The US Supreme Court has again overturned longstanding precedent, this time getting rid of a 40-year- old standard for decision making that required federal courts to defer to reasonable agency decisions where federal law is silent or unclear. This “Chevron deference” standard is now gone, ushering in a new era where courts will not have to accept agency expertise in their review of challenged regulations. While the details of the rules that define administrative law often garner little attention, this decision, like the decision that overturned Roe v. Wade, will have profound effects for health care. This issue brief examines the decision and assesses what is ahead.

What the Court Said

As explained in the KFF brief Upcoming SCOTUS Case Could Weaken the Impact of Regulation on Key Patient and Consumer Protection, the Supreme Court took up two cases to review the question of whether Chevron deference should be overruled or changed. The two cases, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, decided jointly, relate to federal regulations affecting the fishing industry, but the decision will shape how courts review legal challenges to all regulations that interpret issues where a federal law is ambiguous or silent, including health care.

In a 6-3 decision, with Justice Roberts writing for the majority, the Court concluded that Chevron deference should never have been used to begin with, overturning the Chevron decision. The Court made the following major points:

• Courts must use independent judgment to determine the meaning of federal statutes. It cannot defer to agency regulation just because the issue is not clear in a statute. According to the majority opinion the Chevron decision runs counter to the Administrative Procedure Act (APA) which incorporated prior practice that “courts decide legal questions by applying their own judgement.” The APA is a 1946 law that sets parameters for how agencies function.
• On the question of deferring to agency expertise to resolve an issue, the Court said that “…agencies have no special competence in resolving statutory ambiguities. Courts do.” While courts can “respect” agency regulation and expertise and look to it to inform them on technical issues, “Congress expects courts to handle technical statutory questions.”
• While federal courts must generally follow prior Supreme Court decisions (a legal concept called stare decisis), the majority opinion said that the 1984 Chevron decision is flawed and “unworkable,” because there can be different interpretations of what makes a statute ambiguous. As a result, the Court concludes that there is not “any reason to wait helplessly for Congress to correct our mistake.”
• The opinion notes that it does not implicate prior cases that relied on Chevron to uphold agency actions because those decisions are still subject to “statutory stare decisis” and can still be upheld even though the deference standard has changed.

Of note is a 33-page dissent by Justice Kagan (joined by Justices Sotomayor and Jackson) stating that, contrary to the majority, the APA includes no reference to how courts should review agency regulations—with or without deference to agency decisions—when courts use their authority to interpret the law. In addition, she rebukes the majority for disrupting use of a method of review (Chevron deference) that is the “cornerstone of administrative law” and “subverting every known principle of stare decisis,” with no particularly significant reason “above and beyond thinking it wrong.” She questions the majority’s conclusion that the decision will not implicate prior cases that have upheld agency regulations based on Chevron deference, questioning why courts would respect those prior decisions when this Court is not respecting precedent in this case. She predicts that some existing federal regulations never challenged under Chevron before will now be challenged. One quote from Justice Kagan’s dissent best sums up her opinion:

“In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law. As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar.”

Implications for Health Policy

Criticism of the authority of administrative agencies has been an ongoing theme of commentary from some organizations concerned with overregulation of industry. Some have encouraged changes to “dismantle the administrative state,” with a particular focus on the US Department of Health and Human Services—the agency with most of the administrative authority over Medicare, Medicaid, the Affordable Care Act and other health statutes, and that houses key public health organizations such as the Centers for Disease Control and Prevention and the National Institutes of Health.

The decision will likely impede the ability of executive agencies to implement laws passed by Congress. As explained in the previous KFF brief, while agency final rules will still have the force of law, there will be more of an incentive to challenge these rules in a court that now will not have to give any weight to agency decisions and expertise where statutes are not clear. More regulations will be overturned, placing a real barrier on implementing key health care protections such as prescription drug affordability in Medicare, eligibility rules for Medicaid beneficiaries, infectious disease control and public safety standards, as well as consumer protections for those in self-insured private employer-sponsored plans.

A natural result will mean less agency regulation. No law passed by Congress can include every possible nuance needed to implement the law. Limitation on the ability of regulators to fill in those gaps could result in impacts to health care consumer and patient protections. Technical requirements for how plans and providers bill and code for patient service, for example, are important in executing new health care standards, from free preventive care to surprise billing protections. Without regulations to fill in technical gaps, it will be more difficult to operationalize requirements to carry out the intent of Congress.

The executive branch will not necessarily be the only place where there are implications. Congress will be challenged to be more specific in its legislation, making it more difficult to reach consensus on a range of matters. This may be a particular concern where the issue being addressed in legislation is itself a black box—such as prescription drug pricing and the role of pharmacy benefit managers—where Congress itself and the public may lack access to reliable information about a highly technical subject.

Those seeking to access the judicial branch could see barriers as lower federal courts become more crowded or backlogged with administrative actions. Also, the decision-making itself will require more technical and scientific knowledge from judges, perhaps expanding the time it takes to resolve disputes.

What Happens Now

The decision does not immediately change any specific health care policy, but over time all health care stakeholders will see the impact of the reduced significance of notice-and-comment rulemaking in areas where federal law is silent or unclear. Some argue that the rulemaking process is already “captured” by industry in some areas, such that industry players can influence regulation to their advantage. This will affect these stakeholders as they may no longer have an easy avenue to get their concerns heard and addressed. The decision could also impede reforms meant to help health care consumers navigate an increasingly complex and unaffordable health system, particularly in cases where agencies stretch their regulatory authority beyond the specifics in a statute.

