Over two years into the post-Dobbs period, girls’s well being is taking heart stage within the presidential election. In Dobbs v. Jackson, the Supreme Court docket overturned protections referring to abortion established in Roe v. Wade. Since then, roughly half of the states throughout the nation have enacted or revived legal guidelines that ban or considerably prohibit entry to abortion. This case and the ensuing cascade of authorized disputes and legislative battles have created a extremely dynamic and precarious authorized panorama for girls’s well being. Consequently, suppliers are left unsure of their rights and obligations. Ladies in anti-abortion states face challenges acquiring reproductive care and, if pregnant, different medical therapies unrelated to reproductive care, whereas hospitals and clinics in close by states with out such restrictions are grappling with overwhelming affected person masses.
In vying for American votes, the Democratic and Republican events have provided very completely different visions for girls’s well being. Former President Donald Trump has indicated he helps the Supreme Court docket’s choice in Dobbs v. Jackson, favoring strict anti-abortion legal guidelines and arguing that abortion legal guidelines needs to be left to the states. In contrast, Vice President Kamala Harris is strongly against the Dobbs choice and would search to return to the protections beforehand provided by Roe v. Wade. Every candidate is predicted to flex the powers and authority of the federal authorities to the best extent they will with the intention to additional their agenda on this essential difficulty ought to they be elected.
On this article, we’ll focus on the candidates’ positions on abortion and associated points, and the way these positions affect the state of ladies’s well being extra broadly.
An Overview of Every Candidate’s Place
A Trump administration is probably going to make use of the levers of the federal authorities to limit or get rid of, and/or defend states’ rights to limit or get rid of, entry to abortion, chill out necessities round medical insurance protection for reproductive care, place restrictions referring to abortion on Medicaid funding, and diminish the protecting framework of HIPAA, significantly with regard to reproductive well being data.
In contrast, underneath a Harris administration, the levers of the federal authorities can be flexed to develop girls’s proper and entry to abortion, undertake federal safety for fertility therapies resembling in vitro fertilization (“IVF”) and contraception, develop governmental well being packages to guard girls’s well being, and strengthen federal protections on affected person well being data underneath HIPAA for girls utilizing digital well being apps.
| In a Trump Administration… | In a Harris Administration… | |
| Federal Regulation | Potential for a nationwide abortion ban Possible no federal legislation defending IVF or contraception | Potential for nationwide legislation codifying Roe v. Wade and/or defending IVF and contraception |
| FDA Authority | Potential roll again of FDA approvals re mifepristoneUnlikely to defend FDA modifications to mifepristone approvals in 2016 and 2021 if challenged once more within the courts | More likely to defend and defend FDA authority re mifepristone, together with 2016 and 2021 modifications to ease necessities |
| Insurance coverage Protection | Might search to reinstate and develop 2018 Affiliation Well being Plan (AHP) rule, eliminating requirement of protecting important well being benefitsMay search to develop exemptions for employers refusing to cowl contraception on spiritual or ethical grounds | More likely to tighten AHP laws and defend complete coverageWill search to protect contraceptive protection underneath the ACA |
| Telehealth | More likely to impose restrictions on telemedicine for reproductive well being providers, resembling remedy abortion, reinstating guidelines that require in-person visits | More likely to make telehealth expansions everlasting, together with entry to reproductive care, with a concentrate on fairness and lowering boundaries for underserved girls |
| HIPAA | More likely to difficulty steering or laws that let states to make use of PHI for enforcement of anti-abortion legal guidelines | More likely to lengthen privateness protections for PHI associated to contraception, abortion, and fertility therapies and information saved on well being apps and in medical data |
| Medicaid | Might prohibit entry to funding for states with permissive abortion lawsLikely to oppose enlargement of Medicaid funding to cowl reproductive well being providers | Might prohibit entry to funding for states with restrictive anti-abortion lawsLikely to advocate for complete reproductive well being providers underneath Medicaid, together with household planning and abortion entry. |
| Different Federal Funding | More likely to re-implement Title X Gag Rule, which beforehand blocked clinics that present abortion referrals from receiving federal funding | More likely to improve funding for Title X and get rid of restrictions on referrals for abortion providers |
A Deeper Dive into the Key Points Heading into the Election
Federal Abortion Laws
A central query is whether or not both candidate will search to impose a nationwide abortion legislation.
Whereas early indicators instructed the Republican occasion would goal to enact a nationwide abortion ban, the occasion has since distanced itself from that place, citing its want to depart the choice to the states. Whether or not this shift displays an precise change in coverage or a short-term technique to attraction to the broader voter inhabitants forward of the presidential election stays to be seen. In contrast, Harris has said in additional sure phrases that she is going to signal federal laws codifying the rights and protections of Roe v. Wade.
No matter which candidate wins the election, their skill to enact federal laws will rely on whether or not their occasion additionally controls the Home and the Senate and to what diploma. A razor-thin majority is probably not enough to undertake such formidable laws.
Mifepristone
In need of federal laws, there are numerous different avenues accessible to the candidates to ease or prohibit entry to abortion. One key lever will likely be easing or proscribing, because the case could also be, girls’s entry to abortion drugs that may be taken at dwelling, resembling mifepristone.
