“The tax credits go to some people deservedly. And we think the tax credits actually go to a lot of waste and fraud within the insurance industry,” said Vice President JD Vance during a on CBS News. “We want to make sure that the tax credits go to the people who need them.”

Key to the Republican argument of widespread fraud is a by the Paragon Health Institute, a Republican-aligned think tank. The report focuses on “phantom enrollees” in the ACA marketplaces.

Paragon president Brian Blase said these “phantom enrollees,” who don’t use any medical care in a year, exceed the percentages of “what you would expect in a normal, functioning health insurance market.”

Blase and his team say they have quantified the percentage of zero-claim enrollees in the ACA marketplace by analyzing Centers for Medicare & Medicaid Services .

This highlights one of the central issues with the CMS data: It tracks the number of plan enrollments rather than individual enrollees.

The federal data that Paragon analyzed could count enrollees twice if they’ve switched plans during the year, said Cynthia Cox, a vice president and the director of the Program on the ACA at Â鶹ŮÓÅ, a health information nonprofit that includes Â鶹ŮÓÅ Health News.

Per that data, in 2021, the percentage of enrollments without any medical claims was 19%. That percentage jumped to 35% in 2024.

To Blase and Paragon, this increase in zero-claim enrollments is evidence of fraud. It indicates, they say, that rogue insurance brokers are signing up people who don’t exist, don’t qualify, or have other insurance and don’t need ACA coverage.

“Basically, what happened is you had insurers benefit, brokers benefit financially, and just massive numbers of people got put on the program,” Blase said. That’s where these phantoms come in. “They have no idea that they’re enrolled, and, as such, they use no medical care.”

In 2021, former President Joe Biden signed into law the American Rescue Plan Act, which included that made plans available at low or no cost to certain low-income individuals and expanded eligibility for subsidies to some middle-income people. Those credits were extended through 2025 as part of the Inflation Reduction Act, signed in 2022.

show how simple it could be for insurance brokers in certain states to sign people up for zero-cost ACA insurance plans, unbeknownst to the consumers. The Department of Health and Human Services has tried to crack down on those fraudulent practices.

But health policy experts and analysts have cautioned against reading too deeply into the numbers of zero-claim enrollees.

“It’s not that he’s wrong, but I think he’s overinterpreting,” said Michael Cannon, director of health policy studies at the libertarian Cato Institute, of Blase’s analysis.

Cox said there’s evidence that plan-switching has increased, due in part to extended open enrollment periods. Increased plan-switching could make the number of people being double-counted higher in the federal data and increase the percentage of zero-claim enrollees over the years. Some enrollees also may have been on an ACA plan for only part of the year, which would make them less likely to make a claim.

“We’re not trying to argue there is no fraud. It’s a real thing. But the question is, how big of a scale is this problem?” Cox said. “Just suggesting that anyone who’s not using health care is a fraudulent enrollee — that’s not true. Plenty of people don’t use health care.”

It’s not uncommon for healthy people in an insurance marketplace not to use their insurance in a given year, according to health policy experts. And with the enhanced ACA subsidies, more people signed up for marketplace coverage. Enrollment data shows that it made the , and younger enrollees may be less likely to use their insurance. A found that each year from 2018 to 2022, an average of 23% of enrollees in employer-sponsored plans didn’t use their health insurance.

“Somehow the idea that people not using health insurance is some sort of a problem — it might be. But in principle it isn’t,” said Joseph Antos, a health policy expert and senior fellow emeritus at the right-leaning American Enterprise Institute. “The point is that for insurance to work, you need some people who are not making claims on the insurance.”

The main trade associations for insurers and hospitals, AHIP and the American Hospital Association, have also disputed Paragon’s characterization of the federal data and even published their arguments. AHIP pushed back on the idea that the insurance industry is profiting from the enhanced subsidies by stating that existing law caps health plan profits.

Paragon was started by Blase in 2021 and has become widely influential in Republican health policy circles. Alumni of the organization are staffers in the Trump administration and in House Speaker Mike Johnson’s office, so it follows that the group’s takeaways would become Republican talking points.

It’s also not new for the GOP to say that government programs are full of fraud. During the negotiations over the One Big Beautiful Bill, Republican lawmakers insisted Medicaid wouldn’t be cut to pay for the tax cuts, but that “waste, fraud, and abuse” in the health program would be eliminated.

Now, the ACA is center stage in the ongoing federal government shutdown, with Democrats pushing for Congress to extend the current ACA subsidies, which are set to expire at the end of the year. And fraud, again, is a centerpiece of the argument for Republicans. Democrats take a different view on the amount of fraud in the program, instead emphasizing how the subsidies’ expiration will increase insurance premiums.

“It’s become a boondoggle. It’s a subsidy for insurance companies,” Speaker Johnson said of the ACA subsidies at a last week. “When you subsidize the health care system, and you pay insurance companies more, the prices increase. That’s been the problem.”

Â鶹ŮÓÅ Health News senior correspondent Julie Appleby contributed to this report.

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Ad by , July 10

A snappy from the conservative advocacy group bluntly charges Sen. Joe Manchin (D-W.Va.) with supporting a legislative plan that would drain “billions in funds” from Medicare.

Specifically, the ad claims that Manchin and AARP, the well-known advocacy group for people 50 and older, “support government price-setting schemes that’ll give liberal politicians billions in funds meant for Medicare to spend on unrelated government programs or pad big insurers’ profits.” Here, “price-setting” is a reference to a policy proposal that its backers say would give Medicare the ability to rein in the prices it pays for some prescription drugs so they are more in line with prices in other industrialized countries.

American Commitment didn’t respond directly to KHN’s request for comment, but its president, Phil Kerpen, to our email inquiry. Kerpen tweeted on July 14 that “CBO shows Manchin/Schumer drug price controls raid Medicare for $287 billion, most of which is expected to be sent to insurance companies as supersized Obamacare subsidies.”

This is a reference to the of the prescription drug policies in an economic package — a type of legislation known as a — that Senate Democrats, led by Majority Leader Chuck Schumer, hope to bring to the floor in the coming weeks. The CBO found those policies would save $287.6 billion over 10 years as a result of Medicare’s reduced spending on drugs. More on this later.

Both Manchin and AARP dismissed the ad’s message.

“This ad funded by Big Pharma is blatantly lying about Sen. Manchin’s record,” said Sam Runyon, Manchin’s communications director. “West Virginia seniors know Sen. Manchin has worked tirelessly to protect Medicare and reduce prescription drug costs.”

American Commitment received from PhRMA, the drug industry’s trade group, in the 2020 election cycle, according to .

In the days after the ad began airing, he would support only a slimmed-down version of the reconciliation bill, although his support for Medicare drug-price negotiations has remained steady.

Bill Sweeney, AARP’s senior vice president of government affairs, said the ad is representative of “the false attacks” that opponents of the proposal are using. “So I don’t think anything can be further [from] the truth,” he said, referring to the ad’s assertion that the Medicare program will be cut to pay for something else.

This ad is marked by charged language and opinions, and it raises the question of whether giving Medicare the power to regulate drug prices would be the price-setting scheme that American Commitment makes it out to be.

What Are Medicare Drug-Price Negotiations?

The ad claims that Manchin and AARP “support government price-setting schemes.” And it’s true that Manchin and AARP continue to favor Medicare drug-price negotiations.

So what does that mean?

Medicare is currently prohibited from bargaining directly with pharmaceutical companies over how much it pays for certain prescription medications, so that power would be new. Supporters of the proposal say doing so would lead to significant savings for Medicare because it pays much higher prices than the rest of the world. Critics of the proposal, such as Kerpen, call the practice “price setting.”

The reconciliation bill’s Medicare drug provisions would allow the program to negotiate drug prices for a limited set of drugs — 10 initially and another 10 in later years — and would cap drug price inflation. The a $2,000 limit on annual out-of-pocket drug costs for Medicare beneficiaries. Companies that opt out will face an excise tax on the previous year’s profits.

, a senior fellow and health care scholar at the , said an argument can be made that even though the drugmakers and the government would hold discussions about setting lower prices for certain drugs, the program would compel drugmakers to comply or face tax penalties.

“The manufacturers will have no leverage at all — this is a law that gives [the Centers for Medicare & Medicaid Services] the authority to set the price,” Antos said. “There will be discussions, and, of course, it’s polite to call it negotiation,” he added, but ultimately the government will make the decision.

Medicare Savings or Cuts? Common Washington Spin

Historically, both Republicans and Democrats, as well as the advocacy groups aligned with them, have framed as a when trying to gain traction with voters.

In this case, though, the drug pricing experts we consulted unanimously agreed that, from a budgetary standpoint, the almost $288 billion estimate from the CBO represents savings for Medicare, rather than funds that would be taken away from the program, as the ad alleges.