The decision does not affect agency ability to enforce health care statutes using existing tools including audit, data collection, and administrative agency proceedings where those are available. It could mean a shift in agency resources from drafting and defending regulations to enforcement actions based on the text of a statute or a renewed focus on helping consumers recognize and act on activity that violates federal law. This could mean more informal guidance from agencies on best practices to inform consumers and monitor stakeholder activity instead of courting industry and setting new standards. Whether these actions take place, however, will be largely dependent on the priorities of the President.

Congress will still have the ability to specifically delegate to administrative agencies in legislation the task of developing regulations in certain areas. Chevron deference does not implicate this scenario. However, regulations resulting from this delegation can still be reviewed by courts without deference to the agency or could be subject to constitutional challenges claiming that Congress does not have the authority to delegate (nondelegation doctrine). The “major questions doctrine” is another legal framework courts have increasingly applied in recent years to invalidate agency regulation.

Short of unlikely Congressional action to restore Chevron deference, the Supreme Court in a single decision has shifted many policy decisions from agency technical experts to federal judges, with implications for health policy that will reverberate for years to come.

Racial and ethnic disparities in health remain persistent in the United States, driven by inequities in access to and utilization of health care and social and economic factors that drive health, often referred to as social determinants of health (SDOH), that are rooted in historic and ongoing racism and discrimination. As a major source of health coverage for people of color, Medicaid programs are an important potential mechanism to address racial health disparities. Recent coverage gains across racial and ethnic groups between 2019-2022 were largely driven by increases in Medicaid enrollment as disenrollments were paused for three years during the pandemic related continuous enrollment provision. However, unwinding of the continuous enrollment provision could have disproportionate effects on people of color.

The federal government and many states have identified advancing health equity and addressing health disparities as a key priority. This includes President Biden’s Executive Order 13985 that directs federal agencies to take steps to advance racial equity. Other key efforts including improving collection and reporting of race and ethnicity data and focusing on maternal and infant health. While some efforts are broad, a number of efforts are specific to Medicaid. Medicaid coverage and other initiatives can help to address racial health disparities, but broader efforts to address structural racism and inequities within and beyond the health care system will also be key for reducing health disparities.

This issue brief aims to provide greater insight into key ways in which Medicaid can be leveraged to help address racial health disparities, drawing primarily from health coverage data, the 2023 KFF Budget Survey, and analyses from the KFF 1115 waiver tracker. While this brief documents some activities that states are implementing, take up of these initiatives varies across states and additional data are needed to determine if these efforts are effective at reducing disparities. Beyond the topics covered in this brief, states are engaged in other efforts to address racial health disparities in Medicaid and more broadly, including improving the collection and reporting of race and ethnicity data, establishing infrastructure to prioritize health equity, engaging with community to inform policy, and enhancing workforce capacity to provide culturally and linguistically appropriate care. This brief examines three key questions:

• How does Medicaid coverage vary by race and ethnicity?
• How can Medicaid eligibility policies mitigate racial disparities in coverage?
• What other Medicaid initiatives are states pursuing to address racial disparities in health and health care?

How does Medicaid coverage vary by race and ethnicity?

As a major source of coverage for people of color, the Medicaid program helps to ensure access to care and provide financial protection from health care costs. Research shows that uninsured people are far more likely than those with insurance to postpone health care or forgo it altogether. Being uninsured can also have financial consequences, with many unable to pay their medical bills, resulting in medical debt. Although employer-sponsored and other private coverage are primary sources of coverage across racial and ethnic groups, Medicaid helps to fill larger gaps in this coverage for many people of color, particularly children (Figure 1). Moreover, over time, gains in Medicaid coverage have helped to reduce racial disparities in coverage, particularly following the expansion to low-income adults under the Affordable Care Act (ACA). The continuous enrollment provision enacted during the COVID-19 pandemic contributed to additional Medicaid enrollment growth and uninsured rate reductions that further narrowed racial disparities in coverage.

The unwinding of the Medicaid continuous enrollment provision may have disproportionate effects on coverage for people of color. The unwinding of the continuous enrollment provision has resulted in millions of people being disenrolled from Medicaid, most often due to procedural or paperwork reasons, and net declines in Medicaid enrollments, with wide variation across states. While some individuals disenrolled from Medicaid may transition to other forms of health coverage, including Marketplace coverage, others may become uninsured or experience a gap in coverage before reenrolling in Medicaid. As Hispanic, Black, AIAN and NHPI people are more likely than their White counterparts to be covered by Medicaid, they are more likely to be affected by the unwinding. An early analysis of data from nine states reporting racial and ethnic data did not identify racial disparities in disenrollment rates. However, recent analysis of survey data found that Black and Hispanic adults who lost Medicaid coverage were about twice as likely as their White counterparts to report losing Medicaid coverage due to inability to complete the enrollment process. National survey data to assess changes in coverage by race and ethnicity during the unwinding period are lagged and will not be available for several years. The unwinding may also increase “churn,” in which enrollees disenroll and then re-enroll within a short period of time since continuous eligibility has been shown to reduce these coverage disruptions. There may be racial disparities in increases in churn rates. Analysis of earlier data found that churn rates increased among children across racial and ethnic groups following annual renewal, but Hispanic children had the largest increase, likely reflecting greater barriers to maintaining coverage.

How can Medicaid eligibility policies mitigate racial disparities in coverage?

