30 June 2022 |

Healthcare’s Aftershock after Overturning Roe

By Blake Madden

Today’s newsletter dives into the ramifications of Dobbs v. Jackson Women’s Health Organization. Just as a precursor, I’m not here to debate political views – there are plenty of other forums to do so.

The fact of the matter is that the overturning of Roe creates massive fallout for healthcare organizations, women and families, and businesses, as Roe has been a legal precedent for 40 years. What this newsletter intends to do is shed light on the ramifications of the decision in America.

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Key Takeaways

Abortion is an extremely polarizing, contentious topic. The partisan divide on abortion is extremely wide. Please be respectful and kind others.

Health systems nationwide are grappling with the ruling and are working to find messaging that fits with their specific state’s abortion laws. At the same time, there’s a definite challenge in finding the right communication with clinical workforces in order to ensure that new guidelines are understood.

The ramifications of this decision are widespread within the U.S. healthcare system.

The SCOTUS turning over components of healthcare provision to individual states creates more schisms in our healthcare system and takes us one step farther away from integrated care.

At the end of the day, no matter what you think, abortions will still take place. In every state. Already, companies are offering benefits and reimbursement to travel for medical services including abortion.

Finally, abortion care highlights and exacerbates the disparities in healthcare and health equity.

The Ruling.

As most avid readers of Hospitalogy probably know by now, the Supreme Court (SCOTUS) overturned Roe v. Wade in a 6-3 decision released on June 24, 2022.

The case at hand, Dobbs v. Jackson Women’s Health Organization, considered Mississippi’s recent ban on abortions after 15 weeks of pregnancy – in direct contradiction (at the time) with the precedent set by Roe.

According to legal folks, Roe stood on shaky legal ground to begin with, and the conservative-leaning SCOTUS put an end to the precedent in a very judicially active decision.

In addition to striking down the precedent as a constitutional right, Justice Clarence Thomas’ opinion went further, suggesting that other rights granted under similar precedent were up for debate:

In his opinion, Justice Clarence Thomas wrote “The Court today declines to disturb substantive due process jurisprudence generally or the doctrine’s application in other, specific contexts. Cases like Griswold v. Connecticut (right of married persons to obtain contraceptives); Lawrence v. Texas (right to engage in private consensual sexual acts); and Obergefell v. Hodges (right to same-sex marriage) are not at issue.

“The Court’s abortion cases are unique…and no party has asked us to decide ‘whether our entire Fourteenth Amentment jurisprudence must be preserved or revised.’ …For that reason, in future cases we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”

Translation: According to Thomas, the legal precedence set by Roe is faulty and now other protections granted by that precedence – like same-sex marriage and contraceptives, need to be revisited.

I should note that the majority opinion written by Alito states that the precedent only applies to Roe, but that does absolutely jack to qualm the fears of affected parties.

“Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion” – Justice Alito

Although legal experts have weighed in calling the same-sex marriage concerns far-fetched, the fact that we’re even having the conversation is sickening.

What Happens Next.

In the immediate aftermath of the decision, 13 or so states have trigger laws set to take effect right after Roe is overturned, although it looks as if most have been suspended by courts for the time being. In total, around 26 states are expected to ultimately ban abortions to some degree. Several will not have exceptions for rape, incest, or human trafficking.

As you can imagine, lots of groups had lots to say about the ruling, including physician advocacy orgs, health systems, and more.

Clinical Responses to Abortion Ruling.

The craziest part to me related to all of this is the outsized medical group response to the SCOTUS ruling. The American Medical Association, American College of Obstetricians and Gynecologists, American Academy of Family Physicians, American Academy of Pediatrics, and dozens of other medical institutions voiced their collective displeasure at the ruling:

“Our organizations have consistently opposed any legislation or regulation that interferes in the confidential relationship between a patient and their physician and the provision of evidence-based patient care for any patient—and this decision will allow states to gravely interfere in that relationship by penalizing and even criminalizing the provision of evidence-based medical care. This ruling will curtail access to critical reproductive health care for millions of people across the country, will grow the health inequities that already exist in the medical system, and will set a dangerous precedent for legislative interference across medicine.” Joint statement from groups representing 400,000 physicians

The AAP went on to urge that “…attempts to limit abortion care will not only interfere with the adolescents’ trusting, confidential relationship with their physician, but could result in real psychological and physical harm. Any delays in healthcare can increase volatility within a family, limit pregnancy options, or cause someone to seek an unsafe abortion.”

