Pre-Existing Condition Prevalence Among Women Under Age 65

Published: Nov 4, 2020

Data Note

The Affordable Care Act (ACA) guarantees that people cannot be denied coverage or charged higher premiums in the individual insurance market due to their health status. While most adults under age 65 have health insurance coverage through an employer, many turn to the non-group market at some point in their lives, such as if they lose a job, become self-employed, get divorced, age off of a parent’s policy, retire early, or lose eligibility for public coverage. Prior to 2014, when most of the Affordable Care Act’s (ACA) consumer protections took effect, people seeking non-group coverage in all but five states1  were routinely denied or charged more based on their health status and history, pregnancy status, prescription medications, and lab results. In 2013, 18% of individual market applicants were denied coverage; this figure does not account for the many people with pre-existing health conditions who did not even try to apply.

In November, the Supreme Court will hear oral arguments on California v. Texas, a lawsuit brought by Republican state officials and supported by President Trump, that seeks to invalidate the ACA entirely. If the ACA is overturned, federal protections for people with pre-existing health conditions would end and access to high quality, affordable individual market insurance for them could be drastically reduced.

We analyzed data from the 2018 National Health Interview Survey (NHIS) and 2018 Behavioral Risk Factor Surveillance System (BRFSS) to calculate prevalence rates of declinable health conditions.2  This data note looks at the share of adults ages 18-64 with declinable pre-existing conditions, with a particular focus on women.

Estimates of the Share of Women Under Age 65 with Pre-Existing Conditions

53.8 million (27%) adults under 65 have at least one pre-existing condition that would have rendered them ineligible for individual insurance prior to the ACA, with higher rates among women than men. The prevalence of declinable conditions increases with age, ranging from 18% of those ages 18-34 to 44% of those ages 55-64 (Figure 1).

Figure 1: Share of Adults Under Age 65 with Declinable Pre-Existing Conditions, by Age and Gender, 2018

We estimate that 30.1 million (30%) women have a pre-existing condition that would have left them uninsurable in the individual market pre-ACA, compared to 23.7 million (24%) men (Table 1). These estimates are conservative because the NHIS and BRFSS do not contain data for all conditions that were often declinable (e.g., HIV/AIDS), nor for use of prescription medications that could have triggered a coverage denial. Some conditions disproportionately affect women, such as pregnancy and certain types of cancer.

Table 1: Among Adults Ages 18-64 with Declinable Pre-Existing Health Conditions, Types of Conditions, by Gender, 2018
WomenMenTotal
Current pregnancy12%NANA
Crohn’s disease, ulcerative colitis, or ulcers45%47%46%
Ever had diabetes24%29%26%
Difficulty due to depression22%21%21%
Any other heart condition20%23%21%
BMI > 4023%16%20%
Chronic bronchitis in past 12 months14%9%12%
Ever had non-skin cancer15%9%12%
Melanoma skin cancer8%6%8%
Ever had congenital heart disease4%10%7%
Ever had COPD6%8%7%
Ever had stroke5%7%6%
Ever had heart attack3%8%6%
Weak or failing kidneys5%5%5%
SOURCE: KFF analysis of data from 2018 National Health Interview Survey and the 2018 Behavioral Risk Factor Surveillance System.

Older women, certain women of color, low-income women, and women living in non-metropolitan counties experience pre-existing health conditions at higher rates than their counterparts (Figure 2).

Non-Hispanic women under age 65 of ‘other’ races (43%) have a prevalence of declinable pre-existing conditions nearly three times higher than non-Hispanic Asian women (16%). One in four (25%) Hispanic women have a have a pre-existing condition, which is also lower than the national average. Seventy percent of women under 65 in the ‘NH All other races’ category are American Indian/Alaska Native (AIAN), 23% are of multiple races, and 9% were not releasable by NHIS due to respondent confidentiality or for other reasons. Forty-two percent of AIAN women under 65 of any ethnicity have a declinable pre-existing condition. Approximately one-third of non-Hispanic white (33%) and black (31%) women under 65 have a declinable condition.

The share of women under 65 with a declinable health condition decreases with income, ranging from 40% of those with household incomes below 100% of the federal poverty level (FPL) to 25% for those at or above 400% of FPL. Twenty-seven percent of women under 65 residing in a metropolitan county have a pre-existing condition compared to 34% in non-metropolitan counties.3 

Figure 2: Share of Women Ages 18-64 with Declinable Pre-Existing Conditions, by Sociodemographic Characteristics, 2018

Estimates of the Share of Women Ages 18-64 with Pre-Existing Conditions by State

Rates of declinable pre-existing conditions vary from state to state (Figure 3). On the low end, less than one-quarter (23%) of women under age 65 in Massachusetts have conditions that would likely be declinable under pre-ACA underwriting practices in the individual market. For men under age 65 (19%), the rate is lowest in Colorado. On the high ends, more than one-third of women (39%) and men (34%) in West Virginia have a declinable health condition. Overall, rates of pre-existing conditions are higher in the South – such as Arkansas (34%), Kentucky (34%), Mississippi (34%), and West Virginia (37%), where at least one-third of adults under 65 have declinable conditions.

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Discussion

We estimate that 27% (53.8 million) of adults under age 65, including 30% (30.1 million) of women, have at least one pre-existing health condition that would have left them uninsurable in the medically-underwritten, pre-ACA individual market. The ACA’s prohibition on denying health insurance based on health status, or charging more for coverage, has been of particular importance to women, who have higher rates of pre-existing conditions than men. If the ACA is overturned, these protections would disappear, leaving many women vulnerable to difficulties obtaining insurance that addresses all of their health needs should they need to secure coverage through the individual insurance market either as their regular source of coverage or temporarily during life transitions.

Appendix

Appendix 1: Share of People Ages 18-64 with Declinable Pre-Existing Conditions, by State and Gender, 2018
StateWomenMenTotal Population
Alabama36%30%33%
Alaska29%23%26%
Arizona31%24%28%
Arkansas38%30%34%
California27%23%25%
Colorado25%19%22%
Connecticut25%23%24%
Delaware30%26%28%
District of Columbia26%21%23%
Florida30%27%28%
Georgia30%26%28%
Hawaii26%24%25%
Idaho28%23%26%
Illinois28%24%26%
Indiana32%29%30%
Iowa27%23%25%
Kansas30%25%27%
Kentucky37%31%34%
Louisiana37%30%33%
Maine29%28%28%
Maryland29%25%27%
Massachusetts23%22%23%
Michigan31%28%29%
Minnesota24%22%23%
Mississippi38%30%34%
Missouri33%27%30%
Montana25%23%24%
Nebraska28%24%26%
Nevada30%23%26%
New Hampshire30%27%28%
New Jersey27%23%25%
New Mexico31%25%28%
New York28%24%26%
North Carolina31%25%28%
North Dakota26%24%25%
Ohio30%27%29%
Oklahoma35%28%31%
Oregon30%25%28%
Pennsylvania30%25%27%
Rhode Island28%25%27%
South Carolina33%27%30%
South Dakota26%22%24%
Tennessee36%29%32%
Texas29%26%28%
Utah25%22%24%
Vermont26%22%24%
Virginia27%24%26%
Washington27%23%25%
West Virginia39%34%37%
Wisconsin28%22%25%
Wyoming28%22%25%
U.S.30%24%27%
NOTE: Five states (MA, ME, NJ, NY, VT) had broadly-applicable guaranteed access to insurance before the ACA. What protections might exist in these or other states if the ACA is overturned is unclear.SOURCE: KFF analysis of data from 2018 National Health Interview Survey and the 2018 Behavioral Risk Factor Surveillance System.

