses. “It's very school-dependent and nurse-dependent, what the nurse feels their role is around vaccination."

In general, young people are less vulnerable to COVID-19 complications than older adults. The Delta variant may have augmented the risk, though, with hospitals across the country reporting climbing numbers of pediatric cases. As a result, the CDC and National Association of School Nurses recommend that all people in schools this year wear masks while indoors. But states can set their own rules, directly influencing what's possible.

“Schools will take direction from the state, and states will vary widely on how they recommend handling this," Kraschnewski said.

Doreen Crowe, a school nurse, said her district west of Boston is already planning school-based vaccine clinics for the coming year. Indoor masking will be required for everyone. But in her community, a Democratic suburb in a blue state, it's an easier load. Two-thirds of the county population is already fully vaccinated against COVID-19, per data from the CDC.

In many redder states, the conservative backlash toward mask mandates has created challenges for nurses, many of whom say they feel hamstrung and unable to do their jobs.

In both Texas and Florida — which have the nation's second and third highest populations, respectively, and which together account for more than a third of new coronavirus infections right now — governors have told public schools that requiring indoor masking could jeopardize state funding. The Texas Education Association has also said parents can choose to keep sending their children to school even if they are identified as someone who was recently exposed to the coronavirus.

That creates a particular kind of challenge for nurses: balancing a job that requires caring for students and preventing disease outbreaks with state guidance that runs counter to those goals.

“There are a handful of things in Texas we have been told we are not allowed to do, and that's hard because these are things we know work," said Becca Harkleroad, a school nurse in Central Texas and advocacy chair for the Texas School Nurses Association. “You can't ask people to wear a mask. You can't require people to stay home. You can't require people to get tested. I felt safer last year coming back to school than I do this year."

Harkleroad and her team of nurses have all been vaccinated. She has told her staff that they are “ethically and duty bound to advocate for our families to vaccinate their kids if they're able." But she's unsure how to convince people who have not gotten a shot yet to do so now. And even more critically, she feels unable to plan for a safe school year.

“We need every tool in our toolbox, and it feels like they're getting taken away," she said.

Her district's plan changes almost daily, based on what the state has allowed. They are so focused on simply trying to devise some kind of COVID-safe protocol that she can hardly imagine having the resources or bandwidth to host something like a vaccine clinic.

And on top of their work, they've faced verbal harassment from parents critical of mask requirements, or skeptical of vaccines. They're exhausted.

“Our nurses have been yelled at a lot and cussed at. That's stressful and undesirable, but it's thrown on top of all the things we already do as school nurses," she said. “In addition to the stuff we already do, having COVID placed on top of that — it's exhausting. It's physically and mentally exhausting."

Meanwhile, many worry, the coming year will bring concerns well beyond COVID-19 mitigation: other school health concerns have been exacerbated by the pandemic. Nurses expressed worries about how to address student mental health, which experts say has suffered over the past year. Already, school nurses were frequently the first point of contact for students experiencing physical symptoms of anxiety or depression.

“The mental health piece, I think that's going to be huge," said Crowe, the Massachusetts school nurse. “School nurses provide a lot of mental health and behavioral interventions and I suspect we'll see a lot more of that."

How high uninsured rates could be contributing to America's pregnancy-related death crisis

The United States ranks worse than any other wealthy nation for pregnancy-related health, and new data suggests high rates of uninsurance among low-income people could be a reason why.

The research, published Monday in the journal Health Affairs, looks specifically at pregnant people covered by Medicaid, the public insurance program for low-income people. Though eligibility varies from state to state, people can generally qualify for Medicaid coverage even with higher incomes while they are pregnant and can keep that insurance for up to six weeks postpartum.

Experts have long worried that isn't sufficient to ensure healthy births. If people are uninsured before they get pregnant, they could develop conditions that lead to complications in the delivery room. And more than a third of all pregnancy-related deaths actually occur between 45 days and a year postpartum — deaths that are mostly preventable if the person has access to high-quality medical care.

But so far, data has been lacking to show the extent of the problem. The Health Affairs study offers a first look. And the numbers, experts say, are both unsurprising and troubling.