Health System Responses to Abortion Ruling.

Based on an aggregation of responses I’ve reviewed, health systems’ messaging to their employees seem to be hamstrung by the states they reside in and the expected abortion restrictions. It’s pretty clear from their responses to the ModernHealthcare article along with this Beckers article that the messaging tip-toes around the issue as health systems assess the impact. Bottom line – for now, things are confusing.

Notably, it looks like the largest health plans and insurers plan to cover employer costs for travel and lodging for necessary medical care that isn’t offered in their state. Here’s another conundrum – insurers currently cover abortion procedures in states where it is soon to be illegal.

Furthermore, “eight states where abortion is required by federal law to be covered under Medicaid in cases of rape, incest or to protect the life of the pregnant person have trigger bans on the books that don’t contain rape and incest exceptions,” according to Politico.

The Biden Administration is scrambling to glue together a cohesive strategy around the SCOTUS ruling, including warning payors that they need to cover contraception, throwing together a resource website on reproductive rights, and pleading with the masses to get out and vote. Besides that, there’s not much the Admin can do.

TL;DR – it’s gonna take some time to sort out this mess.

Broader Healthcare Implications.

Fertility: How states define ‘unborn human beings’ would have big implications for in-vitro fertilization (IVF) – a procedure commonly used for families struggling to conceive. If states that define life at conception, then IVF would fall into that camp.

“While overturning Roe v. Wade will not automatically restrict access to assisted reproductive technology (ART) like IVF, experts told Forbes the broad or imprecise language used in some state-level abortion bans could possibly include the procedures.” SOURCE

  • My guess is that states would create some sort of carve-out or safe harbor for IVF, but that’s obviously just an assumption. This sort of issue affects more affluent people though, so it’s likely to stick around. Abortion laws meddling in fertility would hamper operations and TAM for fertility startups – like Modern Fertility, Progyny, Carrot, Maven, Tia – along with other providers offering fertility services. Around 84,000 babies are born through fertility services.

Contraception: As stated previously, the overturned precedent puts contraception into legal jeopardy. Despite the shaky legal ground, contraception is well rooted in healthcare today and is even mandated by ACA that contraceptive methods have to be covered by ACA-compliant plans. That hasn’t stopped a recent run on contraception medication – to the point where retail pharmacies have had to put a restriction on the sale of Plan B pills. On top of this, just under half of states have banned abortion pills outright – a common way that abortions have occurred via telehealth in recent times.

Medical tourism: Several businesses – like Patagonia, Dick’s, Disney, and others – have said they would reimburse employees for travel costs related to abortions. Of course, the biggest question here is how states would choose to punish or fine businesses with policies in place like these. Or whether states will hold individuals who assist in the act liable.

Cancer & Chemotherapy: Given the implications for pregnant women, state abortion regulation would affect clinician treatment planning for cancer patients.

Privacy: Even period-tracking and women’s health apps – as they relate to data sharing and privacy – are affected by the SCOTUS decision. In addition, HIPAA rules do not protect data that individuals choose to store on their cell phones or other personal devices. If it tells you anything, HHS released this guidance on HIPAA and data privacy protection this week.

Health Disparities: “Laws that restrict access to reproductive health care have a disproportionate impact on young people of color and those in rural and medically underserved areas, as well as other populations,” said Elizabeth Alderman, MD, FAAP, FSAHM, chair of the AAP Committee on Adolescence. “People with resources, money, and transportation have the ability to travel to another state to receive the safe and legal care they need. For those who do not have those resources, including most adolescents, access to the health care they need is out of their reach. This reinforces the health disparities that exist across our country.” – AAP Statement

Culture & Capacity: Culturally, the ruling affects all clinical (& other) staff at hospitals and provider organizations. Young nurses, who are predominantly women and typically support abortion, are already citing high levels of burnout. I have to wonder if the ruling will affect a health system’s ability to recruit clinical personnel to its state. Finally, I have to wonder what kind of impact the ruling might have on NICU capacity and hospital resources.