Endnotes

  1. Maine, Massachusetts, New Jersey, New York, and Vermont. ↩︎
  2. For full methodology, please see the methods section of Pre-Existing Condition Prevalence for Individuals and Families. ↩︎
  3. BRFSS designation of metro/non-metro counties is based on the 2013 NCHS Urban-Rural Classification Scheme for Counties. ↩︎

People with Disabilities Are At Risk of Losing Medicaid Coverage Without the ACA Expansion

Authors: MaryBeth Musumeci and Kendal Orgera
Published: Nov 2, 2020

Data Note

On November 10, 2020, the Supreme Court will hear oral argument in a case that could invalidate the entire Affordable Care Act (ACA), including the Medicaid expansion. Without the ACA, most people who gained coverage through the Medicaid expansion would likely become uninsured, and states would lose access to the enhanced federal matching funds to finance this coverage. Many people who qualify for the ACA Medicaid expansion have a disability, despite that they do not meet the strict medical standard to qualify for federal Supplemental Security Income (SSI) cash assistance benefits and therefore do not qualify for Medicaid on that basis. This data note presents the latest state-level data about nonelderly Medicaid adults who have disabilities but do not quality for SSI and considers the implications for their continued coverage if the ACA expansion is invalidated by the Court. Key findings include the following:

  • More than six in 10 nonelderly Medicaid adults with disabilities do not receive SSI, meaning that they qualify for Medicaid on another basis. Nonelderly adults with disabilities who do not receive SSI can qualify for Medicaid based solely on their low income through the expansion group or as parents in non-expansion states. They also may qualify in a disability-related pathway offered at state option.
  • The median share of nonelderly Medicaid adults with a disability but not SSI is higher in expansion states compared to non-expansion states (68% vs. 53%). The availability of the ACA expansion contributes to this difference because the expansion provides a pathway to Medicaid eligibility for people with disabilities, many of whom previously did not qualify. Prior to the ACA, childless adults did not qualify for Medicaid no matter how poor, and eligibility limits for parents were very low. If the Court also invalidates the ACA’s protections for people with pre-existing conditions and premium subsidies, people with disabilities who lose expansion coverage could have difficulty obtaining private market coverage.
  • Medicaid is a significant source of coverage for nonelderly adults with disabilities but not SSI, providing access to care for serious health conditions and supporting those who work. A majority of nonelderly Medicaid adults with disabilities but not SSI report serious difficulty with cognitive functioning and just under half report serious difficulty with mobility. Nearly three in 10 nonelderly Medicaid adults with disabilities but not SSI are in the workforce.

How is “disability” defined?

While SSI is sometimes used as a shorthand to identify people with disabilities, not all people with disabilities qualify for SSI. SSI is a monthly cash payment to help low-income people with disabilities pay for housing, food, and other basic needs. To qualify for SSI, individuals must have low incomes, limited assets, and an impaired ability to work at a substantial gainful level as a result of old age or significant disability. The SSI disability criteria are more stringent than other definitions of disability, such as those used in national surveys. The American Community Survey (ACS) classifies a person as having a disability if the person reports serious difficulty with hearing, vision, cognitive functioning (concentrating, remembering, or making decisions), mobility (walking or climbing stairs), self-care (dressing or bathing), or independent living (doing errands, such as visiting a doctor’s office or shopping, alone).1  The ACS definition of disability is intended to capture whether a person has a functional limitation that results in a participation limitation and also is used in other federal surveys, such as the Current Population Survey and the Survey of Income and Program Participation.

How do people with disabilities qualify for Medicaid?

While nearly a quarter of nonelderly adults with Medicaid report having a disability, relatively few of these enrollees qualify for Medicaid because they receive SSI benefits (Figure 1). While people who receive SSI generally automatically qualify for Medicaid, the SSI population encompasses only a subset of all people with disabilities. Over six in 10 nonelderly Medicaid adults with disabilities do not receive SSI (Figure 1). This group can be eligible for Medicaid as ACA expansion adults or Section 1931 parents (based solely on their low income). There is no way with federal survey data to separate people who qualify due to the Medicaid expansion from those who would have qualified under pre-ACA eligibility rules. They also may be eligible for Medicaid through an optional disability-related pathway (such as the state option to cover people with disabilities up to the federal poverty level or a home and community-based services waiver).2  Without the expansion pathway, Medicaid coverage for people with disabilities typically is limited to people who receive SSI because other disability-related pathways are provided at state option. And, in addition to using a more restrictive definition of disability compared to other measures, SSI income and asset limits are more restrictive than those required for Medicaid expansion adults and many optional disability-related Medicaid coverage pathways.3 

Figure 1: Disability and SSI Status of Nonelderly Adults with Medicaid, 2019

Although it is not often thought of in these terms, the ACA expansion provides a significant Medicaid eligibility pathway for many people with disabilities. People covered in the Medicaid expansion group are sometimes erroneously described as “able-bodied adults.” While it is true that disability status is not one of the eligibility criteria to qualify for the expansion group, nonelderly adults with disabilities who do not receive SSI can qualify for Medicaid based solely on their income through the expansion group. Many people in the expansion group were previously ineligible for Medicaid. With the ACA expansion, Congress for the first time created a pathway in federal law for states to cover childless adults and low-income parents up to 138% of the federal poverty level (FPL, $17,609/year for an individual in 2020). Before the ACA, childless adults did not qualify for Medicaid, no matter how poor, and financial eligibility limits for “Section 1931” parents were tied to the former Aid to Families with Dependent Children cash assistance program and were very low, averaging 64% FPL nationally.

The median share of nonelderly Medicaid adults with a disability but not SSI is higher in expansion states compared to non-expansion states (68% vs. 53%) (Table 1). The availability of the ACA Medicaid expansion pathway contributes to this difference. Studies assessing the impact of the Medicaid expansion have identified coverage gains for people with disabilities as well as those with specific medical conditions or needs such as prescription drug users, people with substance use disorders including opioid use disorders, people with HIV, low-income adults who screened positive for depression, adults with diabetes, cancer patients/survivors, and adults with a history of cardiovascular disease or two or more cardiovascular risk factors. Nonelderly adults with disabilities who do not receive SSI also may qualify for Medicaid through an optional disability-related pathway. Greater shares of expansion states have adopted key optional disability-related pathways, compared to non-expansion states.4 

Why is Medicaid coverage beyond the SSI pathway important for people with disabilities?

