The Health 202: A court with Amy Coney Barrett is more likely to reinterpret Roe than reverse it


That’s the trajectory those on both sides of the abortion debate expect if Barrett joins the court.

“The point is she could rid of the right for millions without actually overturning Roe,” Leila Abolfazli, director of federal reproductive rights at the National Women’s Law Center, told me. “It’s like bit by bit narrowing the procedure until there is no procedure left.”

Marjorie Dannenfelser, president of the antiabortion group Susan B. Anthony List, put it this way: “Reinterpreting Roe, that is how I think about it.”

Barrett, who will sit again before the Senate Judiciary Committee for a third day of confirmation hearings, is expected to tilt the court further to the right, potentially giving it a five- or even six-vote majority on cases involving abortion restrictions passed by the states.

She has a lengthy public record that underscores her personal opposition to abortion. But through hours of hearings Monday and Tuesday, Barrett studiously avoided answering questions about how she would have ruled on past cases such as Roe — a standard adhered to by Ruth Bader Ginsburg, the late justice Barrett would replace on the court.

When Sen. Dianne Feinstein (Calif.), the committee’s ranking Democrat, pressed Barrett on whether she agreed with the late Justice Antonin Scalia, who said Roe was wrongly decided, Barrett said it would be inappropriate for her to comment because of ongoing controversy in the courts over the issue.

At another point in the hearing, Barrett told the committee she has made “no commitment” on how she would rule on abortion and other major topics.

“Judges can’t just wake up one day and say, ‘I have an agenda, I like guns, I hate guns, I like abortion, I hate abortion,’ and walk in like a royal queen and impose their will on the world,” Barrett said.

But Barrett, if made a justice, would undoubtedly have multiple opportunities to take swipes at Roe.

For decades, the antiabortion movement has written new laws — passed by many conservative-led states — which are designed to test exactly how far the Supreme Court will allow states to go in regulating how, when and where women may get abortions.

Some of the laws require parental involvement. Others have to do with how abortion clinics must operate. Still others require women to undergo extra steps before obtaining an abortion, such as viewing an image of the fetus via ultrasound.

Were the court ever to reverse its Roe decision entirely, abortion wouldn’t automatically become illegal in the U.S. Instead, many Republican-led states would likely pass many of these laws or outlaw abortion entirely, while Democrat-led states would keep abortion legal.

But the court has also evolved in how it determines whether abortion laws are constitutional under Roe.

Roe set up a trimester framework, saying states can’t restrict abortions in the first trimester and can only restrict them to protect women’s health in the second trimester. In the third trimester, once a fetus is considered viable, states can regulate or outlaw abortions.

But in the 1992 Planned Parenthood v. Casey case,  Supreme Court Justice Sandra Day O’Connor introduced what’s known as the “undue burden” standard. Under that standard, states can regulate abortion as long the regulations don’t pose an undue burden on women seeking an abortion.

A court that includes Barrett could be more willing to narrowly interpret “undue burden” — allowing for further-reaching abortion restrictions.

Barrett did offer one nugget of insight into her views on Roe.

While Barrett demurred on nearly every query about how she would rule on abortion, Sen. Amy Klobuchar (D-Minn.) asked one question that resulted in a more direct response. Klobuchar asked whether Barrett believes Roe belongs to the category of judicial rulings known as “super-precedents” — decisions considered so fundamental they cannot be overturned.

Roe is not a super-precedent,” Barrett said, adding: “But that does not mean it should be overruled.”

“Few judicial decisions are universally regarded as super-precedent,” Karoun Demirjian writes. “Barrett cited only two: Marbury v. Madison, which established the Supreme Court’s ability to strike down unconstitutional laws, and Brown v. Board of Education, which abolished segregation and the practice of ‘separate but equal,’ as decisions ‘that no one questions anymore.’ ”

Apart from a few exchanges, abortion wasn’t the hearing’s main topic.

Instead, Democrats remained laser-focused on the legal challenge to Obamacare, which they’re also making a core message on the campaign trail. 

As we’ve explained in The Health 202, Barrett’s likely appointment to the Supreme Court could make it more likely to strike some or all of the health-care law — although Congress can at any time pass a simple legislative fix to render the case’s underlying arguments moot.