Adoption of the Affordable Care Act (ACA) Medicaid expansion in the 10 non-expansion states could help close coverage disparities for people of color. As of 2014, the ACA expanded Medicaid to adults with incomes through 138% of the federal poverty level ($20,783 annually for an individual in 2024). Research suggests that Medicaid expansion is linked to increased access to care, improvements in some health outcomes, and has contributed to reductions in racial disparities in health coverage compared to non-expansion states. However, as of May 2024, 10 states have not yet adopted the Medicaid expansion. In these non-expansion states, 1.5 million uninsured people fall in a coverage gap, with incomes too high to qualify for Medicaid but too low to qualify for Marketplace subsidies. Nationally, over six in ten people in the coverage gap are people of color, higher than their share of nonelderly adults in non-expansion states (53%) and overall (46%) (Figure 2).

Other expansions of Medicaid eligibility could also reduce racial disparities in coverage and access to care. Medicaid covers almost half of births nationally, including more than two-thirds among Black and American Indian or Alaska Native (AIAN) individuals, who have higher rates of pregnancy-related mortality and morbidity compared to White individuals. Historically, many people who qualify for Medicaid because they are pregnant lost that coverage after 60 days postpartum because Medicaid eligibility levels for parents are lower than for pregnant people, especially in non-expansion states, and postpartum Medicaid coverage was previously limited to 60 days. However, the American Rescue Plan Act (ARPA) included an option, made permanent in the Consolidated Appropriations Act, to allow states to extend postpartum coverage from 60 days to 12 months. As of May 2024, 49 states have implemented the extended the postpartum coverage period or plan to do so. In addition, beginning January 1, 2024, the Consolidated Appropriations Act required all states to implement 12-month continuous eligibility for all children in Medicaid and CHIP, and some states have applied for Section 1115 demonstration waivers that would extend multi-year continuous eligibility for children, which may reduce churn and coverage disparities.

Increased outreach as well as policy changes to make it easier for eligible people to enroll in and maintain Medicaid coverage may also help reduce coverage disparities. In 2022, nearly two-thirds of the 6.4 million uninsured people were eligible for Medicaid but not enrolled were people of color (Figure 3). As noted above, this number may increase with the unwinding of the continuous enrollment provision. During the unwinding, states implemented an array of strategies to expand outreach, increase ex parte renewal rates, and streamline renewal processes, and many strategies will remain in place in the post unwinding period. Sustained outreach and enrollment efforts through trusted members in the community also is key for facilitating enrollment of certain populations, including those with Limited English Proficiency.

What other Medicaid initiatives are states pursuing to address racial disparities in health and health care?

Most states that contract with managed care plans report leveraging MCO contracts to promote at least one strategy to address social determinants of health in FY 2023, which may help mitigate racial health disparities. Managed care is the dominant delivery system for Medicaid enrollees. As of 2021, 74% of Medicaid beneficiaries were enrolled in comprehensive managed care organizations (MCOs). States pay Medicaid managed care organizations a set per member per month payment for the Medicaid services specified in their contracts. According to KFF’s 2023 Medicaid budget survey, more than three-quarters of responding MCO states reported requiring MCOs to screen enrollees for behavioral health needs, provide referrals to social services, screen enrollees for social needs, and partner with community-based organizations (CBOs) (Figure 4). Fewer states reported requiring MCOs to track the outcomes of social service referrals or requiring MCO community reinvestment (i.e., directing plans to reinvest a portion of revenue or profits into the communities they serve) compared to other strategies.

States also leverage managed care contracts in other ways to promote reducing health disparities. Some state MCO contracts incorporate requirements to advance health equity and states may also tie MCO financial quality incentives to reducing health disparities (Figure 5). Examples include:

• MCO financial incentives. States may use financial incentives to improve quality including linking performance bonuses or penalties, capitation withholds, or value-based state-directed payments to quality measures. About one-quarter of responding MCO states reported at least one MCO financial incentive tied to reducing racial and ethnic disparities in place in FY 2023. States most often reported linking capitation withholds, pay for performance incentives, and/or state-directed provider payments to reductions in health disparities.
• MCO contract requirements related to reducing disparities. In addition to financial incentives, states can leverage managed care contracts in other ways to promote reducing health disparities. For example, states can require MCOs to achieve national standards for culturally competent care, conduct staff training on health equity and implicit bias, develop new positions related to health equity, report data on racial and ethnic disparities, and incorporate enrollee feedback, among other requirements. According to KFF’s 2023 Medicaid budget survey, about half of responding states reported requiring MCOs to train staff on health equity and/or implicit bias and meet health disparities reporting requirements (Figure 5). Over one-third of states reported requiring MCOs to have a health equity plan in place and seek enrollee input or feedback to inform health equity initiatives. Fewer states reported requiring MCOs to have a health equity officer or achieve NCQA’s Multicultural Health Care (MHC) Distinction and/or Health Equity Accreditation.
• MCO performance improvement Projects (PIPs). States must require MCOs to implement PIPs to examine access to and quality of care, and these projects often include a focus on reducing health disparities. In FY 2023, states reported a range of state-mandated PIP focus areas with an emphasis on reducing disparities including those related to maternal and child health, chronic diseases, and substance use disorder.