Even though their needs do not rise to the stringent SSI level, nonelderly Medicaid adults with disabilities but not SSI still report serious functional limitations that can affect their health, making coverage important. A majority (52%) of non-SSI Medicaid adults with disabilities report serious difficulty with cognitive functioning, and nearly half (46%) report serious difficulty with mobility.5  Two in five (40%) non-SSI Medicaid adults with disabilities report serious difficulty with independent living tasks, such as visiting a doctor’s office or shopping alone.6  Smaller shares report serious difficulty with vision (18%), self-care tasks such as dressing or bathing (17%), and hearing (13%), compared to the other limitations that make up the ACS disability definition.7  Nearly half (48%) of nonelderly Medicaid adults with a disability but not SSI have multiple functional limitations, reporting impairment in two or more of the six ACS areas.8 

Just under three in 10 non-SSI Medicaid adults with disabilities are in the workforce, and having health insurance coverage can support their ability to work (Figure 2). National research has found increases in the share of individuals with disabilities reporting employment and decreases in the share reporting that they are not working due to a disability in Medicaid expansion states following expansion implementation, with no corresponding trends observed in non-expansion states, while other research has found a decline in SSI participation in expansion states. Disproportionate shares of non-SSI Medicaid adults with disabilities have a high school education or less (61%), are non-Hispanic white (56%), and are female (55%) (Figure 2). Just over one-quarter are ages 55 to 64, a population that is too young to qualify for Medicare based on older age but may not have access to other coverage (Figure 2). Studies have identified larger coverage gains for the near-elderly in expansion states compared to non-expansion states.

Figure 2: Demographics of Nonelderly Medicaid Adults with a Disability But Not Receiving SSI, 2019

Looking Ahead

The ACA Medicaid expansion is a significant pathway to health insurance coverage for people with disabilities whose health needs do not rise to the stringent SSI level. These enrollees include people with serious, and often multiple, functional limitations that can affect health, including some who are in the workforce and others who are near elderly. If the Supreme Court invalidates the Medicaid expansion as part of the current case challenging the entire ACA, most expansion enrollees would likely become uninsured. These coverage losses would be in the 39 states (including DC) that have adopted the Medicaid expansion to date. The expansion group covers 15 million people as of June 2019, about 12 million of whom were newly eligible for Medicaid under the ACA (the remainder had been covered under Section 1115 waivers and subsequently moved to expansion group). Since the onset of the COVID-19 pandemic and resulting economic issues, more people may have gained coverage through the Medicaid expansion, as overall program enrollment has been increasing since February 2020. Moreover, without the ACA, states that have not yet adopted the expansion would not have the option to do so in the future.

If the Court also invalidates the ACA’s protections for people with pre-existing conditions in the private market and premium subsidies, insurers could refuse to cover or charge higher rates to people based on their health status. This could make it difficult for people with disabilities who lose Medicaid expansion coverage to obtain private health insurance at all or coverage that is affordable. As part of the health care safety net, Medicaid never has excluded people with pre-existing conditions from coverage. In addition, without the Medicaid expansion, other gains in access, utilization, affordability, and addressing disparities resulting from expansion could be lost, and states and providers would lose federal funds that help them support health services and systems.

Table 1: Nonelderly Medicaid Adults by Disability and SSI Status, 2019
StateTotal Nonelderly Medicaid AdultsNonelderly Medicaid Adults with a Disability as a Share of Total Nonelderly Medicaid AdultsNonelderly Medicaid Adults with a Disability But Not SSI as a Share of Nonelderly Medicaid Adults with a Disability
U.S. Total24,236,00024%63%
Expansion States 19,100,000Median 25%Median 68%
Alaska61,00023%77%
Arizona633,00023%71%
Arkansas276,00032%72%
California4,455,00016%68%
Colorado403,00022%74%
Connecticut345,00019%73%
Delaware78,00023%72%
District of Columbia86,00029%63%
Hawaii100,00017%72%
Illinois940,00022%66%
Indiana445,00030%67%
Iowa241,00025%72%
Kentucky479,00032%66%
Louisiana544,00025%69%
Maine97,00036%66%
Maryland459,00022%69%
Massachusetts707,00020%63%
Michigan930,00027%65%
Minnesota412,00023%71%
Montana86,00015%61%
Nevada224,00023%71%
New Hampshire69,00032%73%
New Jersey577,00020%64%
New Mexico296,00022%70%
New York2,309,00018%64%
North Dakota34,00032%81%
Ohio1,010,00027%65%
Oregon402,00026%72%
Pennsylvania1,030,00030%64%
Rhode Island98,00025%52%
Vermont65,00025%62%
Virginia397,00027%66%
Washington604,00025%66%
West Virginia208,00032%61%
Non-Expansion States 5,136,000Median 33%Median 53%
Alabama245,00036%47%
Florida1,000,00028%53%
Georgia435,00034%48%
Idaho*65,00036%53%
Kansas103,00039%54%
Mississippi171,00037%50%
Missouri*244,00039%62%
Nebraska*58,00029%46%
North Carolina509,00029%52%
Oklahoma*144,00034%54%
South Carolina282,00029%56%
South Dakota26,00025%42%
Tennessee447,00033%58%
Texas949,00033%50%
Utah*91,00032%55%
Wisconsin348,00029%62%
Wyoming20,00035%49%
NOTES: Includes non-institutionalized adults ages 19-64. Excludes those dually eligible for Medicare and Medicaid. Totals may not sum due to rounding. *MO and OK have adopted but not yet implemented the expansion. NE implemented 10/1/20, and ID and UT implemented 1/1/20, so these states are considered non-expansion states for this analysis.SOURCES: KFF analysis of the 2019 American Community Survey, 1-Year Estimates; KFF, Status of State Medicaid Expansion Decisions (Oct. 16, 2020).

Endnotes

  1. The ACS questions used to classify an individual as having a disability include: (1) Is this person deaf, or does he/she have serious difficulty hearing? (2) Is this person blind, or does he/she have serious difficulty seeing, even when wearing glasses? (3) Because of a physical, mental, or emotional condition, does this person have serious difficulty concentrating, remembering, or making decisions? (4) Does this person have serious difficulty walking or climbing stairs? (5) Does this person have difficulty dressing or bathing? (6) Because of a physical, mental, or emotional condition, does this person have difficulty doing errands alone, such as visiting a doctor’s office or shopping? U.S. Census Bureau, American Community Survey, Why We Ask Questions About… Disability, (last accessed Oct. 12, 2020). ↩︎
  2. People who qualify for Medicaid both as an expansion adult and based on a disability can choose the group through which they enroll in coverage; benefit packages may differ by coverage group. 42 C.F.R. § 435.911 (c) (2), (d). ↩︎
  3. The maximum SSI benefit is about 74 percent of the federal poverty level (FPL, $9,396/year for an individual in 2020), and the asset limit is $2,000. The ACA Medicaid expansion covers individuals up to 138% FPL ($17,609/year for an individual in 2020) without an asset test. States have the option to extend financial eligibility for certain other disability-related Medicaid coverage pathways up to 300% of SSI ($28,188/year in 2020). ↩︎
  4. As of 2018, when 37 states (including DC) had adopted the ACA Medicaid expansion, and 14 had not, just under half of expansion states elected the option to cover seniors and people with disabilities up to 100% FPL, compared to less than one-third of non-expansion states; nearly three-quarters of expansion states offered the optional medically needy pathway for seniors and people with disabilities, while just over one-third of non-expansion states did so; over two in five expansion states elected the Katie Beckett state plan option for children with significant disabilities, compared to just over one-third of non-expansion states; nearly all expansion states elected the option to cover working people with disabilities, compared to less than two-thirds of non-expansion states; and both states opting to use Section 1915 (i) as an independent eligibility pathway were expansion states. ↩︎
  5. KFF analysis of the 2019 American Community Survey, 1-Year Estimates. ↩︎
  6. Id. ↩︎
  7. Id. ↩︎
  8. Id. ↩︎

Death Toll of the Pandemic Places the U.S. at Top of Most Affected Countries

Authors: Giorlando Ramirez, Krutika Amin, Daniel McDermott, Cynthia Cox, and Chelsea Rice
Published: Nov 2, 2020

We put the coronavirus pandemic’s toll into perspective by comparing where COVID-19 falls as a leading cause of death in the U.S. versus peer countries (Organisation for Economic Co-operation and Development (OECD) member nations with above median GDP and above median GDP per capita). On a per capita basis, excess deaths this year are highest in the United States and the United Kingdom. Taken together these findings suggest the pandemic will likely increase the existing mortality rate gap between the U.S. and its peers. 