“What’s happening here isn’t an elimination of a Medicare service or benefit — we’re talking about paying lower prices for the very same drugs we pay the highest prices in the world for now,” said , a law professor and drug pricing expert at Washington University in St. Louis.

“So, I’d say that’s fairly misleading,” Sachs said.

Indeed, if Medicare pays less for drugs, that could have a beneficial trickle-down effect, said , a senior fellow with the . That’s because, under this scenario, Medicare premiums and cost sharing would also be reduced, saving beneficiaries money. The actual savings would probably vary, though.

Another common argument from the pharmaceutical industry is that if their revenue goes down, fewer drugs could be developed in the future. The CBO estimated that the drug-price negotiation provision would hinder about 15 new drug approvals over 30 years. Under current law, about 1,300 drugs would typically be approved during that same period, according to the CBO.

“There’s a lot of disagreement about how large those effects will be and whether we are talking about high- or low-value drugs,” Fiedler wrote in an email referring to the reduced number of drug approvals. “There is a potential trade-off here between lower costs for beneficiaries and fewer new drugs down the road, albeit nothing resembling a clear-cut case that Medicare beneficiaries will be worse off overall.”

It’s also important to remember that these drug price negotiations would target only a small subset of drugs — 20, at most — although the legislation does target the most expensive single-source drugs, which could include some cancer drugs, blood thinners, and rheumatoid arthritis medication. Still, drug companies would be free to profit from the sale of their other drugs.

So, overall, the experts said the ad’s contention that drug price negotiations would negatively affect seniors is inaccurate.

Would Insurers Profit if ACA Subsidies Were Extended?

The ad also alleges that the billions of Medicare dollars saved would be spent by liberal politicians on “unrelated government programs” or to “pad big insurers’ profits.”

Senate Democrats have said that the nearly $288 billion in estimated savings to Medicare would be used to offset the cost of other programs.

There’s no question that the $288 billion in savings would give “Congress the ability to spend on something else in the same bill,” Antos said. “But, again, this is not a revelation — this is how all legislation works. The ad makes it sound like it’s out of the ordinary, but it’s actually completely usual.”

The Democrats’ earlier plan for the reconciliation bill included provisions related to climate change, energy, and tax policy. However, momentum is now behind the , which includes only a two-year extension of the enhanced premium subsidies for consumers who buy insurance plans on the Affordable Care Act marketplaces. The American Rescue Plan Act, which became law in March 2021, first increased those subsidies and made qualifying for assistance easier, but that help runs out at the end of this year. If the subsidies expire, millions of people will have to start paying much higher insurance premiums or could lose their coverage.

This point brings us to the ad’s claim about padding insurers’ profits — which Kerpen linked to extending the ACA subsidies. That’s not true, according to the experts.

“Insurers might capture a little bit, since they would earn their ordinary profit margins on new enrollment,” Fiedler said. But “those effects will be small relative to the amounts of money involved.”

The ACA also includes that stops insurers from profiting too much from marketplace plan premiums, said , a fellow in the Health Policy Center at the . And increases in enrollment would also come with a boost in medical claims.

Both Blumberg and Fiedler said framing the proposal to extend the subsidies as padding insurers’ profits is misleading.

Our Ruling

American Commitment’s ad claims that Manchin and AARP support “price-setting schemes” that will divert funds meant for Medicare to “spend on unrelated government programs or pad big insurers’ profits.”

As noted by the experts we consulted, the ad is not accurate. The Medicare drug pricing plan results in savings, not the diversion of funds from the Medicare program. The ad also distorts the fact that those funds would be used to support other initiatives — in this case, the ACA subsidies. It’s not an underhanded conspiracy but a regular part of the reconciliation process. Additionally, if the plan comes to fruition and ACA subsidies are extended, insurance companies are not likely to reap big profits if it comes to fruition. We rate it False.

Sources

American Commitment political ad, “” July 2022

Brookings Institution, “” Feb. 5, 2021

Congressional Budget Office, “,” July 8, 2022

Email interview with , law professor at Washington University in St. Louis, July 13 and 18, 2022

Email interview with , a fellow in the Health Policy Center at the Urban Institute, July 14, 2022

Email interview with , deputy director of the program on Medicare policy at Â鶹ŮÓÅ, July 21, 2022

Email interview with , associate professor of health policy at Vanderbilt University, July 14, 2022

Email interview with , senior fellow with the University of Southern California-Brookings Schaeffer Initiative for Health Policy, July 13 and 19, 2022

Email interview with Sam Runyon, Sen. Joe Manchin’s communications director, July 14, 2022

KHN, “Seeking to Kick-Start Biden’s Agenda, Schumer Unveils a Bill for Medicare Drug Price Negotiations,” July 7, 2022

KHN-PolitiFact, “,” Sept. 28, 2021

KHN-PolitiFact, “,” May 29, 2020

Â鶹ŮÓÅ, “,” Feb. 29, 2012

Â鶹ŮÓÅ, “,” Jan. 27, 2022

OpenSecrets, “,” Dec. 8, 2020

Phone interview with , senior health care scholar at the American Enterprise Institute, July 13 and 19, 2022

Senate Finance Committee, “,” June 19, 2022

Tweet from Phil Kerpen, president of American Commitment, July 14, 2022

Video interview with Bill Sweeney, senior vice president of government affairs for AARP, July 14, 2022

The Washington Post, “,” July 14, 2022

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La cobertura periodística se ha centrado en las disposiciones de la ley para mejorar las verificaciones de antecedentes de los compradores más jóvenes, alentar a los estados a implementar sus propias y cerrar la (una ley que previene que personas condenadas por abuso doméstico sean dueños de armas).

Pero se ha prestado menos atención a los programas de salud mental a los que se destinará la mayor parte de los $13,000 millones estimados en la implementación de la ley.

“Es una especie de proyecto de ley de seguridad de armas envuelto en un proyecto de ley de salud mental”, dijo , profesor de psiquiatría en la Facultad de Medicina de la Universidad de Duke que estudia el punto de encuentro entre la violencia con armas y la enfermedad mental.

La combinación de estas iniciativas en la legislación encabezada por un pequeño grupo de senadores después del tiroteo en la escuela primaria de Uvalde, Texas, el 24 de mayo, fue el resultado de la insistencia de los republicanos de que cualquier esfuerzo de reforma de armas también debía abordar la salud mental.

“No creemos que se pueda resolver la epidemia de violencia con armas en Estados Unidos a través del prisma de la salud mental. Pero si tenemos un acuerdo entre demócratas y republicanos para gastar miles de millones adicionales en tratamientos de salud mental, especialmente en comunidades vulnerables. Aprovechemos esa oportunidad”, dijo el senador (demócrata de Connecticut), uno de los negociadores clave de la reforma.

Si bien los defensores de la salud mental están contentos con la iniciativa, también expresaron preocupación por que se siga perpetuando la idea de que las personas con trastornos psiquiátricos son responsables de la violencia con armas, cuando la así.

Solo del 3% al 5% de los actos violentos son cometidos por personas que tienen una enfermedad mental grave, y, por el contrario, es mucho más probable que una persona que vive con una enfermedad mental sea víctima de violencia.

“Es con emociones muy encontradas que pensamos combinarlas”, dijo , directora de defensa de la National Alliance on Mental Illness. “Necesitamos inversiones en salud mental, pero sabemos que la salud mental no es la causa directa de que una persona sea violenta”.

¿Qué contiene la medida?

La Oficina de Presupuesto del Congreso en $13,000 millones, una gran parte de los cuales se utilizará para aumentar la financiación de programas existentes, que ampliarán sus servicios de salud mental y seguridad escolar, incluyendo $1,000 millones durante cinco años en dos programas para impulsar el número de consejeros de salud mental en escuelas.

Otras asignaciones incluyen:

• $80 millones durante cuatro años para un , que permite a los pediatras brindar servicios de salud mental a través de telesalud. Un adicional de $60 millones por cuatro años se destinarán a capacitar a médicos de atención primaria para que brinden servicios de salud mental a jóvenes.

• $250 millones durante cuatro años para aumentar la de los Servicios Comunitarios de Salud Mental a los estados para ayudar a llenar los espacios en blanco en los sistemas de salud mental locales.

• Se agregarían $240 millones durante cuatro años al , que otorga subvenciones a una variedad de organizaciones de salud mental y de conducta.

• Otra asignación de fondos notable: este año se asignarán $150 millones a , que se lanzará a mediados de julio.

La nueva ley también proporciona un financiamiento de hasta $8,600 millones durante 10 años para apoyar la construcción de clínicas comunitarias de salud mental en cada estado.

Este tipo de clínicas, que ya existen en 10 estados como parte de un programa piloto de Medicaid, deben atender a toda persona con una necesidad de salud mental o por abuso de sustancias. Los estados tendrían que solicitar participar en el programa, que comenzaría en 2024.