States may pursue CMS approval of equity-related initiatives through Section 1115 waivers, which provide an avenue to test new strategies in Medicaid. The Biden Administration emphasized equity as a key goal of Section 1115 demonstration waivers. States may identify equity as an overarching demonstration goal that underlies all or most waiver provisions or may include specific equity-related provisions. States with an overarching demonstration focus on reducing health disparities or improving equity (e.g., California, New York, North Carolina, Oregon, Washington) often have similar areas of focus including integrating care (physical, behavioral, and social care), connecting enrollees to community-based organizations, managing population health, bolstering data infrastructure and addressing needs of specific populations (e.g., people experiencing homelessness, justice-involved people, people with substance use disorder (SUD), children/youth, and pregnant/postpartum people). States may also use 1115 waivers to expand Medicaid eligibility, add or enhance benefits, or make delivery system changes to address disparities and advance equity. Building on guidance released in 2021, CMS announced new flexibility available through Section 1115 to expand opportunities for states to use Medicaid to address enrollee health-related social needs (HRSNs) in late 2022. In 2023, CMS released guidance encouraging states to apply for 1115 waivers to test transition-related strategies to support community reentry for people who are incarcerated. These new demonstration opportunities are discussed in more detail below along with other 1115 initiatives focused on reducing disparities and advancing equity.

• HRSN waivers. As of June 2024, CMS has approved eight state HRSN waivers under the new HRSN 1115 framework. These waivers authorize evidence-based housing and nutrition services for specific populations with unmet social needs. CMS indicates broadening the availability of HRSN services is “expected to promote coverage and access to care, improve health outcomes, reduce health disparities, and create long-term, more cost-effective alternatives or supplements to traditional medical services.” States will be required to monitor and evaluate the impact of HRSN initiatives on utilization, cost, and health outcomes, including reporting on health equity metrics. A number of other states have approved 1115 waivers with SDOH-related provisions that pre-date the Biden administration HRSN framework. These waivers are generally narrower in scope (services and populations) or pilot programs focused on specific regions.
• Reentry waivers. As of June 2024, four states have approval to provide pre-release services to certain incarcerated, Medicaid eligible individuals. An additional 19 states have reentry waiver requests pending at CMS. Pre-release services include case management, medication-assisted treatment (MAT) for substance use disorders, and prescription medication upon release. People who are incarcerated have higher rates of mental illness, substance use disorder, and chronic and physical health care needs than the general population and are at high risk for unmet health needs and poor health outcomes upon release. Racial disparities in incarceration also exacerbate health disparities. Reentry services aim to improve care transitions and increase continuity of health coverage, reduce disruptions in care, improve health outcomes, and reduce recidivism rates. States will be required to monitor and evaluate the impact of these waivers as well.
• Delivery system reform and other equity investments. States may pursue other equity-related initiatives under 1115 including developing provider payment incentives tied to reducing disparities and/or obtaining “infrastructure” funding to support the implementation of HRSN waivers or build state or regional capacity to manage population health. For example, Arizona’s Targeted Investments 2.0 program provides funding that MCOs are directed to use to make incentive payments to providers with the goal of improving health equity for specified populations. As part of Massachusetts’ Hospital Quality and Equity Initiative, participating hospitals can earn performance-based incentive payments for meeting data collection requirements and improving health care quality and equity. New York’s Health Equity Regional Organization (HERO) is designed to develop regionally focused approaches to reduce health disparities, advance quality and health equity, and make recommendations to incorporate HRSN into value-based payment methodologies.

Expansions of Medicaid benefits may increase access to care for all enrollees, including the disproportionate share of people of color covered by Medicaid. KFF’s 2023 budget survey found many states reporting Medicaid benefit expansions, including benefits that may help reduce disparities. For example, to improve maternal and infant health outcomes and address racial and ethnic health disparities, states continue to expand and enhance pregnancy and postpartum services, including coverage of doula services, lactation services, and home visiting supports. Several states reported benefit changes to support access to culturally competent care, including coverage of community health workers. States also continue to report expansions of mental health and SUD services. Overall, rates of mental illness and SUD are lower for people of color compared to White people but may be underdiagnosed among people of color due to barriers in access to care. Additionally, people of color have experienced worsening mental health as well as increased rates of suicide and overdose deaths during the pandemic.

After much anticipation, SCOTUS has dismissed the second abortion-related case it heard this term, Moyle v. United States (consolidated with United States v. Idaho). A majority of the justices decided that the Court should not have taken the case at this time and, because of that, there is no ruling on the core questions presented and the case returns to lower courts for further proceedings. The decision also reinstates a District Court’s order blocking enforcement of the Idaho abortion ban where it conflicts with EMTALA, the federal law requiring hospitals to provide stabilizing treatment to patients who present to their emergency rooms. Idaho – like 5 other states – has an abortion ban that includes an exception to save the life of the pregnant person, but no exception for preserving health. Today’s decision does not affect enforcement of bans in any other states. This decision means the Court did not rule on the merits on any of the abortion-related cases this term, a topic of high significance to many voters ahead of the 2024 presidential elections.

How did the Court Rule?

The Supreme Court’s June 27 per curiam decision does not have a majority opinion. Instead, the decision is constituted by a series of concurring and dissenting opinions. Collectively, a 5-4 majority agrees the case should be dismissed as improvidently granted, meaning the Court should not have taken it in the first place, and a 6-3 majority holds that the preliminary injunction blocking enforcement of the Idaho ban where it conflicts with EMTALA should be reinstated.