During pandemics, epidemiologists use excess deaths as a measure to put official death counts in context. Excess deaths represent the number of deaths exceeding what is expected in a typical year. Excess deaths in 2020 serves as a good proxy for the potential mortality directly or indirectly associated with the COVID-19 pandemic. 

The U.S.’s excess deaths count per 100,000 people is higher than that for comparable countries. The U.S. has the second highest excess deaths count per 100,000 people at 85.2, with the U.K having the highest at 87.4 excess deaths per 100,000 people as of August 16, 2020.

However, using more recent data from August 30, 2020, the U.S. has a higher rate of excess deaths per 100,000 at 90.1 than the U.K., which has 89.6 per capita. This data was not used in the chart above because not all countries reported data as of this week. The U.S. already had the highest overall deaths per capita over peer countries prior to COVID-19, with an additional 60 overall deaths per 100,000 people over the next closest country, Germany. Germany has 5 percent of the excess deaths per capita as the U.S. so far in 2020 at 4.2 per 100,000.  COVID-19 will therefore likely increase the mortality gap between the U.S. and peer countries. 

Source

The Pandemic’s Effect on the Widening Gap in Mortality Rate between the U.S. and Peer Countries

The latest KFF Health Tracking Poll revealed a stark contrast in opinion on two questions about the current challenge to the Affordable Care Act (ACA) facing the U.S. Supreme Court. Since it was enacted in 2010 by President Obama, the ACA, sometimes known as Obamacare, has been opposed by Republicans and favored by Democrats, but many of the benefits it provides are popular across parties. One of the most popular provisions of the law is that it protects people with pre-existing medical conditions from being denied coverage or having to pay more for coverage. A large majority of voters, across political party identification, say they do not want the Court to overturn the ACA’s protections for people with pre-existing conditions, but there are strong partisan differences on attitudes towards overturning the entire ACA. Two-thirds of Republican voters (67%) say they do not want the ACA’s protections for people with pre-existing conditions to be overturned, while three-quarters of Republican voters (77%) say they do want to see the ACA itself overturned. (more…)

A Conundrum: Majority of Republican Voters Want to Overturn ACA but Keep Protections for People with Pre-existing Conditions

Author: Audrey Kearney
Published: Nov 2, 2020

The latest KFF Health Tracking Poll revealed a stark contrast in opinion on two questions about the current challenge to the Affordable Care Act (ACA) facing the U.S. Supreme Court. Since it was enacted in 2010 by President Obama, the ACA, sometimes known as Obamacare, has been opposed by Republicans and favored by Democrats, but many of the benefits it provides are popular across parties. One of the most popular provisions of the law is that it protects people with pre-existing medical conditions from being denied coverage or having to pay more for coverage. A large majority of voters, across political party identification, say they do not want the Court to overturn the ACA’s protections for people with pre-existing conditions, but there are strong partisan differences on attitudes towards overturning the entire ACA. Two-thirds of Republican voters (67%) say they do not want the ACA’s protections for people with pre-existing conditions to be overturned, while three-quarters of Republican voters (77%) say they do want to see the ACA itself overturned. (more…)

The latest KFF Health Tracking Poll revealed a stark contrast in opinion on two questions about the current challenge to the Affordable Care Act (ACA) facing the U.S. Supreme Court. Since it was enacted in 2010 by President Obama, the ACA, sometimes known as Obamacare, has been opposed by Republicans and favored by Democrats, but many of the benefits it provides are popular across parties. One of the most popular provisions of the law is that it protects people with pre-existing medical conditions from being denied coverage or having to pay more for coverage. A large majority of voters, across political party identification, say they do not want the Court to overturn the ACA’s protections for people with pre-existing conditions, but there are strong partisan differences on attitudes towards overturning the entire ACA. Two-thirds of Republican voters (67%) say they do not want the ACA’s protections for people with pre-existing conditions to be overturned, while three-quarters of Republican voters (77%) say they do want to see the ACA itself overturned. (more…)

News Release

Wide Variations in Flu Vaccination Rates Across States Highlight Challenges as State and Local Authorities Plan to Distribute a COVID-19 Vaccine

Published: Nov 2, 2020

When a COVID-19 vaccine becomes available, all or most people living in the country will need to get vaccinated in order to maximize its benefits and provide adequate immunity nationwide.

That could present a daunting challenge for state and local health officials, as a new KFF analysis shows vaccination rates for the annual flu vaccine vary widely across states as well as by race and ethnicity, age, and other demographic characteristics.

The flu vaccine provides a good model for understanding how quickly and broadly a new vaccine could be distributed and administered across the country. For the past decade, it’s been recommended for everyone at least 6 months old and, because of the Affordable Care Act, is available free of charge to people with insurance, as well as uninsured children through the Vaccines for Children Program.

Even so, the analysis finds slightly more than half (52%) of the public received the recommended vaccine during last year’s flu season, well below the federal government’s 70% target vaccination rate. Across states, Rhode Island had the highest (61%) and Nevada the lowest (44%) vaccination rate for seasonal flu.

Other findings include:

  • In most states, Black and Hispanic people had lower flu vaccination rates compared to their White counterparts, but these differences varied across states.
  • Vaccination rates were highest for seniors and significantly lower for other adults across states. Children’s vaccination rates generally fall in the middle.
  • Across states, adults with underlying health conditions that could put them at heightened risk of severe illness from COVID-19 generally had higher flu vaccination rates than other adults.

The analysis highlights factors that may contribute to the variations in flu vaccination rates across states and could lead to similar variations for any future COVID-19 vaccine. These include lower rates of insurance coverage, particularly for people of color; the lack of dedicated vaccination programs for uninsured adults; whether and for whom states mandate vaccinations; differences in funding and public health infrastructure; and variation in levels of concern or misconceptions about vaccine safety, side effects, and efficacy.

State Variation in Seasonal Flu Vaccination: Implications for a COVID-19 Vaccine

Published: Nov 2, 2020

Issue Brief

Introduction

Once a COVID-19 vaccine has been authorized or approved by the Food and Drug Administration (FDA), states will play a central role in its distribution. While the Centers for Disease Control and Prevention (CDC) recently released guidance to state and local jurisdictions for preparing for a COVID-19 vaccine, state level engagement and success around vaccine distribution is likely to differ. Yet, to achieve sufficient levels of immunity against COVID-19, most, if not all, people in the United States will need to be vaccinated, and variation in COVID-19 vaccination rates across the country could significantly impede efforts to control the pandemic. As states consider the logistics of what will likely be an unprecedented vaccination campaign, analysis of routine vaccination rates by state may help to shed light on differential uptake across the country as well as inform where more targeted efforts might be needed. Specifically, we analyzed seasonal flu vaccination rates for the 2019-2020 flu season by state, as well as across states by age, race/ethnicity, and health risk status. Data were obtained from the CDC’s 2019-20 Influenza Season Vaccination Coverage Dashboard and are also available at KFF’s State Health Facts.