Mifepristone, a drug utilized in mixture with misoprostol to terminate pregnancies throughout the first 10 weeks, has turn out to be a focus within the broader battle over abortion rights. Initially authorised by america Meals and Drug Administration (“FDA”) in 2000, mifepristone has been used safely by thousands and thousands of ladies. Nevertheless, its position in remedy abortion has made it a goal for anti-abortion advocates, resulting in lawsuits and regulatory challenges. Certainly, the Supreme Court docket’s ruling earlier this summer time in FDA v. Alliance for Hippocratic Drugs marked a big second for each abortion entry and the broader regulatory powers of federal businesses and additional positioned reproductive rights as a defining difficulty within the upcoming election season. (Click on right here for added protection of this case).
A Trump administration would possibly appoint a brand new commissioner who would search to roll again the FDA’s approval of mifepristone to its 2000 approval, eliminating the newer rest of necessities that the FDA adopted in 2016 and 2021, as seen in current authorized challenges. The FDA might implement stringent distribution guidelines, rescind the mail-order possibility, or impose in-person medical appointments and comparable necessities. Alternatively, because the Supreme Court docket left open the door to future challenges the place standing may very well be established, the Trump administration might merely select to not defend the FDA’s 2016 and 2021 approvals in future authorized challenges.
Conversely, underneath a Democratic administration, we will anticipate continued efforts to guard entry to abortion drugs, regardless of the rising variety of state-level restrictions, and staunch protection of the FDA 2016 and 2021 actions. Harris might, like President Biden, make the most of government powers to implement FDA laws and staunchly defend the FDA in lawsuits involving state-imposed limitations or criminalization of the distribution of abortion drugs underneath the precept of federal supremacy.
Affiliation Well being Plans
A second Trump presidency would probably revive and develop earlier efforts to decontrol Affiliation Well being Plans (“AHPs”). Trump’s 2018 rulemaking allowed extra small companies and self-employed people to band collectively and provide well being plans that skirted most of the Inexpensive Care Act’s (“ACA”) mandates, resembling protecting important well being advantages, together with maternal care providers. Additional, by encouraging the formation of AHPs, Trump’s insurance policies might result in better segmentation of the medical insurance market underneath a phenomenon generally known as adversarial choice. As more healthy people gravitate in the direction of AHPs, conventional plans are left with a better focus of high-risk people. This in flip results in elevated medical prices, and, consequently, increased premiums that disproportionately affect girls, who ceaselessly require important well being providers resembling maternity care, contraceptive providers, and preventive screenings. When confronted with increased prices, girls usually tend to postpone or forego these important screenings and coverings, finally jeopardizing their long-term well being and well-being.
In contrast, a Harris presidency is more likely to help stronger laws for AHPs to make sure that they meet important well being advantages and shopper protections, just like these underneath the ACA. This might embody making certain complete protection, together with preventive providers and maternity care, limiting the flexibility of AHPs to discriminate towards people with pre-existing circumstances, and making AHPs extra accessible to marginalized communities.
In Vitro Fertilization
Earlier this 12 months, we highlighted the Alabama State Legislature’s passage of SB 159 as a method of granting sure protections to IVF clinics and suppliers within the wake of the LePage v. Middle for Reproductive Drugs choice. Whereas this laws quelled a direct risk to fertility therapies in Alabama, it doesn’t stop different states from adopting the identical broad definition of personhood as adopted in LePage.
In current months, IVF has emerged as a distinguished subject in each congressional chambers. On September 17, 2024, the Senate thought of a invoice that might have protected entry to IVF and required private and non-private insurance coverage protection of IVF and different fertility therapies. Nevertheless, Senate Republicans blocked the invoice on the grounds that it was pointless and overly broad.
Each Trump and Harris have expressed help for IVF usually, however with completely different approaches. For instance, in August, Former President Trump said that he would help a federal legislation with a provision requiring insurance coverage firms to pay for IVF, regardless of his occasion’s opposition. In the identical month, he additionally expressed help at no cost IVF therapy. Moreover, throughout the September presidential debate, Trump emphasised that he had been a frontrunner on IVF, regardless of as soon as supporting a nationwide ban on IVF that might have made the therapy unlawful. As his place shifts, he’s met with opposition from anti-abortion teams and people resulting from the truth that IVF can contain the disposal of embryos. Ought to he win the election, his administration is more likely to face mounting strain to undertake restrictions and even an outright ban on IVF.
Harris has taken a extra constant place that IVF entry have to be protected as part of an total effort to guard reproductive freedom. In a assertion she made following the failure of the previously-mentioned IVF invoice in america Senate, Harris expressed that she stands with People who help defending entry to fertility therapies. She additionally referred to as on Congress to enact laws that restores reproductive freedom.
* * *
As we strategy the primary presidential election for the reason that overturning of Roe v. Wade, the way forward for reproductive well being care is at a vital juncture. Whereas the particular outcomes stay to be seen, one factor is abundantly clear: reproductive rights have emerged as a galvanizing difficulty for voters throughout the political spectrum. The heightened voter engagement is not going to solely form the electoral panorama but additionally sign to policymakers the vital significance of addressing this difficulty within the years forward. The stakes are excessive, and the implications of this election will resonate far past the poll field.
* * *
The legislation, coverage and regulatory local weather surrounding the Dobbs choice is advanced and shortly creating. The data included on this article is present as of writing, but it surely doesn’t deal with all potential authorized points or jurisdictional variations, and the data offered could now not be present. Readers ought to seek the advice of counsel concerning their particular scenario.