However, this ruling does not necessarily mean that the 6-Justice block agrees about whether EMTALA preempts state law. Justices Sotomayor, Kagan, and Jackson wrote in their concurring opinion that EMTALA requires hospitals to provide abortion care when needed to stabilize the health of the pregnant patient and because Idaho’s abortion ban does not make an exception in cases where the health of the pregnant person is at risk, it is preempted. Justices Barrett, Kavanaugh, and Roberts, on the other hand, stated there is a textual disagreement between the two laws, but did not indicate whether they believe EMTALA preempts Idaho’s abortion ban. The three dissenting Justices (Alito, Thomas, and Gorsuch) wrote that EMTALA does not preempt Idaho’s law because EMTALA requires hospitals to protect the health of the fetus at every stage and does not require the provision of emergency abortion care. Justices Alito and Thomas went as far as to indicate in their dissent that they believe states can prioritize the health of the fetus over that of the pregnant person. They state that the lack of health exception in the state’s ban is a “balance reflect[ing] Idaho’s judgment about a difficult and important moral question” and Idaho is allowed to strike its own balance.

What Happens Next?

The Supreme Court’s decision returns the case to the 9^th Circuit Court of Appeals for further proceedings and reinstates a District Court’s order blocking enforcement of the Idaho ban where it conflicts with EMTALA. The District Court order had been affirmed by the 9^th Circuit Court of Appeals but put on pause by the Supreme Court when it agreed to hear this case. This order allows Idaho physicians to provide abortion care when needed to stabilize the health of pregnant patients in hospital emergency rooms, and it will continue to do so until the case ends. This case may return to the Supreme Court after the 9^th Circuit Court of Appeals issues a final ruling.

However, in a different case, Texas v. Becerra, the federal government has asked the Court to answer the same question of whether EMTALA preempts state abortion bans. In this latter case, the state of Texas sued the Department of Health and Human Services (HHS), arguing that EMTALA does not authorize the federal government to “compel” clinicians to provide abortion care. A federal district court in Texas issued an order permanently blocking HHS from enforcing EMTALA as requiring abortion care when Texas law prohibits it, and the 5^th Circuit Court of Appeals upheld this order in January 2024. The Supreme Court has not yet announced if it will take the case. It may decide as it did in United States v. Idaho and order for proceedings to continue in the lower courts before it hears the case. Depending on how the cases proceed, the Court may consider arguments about EMTALA again in either the Texas or Idaho case.

Nevertheless, whether the Supreme Court considers this issue in the near future may be affected by the outcome of this year’s Presidential election. Since EMTALA is a federal law, the federal government must choose to continue litigating the cases regarding the law for either of them to proceed and eventually come before the Supreme Court again. The Biden administration has defended in court its guidance stating that, per EMTALA, hospitals must provide emergency abortion care if it is necessary to stabilize a patient’s condition and has prioritized and expanded enforcement efforts in this area. Should Donald Trump win the election, his Administration could issue guidance stating that it does not interpret EMTALA to require hospitals to provide abortion care when it is necessary to stabilize a pregnant patient’s condition and dismiss the Texas and Idaho EMTALA cases. Project 2025 – a series of proposals for a new administration from a broad coalition of conservative organizations and widely seen as a blueprint for a next Trump administration – specifically calls for rescinding the Biden Administration’s EMTALA guidance and ending federal investigations into cases of alleged refusals to perform abortions. Trump himself has not publicly stated how he views EMTALA preemption of state abortion bans in emergency cases. KFF polling finds that the vast majority of the public (86%), across party lines, supports protecting access to abortions for people experiencing pregnancy-related emergencies.

What are the Implications of the Ruling?

For the provision of emergency abortion care

The reinstatement of the district court’s order blocking enforcement of Idaho’s abortion ban where it conflicts with EMTALA – in situations that jeopardize the health of the pregnant person – means pregnant people in Idaho may again be able to receive emergency abortion care to preserve their health. In her concurring opinion, Justice Kagan highlighted the consequences of the lack of health exception in Idaho during the time the district court’s preliminary injunction was on pause, noting that “[t]o ensure appropriate medical care, the State’s largest provider of emergency services had to airlift pregnant women out of Idaho roughly every other week, compared to once in all of the prior year (when the injunction was in effect).”

However, this ruling has no effect on the approximately 8,597,200 women of reproductive age living in the five other states (Arkansas, Mississippi, Oklahoma, South Dakota, and Texas) that have abortion bans without a health exception. In these other states, pregnant patients needing an emergency abortion to preserve their health will be denied that care until their conditions deteriorate to the point that an abortion is necessary to prevent their death.

Of note, even in states with abortion bans that include a health exception, pregnant people may not be able to receive emergency abortion care, because these exceptions are often narrow and do not defer to the doctor’s medical judgment that an abortion qualifies for an exception under state law, which has made clinicians hesitant to provide care that could later be prosecuted and reviewed by a court. In a KFF national survey, the majority of OBGYNs practicing in states where abortion is banned said that the Dobbs ruling has worsened their decision-making autonomy (60%) and ability to practice within the standards of care (55%). In these states, this chilling effect will persist, discouraging physicians from providing evidence-based emergency medical care, even in situations where they cannot ultimately prevent the loss of the pregnancy. This means pregnant patients from states with abortion bans have had to leave their states to receive emergency abortion care – just as many did when the preliminary injunction was blocked in Idaho – and this trend will most likely continue.