Routine annual flu vaccination has been recommended by the CDC’s Advisory Committee on Immunization Practices (ACIP) for anyone ages 6 months and older for the past decade and, because of the Affordable Care Act (ACA), is available free of charge to those with insurance, to uninsured children, through the Vaccines for Children Program, and to some uninsured adults (although to a much lesser extent). Still, national rates are well below the Healthy People 2030 target of 70% and vary by race/ethnicity and age. Looking across the states, we also find significant variation overall, and by race/ethnicity, age, and health status. In some cases, there are higher flu vaccination rates among groups that are likely to be prioritized for a COVID-19 vaccine, such as older Americans; in others, however, many states have low vaccination rates among those who have already been disproportionately impacted by COVID-19 and will be critical to reach with a vaccine, such as people of color, particularly Black Americans, who have expressed significant reluctance about getting a COVID-19 vaccine. While there are important differences between COVID-19 and seasonal flu, including that COVID-19 is much more serious and that the federal government has said it will ensure the vaccine is provided free to all even those who are uninsured, these findings point to several potential challenges to rolling out a COVID-19 vaccine across the United States.

Overall State Variation

During the 2019-2020 flu season, flu vaccination rates varied significantly by state, and all states fell below national targets. Across the U.S., 52% of the U.S. population (6 months and older) received the seasonal flu vaccine last season. Rates ranged from a low of 44% in Nevada to a high of 61% in Rhode Island. In 12 states, less than half of the population was vaccinated for the flu. In addition, all 50 states and DC fell short of the U.S.’s Healthy People 2030 goal of having at least 70% of the population receive the seasonal flu vaccine (Figure 1). There was also variation by region. Rates were highest in the Northeast (57%), followed by the Midwest (54%), the South (52%) and lastly, the West (51%) (Figure 2).

 

 

Race/Ethnicity

Achieving a high COVID-19 vaccination rate among people of color will be particularly important because they are bearing a heavy, disproportionate burden of the disease, and population immunity is not likely to be reached without high vaccination rates across all communities. Earlier KFF analysis of flu vaccination rates at the national level showed persistent gaps and racial disparities among adults, with lower rates of vaccination among Black, Hispanic, and American Indian and Alaska Native adults compared to their White counterparts. A separate analysis reported similar findings for older (65+) Black and Hispanic adults compared to White adults.

Our analysis of flu vaccination rates by state and race/ethnicity provides additional insight into such variation. Specifically, we looked at rates for all individuals ages six months or older by race/ethnicity among White, Black, and Hispanic people. Data could not be further disaggregated by race/ethnicity and age and some states could not be included due to unreliable data (Appendix 1).1 

Across racial and ethnic groups, flu vaccination rates remained below the target level in nearly all states. Only DC achieved vaccination rates above the 70% target for White people (71%); however, its rate for Black people fell well below the target at 44%. No state achieved the target vaccination level for Black or Hispanic people.

The range in vaccination rates by state was similar across racial and ethnic groups, but the overall rates for Black and Hispanic people were below that of White people. Specifically, flu vaccination rates ranged from 30% in Nevada to 60% in Nebraska for Black people and from 37% in Florida to 62% in New Hampshire for Hispanic people. For White people, the rate ranged from 45% in Idaho to 71% in DC (Figure 3).

 

In most states, Black and Hispanic people had lower flu vaccination rates compared to their White counterparts, but these differences varied across states. Consistent with earlier analysis showing lower rates of flu vaccination among adults, we find that Black and Hispanic people were less likely to have received the flu vaccination compared to their White counterparts (46% and 47% compared to 55%). However, these differences varied across states (Figure 4).

Black people had a lower flu vaccination rate compared to White people in 36 states, with the largest gaps in DC (44% vs. 71%), Nevada (30% vs. 47%), Maryland (49% vs. 64%), and New Jersey (45% vs. 59%). In only one state did Black people have higher vaccination rates compared to White people (Oklahoma, 58% compared to 54%).2 

Hispanic people had a lower flu vaccination rate compared to White people in 40 states. The largest gaps were in Florida (37% vs. 50%), Connecticut (54% vs. 64%), and Michigan (41% vs. 52%). Hispanic people had a higher vaccination rate compared to White people in 7 states. (Alaska, Arkansas, Louisiana, Mississippi, Montana, New Hampshire, and Wyoming).3 .

 

Age

In most states, flu vaccination rates were highest for seniors, followed by children, and lowest for non-elderly adults 4  (Appendix 2). As states develop COVID-19 vaccination plans, age will likely be a key factor in determining priority groups, due to the increased risk COVID-19 poses for older adults. Across states, the vaccination rate among seniors age 65 and older was 70%, ranging from 54% in Alaska to 79% in North Carolina. A total 30 states met or exceeded the 70% Healthy People 2030 goal (Figure 5).

 

Coverage for children, ages 6 months to 17, ranged from 52% in Mississippi to 78% in Rhode Island; 10 states and DC met or exceeded the national target rate of 70% among children. Rates were lowest among non-elderly adults, ages 18-64, ranging from 33% in Florida to 52% in Rhode Island. No state reached the 70% target for this population (Figure 6).

 

Health-Risk Status

Adults with comorbidities were more likely to be vaccinated for the flu, compared to those without such conditions, but rates were still well below national targets in all states. Similarly to older adults, individuals under 65 with certain underlying medical conditions are at a heightened risk of severe illness from COVID-19. As such, they are likely to be a priority group for a COVID-19 vaccine roll out. Overall, in the 2019-2020 season, non-elderly adults with certain underlying health conditions 5  were more likely to receive the seasonal flu vaccine (51%) compared to those without (40%), though still below the Healthy People 2030 target in all states (Appendix 3). Rates among adults with comorbidities varied significantly by state ranging from 38% in Florida to 61% in Connecticut and Vermont. For adults without underlying health conditions, flu vaccination rates were much lower, ranging from 31% in Nevada to 50% in Rhode Island (Figures 7 and 8)..

 

 

 

Discussion

Overall, we observed low rates of flu vaccination uptake across the country last season, well below national goals, and substantial variation by state and between groups. Rates were highest in the Northeast and lowest in the West. In most states, rates were highest among seniors, followed by children, and lowest among non-elderly adults. Rates were also highest in most states among White people compared to Black and Hispanic people and the lowest state rates for Black and Hispanic people were below that of White people. Rates were also higher among adults with co-morbidities, compared to those without.

There are several potential factors that may affect flu vaccination rates across states, including: lower rates of insurance coverage for some groups, particularly people of color; the lack of dedicated vaccination programs for uninsured and underinsured adults, compared to children; differential access to health care; the relatively small number of states that mandate flu vaccine; differences in funding and vaccine infrastructure by state; and variation in levels of concern or misconceptions about vaccine safety, side effects, and efficacy. While there are important distinctions between COVID-19 and seasonal flu, including that COVID-19 is much more serious, and the public’s receptivity to a COVID-19 vaccine may differ from that of the flu vaccine, these findings suggest there may be significant challenges to achieving equity in distribution and sufficient levels of immunity in the U.S. with a COVID-19 vaccine.

