States Clash Over Abortion Pills

A New York doctor has been indicted for prescribing abortion pills to a patient in Louisiana, sparking a legal showdown between the two states.

Now, New York is striking back with a law to shield physicians. 

Which state will prevail?

In this episode of CareTalk, hosts David E Williams and John Driscoll unpack the fight over abortion pill prescriptions and what it means for the future of reproductive rights across the country.

TOPICS
(0:20) Introduction
(0:35) Why Did Louisiana Indict a Doctor from New York?
(2:04) The Impact of Political Strategy on Healthcare
(3:29) The State's Role in Abortion Policy
(6:48) How New York and Abortion Advocates Are Striking Back
(7:28) Understanding Laws Protecting Providers
(10:09) How Trump Will Influence Abortion Policy
(11:23) How Pharmacies Are Reacting to Conflicting Policies
(13:22) Hope for the Future of Healthcare in America

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CareTalk is a weekly podcast that provides an incisive, no B.S. view of the US healthcare industry. Join co-hosts John Driscoll (President U.S. Healthcare and EVP, Walgreens Boots Alliance) and David Williams (President, Health Business Group) as they debate the latest in US healthcare news, business and policy. 

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Transcript

David: 0:00

A New York physician was indicted for writing a prescription for abortion pills for a patient in Louisiana. New York is now striking back with a law to shield physicians. Which state do you think will prevail? Welcome to Care Talk, America's home for incisive debate about healthcare business and policy. I'm David Williams, president of Health Business Group. And I'm John Driscoll, chairman of the UConn Health System. John, listen. I understand Louisiana's a nice place, New York's a nice place. Why did Louisiana indict a doctor from New York, though?

John: 0:40

Well, this is the next step in a long term strategy to deny women access to reproductive health choices. And with the majority of pregnancies being terminated through medicine induced, you know, using, uh, pills like mefapristone. which got a lot of attention, if you recall, uh, by the Republicans and the Democrats supporting access to drugs that would allow you to terminate a pregnancy, and the Republicans challenging whether you could mail those drugs. This is the next stage in the post Dobbs world, where Republicans in Republican states, in some cases for performative reasons, they want to kind of make seem like that they're more pro life, uh, you know, sort of for all of the rights of a child before birth and, and, and fewer afterwards, versus actually making sure the choice is available, which is the democratic position. This is the next stage in that argument. And Louisiana is a very conservative, uh, hotbed of evangelical Christian, uh, belief in extending these reach. But I think it profoundly Misreads the constitution and, and, and the premise of interstate commerce. So, John, I mean, you use

David: 2:05

the term strategy. I mean, does it go so far as a strategy? It's one thing if it's just some performance saying, I'm going to bring somebody from New York to bear, should we be concerned about it as an actual overall strategy? Well, I, I, I think

John: 2:17

that there are enough historic barriers to government overreach that have been knocked down in the, by the current Supreme Court. And enough precedent, even though the, the, the conservatives, the Federalist Society, the traditional Republican philosophical position around the judicial premise of stare decisis, that once something is decided, it's settled law, which is what most of the Supreme Court justices who've unsettled law said when they were actually going through the nomination and approval process, that I don't think anything's off the table. I think that Regardless of whether you and I without our legal degrees believe this is, um, this contravenes the notion of interstate commerce, the premise that, that, that commerce is, is protected and states cannot regulate interstate countries because their, their, their job is to regulate the trade within states as opposed to across states. Uh, I, I, I think that, that we need to take this seriously, which is why I think the, the state of New York acted quickly.

David: 3:29

John, I think, you know, thinking about the reinterpretations of the constitution and, uh, politically, I think President Trump said, you know, we should leave abortion to the states and maybe that's what's meant. You know, he's left it to Louisiana, to those certain states, uh, to be able to decide what to, uh, what to do.