For other cases

There are other cases underway arguing that the US Constitution and state constitutions include protections for people needing emergency abortion care, which are not affected by the Court’s decision today, since they do not rely on EMTALA. In May 2024, an Idaho physician filed another challenge to the exceptions in Idaho’s abortion laws in federal court, Seyb v. Members of the Idaho Board of Medicine. In this case, the physician contends that Idaho’s abortion laws violate the due process and equal protection clauses of the 14^th Amendment of the US Constitution by criminalizing abortion care for many medically indicated circumstances and conditions. This case may also reach the Supreme Court to determine whether the US Constitution provides any protections for people needing emergency abortion care.

There are also three cases in state courts (Idaho, Indiana, & Tennessee) challenging the narrowness of the exceptions in state bans, arguing that the laws violate their respective state constitutions. There was a similar case in Texas, but the Texas State Supreme Court recently held that there are no state constitutional protections that confer a right to abortion beyond the life exception the law outlines. The outcome of these cases may affect the provision of abortion care in cases of pregnancy-related emergencies, but the reach of this will be limited to their own state lines.

Looking ahead

At the core of this case, Idaho was asking the court to allow the state to recognize and protect the rights of a fetus over the health of the pregnant person. The statements in Justice Alito’s dissent indicating that states can strike their own “balance” when the health or life of a pregnant person is threatened – and therefore, prioritize the rights of a fetus over the health of the pregnant person – may open the door to future cases further recognizing the rights of embryos or fetuses. Justices Barrett, Roberts, and Kavanaugh did not indicate whether they believe states can ban abortion in cases that threaten the health of the pregnant person, failing to rule out that they may be amenable to such an argument. While states have focused on restricting abortion care, this could have broader implications for a pregnant person’s right to make decisions about how they want to manage their own pregnancy, including the right to preserve their own health, and clinicians’ autonomy to manage pregnancy-related medical emergencies based on accepted standards of care.

Suburban women have long been a coveted voting bloc for both Democratic and Republican candidates. Decades ago, this group was largely described as white suburban mothers, but the demographics of suburban women voters are changing and now the group is more akin to a microcosm of the U.S. as they shift younger, and more racially and ethnically diverse – which had led to a strong Democratic advantage in the past two presidential elections. For example, Democratic candidates gained ground among suburban voters from 2016 to 2020. But in 2022, suburban voters were divided between Democratic and Republican candidates and now analysts are wondering which candidate has the advantage in 2024 among this key voting group.

The KFF Survey of Women Voters finds that suburban women still lean Democratic and nearly half say they plan on voting for President Biden in November. Yet for many, inflation is top of mind – an issue that four in ten say neither political party does a better job of addressing. On the key issue of abortion, suburban women align most closely with the Democratic Party in terms of the policies they support.

The analysis is based on a survey of more than 3,000 women nationally including 636 suburban women nationally and 275 suburban women voters in Arizona. The entire project is available on the KFF Survey of Women Voters Dashboard, which includes more data from the survey, as well as the topline and methodology.

#1: Most Suburban Women Identify as Pro-Choice, Say Abortion Should Be Legal

Alongside these changing demographics, suburban women hold very similar views on abortion as women nationally. While about half of suburban women voters (47%) say they are Democrats or lean Democratic (more than one-third identify as Republican or Republican-leaning and one in five are independents), more than two-thirds of suburban women voters (69%) say they identify as “pro-choice” (compared to 67% of women voters, nationally) and about three-fourths say they think abortion should be legal in all or most cases (compared to 74% of women, nationally). The views of suburban women on abortion more closely align with urban women rather than women living in rural areas who are more likely to identify as pro-life (40%) and want abortion to be illegal in all or most cases (36%).

Most Republican Suburban Women Identify as Pro-life but Half Support Some Abortion Access, One in Four Think Republican Party Has Gone Too Far

Women voters living in the suburbs who are Republican or lean Republican are more supportive of broader abortion access than their rural counterparts, even though more than half of suburban Republican women (58%) identify as pro-life (which is similar to the share of rural Republican women who say the same). Half of Republican suburban women say they think abortion should be legal in all or most cases, and one in four (26%) say the Republican Party has done too much to restrict access to reproductive health services. This is twice the share of rural Republican women voters who say the same (13%). In addition, one in four Republican women in the suburbs are worried they or someone close to them will need an abortion during a medical emergency and be unable to get it (similar to share of urban Republican women who say the same, but half the share of Democrats who say the same, regardless of where they live). Most suburban women voters, regardless of partisanship, say they know someone (including themselves) who has ended a pregnancy by abortion (56% of suburban Republican women and 66% of suburban Democratic women). It is also important to note that one-fourth of Republican women voters in the suburbs say they prefer another Republican nominee for president other than former President Trump.

#2: Suburban Women Largely Favor Policies Protecting Access to Abortion

Across all partisans, women voters living in the suburbs support laws protecting access to abortions in some instances including for patients who are experiencing pregnancy-related emergencies, or in cases of rape or incest in all states where abortion is banned. Large majorities of Democratic women in the suburbs (91%) and independent women in the suburbs (80%) support a law guaranteeing a nationwide right to abortion, as do nearly half of suburban Republican women (46%). Majorities of Republican women voters in the suburbs also support leaving it up to the states to decide whether abortion is legal (62%) as well as a law establishing a 15-week abortion ban nationwide (60%).

Consistent with what the national KFF Survey of Women Voters shows in other states with abortion-related ballot measures, majorities of suburban women support ballot measures enshrining abortion access. In Arizona, a battleground state in which voters will likely be voting on an abortion-related ballot initiative, a large majority of suburban women as well majorities of urban and rural women say they plan on voting in support of this initiative. Half (49%) of suburban women voters in Arizona say that if this initiative appears on the ballot in their state, they will be more motivated to vote, while half (48%) say it will not impact their decision to vote.