As states and other stakeholders plan for distribution of a COVID-19 vaccine, targeting those states that already have disproportionately lower coverage rates for routine vaccination, particularly for populations most affected by COVID-19 and who appear to face greater barriers to vaccination, may provide an important avenue for increasing success. It will be important for vaccination efforts to address a range of barriers, including potential barriers to access and cost concerns, particularly among those who are uninsured. It also will be important to address concerns about safety and potential side effects of the vaccine, particularly among Black Americans. The recently released KFF/The Undefeated Survey found that just 17% of Black Americans say they would definitely get a COVID-19 vaccine if it was determined safe and available for free, compared to 37% of White Americans, largely due to safety concerns or distrust of the health care system.

Appendix

Endnotes

  1. States with data values with confidence interval half-widths greater than 12 were considered unreliable and excluded from analysis. This resulted in suppressed values for 14 states for rates among Black people and 4 states for rates among Hispanic people. ↩︎
  2. States with data values with confidence interval half-widths greater than 12 were considered unreliable and excluded from analysis. This resulted in suppressed values for 14 states for rates among Black people and 4 states for rates among Hispanic people. ↩︎
  3. States with data values with confidence interval half-widths greater than 12 were considered unreliable and excluded from analysis. This resulted in suppressed values for 14 states for rates among Black people and 4 states for rates among Hispanic people. ↩︎
  4. Non-elderly adults are defined as adults between the ages 18 and 64 years.   ↩︎
  5. Underlying health conditions include asthma, diabetes, heart disease, chronic obstructive pulmonary disease, and cancers other than skin cancer. https://www.cdc.gov/flu/fluvaxview/reportshtml/reporti1920/reportii/index.html ↩︎

This Week in Coronavirus: October 23 to October 29

Published: Oct 30, 2020

Here’s our recap of the past week in the coronavirus pandemic from our tracking, policy analysis, polling, and journalism.

The U.S. added over a half million cases and about 5,600 deaths this week.

Issues related to voting during the coronavirus pandemic have been a story during the primaries and now the general election season. KHN published stories this week on how people who are hospitalized can still vote in many parts of the country and efforts in North Carolina to help long-term care facility residents vote.

Also released this week is an analysis showing nursing homes with a relatively high share of Black or Hispanic residents are more likely to have had a resident die of COVID-19 than homes with lower shares of such residents, adding to studies and stories throughout the year showing communities of color have been disproportionately affected by the pandemic.

Here are the latest coronavirus stats from KFF’s tracking resources:

Global Cases and Deaths: Total cases worldwide are approximately 45 million this week – with an increase of over 3.3 million new confirmed cases in the past seven days. There were almost 44,000 new confirmed deaths worldwide and the total for confirmed deaths is nearing 1.2 million.

U.S. Cases and Deaths: Total confirmed cases in the U.S. is on the verge of reaching 9 million this week. There was an increase of roughly 536,100 confirmed cases between October 22 and October 29. Approximately 5,600 confirmed deaths in the past week brought the total in the United States to approximately 228,700.

Race/Ethnicity Data: Black individuals made up a higher share of cases/deaths compared to their share of the population in 40 of 50 states reporting cases and 33 of 48 states reporting deaths. In 10 states (MI, MO, PA, WI, KS, MN, RI, NH, ME and VT) the share of COVID-19 related deaths among Black people was at least two times higher than their share of the total population. Hispanic individuals made up a higher share of cases compared to their share of the total population in 44 of 46 states reporting cases. In 5 states (NH, NC, OR, PA, and WA), Hispanic peoples’ share of cases was more than 3 times their share of the population. COVID-19 continues to have a sharp, disproportionate impact on American Indian/Alaska Native as well as Asian people in some states.

State Social Distancing Actions (includes Washington D.C.) that went into effect this week:

Extensions: CT, FL, GA, MA, NJ, OK, RI, SC

New Restrictions: HI, ID, IL

Face Mask Requirement: MS

The latest KFF COVID-19 resources:

  • Racial and Ethnic Disparities in COVID-19 Cases and Deaths in Nursing Homes (News Release, Issue Brief)
  • Trump, Health Advisers Split On COVID-19 Response; VP Pence Absent From Pandemic Planning Calls For Over 1 Month (KFF Daily Global Health Policy Report)
  • COVID-19 Coronavirus Tracker – Updated as of October 29 (Interactive)
  • State Data and Policy Actions to Address Coronavirus (Interactive)
  • Medicaid Emergency Authority Tracker: Approved State Actions to Address COVID-19 (Issue Brief)

The latest KHN COVID-19 stories:

  • Scientists Warn Americans Are Expecting Too Much From a Vaccine (KHN, NBC News)
  • For Each Critically Ill COVID Patient, a Family Is Suffering, Too (KHN, Washington Post)
  • Telemedicine or In-Person Visit? Pros and Cons (KHN, US News)
  • COVID Spikes Exacerbate Health Worker Shortages in Rocky Mountains, Great Plains (KHN, Billings Gazette)
  • Verily’s COVID Testing Program Halted in San Francisco and Oakland (KHN, LA Times)
  • Lost on the Frontline: Explore the Database (KHN, The Guardian)
  • Readers and Tweeters Shed Light on Vaccine Trials and Bias in Health Care (KHN)
  • Hospital Bills for Uninsured COVID Patients Are Covered, but No One Tells Them (KHN, NPR)
  • Democrats Link GOP Challengers to Trump’s COVID Record, Efforts to Undo Obamacare (KHN)
  • Why State Mask Stockpiling Orders Are Hurting Nursing Homes, Small Providers (KHN, NBC News)
  • KHN’s ‘What the Health?’: As Cases Spike, White House Declares Pandemic Over (KHN)
  • Despite COVID Concerns, Teams Venture Into Nursing Homes to Get Out the Vote (KHN, Charlotte News & Observer)
News Release

Updated Subsidy Calculator and 300+ FAQs Help Consumers Understand the ACA Marketplaces as Open Enrollment Begins

Published: Oct 30, 2020

Ahead of the annual Affordable Care Act (ACA) open enrollment period, the time during which consumers can shop for health plans or renew existing coverage, KFF has updated its Health Insurance Marketplace Calculator and its searchable collection of more than 300 Frequently Asked Questions about open enrollment, the health insurance marketplaces and the ACA.

KFF’s Health Insurance Marketplace Calculator provides estimates of 2021 health insurance premiums and subsidies for people purchasing insurance on their own in health insurance exchanges. Users can enter age, income, and family size information to estimate their eligibility for subsidies and how much they can expect to spend on health insurance.

The FAQ database covers a wide range of topics related to obtaining or renewing Marketplace coverage, and has been updated to answer questions about the impact of the COVID-19 pandemic on this year’s open enrollment period, as well as recent policy changes that may affect women, immigrants, and non-traditional households. More than 180 of the FAQs in the collection are available in Spanish.

KFF has also updated its overview of the financial assistance available for people purchasing their own coverage, including premium tax credits and cost-sharing subsidies. As plan premiums will change in 2021 and new insurers are entering the marketplace in many states, consumers already enrolled should actively renew coverage to ensure they receive the most accurate subsidy amount.

