Beyond the Byline: Roe v. Wade upheaval poses legal and ethical dilemmas

Alex Kacik: The Supreme Court is poised to overturn Roe v. Wade. This poses a problem for multi-state health systems that operate in markets that will restrict or ban abortion services. How will large systems adapt if national abortion rights are overturned and laws are left up to the individual states?

Welcome to Modern Healthcare’s Beyond the Byline, which offers a behind the scenes look into our reporting. My name is Alex Kacik, senior operations reporter for Modern Healthcare. And I’m joined by Maya Goldman, our rules and regulations reporter. Thanks for coming on, Maya.

Maya Goldman: Thanks for having me. Alex. Great to be here.

Alex Kacik: All right. So you and I did a story about the leaked draft of the decision on Roe v. Wade. So please set the foundation for us. If this law goes away, states will be left to set their own abortion laws and what would that look like?

Maya Goldman: So according to the Guttmacher Institute, which is a pro choice research group, 16 states and D.C. have laws protecting abortion rights in some way. But another 13 states have so called trigger bands that would effectively outlaw abortion as soon as the Supreme Court overturns Roe v. Wade. And just to be clear, this was a draft decision that was leaked, and the actual decision is due out sometime before the end of June. And another nine states still have pre-1973 abortion bans on the books that aren’t enforced but could be if Roe goes away.

In some states, like Michigan are seeing a push from progressive lawmakers and voters to remove those pre -Roe bans. But it’s too soon to say whether those efforts will succeed. So in short, we’ll have a patchwork of abortion restrictions across the country if this draft decision stands. And it’s also worth mentioning that some states may try to criminalize leaving the state for abortions or helping someone do so. Missouri considered but ultimately didn’t pass a law doing that earlier this year.

And Alex more health systems are merging to form regional and sometimes national cross state networks. And obviously, that has large implications here. So how common are multi-state health systems?

Alex Kacik: So we’ve seen some recent headlines, but generally, it’s increasingly commonplace for hospital systems to partner across state lines. You know, Advocate Aurora Health comes to mind where Chicago-based Advocate and Milwaukee-based Aurora joined forces in 2018. And they and Advocate Aurora just announced, you know, a letter of intent to merge with Atrium, which is a pretty large health system based mostly in the South. So this would form a network across seven states. Similarly, SCL Health and Intermountain just completed a merger in April that spanned seven states. So there’s just the two latest examples, but there are many systems both on the not-for-profit and for-profit side that have these cross state networks.

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So the referral patterns get a little tricky, if you know, some of these trigger bands come into play, and they would have to restructure their networks. And I think when we reach out to them, when this draft came out, they were reluctant to say exactly how it would impact operations, because it is early, but at the same time, you know, it’s just, you know, they I know, they were hoping that there would be other legislation coming in potentially, and getting ahead of this issue. But if these regional and national systems operate in states where you know, abortion is outlawed, or restricted, they would have to potentially wind down some services, they would have to definitely refer those patients to other areas. So just from a kind of legal liability standpoint, they may face more lawsuits from patients who are denied care, especially if it’s urgent, and they would have to spend more, you know, defending those lawsuits which, in some way, shape or form, you will oftentimes get passed on to patients. So, you know, some may choose to wind down their services altogether with which typically disproportionately impacts the low income population and people of color.

Maya, you and I both talked to lawyers who said that abortion bans may conflict with hospitals responsibility to provide emergency care for anyone who walks through their doors required through the emergency medical treatment Labor Act, EMTALA. What did what did you find out?

Maya Goldman: Yeah, well, lawyers I spoke to said EMTALA should preempt state law. But when Texas passed a state law in September that severely restricted abortion access, HHS, the Department of Health and Human Services put out guidance to hospitals, reminding them that they do need to provide that stabilizing treatment or transfer to a site that can provide the treatment. And HHS said was very clear that state law is not a valid basis for transferring a patient. But one lawyer I talked to said she’s heard lots of confusion in Texas about how EMTALA and the state restrictions interact. And people are hesitant to go against the state law. And that can lead to, you know, all sorts of health impacts for people who are trying to get this care. And so this is likely the way things will go if abortion law is left up to the states, lots of confusion, probably additional litigation over what’s required by federal law, which could be another long drawn out process.

Alex, tell me, what did you hear from lawyers?