¿Qué tan útiles son estos programas de salud mental y cuándo comenzarán?

Es difícil saber qué tan efectivos serán estos programas para mejorar los resultados de la salud mental, dijo , economista de salud y directora del Centro de Información e Investigación de Salud de la Universidad Estatal de Arizona, porque es posible que no todos los programas hayan sido evaluados por su efectividad o necesariamente tienen medidas integradas que puedan ser evaluadas.

“Hay muchas pequeñas oportunidades en este proyecto de ley, pero es difícil saber en su conjunto” si será útil para mejorar la salud mental, dijo Domino.

Parte de la financiación comenzará este año y continuará durante cuatro o cinco años. Es posible que otros flujos de gastos no comiencen hasta 2024. Eso es típico, ya que la financiación del gobierno debe planificarse con años de anticipación. Pero plantea dudas sobre la rapidez con la que se pueden reforzar los programas de salud mental.

¿Detendrá la violencia con armas?

Depende de cómo se defina la violencia con armas, dijo Swanson.

en el país son suicidios, y es posible que este proyecto de ley ayude a reducir esas muertes.

Este proyecto de ley también hace hincapié en las “leyes de alerta”, que se ha demostrado que reducen las tasas de suicidio. Este tipo de leyes, ahora en los códigos de 19 estados y el Distrito de Columbia, permite que miembros de la familia, la policía o los médicos soliciten a un tribunal que retire temporalmente por hasta un año las armas a personas que temen pueden estar en riesgo de hacerse daño a sí mismas o a otras.

Por ejemplo, Swanson dirigió un proyecto de investigación que en Connecticut, donde su equipo estimó que por cada 10 a 20 acciones de retiro de armas, se evitó un suicidio.

Pero los expertos reconocen que los componentes de salud mental del proyecto de ley pueden no hacer mucho por frenar la violencia con armas de tiroteos masivos, como los de Uvalde, el supermercado de Buffalo o el del desfile del 4 de julio en Highland Park.

“La gran mayoría de las personas con enfermedades mentales no son violentas”, dijo Swanson.

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News coverage has largely centered on the law’s provisions to enhance background checks for younger buyers, encourage states to implement their own “,” and close the “.” Less attention has been paid to the mental health programs that most of the estimated $13 billion is earmarked for.

“It is kind of a gun safety bill wrapped in a mental health bill,” said , a psychiatry professor at the Duke University School of Medicine who studies the intersection of gun violence and mental illness.

The pairing of these initiatives in the legislation spearheaded by a small group of senators after the May 24 school shooting in Uvalde, Texas, was a result of Republicans’ insistence that any gun reform effort must also address mental health, even as Democrats disavowed a connection between the two concerns.

“We don’t think you can solve America’s gun violence epidemic through the prism of mental health. But if we have agreement between Democrats and Republicans to spend billions of additional dollars on mental health treatment, especially for vulnerable communities, let’s take that opportunity,” said Sen. Chris Murphy (D-Conn.), a key negotiator, while at a June 13 press conference.

While mental health advocates are happy Congress is authorizing new funds for their cause, they also expressed concern it would continue to perpetuate the idea that people with mental health disorders are largely responsible for gun violence, although . Only 3% to 5% of violent acts are committed by individuals with a serious mental illness, such as schizophrenia, bipolar disorder, or major depression. People living with mental illness are more likely to be victims of violence than are members of the general population.

“It is with very mixed emotions when we think about lumping these together,” said , chief advocacy officer at the National Alliance on Mental Illness. “We need mental health investments, yet we know that mental health is not the direct cause of a person being violent.”

A central question about this heightened level of investment is whether it can make a difference in the nation’s struggle to combat gun violence. Here’s a look at key mental health aspects in the new law.

What’s in the Legislation

The Congressional Budget Office at $13 billion, a large chunk of which will be used to increase funding to expand existing mental health and school safety services programs, including $1 billion over five years for two programs to boost the number of mental health counselors in schools.

Other allocations include:

• $80 million over four years for a , which allows pediatricians to provide mental health services via telehealth. An additional $60 million over four years is directed toward training primary care clinicians to provide mental health services to young people.
• $250 million over four years to increase the Community Mental Health Services to states to help fill in blanks in a state’s mental health system, such as creating care programs for adults and children with serious mental illnesses or emotional disturbances.
• $240 million over four years would be added to which provides grants to mental and behavioral health organizations, community groups, and schools to raise students’ awareness of and connect them to mental health services in schools.
• $150 million this year for the new , which launches in mid-July.

The new law also provides up to $8.6 billion in funding over 10 years to support the build-out of certified community behavioral health clinics in every state in the U.S. These types of clinics, which already exist in 10 states as part of a pilot Medicaid program, are required to see people regardless of their insurance coverage and treat them for mental health or substance use issues. States would need to apply to participate in the program, which would begin in 2024.

While about the pilot program show behavioral health outcomes varied by state, other data shows the clinics have saved money and scored well on such measures as getting patients to adhere to antidepressant medication or engage in alcohol-dependence treatment. However, a report found that the data on these clinics was incomplete, leading to difficulty in evaluating their effectiveness in improving behavioral health.

How Useful Are These Mental Health Programs and When Will They Start?

It’s hard to know how effective the new spending will be at improving mental health, said , an economist and the director of the Center for Health Information and Research at Arizona State University, because not all the programs getting additional funding have been evaluated for effectiveness or are able to be evaluated.

“There are lots of little opportunities in this bill, but it’s hard to tell as a whole” if it will be useful at improving mental health, said Domino.

Some of the funding will begin this year and continue for four or five years. Other spending streams may not start until 2024. That’s typical since government funding must be planned years in advance. But it raises questions about how quickly mental health programs can be beefed up.

Still, advocates and researchers emphasized that more money going toward mental health will likely be beneficial since programs are severely underfunded across the U.S.

Will It Stem Gun Violence?

It depends on how you define gun violence, said Swanson.

in the U.S. are suicides, and it’s possible this legislation will help to reduce those deaths.

The new law also provides funding for states, which can be used to implement red flag laws, which have been shown to reduce suicide rates. These types of laws, now on the books in 19 states and the District of Columbia, allow for family members, police, or doctors to petition a court to ask to temporarily remove guns for up to a year from people who they fear may be at risk of harming themselves or others.

For example, Swanson led a research project worked in Connecticut, where his team estimated that for every 10 to 20 guns removed, one suicide was prevented.

But experts acknowledge that the mental health spending may not do as much to stop the gun violence that’s manifested through mass shootings, such as in Uvalde, at a supermarket in Buffalo, New York, in May, and during a Fourth of July parade in Highland Park, Illinois.

“The vast majority of people with mental illness are not violent,” said Swanson.

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Con esta decisión, los estados tienen la capacidad de establecer sus propias restricciones, por lo que el lugar en el que viven las personas determinará su nivel de acceso al aborto.

La opinión mayoritaria, escrita por el juez Samuel Alito, declara que “la Constitución no confiere un derecho al aborto; Roe y Casey [Planned Parenthood v Casey, 1992] quedan anulados; y la autoridad para regular el aborto se devuelve al pueblo y a sus representantes electos”.

Con protestas y celebraciones, funcionarios estatales de los estados conservadores dijeron que se moverían rápidamente para restringir el aborto, mientras que, en otros estados, algunos funcionarios se comprometieron a mantener el derecho al acceso.

Los siguientes son cinco puntos clave sobre el tema.

1. ¿Dónde sigue siendo legal el aborto?

El fallo de la Corte Suprema significa que el acceso al aborto será, en breve, .

Dieciséis estados más el Distrito de Columbia tienen leyes que protegen el derecho al aborto. En otros dos estados, las cortes han dictaminado que la constitución estatal establece ese derecho. Esos estados se concentran en las costas este y oeste.

En el otro extremo del espectro, 13 estados tienen leyes de “activación” que prohibirían rápidamente casi todos los abortos, y al menos media docena se movilizaron el mismo viernes 24 de junio, para implementarlas, incluyendo Arkansas, Kentucky, Missouri y Dakota del Sur.

Cuatro más tienen prohibiciones anteriores a Roe que volverían a entrar en vigencia. Otros tres estados cuentan con leyes que prohibirán el aborto después de las seis semanas de embarazo.

Es probable que el acceso al aborto también evolucione en otros estados. Kansas y Montana, que se encuentran entre los estados donde las cortes han dictaminado que la constitución estatal garantiza el derecho al aborto, podrían ver retroceder esas protecciones a través de una medida electoral en Kansas y una impugnación legal por parte del fiscal general de Montana.