Open enrollment for the Federal marketplace begins Sunday, Nov. 1, 2020 and ends on Tuesday, Dec. 15, 2020. In most state marketplaces, including new ones opening in Pennsylvania and New Jersey, open enrollment will end later. People in healthcare.gov states affected by natural disasters and/or the COVID-19 emergency can also request extended time to sign up.

Organizations assisting consumers are encouraged to link to the FAQ web page. Each question and answer may be shared individually by direct link, via Twitter and Facebook.

Visit https://www.kff.org/understanding-health-insurance for KFF’s most current resources for consumers looking for answers about open enrollment, the marketplaces and health insurance in general.

Abortion at SCOTUS: A Review of Potential Cases this Term and Possible Rulings

Authors: Laurie Sobel, Amrutha Ramaswamy, and Alina Salganicoff
Published: Oct 30, 2020

Key Takeaways

There are two abortion cases that have recently asked for Supreme Court review. Dobbs v. Jackson Women’s Health Organization has requested certiorari and FDA v ACOG requested an emergency stay and is currently in the lower court, but the Supreme Court may review this case later in the term.

If the Court reviews one of these cases, their ruling could have significant implications for abortion access across the U.S. While it’s impossible to predict how a newly re-figured conservative Court would rule, and whether they would uphold precedents on abortion, more likely decisions and implications are as follows:

  • Court Limits Legal Standing to Challenge Abortion Regulations: Supreme Court decides that doctors and clinics no longer have the right to challenge abortion regulations on behalf of their patients (third-party standing), abortion would remain a constitutional right, but many unconstitutional abortion regulations may go unchallenged.
  • Court Overturns Roe v. Wade: Supreme Court overturns Roe v. Wade and allows states to ban abortion before viability. 16 states have laws intended to immediately ban abortion. Many other states have gestational limits currently blocked by court orders and would either greatly restrict or completely ban abortions.13 states and DC protect abortion.
  • Court Creates New Legal Standard for Evaluating Abortion Regulations: The Supreme Court may create a new legal standard that does not require states to show that the benefits outweighs the burden to patients (balancing test) as they did in a prior abortion case. As a result, some abortion-specific provider laws that would have been unconstitutional under the Whole Woman’s Health balancing test will now be constitutional.

Among the most contentious issues in the country right now is abortion. With the new appointment of Justice Amy Coney Barrett to replace the seat left vacant after the death of Justice Ruth Bader Ginsburg, the Supreme Court has a solid 6-3 conservative majority. One abortion case is pending at Supreme Court to determine if the Court will review it this term, and the Court may be asked to review a second abortion case that it recently sent back to the District Court to reevaluate its decision. Four justices need to vote in favor of considering a case in order for the Supreme Court to review the case. If the Court accepts these cases, their ruling could have significant implications for abortion access across the United States. While it is impossible to predict whether the Court will take one of these cases this term and how they will rule, the cases open the door for the possibility that the Court would take several approaches that could limit legal access to abortion in many states across the country even without directly overturning Roe v Wade. The Court could rule in a way that would grant states much more authority to restrict abortion access or overturn the long-held precedent that abortion doctors and clinics have the right to bring lawsuits to challenge abortion regulations on behalf of their patients (third-party standing), which would require patients themselves to sue the state. This outcome would not have the same headlines as overturning Roe v Wade – which is also a possibility with a more conservative Court — but would make it extremely difficult for state laws to be challenged because it would have to be women themselves who would have to sue the state. This brief reviews these cases and explores possible outcomes.

Dobbs v. Jackson Women’s Health Organization: 15 Week Gestational Ban

The first case, Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health v. Jackson Women’s Health Organization, involves a Mississippi law, House Bill 1510, Gestational Age Act, banning all abortions over 15 weeks’ gestational age except in medical emergencies and in the case of severe fetal abnormality. The US District Court for the Southern District of Mississippi and the 5th Circuit Court of Appeals both struck the law down as unconstitutional.

State request: Mississippi is asking the Court to review whether abortion providers have standing to challenge laws enacted to protect their clients’ health. The state is contending that abortion providers have an inherent conflict with their patients because the providers make money by providing services, and are not necessarily interested in protecting patients’ health.

Usually, a person can only challenge the constitutionality of a law if it infringes on their own rights, not broadly on the rights of others. However, “third-party standing” allows another person or organization to assert the rights of another individual when it is difficult for that person to assert their own rights, and the parties’ interests are closely aligned. In cases relating to the right to abortion, it is very hard for women themselves to serve as plaintiffs, and for 45 years the Court has permitted their doctors sue on behalf on women. The Supreme Court established third party standing for abortion doctors on behalf of their patients in a 1976 decision, Singleton v. Wulff. This case was brought by two doctors challenging the exclusion of abortion in Missouri’s Medicaid program. Justice Blackmun wrote for the court, “Aside from the woman herself, the physician is uniquely qualified, by virtue of his confidential, professional relationship with her, to litigate the constitutionality of the State’s interference with, or discrimination against, the abortion decision. Singleton recognized that women would be deterred from asserting their abortion rights out of concern for their privacy.

June Medical Services: Justices Dissent about Providers’ Standing

Justice Thomas Dissent: “Our abortion precedents are grievously wrong and should be overruled.” “The only injury asserted by plaintiffs in this suit is the possibility of facing criminal sanctions if the abortionists conduct abortions without admitting privileges in violation of the law. But plaintiffs do not claim any right to provide abortions, nor do they contest that the State has authority to regulate such procedures.”

Justice Alito Dissent (joined by Justices Gorsuch and Thomas) “This case features a blatant conflict of interest between an abortion provider and its patients. Like any other regulated entity, an abortion provider has a financial interest in avoiding burdensome regulations such as Act 620’s admitting privileges requirement. Applying for privileges takes time and energy, and maintaining privileges may impose additional burdens. Women seeking abortions, on the other hand, have an interest in the preservation of regulations that protect their health. The conflict inherent in such a situation is glaring. Some may not see the conflict in this case because they are convinced that the admitting privileges requirement does nothing to promote safety and is really just a ploy. But an abortion provider’s ability to assert the rights of women when it challenges ostensible safety regulations should not turn on the merits of its claim.”

Potential Outcome: Justices Thomas, Alito, and Gorsuch, dissented from the Court’s ruling for June Medical Services v. Russo stating that abortion providers lacked standing to challenge a law that enacted to protect women’s health. Justice Kavanaugh stated that the case should be remanded to the District Court to address the question of the doctors and clinics standing. With a new conservative Justice, the Court may overturn the long-held precedent that abortion doctors and clinics have the right to challenge abortion regulations on behalf of their patients (third- party standing). If the Court decides that doctors and clinics no longer have the right to challenge abortion regulations on behalf of their patients, abortion would remain a constitutional right, but the constitutionality of many abortion regulations may go unchallenged. Women seeking abortions often must overcome numerous obstacles, including financial limitations, and concerns for privacy and personal safety, that would make it difficult for them to assert their constitutional rights and challenge an abortion restriction. This could have far-reaching implications for other cases where third-party standing has been recognized including physicians’ ability to challenge laws on behalf of their patients’ rights to privacy for contraception, and to obtain mental health services.

Will the Supreme Court Change the Constitutional Right to Abortion Established by Roe v. Wade?