Democratic senators returned repeatedly to the topic, using their 30 minutes of allotted time to tell stories of people who have benefited from the 2010 Affordable Care Act rather than question Barrett. As with abortion, Barrett repeatedly declined to weigh in on where she would land on the lawsuit.

Feinstein kicked off the hearing on Monday morning by telling Barrett she was skeptical of a past apparent critique of the court’s 2012 decision upholding the ACA.

“If Judge Barrett is confirmed, Americans stand to lose the benefits that the ACA provides,” Feinstein said. “So I hope you will clarify that in this hearing.”

Ahh, oof and ouch

AHH: The White House and Senate Republicans are clashing over coronavirus relief.

“Senate Majority Leader Mitch McConnell (R-Ky.) announced on Tuesday that the Senate will take up a narrow economic relief bill when it comes back in session next week. President Trump immediately undermined the move,” Jeff Stein and Erica Werner report.

The conflicting messages are one more sign of quickly diminishing prospects for economic relief before the election. House Speaker Nancy Pelosi (D-Calif.) already rejected a $1.8 trillion relief package offered by Treasury Secretary Steven Mnuchin, although the two are still in negotiations.

“A fly on the wall or wherever else it might land in the Oval Office tells me that the President only wants his name on a check to go out before Election Day and for the market to go up,” Pelosi wrote in a letter to House Democrats. 

CNN’s Wolf Blitzer pressed Pelosi on why she has not accepted Trump’s stimulus offer:

The new bill McConnell will try to pass costs roughly $500 billion and will include unemployment issuance, relief for small businesses, and money for hospitals. Mnuchin and White House Chief of Staff Mark Meadows have recently said that Congress should at least try to pass a smaller bill, even as the president has called for a much larger package.

“Holding a floor vote on a narrow relief package could give cover to endangered Senate Republicans while putting Democrats on the spot as a bipartisan package remains out of reach,” Stein and Werner write.

While most House Democrats have publicly backed Pelosi’s approach to negotiations, Rep. Ro Khanna (D-Calif.) has urged Democrats to accept a deal:

OOF: The head of the World Health Organization sharply rebuked proponents of herd immunity.

“Never in the history of public health has herd immunity been used as a strategy for responding to an outbreak, let alone a pandemic,” WHO Director General Tedros Adhanom Ghebreyesus said at a Monday media briefing. “It is scientifically and ethically problematic.”

“In a public health context, herd immunity typically describes a scenario in which a large enough share of the population is vaccinated against a disease to prevent it from spreading widely,” Antonia Noori Farzan and Miriam Berger write. “But as there is still no vaccine for the coronavirus, achieving herd immunity in the current environment would require a large number of people to contract the virus, survive covid-19, and then produce sufficient antibodies to provide long-term protection.”

The scientific community has mostly rejected a herd immunity approach in the absence of a vaccine, but there are some dissenting voices.

A trio of epidemiologists released a declaration last week calling for those who are not in groups classified as high risk from the coronavirus to resume life as normal, arguing that the harms of shutdowns and social distancing measures outweigh the risks.

The three epidemiologists behind the declaration, Harvard’s Martin Kulldorff, Stanford’s Jay Bhattacharya, and Oxford’s Sunetra Gupta, met last week with Health and Human Services Secretary Alex Azar and Trump adviser Scott Atlas.

The argument for herd immunity, known as the Barrington Declaration, provoked a sharp backlash among other health experts.

Francis Collins, the head of the National Institute of Infectious Diseases, had this to say about herd immunity to my colleague Joel Achenbach.

“What I worry about with this is it’s being presented as if it’s a major alternative view that’s held by large numbers of experts in the scientific community. That is not true,” Collins said.

“This is a fringe component of epidemiology. This is not mainstream science. It’s dangerous. It fits into the political views of certain parts of our confused political establishment,” he said. “I’m sure it will be an idea that someone can wrap themselves in as a justification for skipping wearing masks or social distancing and just doing whatever they damn well please.”

Yale economics and health policy professor Howard Forman:

OUCH: Johnson & Johnson and Eli Lilly have paused trials over safety concerns.

Johnson & Johnson halted its late-stage vaccine trials to investigate an undisclosed illness in a study participant, while Eli Lilly on Tuesday also announced a pause in its trial of a monoclonal antibody drug aimed at treating covid-19. Trump credited this class of drug with his recovery from covid-19, Carolyn Y. Johnson reports.