En al menos ocho estados, el derecho al aborto no está explícitamente protegido o prohibido por la legislación estatal.Ìý

En Michigan, una ley estatal de 1931 prohíbe casi todos los abortos, pero su aplicación fue suspendida temporalmente por una decisión judicial en mayo. La fiscal general de Michigan, la demócrata Dana Nessel, ha dicho que no aplicará la ley, pero siguen existiendo dudas sobre si también lo harán los fiscales locales.

Al igual que ocurría antes de la decisión Roe de la Corte Suprema en 1973, quienes necesiten abortar también estarán sujetas a una serie de restricciones, incluso en los estados en los que el procedimiento sigue siendo legal. Entre ellas se encuentran los límites gestacionales que delimitan el momento máximo del embarazo para acceder a un aborto, los requisitos de que las pacientes reciban asesoramiento previo, los períodos de espera y las normas de notificación a los padres en el caso de las menores.

2. ¿Qué puede hacer el gobierno de Biden?

El presidente Joe Biden ha dicho que su administración considera para contrarrestar el impacto de la sentencia. En declaraciones tras la decisión, Biden dijo que era un “día triste” y que, sin Roe, “la salud y la vida de las mujeres de esta nación están ahora en peligro”.

Pero la realidad es que, sin una nueva ley del Congreso, sus opciones son limitadas.

Los partidarios del derecho al aborto y los han presionado a la administración para que facilite a las mujeres el aborto con medicamentos, que está disponible hasta las 10 semanas de embarazo y supone la toma de dos píldoras, evaluando si los servicios podrían prestarse en propiedad federal incluso en los estados que prohíben el procedimiento, y reforzando la privacidad digital para proteger a las pacientes.

Según el , una organización que apoya el derecho al aborto, las píldoras representaron más de la mitad de todos los abortos en 2020, el primer año en el que el uso de la medicación superó a los procedimientos.

Con el gobierno de Biden, la Administración de Alimentos y Medicamentos (FDA) ya ha levantado una importante restricción. Ahora, las pacientes pueden recibir por correo mifepristona, el primer fármaco de los utilizados para interrumpir el embarazo.

, profesora de la Facultad de Derecho de la Universidad de California en Davis e historiadora de la legislación sobre el aborto, señaló que, aunque los estados conservadores intenten restringir el acceso al aborto con medicamentos, la administración Biden podría argumentar que las normas y directrices de la FDA sobre la mifepristona prevalecen sobre cualquier ley estatal que criminalice ese método.

El fiscal general Merrick Garland adoptó esta postura en un que publicó poco después de que se anunciara la decisión: “La FDA ha aprobado el uso del medicamento mifepristona. Los estados no pueden prohibir la mifepristona por desacuerdo con el juicio de los expertos de la FDA sobre su seguridad y eficacia”. Biden reforzó ese mensaje en sus comentarios.

Antes de que se anunciara la decisión de los jueces, Zeigler comentó que mantener esa postura es “todo lo que pueden hacer”. Aun así, el planteamiento de la FDA tiene un futuro incierto, tanto desde el punto de vista legal, como porque una administración republicana podría revertir fácilmente cualquier medida que adopten los funcionarios de Biden. “Si funcionara, no sería permanente, y podría no funcionar”, añadió Zeigler.

El gobierno de Biden también podría ampliar el número de farmacias que puedan vender el medicamento.

3. ¿Se podrán comprar estos medicamentos en los estados donde el aborto es ilegal?

Por ahora, a raíz de la decisión de Dobbs, es probable que los estados que prohíben el aborto establezcan también limitaciones o prohibiciones para las píldoras abortivas. Pero algunos activistas señalan que en esos estados se podría seguir obteniendo píldoras abortivas y realizar un aborto “autogestionado” en casa, lo que conlleva cierto riesgo adicional si la mujer tiene una complicación (aunque las complicaciones son muy raras). Y las píldoras abortivas seguirán siendo accesibles en los estados en los que el aborto está permitido.

Antes de la anulación de Roe, muchos estados ya para la obtención de píldoras abortivas, como la prohibición de enviarlas por correo y de recetar la medicación a través de una cita de telemedicina. Pero la gente encontró soluciones, una práctica que probablemente continuará. Estas soluciones —como viajar a estados vecinos para conseguir la medicación o hacer que se envíe a la casa de un amigo o a un apartado de correos en otro lugar— podrían conllevar el riesgo de enfrentar cargos criminales, siempre dependiendo de lo especificado en las leyes estatales.

También existe la preocupación, entre los activistas del derecho al aborto, de que los estados que lo prohíben puedan ir más allá y penalizar el viaje a otro estado para tener el procedimiento, aunque ésta es una frontera legal no probada y probablemente se vería atascada en los tribunales.

En sus declaraciones, Biden adoptó una postura dura sobre esta cuestión, diciendo que nada en la decisión de la corte impide que una mujer que vive en un estado que prohíbe el aborto viaje a un estado que lo permite.

Las mujeres “deben seguir siendo libres de viajar con seguridad a otro estado para buscar la atención que necesitan”, dijo, y añadió que su administración “defenderá ese derecho fundamental”. También señaló que los médicos de los estados que siguen permitiendo el aborto pueden proporcionarlos a mujeres de otras jurisdicciones.

4. ¿Cómo se verán afectados los médicos en el ejercicio de su profesión?

En muchos estados que prohíben el aborto, los obstetras, los ginecólogos, los médicos de urgencias y cualquier médico que atienda a embarazadas estarán probablemente en la mira de la ley y podrían enfrentar cargos penales si prestan servicios de aborto.

Esto impactará duramente al cuidado de la salud reproductiva, declaró a KHN recientemente la doctora Nikki Zite, ginecóloga-obstetra en Knoxville, Tennessee. dice que los abortos se permitirían solo para prevenir una muerte o “para prevenir un riesgo grave de deterioro sustancial e irreversible de una función corporal importante de la embarazada”.

“Pero no está claro exactamente cuánto riesgo tiene que haber”, indicó Zite. “Diferentes médicos que ejercen en diferentes instituciones tendrán diferentes interpretaciones de esa ley”.

También hay áreas grises que la ley no aborda. En algunos embarazos muy tempranos, el óvulo fecundado se aloja fuera del útero —en la mayoría de los casos, en una trompa de Falopio—, una situación potencialmente mortal denominada . Si ese tipo de embarazo sigue adelante, la mujer puede morir desangrada.

Las pacientes que sufren también necesitan a veces tomar medicación abortiva o someterse a una Ìý(conocido como DyC) para eliminar el tejido que queda dentro del útero.

“El reto es que el tratamiento de un aborto y el de un aborto espontáneo son exactamente iguales”, explicó recientemente a KHN la doctora Sarah Prager, quien es profesora de obstetricia y ginecología en la Universidad de Washington, en Seattle, y experta en abortos espontáneos tempranos.

Los médicos podrían dudar en realizar una DyC para tratar los abortos espontáneos por miedo a que alguien les acuse de realizar un aborto encubierto.

“Los médicos no deberían temer ser criminalizados por atender a sus pacientes”, apuntó Zite. “Creo que va a haber un sinfín de consecuencias no deseadas. Creo que muchas morirán. También creo que habrá mujeres que vivirán situaciones horribles, como las que desean quedar embarazadas, pero al sufrir complicaciones no podrán tomar decisiones sobre cómo terminar ese embarazo, y eso será un tipo diferente de sufrimiento”.

5. ¿Podría este fallo afectar a algo más que al aborto?

Sí, eso es lo que piensan los expertos en salud reproductiva. Dependiendo de lo que se determine como “aborto”, los estados podrían acabar penalizando —a propósito, o por accidente— la fecundación in vitro y ciertas formas de control de la natalidad, limitando la formación y disponibilidad de los médicos y otros proveedores de atención sanitaria.

El punto crítico es qué se considera un aborto. Desde el punto de vista médico, el aborto es la interrupción anticipada de un embarazo, de manera natural —aborto espontáneo— o por intervención humana con medicamentos o un procedimiento quirúrgico. Pero… ¿cuándo comienza un embarazo?

Los médicos dicen que el embarazo comienza cuando el óvulo fecundado se implanta en el útero de la mujer. Pero muchos activistas antiaborto dicen que comienza cuando un espermatozoide y un óvulo se unen para formar un cigoto, lo que puede ocurrir varios días antes. Ese plazo anterior significaría que cualquier cosa que interfiera en la implantación de ese óvulo fecundado, como un DIU (dispositivo intrauterino), una forma común de control de la natalidad podría definirse como un aborto.