State request: Mississippi contends that the Court’s viability standard set in Roe v. Wade is unsatisfactory and does not allow the state to protect unborn life or maternal health. The state cites state laws allowing wrongful death suits pre-viability and argues that the strict viability standard is out of date with medical advancements.Potential Outcome: If the Supreme Court overturns Roe v. Wade and allows states to ban or restrict abortion before viability, 16 states have laws that are intended to immediately ban abortion; nine of these states have a law banning abortion on the books that predates Roe v. Wade and six states have expressed the intent to limit abortion to the maximum extent permitted by federal law (Figure 1). Thirteen states and DC have laws protecting abortion access.

Figure 1: 16 States have Laws that are Intended to Ban Abortion if Roe v. Wade is Overturned​

Twenty-four states have laws that establish gestational limits ranging from 6 weeks to 24 weeks. While states have passed these laws, many are currently blocked by lower court actions, and not in effect. If the Supreme Court allows states more deference to set gestational limits, many states may not immediately ban all abortions and could apply their currently enjoined policies and restrict abortion as early as 6 weeks.

State request: Mississippi is asking the Court to clarify how to assess the validity of state interests after Planned Parenthood v. Casey and Whole Woman’s Health v. Hellerstedt.

In Whole Woman’s Health, the Supreme Court clarified that abortion restrictions are only constitutional if they further a valid state interest and have benefits that outweigh the burdens placed on women seeking abortions. The benefits and burdens of the laws must be based on credible evidence. The Court emphasized that the previous standard established in Planned Parenthood of Southeastern Pa. v. Casey “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.” The rule announced in Casey “requires that courts consider the burdens a law imposed on abortion access together with the benefits those laws confer.”

In Whole Woman’s Healththe Supreme Court stated, “the Court, when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon evidence and argument presented in judicial proceedings.” The Court prioritized the evidence that was presented in the case and placed less emphasis on the purported purpose of the law when enacted by state legislators.

The Court concluded that the Texas law requiring doctors who perform abortions to have admitting privileges at nearby hospitals did not provide any benefit to women’s health and concluded each provision of the law “places a substantial obstacle in the path of women seeking a pre-viability abortion, each constitutes an undue burden on abortion access.” Therefore, the burden the law placed on women’s access to abortion outweighed the benefit. The district court that held the Texas law was unconstitutional based the factual findings of the lack of benefits on peer-reviewed studies on abortion complications, and expert testimony.

In June 2020, in June Medical Services LLC v. Russo, the Supreme Court ruled that a Louisiana law (nearly identical to the Texas law considered by the Court in Whole Women’s Health) requiring doctors to have admitting privileges at nearby hospitals was unconstitutional. While Justice Breyer wrote the opinion of the Court, Chief Justice Roberts wrote a separate concurring opinion, which reached the same conclusion that the law was unconstitutional, but he did not apply the balancing test (that the benefits must outweigh the burdens) used in Whole Woman’s Health. While Chief Justice Roberts joined the dissent in Whole Woman’s Health, he concurred with the Court’s judgment striking down the Louisiana law in June Medical. Roberts concurred in June Medical because he believes the legal doctrine of stare decisis requires the Court to follow the precedent established by the Whole Women’s Health decision. Relying on the decision in Whole Woman’s Health that the Texas admitting privileges law imposed a substantial obstacle on women seeking abortions, Roberts concludes the same decision is required for the Louisiana admitting privileges law.

However, in his concurring opinion in June Medical Services, Chief Justice Roberts disagrees with the balancing test set forth in Whole Woman’s Health. Instead, he believes that the Court should analyze the constitutionality of abortion laws by asking the question established in Planned Parenthood v. Casey: does a law place a substantial obstacle in the path of a woman seeking an abortion? Abortion opponents interpret Chief Justice Roberts’ concurring opinion as an opening to bring new cases involving other types of abortion regulations to the Court to allow the conservative majority to articulate a new legal standard to evaluate abortion regulations.

Potential Outcome: The conservative majority of the Court will likely overturn the standard established by Whole Woman’s Health balancing test in the next case they accept. The Court may require just an inquiry about whether the law poses a “substantial obstacle” rather than requiring an inquiry about whether the benefits to women outweigh the burdens to women. As a result, the Court may create a standard that would allow state laws with little or no benefit to women. 24 states have abortion specific provider laws, such as requiring hospital admitting privileges for providers or specifying the clinic must meet structural standards comparable to ambulatory surgical centers, that may be upheld under a burden only inquiry but would have been found unconstitutional under a standard requiring the benefit to outweigh the burden. In addition, the Court may disavow the precedent also set in Whole Woman’s Health that courts can look beyond the legislature’s declaration of benefit to women and review medical and scientific evidence about whether the law provides a benefit to women.

FDA v. ACOG: Restrictions for Medication Abortion During the Pandemic

In August 2020, the FDA petitioned the Supreme Court for an emergency stay to block a national injunction issued by a district court in the case. Food and Drug Administration v. American College of Obstetricians and Gynecologists (ACOG). ACOG challenged an FDA requirement that places a severe restriction on the distribution of Mifepristone, the drug used as part of a medical regimen to induce abortion with pills. ACOG contends that this requirement, called Risk Evaluation and Mitigation Strategies (REMS), is not medically necessary and requires patients to go in-person to a provider office or clinic to get the drug, which puts patients at risk of SARS-CoV2 exposure during the pandemic. The REMS only permits medical providers who have received special certification from the manufacturer to prescribe and directly dispense the drug. This requirement not only limits the number of clinicians able to prescribe medication abortions, but also means patients cannot obtain the medication from a retail pharmacy or by mail. The United States District Court of Maryland ruled in favor of ACOG, preventing the FDA from enforcing the REMS for mifepristone, abortion medication during the COVID-19 pandemic. The FDA requested that the Supreme Court lift the national injunction preventing the FDA from enforcing the REMS, contending that it is constitutional to impose a regulatory requirement on one method of abortion, even if it creates an undue burden on people seeking this method of abortion, when another method is safe.

FDA’s request (represented by the Solicitor General): The Solicitor General requested a stay of the nationwide injunction allowing the FDA to reinstate the REMS. On October 8, 2020, six weeks after the FDA’s request, to obtain a more comprehensive record, the Supreme Court issued an order suspending the case and directing the FDA to request the District Court to lift or modify the preliminary injunction. Justices Alito and Thomas dissented from the Court’s order. This unusual order to not rule on the stay until the FDA requests the District Court to reconsider the scope of the injunction may reflect a compromise because there were only eight justices when the Court issued the suspension. If the case comes back to the Supreme Court, there will be nine justices. While this case could be limited to the availability of mifepristone during the pandemic, it could also have broader implications. The Solicitor General argues that the Court would grant review of a decision affirming the preliminary injunction in order to clarify whether the balancing standard created under Whole Woman’s Health will be applied to abortion regulations to determine if they are constitutional.

It is very likely that a newly configured Supreme Court will either review one of the pending abortion cases or other challenges to state abortion laws that have not yet reached the Court. With the new seating of Justice Amy Coney Barrett, the Court’s 6-3 conservative majority may make changes to how abortion regulations are evaluated. If the Supreme Court allows states more authority to limit abortions or limits legal standing to challenge abortion regulations to people seeking abortions, without a federal standard, state laws will alone determine whether, when, and where women have legal access to abortion in this country.