KHN’s ‘What the Health?’: Leaked abortion opinion rocks Washington’s world

Reviewed by Emily Henderson, B.Sc.May 5 2022

People who pay attention to the Supreme Court have been expecting the justices to scale back the right to abortion when they issue their ruling on a Mississippi abortion law by the end of the current session. What no one expected was that a draft of that opinion — which called for a full overturn of the nearly 50-year-old Roe v. Wade decision — would be leaked to Politico. The reaction has been swift and loud from both sides of the divisive debate and could affect the coming midterm elections.

Meanwhile, the FDA is proposing a ban on menthol flavoring in cigarettes and cigars, sparking a debate on whether the move disproportionately hurts or helps African Americans, who use menthol-flavored products at higher rates than other people.

This week's panelists are Julie Rovner of KHN, Joanne Kenen of the Johns Hopkins Bloomberg School of Public Health and Politico, Shefali Luthra of the 19^th, and Jessie Hellmann of CQ Roll Call.

Among the takeaways from this week's episode:

If the Supreme Court were to overturn Roe, abortion would not immediately become illegal. Instead, the decision on whether to ban abortion would be put in the hands of state lawmakers. Abortion-rights advocates say that, right now, at least 18 or 19 states would likely have laws on the books making abortion illegal and several others are expected to move quickly if Roe falls.

• The leak of Justice Samuel Alito's draft opinion is likely to have serious repercussions for the court; Chief Justice John Roberts has called it a betrayal of the justices' process. It has become, of course, a big Washington guessing game about who leaked it and why, and plausible theories about both conservative and progressive motives have been aired.
• Although Politico, which published the draft opinion, reports that Alito has four other justices supporting his call to overturn Roe, votes do change in the process of writing opinions and lobbying by the justices. This draft is from February, so the thinking on the bench may have shifted a bit, and Roberts, as the one conservative who had not agreed to the draft, may be working to modify the final stance.
• Nonetheless, it seems clear that Roe will not come out of this case intact.
• Alito goes to lengths in his draft to say that the court's reasoning in this case will not affect other rights that the court has granted based on privacy protections, such as the use of contraception. But many constitutional law experts say that may not hold true, and anti-abortion groups appear eager to legally codify the idea that human life begins at conception. Such a move could affect access to contraception.
• Despite much angst, Democrats have no easy way to preserve abortion rights if Roe is overturned. Congressional action is sure to be stymied by Republicans and a few anti-abortion Democrats, including Sen. Joe Manchin (D-W.Va.).
• Some large corporations are joining the debate by offering workers coverage for travel if they need to go to another state to get an abortion.
• The number of abortions in the U.S. has dropped significantly in recent years. But it's not clear whether that is because of better contraception or because states have limited access. And the growing use of medication abortions, in which prescription drugs are used to end a pregnancy in the early weeks, may also alter the landscape.
• Suggestions in the past to eliminate menthol from smoking products have been met with complaints of racial targeting. Health leaders in the Black community are split over the issue.
• Biogen, the maker of the controversial Alzheimer's drug Aduhelm, is reeling after many doctors and safety experts raised concerns about the drug and Medicare refused to cover it unless a patient is enrolled in a clinical trial looking at the drug's lasting effects. The drugmaker announced this week that its CEO is stepping down and the company is dropping most marketing for the drug.
• A federal watchdog found that the private Medicare Advantage plans often deny beneficiaries necessary services. The plans, which are alternatives to traditional fee-for-service Medicare, generally offer consumers extra benefits such as dental or vision services and protection against high out-of-pocket costs. But the Health and Human Services inspector general said Medicare should provide more oversight because of widespread problems of inappropriate denials for care.

Also this week, Rovner interviews KHN's Paula Andalo, who reported and wrote the latest KHN-NPR "Bill of the Month" installment about a family whose medical debt drove them to seek care south of the border. If you have an outrageous medical bill you'd like to share with us, you can do that here.

Plus, for extra credit, the panelists recommend their favorite health policy stories of the week they think you should read, too:

Julie Rovner: Mother Jones' "Meet Abortion Bans' New Best Friend — Your Phone," by Lil Kalish

Joanne Kenen: Stat's "A Clash Over Online Adderall Prescriptions Is Raising New Questions About Telehealth," by Mohana Ravindranath

Jessie Hellmann: Politico's "Oregon, Kentucky Dust Off an Obama-Era Policy to Expand Health Insurance," by Megan Messerly

Shefali Luthra: The 19^th's "Supreme Court Justice Samuel Alito Argued Abortion Isn't an Economic Issue. But Is That True?" by Chabeli Carrazana

Also discussed on this week's podcast:

Politico's "Supreme Court Has Voted to Overturn Abortion Rights, Draft Opinion Shows," by Josh Gerstein and Alexander Ward

KHN's "Historic 'Breach' Puts Abortion Rights Supporters and Opponents on Alert for Upcoming Earthquake," by Julie Rovner