#3: Suburban Women Say Inflation Is Top Voting Issue, Say Neither Party Does Better at Handling Rising Costs

Part of President Biden’s appeal to suburban women has been on the issue of abortion and the overturning of Roe v. Wade, yet inflation is the top voting issue for more than a third (36%) of suburban women voters followed by threats to democracy (25%). Abortion ranks third, alongside immigration, with both cited as the most important voting issue by 12% of suburban women voters.

Similar shares of urban, suburban, and rural women say abortion is their most important voting issue (10%, 12%, and 7%, respectively); and while inflation is the top issue across geographic areas, the issue is most important for a larger share of rural voters (46%) than suburban voters (36%). Suburban women are more likely to cite threats to democracy as the most important voting issue than their rural counterparts (25% compared to 17%).

With inflation top of mind for suburban women, it is striking that neither party has the advantage among this group on the key issue of addressing the cost of household expenses. Four in ten suburban women (41%) say neither party does a better job of addressing the cost of household expenses, even as suburban women give the Democratic Party the advantage on all other issues asked about including cost of health care and childcare.

About three-fourths of suburban women voters report worrying about affording the cost of health care for them and their family (73%), or their food or groceries (72%). In addition, nearly two-thirds say they worry about being able to afford their monthly utilities (63%), and more than half of suburban women (56%) worry a lot or some about being able to afford their rent or mortgage (similar to the share of rural women who say the same).

#4: Suburban Women Feel Frustrated About Upcoming Presidential Election, Largely Dissatisfied with Candidates

With suburban women citing many issues as important to their vote, it is notable that 12% say they don’t plan on voting in the upcoming presidential election or that they will vote for a third-party candidate. This includes similar shares of Democratic suburban women (8%) and Republican suburban women (9%) and three in ten independent suburban women. This may reflect their overall feelings toward the two frontrunner party candidates. Three-fourths of suburban women voters say they feel frustrated about the upcoming presidential election including 76% of Democratic suburban women, 74% of Republican suburban women, and 72% of independent suburban women.

In addition, six in ten are not satisfied with their choices for president, including a third who say they are “not at all satisfied.” When asked why they are not satisfied with their choices for president, suburban women offered a multitude of responses related to the candidates’ age, temperament, and their stances on key issues.

All signs point to an exceptionally tight presidential election where even slight advantages could tip the electoral balance in favor of either candidate. Suburban women are not voting as a monolith and have competing priorities driving their voting decisions this fall, including whether they decide to turn out or stay home. While various factors influence voters, the candidates’ stances on abortion and their handling of inflation could serve as crucial benchmarks for many suburban women when casting their ballots.

KFF today launched a new side-by-side comparison tool of the records and policy positions of President Biden and former President Trump across a range of key health policy issues. In a related “Beyond the Data” column, KFF President and CEO Drew Altman examines why the election represents a “fork in the road” on the federal government’s role in health care.

While this is not an election like in the past where health care reform is a central issue being debated, health care is an important issue for voters, and the parties’ presumptive nominees have sharply divergent records and positions, detailed in the new side-by-side comparison tool.The tool provides a quick overview of the candidates’ records as president, positions, public statements, and proposed policies on 15 health care topics: the Affordable Care Act, Medicaid, abortion, contraception, LGBQ health, gun violence, public health, prescription drug prices, Medicare, health care costs, mental health, opioid use, long-term care, global health, and immigrant health coverage.The tool will be continuously updated throughout the campaign as new information and policy details emerge. 

In Altman’s accompanying column, Unraveling the Mysteries of Biden vs Trump on Health Care, he writes that comparing the candidates on health care “was an especially tricky assignment” this time.

“With a president running for re-election whose policies are already set, and a former president who shuns policy details, both camps are skipping over the usual policy planning process, and the routine job of describing the differences between the two candidates on health issues is a thousand-piece puzzle,” Altman writes.Beyond the specifics of the candidates’ records and positions on health issues, Altman writes, “the differences are bigger, amounting to a fork in the road in direction on the role of the federal government in health and federal health spending.” Trump, in particular, “avoids policy and policy details” so “the directions he might take have to be deduced from remarks he has made here and there, positions he took when he was president, and most of all, from the policy positions conservative Republican organizations have taken.”

The unwinding of pandemic enrollment protections in Medicaid helped accelerate states’ expansion of eligibility for key groups and adoption of policy and system changes to streamline renewal processes for enrollees, according to findings from a new KFF survey of state Medicaid officials. These changes mean that the return to “routine” operations when the unwinding period ends will not be a return to pre-pandemic operations in many states.

The survey examined actions states have taken to enhance systems, processes, and communications, as well as key state Medicaid eligibility, enrollment, and renewal policies and procedures in place for children and most non-elderly adults as of May 2024.

States report changes in the following key areas:

Coverage for children and pregnant individuals: Several states are taking steps to expand coverage for children and pregnant individuals. In 2024, five states increased eligibility levels for children and/or pregnancy coverage and eight states extended coverage to certain immigrant children and/or pregnant individuals. Eighteen states have eligibility levels above the median for both children (255% FPL) and pregnancy (210% FPL). Building on the experience of continuous enrollment during the pandemic, 13 states are seeking to keep children continuously enrolled in Medicaid for more than a year.