Del mismo modo, la fecundación in vitro, que consiste en extraer los óvulos de una mujer, fecundarlos y luego implantarlos de nuevo en la mujer, también podría interpretarse como un aborto, a menos que se implanten todos los óvulos fecundados.Ìý

La Asociación Estadounidense de Obstetras y Ginecólogos Pro-Vida aplaudió el fallo de la Corte Suprema, calificándolo de “trascendental”. Pero existe la preocupación de que esta sentencia pueda tener un impacto negativo en el acceso de las mujeres a la atención médica en lugares que tienen o promulgan leyes estrictas sobre el aborto. En concreto, es posible que los médicos y otros profesionales de salud no quieran formarse o ejercer en zonas en las que podrían ser perseguidos por prestar atención médica.

Y esto no es solo una posibilidad. En Texas, donde el aborto después de las seis semanas de gestación está prohibido desde septiembre, según un informe de , la ley “ha hecho mella en la salud mental de los médicos; algunos dicen sentirse “peores médicos”, y algunos están abandonando el estado”. Como resultado, al sector médico le preocupa que las embarazadas en Texas se queden sin opciones de atención y sin médicos capaces de proporcionarla”.

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The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization dramatically and rapidly alters the landscape of abortion access in the U.S. The court on June 24 ruled 6-3 to uphold a Mississippi law that would ban abortion after 15 weeks of pregnancy, but also to overturn the nearly half-century precedent set in Roe v. Wade that guaranteed the constitutional right to an abortion. With the Dobbs decision, states have the ability to set their own restrictions, so where people live will determine their level of access to abortion.Ìý

The majority opinion, written by Justice Samuel Alito, stated that “the Constitution does not confer a right to abortion; Roe and Casey [Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992] are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”Ìý

Almost immediately after the decision was released, protests and celebrations outside the court and across the country began — highlighting the patchwork of laws and restrictions that now will take effect. State officials from conservative states said they would move quickly to restrict abortion, while in other states, some officials pledged to keep the right to access.ÌýÌý

Here are five key points that will affect access to abortion.Ìý

1. Where is abortion still legal?Ìý

The Supreme Court ruling means access to abortion will, very shortly, be .Ìý

Sixteen states plus the District of Columbia have laws that protect the right to abortion. In two other states, courts have ruled that the state constitution establishes that right. Those states are concentrated on the East and West coasts.Ìý

On the other end of the spectrum, 13 states have “trigger” laws that would quickly ban nearly all abortions, and at least a half-dozen moved Friday to implement them, including Arkansas, Kentucky, Missouri, and South Dakota. Four more have pre-Roe bans that would again be in effect. Three other states have laws on the books that will ban abortion after about six weeks of pregnancy.Ìý

Access to abortion is likely to evolve in other states, too. Kansas and Montana, which are among the states where courts have ruled that the state constitution guarantees the right to abortion, could see rollbacks in those protections through a ballot measure in Kansas and a legal challenge by the Montana attorney general. In at least eight states, the right to abortion isn’t explicitly protected or prohibited by state law. Ìý

And in Michigan, a 1931 state law bans nearly all abortions, but its enforcement was temporarily suspended by a May court decision. Michigan Attorney General Dana Nessel, a Democrat, has said she will not enforce the law, but questions remain about whether that would also be the case for local prosecutors.Ìý

As was the case before the Supreme Court’s 1973 Roe decision, people seeking abortion care will also be subject to a variety of restrictions even in states where the procedure is still legal. They include gestational limits outlining the maximum point in pregnancy that someone can obtain an abortion, requirements that patients receive counseling beforehand, waiting periods, and parental notification rules for minors.Ìý

2. What can the Biden administration do?Ìý

President Joe Biden has said his administration is looking into to counteract the impact of the ruling. In remarks after the decision, Biden said that it was a “sad day” and that, without Roe, “the health and life of women in this nation is now at risk.”Ìý

But in short, without a new law from Congress, he has limited options.Ìý

Supporters of abortion rights and in Congress have pushed the administration to make it easier for women to obtain medication abortion, which is available up to 10 weeks of pregnancy and involves taking two pills, assessing whether services could be provided on federal property even in states that ban the procedure, and bolstering digital privacy to protect patients.Ìý

Medication abortion has become an increasingly large share of total abortions provided in the U.S. According to the , a research organization that supports abortion rights, the pills accounted for more than half of all abortions in 2020, the first year medication provided the majority.Ìý

Under the Biden administration, the FDA has already lifted one major restriction. Now, patients can receive mifepristone, the first drug used in the series, by mail. , a professor at the University of California-Davis School of Law and an abortion legal historian, said that, even as conservative states move to curtail access to medication abortion, the Biden administration could argue that the FDA’s rules and guidelines on mifepristone preempt any state laws that criminalize that method. Attorney General Merrick Garland took this position in a he released shortly after the decision was announced: “The FDA has approved the use of the medication Mifepristone. States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.” Biden reinforced that message in his remarks.Ìý

In comments before the justices’ decision was announced, Zeigler said arguing this position is “the biggest thing they could do.” Still, the FDA approach is uncertain, both legally and because a future Republican administration could easily reverse any action that Biden officials take. “If it worked it wouldn’t be permanent, and it may not work,” she added. The Biden administration could also expand the number of pharmacies that can dispense the medication.Ìý

3. Will people in states where abortion is illegal be able to access medication abortion?Ìý

For now, as a result of the Dobbs decision, states that ban abortions are likely to set limitations or bans on abortion pills as well. But some advocates note that people in those states still may be able to obtain abortion pills and perform a “self-managed” abortion at home, which carries some additional risk if the woman has a complication (though complications are very rare). And abortion pills will still be accessible in states where abortion is allowed.Ìý

Related Links

• Black Women Have Much at Stake in States Where Abortion Access May Vanish
• Ripple Effects of Abortion Restrictions Confuse Care for Miscarriages
• ‘It’s Not a Haven’: With Limited Capacity for Abortion Care, Minnesota Clinics Brace for Influx
• A Post-‘Roe’ World in Georgia Will Mean More Restrictions — And More Political Battles

Before Roe was overturned, many on obtaining abortion pills, including prohibiting the pills from being sent through the mail and not allowing patients to be prescribed the medication via a telemedicine appointment. But people found workarounds — a practice that’s likely to continue. These actions — such as traveling to neighboring states to secure the medication or having it sent to a friend’s house or a post office box in another location — could carry the risk of criminal charges, again depending on the specifics of state laws.Ìý

There is also concern among abortion rights activists that the states that outlaw abortion could go even further and criminalize traveling to another state to get an abortion, though this is an untested legal frontier and likely would be tied up in courts.Ìý

In his remarks, Biden took a hard-line stance on this question, saying that nothing in the court’s decision prevents a woman who lives in a state that bans abortion from traveling to a state that allows it. Women “must remain free to travel safely to another state to seek the care they need,” he said, adding that his administration “will defend that bedrock right.” He also noted that doctors in the states that continue to allow abortions can provide abortions to women from other jurisdictions.Ìý

4. How will this affect doctors’ ability to provide care?Ìý

In many states that ban abortions, obstetricians, gynecologists, emergency room doctors, and any type of physician that takes care of pregnant people will likely be targeted by law and could face criminal charges if they provide abortion services.Ìý

This will have a severe effect on reproductive health care, Dr. Nikki Zite, an OB-GYN in Knoxville, Tennessee, recently told KHN. says abortions are permissible only to prevent a death or “to prevent serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.”Ìý

“But exactly how much risk there needs to be is not clear,” Zite said. “Different physicians practicing at different institutions will have different interpretations of that law.”Ìý

There are also gray areas the law doesn’t address. In some very early pregnancies, the fertilized egg lodges outside the uterus — most commonly in a fallopian tube — a potentially life-threatening situation called an . If that type of pregnancy proceeds, the woman can bleed to death.Ìý

Patients who have also sometimes need to take abortion medication or have — known as a D&C — to remove tissue that lingers inside the uterus.Ìý

“The challenge is that the treatment for an abortion and the treatment for a miscarriage are exactly the same,” Dr. Sarah Prager recently told KHN. Prager is a professor of obstetrics and gynecology at the University of Washington in Seattle and an expert on early pregnancy loss.Ìý

Doctors may hesitate to perform D&Cs to treat miscarriages for fear someone will accuse them of performing a covert abortion.Ìý

“Physicians shouldn’t be fearful for being criminalized for taking care of patients,” said Zite. “I think there’s going to be a myriad of unintended consequences. I think that people will lose their lives. I also think there will be people in horrible situations, like those that strongly desire to be pregnant but have a complication of the pregnancy, that will not be able to make decisions on how that pregnancy ends, and that will be a different kind of devastation.”Ìý

5. Could this ruling affect more than just abortion?Ìý

Absolutely, according to reproductive health experts. Depending on what is determined to be an “abortion,” states could end up criminalizing — on purpose or by accident — in vitro fertilization and certain forms of birth control, and limiting the training and availability of doctors and other health care providers.Ìý