Corporatization of Healthcare.

Physicians are increasingly dealing with other interests influencing clinical decisions, whether it’s an insurance company issuing denials or other corporate interests meddling with volumes or referrals. In my mind, anything that gets in the way and/or prolongs a clinician’s decision over his or her patient is a detriment to our healthcare system, creating a roadblock to optimal patient care.

In states with restrictive abortion laws (Louisiana), clinicians could find themselves on the hook criminally if they perform a service subsequently considered illegal by the state. Will lawyers have to sign off on a procedure before it takes place in the ER? Malpractice insurance is sure to skyrocket. I’m sure that these issues will flesh themselves out over time, but I can’t imagine the headache involved for these docs.

“We will always have physicians’ backs and defend the practice of medicine, we will fight to protect the patient-physician relationship, and we will oppose any law or regulation that compromises or criminalizes patient access to safe, evidence-based medical care, including abortion. As the health of millions of patients hangs in the balance, this is a fight we will not give up.” – AMA statement on the ruling

There are so many nuanced cases and services adjacent to abortion. As a clinician, truly knowing what you can and cannot do will take years as guidelines form. It’s going to be messy figuring out what is and isn’t okay from state-to-state. What I can guarantee you is that lawyers will stay winning throughout all of this, as they do.

“The restrictions put forth are not based on science or medicine; they allow unrelated third parties to make decisions that rightfully and ethically should be made only by individuals and their physicians. ACOG condemns this devastating decision, which will allow state governments to prevent women from living with autonomy over their bodies and their decisions.” – ACOG statement on the ruling

The ruling just creates one more factor that comes between clinicians and their patients – and takes our healthcare system one step further away from clinician-centralized care. The increased corporatization of healthcare through the form of state regulation and non-MD-led businesses involving themselves in patient care is a trend I do not want to continue.

More Support.

“Access to legal reproductive care will be limited to those with the sufficient resources, circumstances, and financial means to do so—exacerbating health inequities by placing the heaviest burden on patients from Black, Latinx, Indigenous, low-income, rural, and other historically disadvantaged communities who already face numerous structural and systemic barriers to accessing health care.” – American Medical Association

The SCOTUS ruling undoubtedly has an outsized effect on low-income and disadvantaged groups. For states like Texas, which has been at the forefront of the anti-abortion movement, I’d love to see:

  • Expanding access to mental health.
  • Increased child-care funding for low-income families.
  • Better access to healthcare for low-income pregnant women prior, during, and after birth given our horrible track record here.
  • More support for foster care programs.
  • And everything in between.

Conclusion.

If you made it this far, thank you for reading about what to expect post-Roe. As I’ve mentioned before, this is not an issue I take lightly and I understand the contention, beliefs, and arguments surrounding the SCOTUS ruling here.

At the end of the day, Roe being overturned has implications for healthcare, and it’s going to be a wild ride to see everything play out. It’s going to take time.

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Resources:

Miscellaneous Maddenings

  • The wife and I went to a trivia night on Tuesday, and you know how you can kind of tell when a group of people are big trivia fanatics? Well we were matched up against some absolute juggernaut teams and got absolutely throttled. Maybe next time we’ll bring a full squad and rise to the occasion.
  • Quote of the week from our guy Jerome Powell: “We now understand better how little we understand about inflation.”
  • GM Golf made an albatross on a pretty sick golf shot – a high fade over the bunker.
  • It looks like the NFT craze is dying down as sales plummet.

Hospitalogy Top Reads

  • Robert Longyear wrote about the evolution of telemedicine, giving a great overview of how we’ve gotten to where we are today.
  • JTaylor wrote an informative piece on Medicare’s solvency, where it stands today, and potential solutions to cut costs in the entitlement program.
  • Martin Shkreli has entered the newsletter game!! One of his first newsletters was about Mark Cuban’s Cost Plus Drugs company and why he’s not a fan.
  • Politico put together a summary of 20 ways that SCOTUS changed America related to the abortion ruling

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