“Experts say the pauses of trials of vaccines from Johnson & Johnson and AstraZeneca and a treatment from Eli Lilly demonstrate the system to protect participants’ safety is working as intended,” Johnson writes. “But the intense scrutiny of the fast-moving covid-19 trials mean that the lack of transparency around possible adverse events could unintentionally help foster distrust of the scientific effort to develop ways to prevent and treat the disease.”

While limited transparency from companies about ongoing investigations may reflect standard procedure, some health experts have called for greater disclosure given the intense public interest in the trials. 

Johnson & Johnson is the second pharmaceutical company to pause a late-stage vaccine trial. AstraZeneca paused its trial twice after two participants experienced rare neurological side effects. The trial was quickly restarted in most countries after the second pause in early September, but it remains halted in the United States.

Tracking the spread

Rising coronavirus cases raise fears that the next big wave has already begun.

“For almost a month, new U.S. cases have been trending upward. Since Saturday, more than 20 states have hit a new high in their seven-day average of case counts, and more than half of those states set records again on Tuesday, according to data tracked by The Washington Post,” Wan and Dupree report.

Midwestern states, many of which were spared in the early months of the virus, are now being hit especially hard. It’s still not clear what is driving the uptick, although it could be related to a combination of factors, including changing weather, reopening of businesses and schools, or people relaxing their social distancing precautions as the pandemic wears on.

“The rising numbers are especially concerning because they set the stage for an even greater surge this winter when the virus will be helped by drier conditions and people spending more time indoors,” Wan and Dupree write. “The upward trend comes before the increased mingling of people expected to arrive with Halloween, Thanksgiving and Christmas.” 

Tracing the genetic code of the virus could help health officials detect and respond to outbreaks.

“Nearly 10 months after infections began surfacing in the United States, the country has sequenced just 0.4 percent of its more than 7 million coronavirus cases — a proportion surpassed by 40 other countries,” Dennis, Mooney, Kaplan and Stevens write.

Genetic epidemiology can give scientists insights into the source of an outbreak. If three children at the same school all test positive with the virus, genetic sequencing of the virus could help determine if the children all contracted the same sub-strain, likely from common source at the school, or if they contracted different strains from out in the community. This type of information could have bearing a decision of whether to temporarily close the school or institute other safety measures.

Sequencing could also shed light on the spread of the virus at a White House Rose Garden event to honor the nomination of Amy Coney Barrett to the Supreme Court. It could help identify whether a single guest or multiple introduced the virus, and whether the event sparked additional outbreaks in the city.

Coronavirus latest

  • A survey of 1,523 U.S. teens paints a picture of surprisingly resilient mental health during the pandemic, with the percentage of teens who were depressed in 2020 lower than in 2018. Increased sleep and family time may explain the findings, which stand in contrast to reports of sharp upticks in mental health issues among adults, study author Jean M. Twenge writes in the Atlantic.
  • Trump lashed out at Anthony S. Fauci after the nation’s top infectious-disease expert called the president’s decision to resume campaign rallies “very worrisome.” Fauci also objected to being featured in a political ad from the president’s reelection campaign. Trump tweeted on Tuesday that “Tony’s pitching arm is far more accurate than his prognostications,” a reference to Fauci’s weak first pitch in a baseball game in July, The Post’s David Nakamura, Josh Dawsey and  Yasmeen Abutaleb report.

A 30-second ad released by the Trump campaign on Saturday features Fauci saying “I can’t imagine that anybody could be doing more.” Fauci said that the comment referred to the broader pandemic response and was taken out of context.

  • Facebook said on Tuesday that it will ban ads that explicitly discourage people from getting vaccinated, although ads taking a position on government policies around vaccines will still be allowed. The tech giant will also start directing users to information about how to get a flu vaccine, Reuters’s Elizabeth Culliford writes.
  • A Nevada man was infected a second time with the coronavirus, the first documented case of reinfection in the United States. While cases of reinfection raise questions about how long coronavirus immunity lasts, public health experts stress that they are so far exceedingly rare, the New York Times’s Apoorva Mandavilli reports.

Sugar rush

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