HEALTH CARE BRIEFING: Abortion Fights Go to Supreme Court

By Zachary Sherwood

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The current Supreme Court term will, starting this week, determine whether the constitutional right to abortion will be gutted and if sweeping new restrictions will be allowed in much of the country.

The justices hear arguments today in a case stemming from the EMW Women’s Surgical Center challenge to a Kentucky law that would outlaw the most common abortion technique after the 15th week of pregnancy. At issue is whether Kentucky’s attorney general can take over defense of the law at a late stage in the litigation.

The case is a prelude to a bigger clash in December, when the conservative-majority court will consider a Mississippi bid to overturn Roe v. Wade, the landmark 1973 ruling that legalized abortion nationwide. The high court also could be asked again to intervene in a fight over a Texas law that bans abortion after six weeks of pregnancy.

The abortion issue has divided Americans for decades, helping to swing elections and becoming an unofficial litmus test for high court nominees. Most Americans support a legal right to abortion, though many back restrictions, too. Studies show that limits on access are a crucial economic issue, particularly for the low-income women and racial minorities who absorb the brunt of the impact when access to abortion is restricted.

U.S. states in recent years have tried to scale back abortion rights with hundreds of new laws. Greg Stohr takes a closer look at the abortion fights shaping up at the Supreme Court.

Texas Asks Appeals Court to Reinstate Ban: Meanwhile, Texas asked the New Orleans federal appeals court to reinstate the state’s suspended ban on abortions after the sixth week of pregnancy, arguing that the Justice Department and a judge in Austin overstepped their authority in blocking the law.

U.S. District Judge Robert Pitman last Wednesday halted enforcement of the law, which forbids abortions once cardiac activity is detected, usually in about the sixth week, before many women realize they’re pregnant. That let some clinics begin performing abortions on women with more advanced pregnancies, which had been outlawed since the law took effect Sept. 1.

The appeals court in New Orleans is seen as a particularly hostile venue for abortion clinics, which routinely win protective orders from trial judges only to have those protections snatched away on appeal. Six of the 14 active judges on the appeals court were appointed by former president Donald Trump. They join several veteran judges who have often ruled against abortion providers in prior cases. Read more from Laurel Brubaker Calkins.

Texas Abortion Law Is ‘Sabotage’ of Guaranteed Right, U.S. Says: The Biden administration urged a federal appeals court to reinstate a judge’s order blocking enforcement of Texas’s new ban on most abortions, arguing the law flouts more than 200 years of precedent. The Texas law barring most abortions after about six weeks of pregnancy, before many women know they’re pregnant, far exceeds the power granted to state legislatures under the Constitution, the Justice Department said late yesterday in a filing with the U.S. Court of Appeals in New Orleans. Read more from Erik Larson.

Happening on the Hill

Biomedical Agency’s Future is Complicated: President Joe Biden’s proposed new biomedical research agency may fall short of funding or approval from Congress this year after Senate Democrats signaled they’ve booted the initiative from their pending social spending and tax package.

House leaders proposed earmarking $3 billion for what the White House calls the Advanced Research Projects Agency for Health, or ARPA-H, modeled on similar research initiatives at the Pentagon and the Department of Energy. Biden has said he hopes the new agency would be housed within the National Institutes of Health to speed up game-changing biomedical discoveries.

A Senate Democratic aide confirmed Friday the money is now unlikely to be included in a sweeping domestic policy package being debated by Democrats. Senate rules would prohibit such a move under the budget procedure Democrats plan to use to pass the package with a simple majority vote, Politico reported earlier.

A bipartisan duo in the House announced Friday they expect to include authorizing language in legislation they will soon introduce to update a biomedical innovation law. “Finding new cures and treatments to save the lives of millions of Americans should be a bipartisan endeavor,” Reps. Diana DeGette (D-Colo.) and Fred Upton (R-Mich.) said in a joint statement. “Once it’s introduced, we hope our colleagues in both the House and Senate will support our efforts to move Cures 2.0 quickly through both chambers so we can get this important new agency up and running as soon as possible.” Read more from Alex Ruoff.

Veterans’ Health Legislative Hearing: The House Veteran Affairs Health Subcommittee scheduled a legislative hearing tomorrow to examine 13 measures related to veterans health.

The Coronavirus Pandemic

U.S. Daily Cases Fall Below 100,000: The seven-day average of U.S. cases last week dropped below 100,000 for the first time since August, another sign the wave fueled by the delta variant is retreating. Infections are down about 42% from the peak of this wave. The daily death toll is still high—averaging 1,762 as of Thursday—but at the lowest in almost a month. The average for infections was 99,804 as of Thursday, the lowest since Aug. 5, according to data compiled by Johns Hopkins University and Bloomberg.

Merck’s Covid-19 Pill Faces Risk: Merck’s experimental pill for Covid-19 should be accompanied by other treatments as soon as they’re available to cut the risk of drug resistance that would limit its effectiveness, Wellcome foundation director Jeremy Farrar said. While yet to be cleared by regulators, Merck’s molnupiravir has been hailed as a potential breakthrough, as it could be relatively cheap and easy to make, doesn’t require infusion and has shown it reduces the risk of hospitalization in a trial.

Yet it may need to be combined with other drugs to head off resistance, Farrar said. Resistance occurs when viruses and bacteria evolve to blunt or defeat drugs’ mechanism of attack. It’s a constant concern for antivirals and antibiotics and has already been seen with Covid-19 treatments such as Eli Lilly’s antibody therapy. Read more from Thomas Mulier and Riley Griffin.

Texas Governor Bans Shot Mandates: Texas Governor Greg Abbott (R) outlawed vaccine mandates in the second-largest U.S. state, setting the stage for a showdown with federal government in Washington.

In an executive order signed yesterday, the Republican said “no entity in Texas can compel receipt of a Covid-19 vaccination by any individual, including an employee or consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from Covid-19,” according to a statement from Abbott’s office. Read more from Bloomberg News.

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What Else to Know

Montana Abortion Restrictions Blocked by State Judge: All eyes may be on Texas, but the debate over laws restricting abortion is going on in other states as well, including Montana, where a trial court judge blocked three provisions from taking effect before trial. Montana’s new laws criminalize abortions after 20 weeks’ gestation, essentially ban telehealth pill-induced abortions, and require providers to give patients the opportunity to see ultrasound images and listen to fetal heart tones.

Planned Parenthood Montana and physician Joey Banks are likely to succeed on their claim that the provisions violate the state constitution’s privacy, equal protection, and due process guarantees, the Montana District Court, Yellowstone County, said. Additionally, the providers and their patients likely will suffer irreparable harm if the laws are enforced while the case is being tried, the court said. Read more from Mary Anne Pazanowski.

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To contact the reporter on this story: Brandon Lee in Washington at zsherwood@bgov.com

To contact the editors responsible for this story: Zachary Sherwood at zsherwood@bgov.com; Giuseppe Macri at gmacri@bgov.com; Michaela Ross at mross@bgov.com

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