Of people who are covered while pregnant by Medicaid — which insures about half of all the country's births — more than 34.5 percent were uninsured either before pregnancy or between two and six months postpartum, what's known as the perinatal period.

Rates of uninsured people were significantly higher in states that declined the Affordable Care Act's option to expand the qualifying income bracket for Medicaid — about 50 percent were uninsured during the perinatal period. Across racial groups, the uninsured rate was greatest among people identified as Hispanic and who primarily spoke Spanish. About 37 percent indicated they lacked insurance before pregnancy or after giving birth.

That's a big problem, said study author Emily Johnston, a senior research associate at the Urban Institute, a Washington, D.C.-based think tank.

“The system has been so focused on the prenatal period because it's when there is lots of health care use, and it's a finite period of care," she said. “But people's lives outside of that period impact health during pregnancy."

Untreated diabetes, hypertension and obesity can result in far worse outcomes for people who give birth but can be managed if someone has regular access to good medical care before conceiving. People without insurance also may not be able to access family planning, making it harder to choose if they even want to get pregnant. (About half of the nation's pregnancies are unintended.)

After delivery, there are concerns about postpartum depression and physical complications. Without insurance, getting treatment for any of those is far more difficult.

“It just really shows the gaps in coverage during this important period," Johnston said.

But the access problems aren't uniform. Johnston pointed to the high percentage of Spanish-speaking people who lacked insurance — a category the researchers used as a proxy to estimate coverage rates for people who had recently immigrated.

That's not surprising, said Kelsie Landers, policy director at EverThrive, an Illinois-based organization that advocates for pregnancy-related health. It's long been clear that people who are recent immigrants are less likely to use public benefits such as Medicaid. It's a consequence, she said, of the Trump administration's four years of anti-immigrant rhetoric, which included a regulatory effort to count use of public benefits such against people's green card applications. (The policy never took effect, and the Biden administration has taken steps toward undoing it.)

And in general, she said, there has been little outreach to ensure that recent immigrants know if they are eligible for Medicaid — meaning they aren't likely to have had regular health care leading up to when they get pregnant.

“The immigration coverage issue is one we've been talking about for a really long time," Landers said.

The recent American Rescue Plan Act took steps toward making more people eligible for some form of health insurance. It gave states the option to extend pregnancy-related Medicaid, so that people could stay insured for a year, rather than six weeks, postpartum. It also included incentives meant to steer more states toward adopting the ACA Medicaid expansion. (Currently, 29 million Americans are uninsured — 2.2 million of them lack coverage because they live in a state that did not expand Medicaid.)

But experts worry that still isn't enough. Not everyone who lacks coverage will be able to afford a health plan. And it's not clear how many states that have declined to expand Medicaid will suddenly change their minds.

Meanwhile, some states, such as Mississippi, have already opted not to extend postpartum Medicaid, meaning pregnant people will still lose that coverage after six weeks. So while caring for a new baby, those new parents will either have to scramble to find new coverage — a cumbersome and often expensive option — or they will stay uninsured.

Health insurance is only one part of the puzzle. The Health Affairs data, for instance, showed roughly equal perinatal uninsurance rates for Black and White people who had Medicaid coverage while pregnant. But pregnancy-related outcomes are far worse for Black people than they are for White — a disparity that plays a large role in the nation's disastrous international health ranking.

“Just because you have access to health insurance, doesn't mean you have access to care, or that the care you have access to is beneficial or good to you," said Katy Kozhimannil, an associate professor at the University of Minnesota School of Public Health.

Research shows that coverage plays a large role, she added — and evidence has linked higher insurance rates to better health outcomes. But other problems, like implicit bias, also need to be addressed.

“There's more we have to do than expanding access to Medicaid to address racial equity in birth. It's a 'both, and,'" Kozhimannil said.

Data shows that even when White and Black people enter pregnancy with the same health conditions, death is more likely for Black people. Qualitative analyses suggest it's in part because doctors are more prone to misdiagnose or dismiss health concerns when the patients are Black.

“There's not one solution," Landers said. “We need implicit bias training, more perinatal support, more coverage for families — and more ways people can keep their coverage, not just fall off because they didn't check the right box."

Originally published by The 19th

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