John: 3:44

Well, the President Trump that you get on this issue is profoundly two faced, which I guess shouldn't be much of a surprise. With conservative audiences, he is very clear about overturning Roe v. Wade and talks about, in more or less competent English, whether he terminated women's access to reproductive choices. But when he's in front of a general audience, or one that tilts more towards The majority position that women should have choices. He'll talk about leaving it to the states. His position isn't terribly coherent, but it does represent, um, what's the majority opinion among the interest groups that seem to be in control of the Republican agenda. Even though access to reproductive freedom is something that used to be, you know, there used to be a significant majority or a minority of the Republicans who actually believed in. Um, you know, Act, Act, Actually, I mean, there, there are constituencies in the Republican party, David, who don't believe in a contraception. Right. And I know, I know that that's, that's, that's not a line that you're going to cross, but there are, there are, uh, there are, so I, I think, John, do you think

David: 5:02

they're gonna, do you think they're going to go so far as to force people to have their vasectomies reversed? I, um,

John: 5:09

I, uh, I used to, I used to think that Uh, I could, I could sort of intuit the line of government overreach, but not with this kind, this kind of, uh, ideological interest group controlled policy making the, um, you know, the, the country substantially, even though people hadn't read it, disagreed with project 2025, the heritage. The radical plan that the heritage, the conservative heritage foundation architected about recreating and deforming and reforming and cutting the federal government. You know, the president dis president Trump distanced himself from that radical, somewhat destructive agenda during the campaign and has embraced it and appointed people who want to execute on it. Oh, so I think, I think we're an uncharted territory, but for women who care about their reproductive freedoms. Mothers, um, relatives of people, uh, husbands, wives, girlfriends, anyone who is worried about this either with their social network or their family members should be concerned because the, um, the, the, the, the president is on record on camera saying that women should be punished for their, some of their reproductive choices. He walked it back and then he repeated it. So I think, I think people should be concerned and I think that the blue states. States where reproductive freedoms are still defended, um, need to enshrine those defenses and protect their, their, particularly their, their clinicians.

David: 6:48

Let's talk about some of the things that those who are on the defensive are doing. This wasn't New York's idea to get involved, uh, in this, but there's a few things that they're doing. So one is not allowing the extradition. So that's one thing they should be able to do fairly successfully in terms of protecting.

John: 7:02

Extradition being the. The, the, the right, what, what the state of Louisiana wants is for a bunch of detectives to throw these doctors in leg irons and ship them to Louisiana. That ain't happening.

David: 7:17

So as long as they don't get enticed by a Mardi Gras, uh, advertisement or something and find themselves there, we're changing planes, uh, The Armstrong airport, they should be all right from that side. Now there's a new law to tries to protect providers and they, the law, it means that they don't have to, the individual provider doesn't have to put their name down, uh, on the script for this, and it can be the name of the practice. Now, first I was thinking, well, that doesn't make much sense. I'm thinking of a typical doctor's office, uh, where it could be one doctor, two doctors or whatever. I think the reason that that might be effective is that some of these are telehealth providers that are large and have, you know, many providers. So they're larger corporate entities. And they're also calling for federal protections against this cross state criminalization of medical practice, where to your point before about interstate commerce, it is settled, but maybe it could become unsettled. But what do you think about their law that they've got within New York, uh, that, you know, tries to put some protections in place? Can that be

John: 8:16

successful? I think that Some of this is performative on the Democratic side as well. I mean, they're trying to go on record at doing whatever they can. Again, we're a little bit in uncharted territory. I think the more legal, um, defenses you can develop and invest in, the less likely, the harder you make it for some of these red states and some of the overreach to, to have any consequences. So I'm, I'm in favor of it, even though, again, we Um, to some degree, because we don't know how the courts are going to interpret the state mandates. Um, but I, I, I honestly think a lot of this is performative. I don't think Louisiana ever expected to prosecute a doctor. I think it was just purely performative, although I think it'll scare doctors to some degree because anytime you threaten anybody, some, some portion of those people will be, will be afraid. Um, but there's just, it just seemed quite implausible. Um, but it does give you a sense, but I, but I think, again, that I, I think the, the, the remarkable surprising pliancy of the Supreme Court around not being willing to enforce in the context of precedent and the law, any restrictions on the precedent come with a warning that they may not be, or a signal that they may not be restrained by anything if it is ideologically, if they can find. An ideological Uh, they seem to be willing to reconfigure and reprogram their legal logic to find a way to justify it. So I think it's sensible for blue states to invest in as much, as many defenses as possible.

David: 10:08

Good job. So pick this topic thinking, okay, there's a lot going on. You talk about, you know, project 2025 and whether it'd be implemented and it depends on who gets confirmed, but it hasn't really depended on who gets confirmed. If the president is the king and can do anything anyways, being implemented now.