At stake is what is determined to be an abortion. Medically, abortion is the early termination of a pregnancy, by natural means — spontaneous abortion, or miscarriage — or by human intervention with medication or an invasive procedure. But when does a pregnancy begin? Doctors say pregnancy begins when a fertilized egg implants in a woman’s uterus. But many anti-abortion activists say it begins when a sperm and egg unite to form a zygote, which can happen several days earlier. That earlier time frame would mean that anything that interferes with the implantation of that fertilized egg, such as an IUD (intrauterine device), a common form of birth control, could be defined as an abortion. Similarly, in vitro fertilization, which involves removing a woman’s eggs, fertilizing them, and then implanting them back into the woman, could also be construed to involve abortion unless every fertilized egg was implanted.ÌýÌý

An opinion by Justice Clarence Thomas that concurred with the decision to overturn Roe raised other questions. He suggested that the court could use the same arguments in the Dobbs case to overturn other key rulings, including those that established the rights to birth control and same-sex marriage. It was not clear that the other justices agreed, and Justice Alito, who wrote the main opinion, said he did not believe the abortion decision affected other issues.Ìý

The American Association of Pro-Life Obstetricians & Gynecologists applauded the decision, terming it “momentous.” But others worry that the ruling could have a negative impact on women’s access to care in places that have or enact strict abortion laws. Specifically, doctors and other health professionals may not want to train or practice in areas where they could be prosecuted for delivering medical care.Ìý

And this is not just theoretical. In Texas, where abortion after six weeks’ gestation has been effectively banned since September, according to a report in , the law “has taken a toll on clinicians’ mental health; some physicians report feeling like ‘worse doctors,’ and some are leaving the state. As a result, clinicians worry that pregnant Texans are being left without options for care and without doctors capable of providing it.”Ìý

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“We’re unsure if we’ll be able to maintain services at all,” said Rovetti, who is the co-director and a nurse practitioner at KCRH, which provides medication abortions and abortion procedures, as well as gynecological and family planning services. Each year, the center provides abortion services to 1,300 to 1,400 patients, including people from Kentucky, Georgia, and Virginia.

The independent clinic — which opened in 1975, two years after the Supreme Court’s historic Roe v. Wade decision — was one of the first to provide abortion services in Knoxville. KCRH has remained in the same location in the Fort Sanders neighborhood, nestled between the old homes and modern apartment buildings that house students who attend the nearby University of Tennessee. It became the only clinic that provides abortions in the area after Knoxville’s Planned Parenthood facility on Dec. 31.

“There’s just a lot of things unknown,” Rovetti said in an interview at KCRH. “We are exploring, and we’re waiting. It’s just hard to make many decisions at this point until we know where things stand.”

The Supreme Court is slated to issue a decision on an abortion case in the weeks ahead. The case, Dobbs v. Jackson Women’s Health Organization, turns on the state of Mississippi’s effort to ban most abortions after 15 weeks of pregnancy. Roe guarantees abortion access generally until a fetus is viable, which is around 23 weeks. In early May, a leaked draft opinion in the case that indicated the justices would overturn the long-standing precedent, thus returning abortion regulation to individual states.

Tennessee is with a “trigger law” that would kick in if Roe is struck down and ban abortions in most situations. The includes a 30-day window before the prohibition is implemented, but another measure could speed up that final outcome.

In 2020, Tennessee’s Republican governor, a law that makes abortion illegal after embryonic or fetal cardiac activity is detected, which can happen as early as six weeks into a pregnancy. The vast majority of KCRH abortions (approximately 95%) occurred six weeks after a patient’s last menstrual period, according to . A federal judge stopped the six-week ban from being implemented soon after it was signed, but that injunction could be lifted if the Supreme Court overturns Roe.

Rovetti said that because of all this her clinic may have to stop providing abortions almost as soon as a decision comes down. But much will depend on the final opinion’s wording.

For now, KCRH staff members have started advising patients that an abortion ban could begin any day. Tennessee, like , has a mandatory waiting period for people seeking an abortion between an initial, required counseling appointment and a second visit for the actual abortion. Tennessee requires women to wait 48 hours.

“We have to say, ‘We really hope we can provide the service for you, but if we get a decision tomorrow, you still have another 24 hours before you can return and then we will not be able to see you,’” Rovetti said. “So there’s a lot of upheaval and a lot of unknown and a lot of despair.”

A few miles east is the Planned Parenthood clinic. When the arson happened, it was updating its facilities so it could offer abortion procedures. Previously, the clinic had provided only medication abortions up to 11 weeks of pregnancy.

Planned Parenthood plans to rebuild, although the doors might not open again for 18 months. Ashley Coffield, CEO of , said the clinic is in the design phase for construction.

The Planned Parenthood facility’s sign was recently vandalized with white paint, to block out the clinic’s name. “We’re replacing the sign,” said Coffield. “It’s a message to the community that we’re coming back.”

In the meantime, Planned Parenthood is aiming by this fall to open a mobile clinic that will provide sexual and reproductive health services in the Knoxville area.

Coffield said that if abortions are banned in Tennessee, Planned Parenthood expects to counsel patients and assist them with the logistics and costs of traveling to a state where the service is legal, as well as to provide follow-up care. Some people experience heavy bleeding after abortions and could be scared to go to an emergency room for fear of being charged with breaking the law, though in Tennessee the physicians who provide abortions are the ones who would be prosecuted.

“We can tell our patients facts about legal services” elsewhere, said Coffield. She said clinic staffers are looking at referring patients to North Carolina, Virginia, or possibly Florida.

But not everyone is sure that counseling patients to seek an abortion outside the state will be safe. Dr. Nikki Zite, a Knoxville OB-GYN, said some Tennessee doctors are uncertain about what they will be allowed to do and say to pregnant patients considering abortion, especially those with or who are experiencing miscarriages.

“We feel that the ban and a lot of the anti-abortion legislation is written in vague terms that make it hard to treat patients,” said Zite. says abortions may be conducted by doctors only to prevent a death or “to prevent serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.”

“But exactly how much risk there needs to be is not clear,” Zite said. “Different physicians practicing at different institutions will have different interpretations of that law.”

Some Tennessee abortion-rights groups said that they’ve been anticipating this moment for years but that activity has ramped up since the draft opinion was leaked.

Max Carwile — a volunteer and one of the founders of , an East Tennessee group that operates a phone line that people can call or text to get abortion support and financial assistance — said her group’s main focus now is fundraising.

Once the trigger law goes into effect, Carwile said, “getting abortion care will be monumentally more expensive, since people will have to travel to another state.”

Other abortion-rights supporters are looking into setting up phone banks to discuss the issue with Tennessee residents, in hopes of changing people’s perspectives, and working on getting abortion-rights supporters elected in state and local races, said Cathy Henschen, a member of the community group Knoxville Advocates for Reproductive Rights.

One thing is certain, said Henschen: “We are not going to give up. If they think they are going to criminalize abortion and everyone is going to be sad and stay home, they are sadly wrong.”

How are anti-abortion groups preparing for the possible overturning of Roe? Neither Tennessee Right to Life nor Knox County Right to Life, the state and county chapters of , an anti-abortion activist group, responded to multiple requests for comment.

In a , Stacy Dunn, president of Tennessee Right to Life, was quoted as saying that her organization wouldn’t comment on the Supreme Court draft and awaited the official opinion.

Still, as Tennesseans who support abortion rights prepare for the possibility that access will end, they’re also racing against time, almost like watching the last pieces of sand drop through an hourglass, uncertain when the final one will fall.

“How do you also provide services when you’re waiting for a decision that could come down at any moment?” Rovetti asked.

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Harmony is not often found between two of the most boisterous senators on Capitol Hill, Bernie Sanders (I-Vt.) and Rand Paul (R-Ky.).

But it was there at Tuesday’s Senate markup of to reauthorize the Food and Drug Administration’s user fee program, which is set to expire Sept. 30.

This , which was first authorized in 1992, allows the FDA to collect fees from companies that submit applications for drug approval. It was designed to speed the approval review process. And it requires reauthorization every five years.

Congress considers this bill a must-pass piece of legislation because it’s used to help fund the FDA, as well as revamp existing policies. As a result, it also functions as a vehicle for other proposals to reach the president’s desk — especially those that couldn’t get there on their own.

And that’s why, on Tuesday, Sanders took advantage of the must-pass moment to propose to the user fee bill that would allow for the importation of drugs from Canada and the United Kingdom, and, after two years, from other countries.

Prescription medications are often much less expensive in , and show that millions of Americans have bought drugs from overseas — even though doing so is technically illegal.

“We have talked about reimportation for a zillion years,” said a visibly heated Sanders. “This bill actually does it. It doesn’t wait for somebody in the bureaucracy to make it happen. It actually makes it happen.” He then went on for several minutes, his tone escalating, citing statistics about high drug prices, recounting anecdotes of people who traveled for drugs, and ending with outrage about pharmaceutical companies’ campaign contributions and the number of lobbyists the industry has.