Alex Kacik: So the scenario, the one of which that they explained to me was that, you know, when let’s say a pregnant woman comes to the emergency room, and the only way to stabilize her is to terminate the pregnancy. They do so in a state that bans abortions, you know, that would just present some inherent conflicts and other issue is if a provider operates in a state that says a fetus is a person from the moment of conception, would the state have an EMTALA obligations to the fetus separate from those that owes the mother. So there’s these legal and also kind of ethical quandaries.

On that last case, the lawyer told me that he thinks the answer has to be no, but certain states may not accept that and may still prosecute the hospital. It leaves this strange, grayer, and like us outside of this, too, you have the ethical issues associated with, you know, doctors and the Hippocratic oath and, you know, trying to do the best by patients, and you know, they’re left to abide by state law, or, you know, adhere to these principles that, you know, they’re trying to do the best by the patient. So it’s just, yeah, I do not envy their position. But, you know, the folks I talked with, were worried about the related effects here, some of the potential on unintended consequences. It could open up the door for changes to same sex marriage laws and other civil rights issues.

What did you find out about how this could impact OBGYN residency programs and related training?

Maya Goldman: Yeah, I think you’re totally right, that that we could see a whole cascade of effects here, outside of health, like specifically health related issues, but you know, within health, obviously, the consequences will be great as well.

And so a journal study published recently found that about 45% of OBGYN residency programs are in states that will likely or for sure ban abortion if Roe v. Wade protections go away. So that means out of about 6,000 current OBGYN residents more than 2,600 would probably not get access to in state training on how to perform an abortion. And the researchers who authored the study said they’re probably actually under estimating the impact of state abortion restrictions on training since they only looked at OBGYN residency programs and not family medicine or any other specialties that also receive abortion training and do provide abortions in hospitals. And the researchers recommended educators take steps to mitigate this, like arranging out of state travel rotations to preserve access to training. I don’t know it’ll be really interesting to watch how how that all affects access as well.

And Alex, you mentioned earlier how getting rid of Roe v. Wade protections could disproportionately impact lower income people of color. The U.S. also ranks among the worst developed countries when it comes to maternal mortality. And so what are the latest stats?

Alex Kacik: You know, that rate of maternal mortality is increased from 17.4 deaths per 100,000 live births in 2018 to 23.8 in 2020, according to the CDC. Black mothers are more than twice as likely to die than white mothers and most other high income countries have fewer than nine deaths per 100,000 live births, Commonwealth Fund found.

So you have this sizable gap in the quality of care here in the U.S. that leaves women in a very precarious position if they have to take these, you know, these babies to term. Health complications, oftentime, you know, mental health is the biggest cost driver stemming from childbirth. Drain at least $32.3 billion from the U.S. economy over a six year span, Commonwealth Fund found.

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So, you know, it’s probably fair to say that this upheaval will cause serious anxiety and depression among the general population, which in general tends to increase healthcare costs and complicates health issues down the road. So it’s difficult to see you know, the stats and the juxtaposition of of where the law stands. And it just it poses a pretty stark picture going forward.

I know there’s been some updates recently on Congress passing a law. What’s the latest on that, Maya? And what’s your outlook there?

Maya Goldman: Yeah, so the House of Representatives, which currently has a pretty sizable Democratic majority, has already passed the Women’s Health Protection Act, which would protect abortion rights nationwide. But the Senate, which has a much smaller majority of Democrats couldn’t come up with the 60 votes needed to pass the bill this year. I believe they actually voted it down twice. And Republicans, Senator Susan Collins of Maine and Lisa Murkowski of Alaska, support the protections to some degree and have introduced their own narrower bill to codify abortion protections.

But I’m not betting money on the Senate passing anything, anytime soon. And while the Biden administration is pro choice and wants to protect the right to abortion. There isn’t that much the federal government can actually do without Congress to bolster these rights. If the Supreme Court decides to strike down Roe. So there are some regulatory actions they could pull to make medication abortion, easier to access. So that could be something to watch. But people that I’ve talked to you have said, you know, they’re not placing a whole lot of stock in, in HHS or the Biden administration to be able to sort of come in here and, and turn things around.

Alex Kacik: Well, Maya thank you so much for coming on and sharing your reporting and insight with us. Appreciate it.

Maya Goldman: Thank you so much, Alex. Great to talk.

Alex Kacik: And thank you all for listening. You can subscribe to Beyond the Byline on Spotify, Apple podcasts or wherever you choose to listen. You can support the reporting of Maya, myself and our team of reporters by subscribing to Modern Healthcare and giving us a follow on Twitter and LinkedIn. Thank you for your support.