John: 10:23

Well, what's, what's, what's really painful, and I touched on it earlier, is as a country, we do a poor job in terms of maternal and child health outcomes. In the top 20 OECD countries, those are the developed economies like Japan and Europe, we're number 20 in maternal and child health outcomes. For the last, uh, generation, we know we've been, we've done a lousy job at taking care of moms and babies who are poor. Half of all babies in the United States are born on Medicaid. That, by definition, that's the healthcare for the poor. And yet now we're sort of in decline across upper middle class and middle class people. So if you really cared about life, you would protect the life of the mother and children post birth and at least focus resources, attention, and priorities in which you're, we haven't heard a peep, not a peep, David, about moms and kids. And I don't think there's any more vulnerable population and it's, it's, it's, it's remarkable to me that their interest in life stops at birth.

David: 11:23

So, John, we talked about how, you know, Louisiana can be there doing one performance. New York can be there doing another performance. Physician from New York is not likely to be, uh, find themselves in a jail in Louisiana, but, uh, we're talking about prescribing of, uh, pills and the pharmacies, especially national chains, which is most of the market, find themselves in multiple states and having to deal with this. I mean, how are the CVS is the, you know, the Walgreens. Uh, dealing with a place where they, they basically, you know, contradictory, uh, rules about what they can do. And of course there's also, you know, mail order that's not part of that, but it seems to me to be pretty hard for someone who's got a national presence, uh, to figure out what to, what to do here.

John: 12:05

Well, what the, what the large chains have, have largely done, I can't speak for all of them. I know I was up to date on that recently up until very recently is they said they will, they will follow the law of the land. And the land tends to have state lines. And so what'll happen is from a, from a terrestrial standpoint, the store based, the stores that are in the state of Louisiana will follow the rules of Louisiana, and the stores, the pharmacies that are in the state of New York will follow the law of New York, even though those laws are quite different. They can, um, staff, support, and supply, um, by state, by location. What's interesting, and I haven't heard people really be clear about it, is that all of these large chains have mail order pharmacies that are not located necessarily in the states, blue states or red states, and I haven't heard how they're going to handle that. But I think that you will, I would expect that some of the red states will try to, someone in a red state or a conservative state that's anti choice and, uh, wants to restrict women's reproductive choices will at some point take action against a mail order pharmacy, but I haven't seen that yet.

David: 13:17

Yeah. Okay. Well, stay tuned and perhaps not for, uh, not for too long. John, I always look for, uh, like a ray of hope in these discussions. I haven't heard one necessarily, uh, yet, um, maybe we'll have to do that like episode by episode. Maybe, maybe not every individual episode has to have anything hopeful in it.

John: 13:35

We are in a dark period of public health in America. Resources are being restricted. Priorities are being changed away from. The kinds of things that, uh, certainly the Biden administration and most public health folks have been focused on the one ray of hope from a public health perspective may be the Republicans, the conservative Republicans, uh, consistent interest in mental health, which initially I've, I took to be a way to distract from the fact that they refuse to support the kind of things that, that, uh, around gun violence, that 70 percent of Americans agree with, which is background checks. Um, Uh, and they would do, I thought the, the, the mental health thing was a distraction, but I do believe that on the Republican side, there's genuine interest in finding paths to deal with the mental health crisis in the United States, whether that turns into policy that's sensible. I don't know, but we're, that's far away from women's health and women's choices with, with, uh, uh, uh, I'm not even going to get into the RFK stuff, but with, with, with the kinds of people. They're appointing to public health positions who have no interest and no background in public health, uh, other than litigating against public health, uh, leaders. Um, I think we're in a, we're in a, uh, a dark, a dark moment, but maybe there's some help coming for mental health and maybe that'll help your, my anxiety.

David: 15:01

Okay. Well, let's not sugarcoat it, John. I think we've done a good job of, uh, of avoiding that. Um, it could be construed as a wake up call, but, uh, you know, the opportunity for the wake up call also came after the Dobbs decision, and, uh, I think people felt comfortable to say, well, in some cases, instead of there's a state rule, say, upholding abortion rights of one type or another, people could feel, well, I'm good, I voted for that, and now I can vote, uh, you know, on the Republican side of the, of the ticket, and, uh, that may turn out to have been, uh, something that, uh, is leading to the current state. Well, that's it for yet another episode of Care Talk. We've been speaking today about Louisiana's attempt to restrict and imprison a physician from New York for prescribing an abortion pill. I'm David Williams, president of Health Business Group.

John: 15:51

And I'm John Driscoll, the chairman of the UConn Health System. If you like what you heard, you didn't, we'd love you to subscribe on your favorite service.