“I always wanted to go to a Bernie rally, and now I feel like I’ve been there,” Paul joked after Sanders finished talking. He went on to offer his support for the Vermont senator’s amendment — a rare bipartisan alliance between senators who are on opposite ends of the political spectrum.

“This is a policy that sort of unites many on both sides of the aisle, the outrage over the high prices of medications,” added Paul. He said he didn’t support drug price controls in the U.S. but did support a worldwide competitive free market for drugs, which he believes would lower prices.

Even before Sanders offered his amendment, the user fee bill before the committee included a limited drug importation provision, Sec. 906. It would require the FDA to develop regulations for importing certain prescription drugs from Canada. But how this provision differs from a Trump-era regulation is unclear, said , a professor of law at Washington University in St. Louis and an expert on drug pricing.

“FDA has already made importation regulations that were finalized at the end of the Trump administration,” said Sachs. But no applications under the directive have been approved yet. She added that whether Sec. 906 is doing anything to improve the existing regulation is unclear.

Sanders’ proposed amendment would have gone further, Sachs explained.

It would have included insulin among the products that could be obtained from other countries. It also would have compelled pharmaceutical companies to comply with the regulation. It has been a concern in drug-pricing circles that even if importation were allowed, there would be resistance to it in other countries, because of how the practice could affect their domestic supply.

A robust discussion between Republican and Democratic senators ensued. Among the most notable moments: Sen. Mitt Romney (R-Utah) asked whether importing drugs from countries with price controls would translate into a form of price control in the U.S. Sen. Tim Kaine (D-Va.) said his father breaks the law by getting his glaucoma medication from Canada.

The committee’s chair, Sen. Patty Murray (D-Wash.), held the line against Sanders’ amendment. Although she agreed with some of its policies, she said, she wanted to stick to the importation framework already in the bill, rather than making changes that could jeopardize its passage. “Many of us want to do more,” she said, but the bill in its current form “is a huge step forward, and it has the Republican support we need to pass legislation.”

“To my knowledge, actually, this is the first time ever that a user fee reauthorization bill has included policy expanding importation of prescription drugs,” Murray said. “I believe it will set us up well to make further progress in the future.”

Sen. Richard Burr (R-N.C.), the committee’s ranking member, was adamant in his opposition to Sanders’ amendment, saying that it spelled doom for the legislation’s overall prospects. “Want to kill this bill? Do importation,” said Burr.

Sanders, though, staying true to his reputation, didn’t quiet down or give up the fight. Instead, he argued for an immediate vote. “This is a real debate. There were differences of opinions. It’s called democracy,” he said. “I would urge those who support what Sen. Paul and I are trying to do here to vote for it.”

In the end, though, committee members didn’t, opting to table the amendment, meaning it was set aside and not included in the legislation.

Later in the afternoon, the Senate panel reconvened after senators attended their weekly party policy lunches and passed the user fee bill out of the committee 13-9. The next step is consideration by the full Senate. A similar bill has already cleared the House.

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One strategy involves preserving the availability of the medication used to initiate an abortion in states poised to restrict access otherwise. Such a move would require that federal law take precedence over a state’s — a concept known as preemption.

“Federal preemption for abortion medication is a highly innovative legal strategy with considerable uncertainty,” said , a professor of global health law at Georgetown University. “There’s no telling how it will play out in the courts.”

Some state lawmakers opposed to abortion have to limit or ban medication abortion. Most of the legislation hasn’t gained traction, although South Dakota’s legislature did approve a measure that bans the pills. It is now ensnared in legal challenges. But if the Supreme Court reverses or constrains Roe, activists whose goal is to ban nearly all abortions may quickly turn to closing the loophole on medication abortions, for fear patients would still be able to get pills from outside the state.

Thirteen states have restrictive “trigger laws” on the books that would kick in if Roe is undone. They vary widely but would effectively ban abortions overall, with few exceptions.

In addition, some conservative states have moved to restrict access in advance of the high court’s decision. Texas, which has a trigger law, also enacted a law last year that outlaws abortion after the detection of embryonic or fetal cardiac activity, typically around six weeks and often before people realize they are pregnant. That 2021 law, which the Supreme Court refused to block, is in effect and has dramatically reduced abortions in the state. A new Oklahoma law, which took effect May 25, bans most abortions by defining life as beginning at fertilization.

Medication abortion is an option during the first 10 weeks of pregnancy and involves : mifepristone, a drug that blocks hormones necessary for the pregnancy, followed by misoprostol, which helps empty the uterus. In 2020, medication abortions became the most common method, . Most abortions are performed at or of gestation.

Medication abortions became available in the U.S. when . It is available for use in all 50 states.

Some legal and drug regulatory experts argue that because the FDA is the federal agency responsible for protecting public health by ensuring the safety, efficacy, and security of human drugs, states wouldn’t have the power to overrule its stamp of approval and outlaw the abortion pill.

In other words, “FDA policy governing mifepristone could preempt states’ ban of medication abortion,” said , interim dean of Temple University’s Beasley School of Law and an expert in reproductive health law. “That is a pretty novel argument for the abortion space, and it hasn’t been tested out, but I believe it’s possible to argue.” She on the possibility.

The Department of Justice could turn to the courts to intervene against a state or group of states that were to ban or restrict the use of mifepristone for medication abortion.

Gostin, the Georgetown law professor, said he has talked to the Biden administration about this being a potential course of action to ensure people still have access to abortion.

“I can’t say whether the administration will go through with it. But I think there is a reasonable likelihood that if a state becomes punitive and bans every avenue for a lawful abortion, then the Justice Department would act,” said Gostin.

Some Democratic lawmakers, including Sen. Elizabeth Warren (D-Mass.), endorse the idea.

“I’m totally in favor of the administration taking every possible opportunity to make medication abortions more widely available,” said Warren, adding that it’s also a topic of discussion among Senate Democrats.

But, during a recent on reproductive rights, Sen. Patty Murray (D-Wash.) tempered expectations on how expansive the Biden administration’s executive actions to protect abortion access may be.

“We want the Biden administration to set forth what they can do,” she said, but “they are limited.”

The White House wouldn’t say which executive or legal actions might be under consideration. President Joe Biden Politico published the leak of the Supreme Court’s draft opinion that protecting “a woman’s right to choose” would fall on elected officials if the landmark case is overturned.

, a former associate commissioner at the FDA during George W. Bush’s administration, said the argument that FDA authority preempts a state’s has merit because allowing a state to ban the use of a legally approved product could lead to inconsistent policies on other medications.

“I don’t think that an FDA-approved medicine should be available in New York and not in Mississippi. That leads to chaos,” said Pitts. “Today we’re talking about mifepristone, but it could be another drug tomorrow.”

One issue with the preemption argument, though, is there is limited precedent for it in the drug arena. The only previous court case experts were aware of involved Massachusetts’ effort , an opioid painkiller. A U.S. district court ruled in 2014 that a drug approved by the FDA couldn’t be banned.

Pitts said he thinks it’s quite possible that this position would hold if the Justice Department and a state went head-to-head over the use of mifepristone.

“A state does not have the right to prohibit a U.S. citizen from having access to an FDA-approved medicine,” said Pitts.

GenBioPro, the drugmaker that manufactures the generic version of mifepristone, filed a lawsuit in 2020 in Mississippi when the state implemented restrictions on distributing the abortion pills. That state law requires patients to travel to the sole clinic providing abortions in the state and take pills during multiple visits.

In the initial court filing, GenBioPro argued that Mississippi’s laws restricting the use of mifepristone “conflict with federal law and are therefore preempted.” The lawsuit is ongoing, and the drugmaker did not respond to a request for comment.

So, if the Biden administration doesn’t take up the preemption mantle, could abortion rights advocacy groups such as Planned Parenthood or the American Civil Liberties Union do so?

Planned Parenthood didn’t respond to a request for comment, while an ACLU staffer told KHN the organization would be exploring “every legal avenue to protect people’s ability to get the abortion care they need.”

It’s certainly possible, said Gostin, so long as either organization has a legal standing, such as representing a woman who was banned from ordering abortion medication. A citizen or group of citizens might also file a lawsuit if they weren’t able to access the drug.

Still, it’s likely states seeking to restrict abortion pills would argue that they are regulating medical practice, which is well within their powers, said Rebouché.

the pills from being prescribed via telehealth even though the FDA began allowing that during the pandemic and . Instead, the health care provider must be present when the medication is administered.

, senior legal counsel of Americans United for Life, a national anti-abortion advocacy group, said his organization would fight back against the Biden administration if it did attempt a preemption argument, arguing that states have the power to regulate medicine and medical practice.

“We would beat them in court,” said Forsythe.

