Legal Frontiers for Safeguarding Reproductive Freedoms, in JAMA

 We can expect long legal battles to follow the repeal of Roe v. Wade.  Here's a survey of the battlefield in JAMA.

New Legal Frontiers for Safeguarding Reproductive Freedoms by Rebecca B. Reingold, JD; Lawrence O. Gostin, JD, JAMA. Published online January 30, 2023. doi:10.1001/jama.2023.1004

"In Dobbs v Jackson Women’s Health Organization, the Supreme Court overturned the landmark ruling, thus eliminating a national right to abortion before viability. Key federal strategies to address this ruling include expanding access to medication abortions and emergency abortion services. Federal conscience protections for health workers balance nondiscriminatory access to abortion services. Ballot initiatives and courts are seeking to protect reproductive rights under state constitutions. At stake is whether pregnant people can access essential services, with significant consequences for autonomy, dignity, health, and emotional well-being.

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"In January 2023, the US Food and Drug Administration (FDA) modified its Risk Evaluation and Mitigation Strategy (REMS) to allow retail pharmacies to dispense mifepristone.2 Previously, mifepristone could be dispensed only in certain clinics, medical offices, and hospitals.

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"In December 2022, the Department of Justice (DOJ) at the request of the US Postal Service (USPS) issued guidance clarifying the lawfulness of sending abortion medications through the USPS.3 An 1873 federal law (the Comstack Act) prohibits mailing any “article or thing designed, adapted, or intended for producing abortion.”4 The DOJ determined that the Comstack Act does not prohibit mailing, delivery, or receipt by mail of mifepristone or misoprostol because the sender cannot know if the drug will be used unlawfully.

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"The Emergency Medical Treatment and Labor Act (EMTALA) requires hospitals that receive Medicare funds to provide stabilizing treatment to patients experiencing a medical emergency.6 Urgent medical treatment should extend both to saving life and preserving health. In July 2022, the Centers for Medicare & Medicaid Services (CMS) issued guidance stating that EMTALA requires abortion services wherever necessary to stabilize a pregnant patient experiencing an “emergency medical condition.”6 The CMS concluded that EMTALA preempts contrary state laws banning or restricting abortions under urgent circumstances.

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"In December 2022, the Department of Health and Human Services (HHS) Office for Civil Rights proposed a new rule for health workers and entities that refuse to provide abortion or other services for religious or moral reasons. ... The Biden administration’s proposed rule would strike a balance between “safeguarding conscience rights and protecting access to health care.”8 Marginalized, disadvantaged, and underserved communities, including LGBTQ+ patients, persons with disabilities, and persons living with HIV, are disproportionately affected by conscience protections. The proposed rule should better protect patients’ autonomy, health, and dignity, while also respecting clinicians’ moral and religious convictions."