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After Politico published on May 2 from the Supreme Court indicating that Roe v. Wade, the landmark decision that guarantees the constitutional right to an abortion, would be overturned, people turned to social media. They were expressing concerns about the privacy of this information — especially for people who live in states with strict limits on abortion — and how it might be used against them.

Many users recommended all personal data from period-tracking apps.

“If you are using an online period tracker or tracking your cycles through your phone, get off it and delete your data,” activist and attorney . “Now.”

Similarly, Eva Galperin, a cybersecurity expert, could “be used to prosecute you if you ever choose to have an abortion.”

That got us wondering — are these concerns warranted, and should people who use period-tracking apps delete the data or the app completely from their phones? We asked the experts.

Is Your Period-Tracking App Data Shared?

Privacy policies — specifically, whether the apps sell information to data brokers, use the data for advertising, share it for research, or keep it solely within the app — vary substantially among companies.

“Does it encrypt? What’s its business model?” said Lucia Savage, chief privacy and regulatory officer for Omada Health, a digital therapeutics company. “If you can’t find terms of service or a privacy policy, don’t use that app.”

Period-tracking apps are often not covered under the Health Insurance Portability and Accountability Act, or HIPAA, though if the company is billing for health care services, it can be. Still, HIPAA doesn’t prevent the company from sharing de-identified data. If the app is free — and the company is monetizing the data — then “you are the product” and HIPAA does not apply, Savage said.

A 2019 study found that 79% of health apps available through the Google Play store regularly shared user data and were “far from transparent.”

When it comes to marketing, a pregnant person’s data is particularly of high value and can be hard to hide from the . Some period-tracking apps, which often ask for health information besides menstrual cycle details, take part in the broader internet data economy, too.

“The data can be sold to third parties, such as big tech companies; or to insurance companies, where it could then be used to make targeting decisions, such as whether to sell you a life insurance policy, or how much your premium should be,” said , a health and artificial intelligence researcher at the University of Edinburgh in Scotland.

Flo Health, headquartered in London, over allegations that the company, after promises of privacy, shared health data of users using its fertility-tracking app with outside data analytics companies, including Facebook and Google.

In 2019, Ovia Health for sharing data — though de-identified and aggregated — with employers, who could purchase the period- and pregnancy-tracking app as a health benefit for their workers. People using the employer-sponsored version must currently opt in for this kind of data-sharing.

Ovia’s roughly 10,000-word details how the company may share or sell de-identified health data and uses tracking technologies for advertisements and analytics on its free, direct-to-consumer version.

For European residents, companies must comply with the stricter , which gives ownership of data to the consumer and requires consent before gathering and processing personal data. Consumers also have the right to have their online data erased.

Companies have the option of extending those rights to people living in the U.S. via their privacy policies and terms of services. If they do so, the FTC can then hold the companies accountable for those commitments, said Deven McGraw, Invitae’s head of data stewardship and the former deputy director for health information privacy at the Department of Health and Human Services Office for Civil Rights.

The period-tracking app Cycles, which is owned by Swedish company Perigee, falls into this category. The company promises its users that it does not do any advertising or selling of data to third parties. Instead, it makes money solely through subscriptions, spokesperson Raneal Engineer said.

Concerned customers have been reaching out to another health app, Clue, developed by a company based in Berlin. “We completely understand this anxiety, and we want to reassure you that your health data, particularly any data you track in Clue about pregnancies, pregnancy loss or abortion, is kept private and safe,” Clue co-CEO Carrie Walter said in an emailed statement.

Some states, such as and , have state-level laws that give users ownership over their information and whether it is sold to third parties.

Data brokers trade in other types of information, such as location-tracking data for people who visited Planned Parenthood, which potentially could be purchased by law enforcement or government officials. Earlier this month, SafeGraph halted selling cellphone-tracking data mapping the movements of people visiting Planned Parenthood, how long they stayed, and where they went afterward, after

Also of concern is a company’s level of data security, and how susceptible it is to a breach. “Hacking is criminal, there’s no question about it,” Savage said. “But once it’s hacked, information can be released.”

Could This Data Be Used in a Criminal Prosecution?

The short answer is yes.

“It’s almost surreal that in some states using a period app could get you into trouble,” said McGraw. “But if an abortion is a crime, it could be accessed in building a case against you.”

This depends on where you live, but there are no federal protections against that happening from a privacy standpoint, she added. Last year, Sen. Ron Wyden (D-Ore.) introduced the , which would prohibit data brokers from selling personal information to law enforcement or intelligence agencies without court oversight. But the legislation has yet to make it to a vote.

Wyden told KHN he was “absolutely” worried about the chance that people who seek an abortion could be incriminated by their phone data.

“It is really an ominous prospect of women having their personal data weaponized against them,” said Wyden. “These big data outfits,” he said, “gotta decide — are they going to protect the privacy of women who do business with them? Or are they basically going to sell out to the highest bidder?”

In the absence of a federal law, if law enforcement does get a court-ordered subpoena, it can be difficult for a company to resist handing over data related to a specific case.

“Given the breadth of surveillance laws in the U.S., if a company collects and keeps information, that information is susceptible to being compelled by law enforcement,” said , a privacy lawyer and vice president of U.S. policy at the Future of Privacy Forum. “They don’t necessarily have the ability to legally keep that information from law enforcement once the proper process has been undertaken.”

Still, even in states with strict abortion limits on the books, much depends on how those laws are structured. Last month, for instance, a murder charge against a Texas woman for a “self-induced abortion” after the district attorney found it did not violate state law, which criminalizes providers performing abortions, not the patients.

If Roe v. Wade is struck down, 14 states have so-called trigger laws that would automatically go into effect and ban abortion outright or after set windows of time — for instance, six weeks or 15 weeks, .

“It’s really complicated under the hood, but I don’t think people should blindly assume their data is safe from legal process,” Savage said. It can depend on the company’s approach to subpoenas, she added. Some will fight them while others will not.

Take Apple, for example, which unlocking iPhones for law enforcement in high-profile cases like the 2015 San Bernardino shooting. Data in Apple’s health app, which includes its period tracker, is “encrypted and inaccessible by default,” according to the . All the health data in the app is kept on a person’s phone, not stored on servers. But at the same time, Savage said, people who are in low-income communities don’t always have an iPhone because it is an expensive piece of equipment.

Ovia’s privacy policy says the company may give data to law enforcement if required by law or subpoena. The company, however, said in a statement that it has “never provided Ovia user data to any government, nor have we ever received any government requests for access to Ovia user data.” There is also an option in Ovia’s account settings to delete account data “entirely and permanently.”

Despite safeguards in place under the GDRP, period trackers based in Europe can still be subpoenaed as well, said , a senior staff attorney at the Electronic Frontier Foundation.

“Even [European Union] companies are subject to the U.S. legal process, though it would take longer,” said Tien. “The U.S. has mutual legal treaties with other countries, including E.U. countries, and law enforcement knows how to exchange information.”

Has This Kind of Information Been Used by Public Officials or Law Enforcement Before?

Officials holding anti-abortion views have leveraged period-tracking information in the past. In 2019, former Missouri state health director Dr. Randall Williams obtained tracking the menstrual periods of women who visited Planned Parenthood in an effort to identify patients who had experienced an abortion that failed to terminate the pregnancy.

During the Trump administration, former refugee resettlement chief and anti-abortion activist Scott Lloyd admitted to in an effort to stop them from getting abortions.

“We are now thinking of period trackers the way we’ve been thinking of facial recognition software for years,” Savage said.

Should You Delete Your Period-Tracking App?

Experts said it’s unlikely that a period-tracking app would be the sole piece of evidence used if someone were building a case against you for seeking an abortion.

“Frankly, I think if law enforcement or a civil investigator were trying to figure out who is having an abortion, there are probably several other venues that are more realistic or more immediately useful,” said Stepanovich. “They would likely get a dump of information for the relevant data,” she continued, “such as trying to get the location information of everyone that got dropped off close to an abortion center, which is a much smaller set of data, or getting people who called abortion hotlines at certain times.”

Stepanovich added that as long as someone is using a smartphone with any type of app on it there is a risk that data could be obtained and used as part of a criminal or civil prosecution. Bottom line: The only way to avoid risk altogether is to not use a smartphone.

But McGraw took a more cautious approach: “If I lived in a state where I thought that data might end up in the hands of law enforcement, I wouldn’t track [my period] at all.”

Ultimately, people who use period-tracking apps should be aware of the risk of using the technology while considering the benefit it brings to their life.

“You have to think about what you need in terms of period tracking,” said Tien. “You have to weigh and ask yourself, ‘How much does this convenience really matter to me?’”

Â鶹ŮÓÅ Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at Â鶹ŮÓÅ—an independent source of health policy research, polling, and journalism. Learn more about .

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This story can be republished for free (details).