Automated renewal processes: All states reported taking actions to increase automated renewal rates during the unwinding. Through automated renewals, also called “ex parte” renewals, Medicaid eligibility workers use reliable data to verify enrollees’ eligibility at renewal. This approach decreases paperwork for enrollees and states as well as gaps in coverage. Forty-two states adopted waiver flexibilities to increase automated renewal rates, such as allowing automated renewals for people without income or using eligibility for other income-based assistance programs to confirm Medicaid eligibility.

Other changes: In addition to improving automated processes, ten states say they simplified renewal forms, and seven states extended the time enrollees have to respond to renewal notices. States have also boosted direct outreach to enrollees through multiple modes, including text, email, and automated calls, and 37 states plan to maintain the enhanced outreach.

Despite these changes, states encountered numerous obstacles to simplifying renewals for enrollees during the unwinding period, including workforce issues and problems with their eligibility systems. Most states (41) reported frontline eligibility staff vacancies, and 32 of these states identified the impact of the vacancies as significant or moderate.

A companion KFF Medicaid survey examining eligibility, enrollment, and renewal policies for seniors and people with disabilities found eligibility policies for these populations vary across states, but states made similarly wide-ranging changes to streamline renewal processes for these enrollees. Other key takeaways include:

• Application processes for seniors and people with disabilities: Most states (38) now use the same processes to determine income eligibility for all Medicaid enrollees, but the need to document assets may make applications more onerous for seniors and people with disabilities. All states but California require many in this group to demonstrate that their assets are below Medicaid eligibility limits, and asset eligibility processes are often more cumbersome than the process for income.
• Renewal policies for seniors and people with disabilities: Renewal policies for seniors and people with disabilities increasingly resemble those for other populations. All responding states only renew eligibility annually for seniors and people with disabilities, and 47 states provide enrollees with 30 days to return renewal information and a 90-day reconsideration period following a procedural disenrollment.

The 22nd annual survey of state Medicaid and CHIP programs officials was conducted by KFF and the Georgetown University Center for Children and Families in March 2024. The KFF Survey of Medicaid Financial Eligibility & Enrollment Policies for Seniors & People with Disabilities was also conducted in March 2024 by KFF and Watts Health Policy Consulting. Overall, 49 states and the District of Columbia responded to both surveys, although response rates for specific questions varied. (Florida was the only state that did not respond.)

June 24, 2024 marks the second anniversary of the Dobbs decision which overturned Roe v. Wade, the case that for almost 50 years protected the constitutional right to abortion in the United States. States can now set their own policies protecting or banning abortion without any federal standard protecting access to abortion and this has led to drastic changes in the landscape of abortion access across the U.S. This policy watch presents 10 key facts to know about abortion access two years after the Dobbs decision.

1. Since June 24, 2022, 14 states have banned abortion across the United States, largely concentrated in the South. An additional 6 states have early gestational limits between 6 and 15 weeks LMP (last menstrual period). To access abortion services, people living in states where abortion is banned or severely restricted either have to travel out of state—often incurring additional costs related to travel and loss of wages—or obtain medication abortion drugs from companies who ship the pills without requiring a clinician visit or from providers in states with shield-laws..
   
2. While all 20 states with abortion bans or early gestational limits have exceptions for when the pregnant person’s life is in danger, six states do not have exceptions for when the pregnant person’s health is at risk, 10 states have no rape/incest exceptions, and 13 states have no fatal fetal anomaly exceptions. In practice, health exceptions to bans have often proven to be unworkable, except in the most extreme circumstances, and have sometimes prevented physicians from practicing evidence-based medicine. The federal government has sued the state of Idaho over its abortion ban, which includes an exception to save the life – but not the health – of the pregnant person, contending that the ban was in violation of the Emergency Medical Treatment and Active Labor Act (EMTALA), a law that requires that hospitals provide stabilizing treatment, including abortion, to patients who present in the emergency room with an emergency medical condition. The Supreme Court is set to rule on this case in June 2024..
   
3. Paradoxically, the total number of abortions in the U.S. appears to have increased slightly following Dobbs. This rise could be due to increased interstate travel for abortion access, expanded in-person and virtual/telehealth capacity to see patients, increased measures to protect and cover abortion care for residents and out-of-state patients, and the broader availability of low-cost abortion medication. However, these aggregated trends mask the sharp decline in abortions provided in states with total bans or severe restrictions as well as the hardships that many pregnant people experience in accessing abortion care..
   
4. One in five (19%) abortions were provided via telehealth in December 2023 according to Society for Family Planning’s #WeCount Project. These telehealth abortions were provided by virtual clinicians (48%), brick-and-mortar clinics (5%), and providers that prescribe medication abortion pills in states with shield laws to patients in other states with bans (36%) or telehealth restrictions (12%). States with shield laws aim to protect clinicians and minimize the legal risks associated with providing abortion care in states where abortion or telehealth abortion are banned or restricted. In a unanimous decision, the Supreme Court of the United States rejected a legal challenge to the abortion pill, mifepristone, allowing the pill to remain available for medication abortion in both clinical and telehealth settings where state law permits.
5. Six in ten Black (60%) and American Indian or Alaska Native (59%) women ages 18-49 live in states with abortion bans or gestational restrictions. Over half (53%) of White women ages 18-49 live in states with bans or restrictions, while less than half of Hispanic (45%) and about three in ten Asian (28%) and Native Hawaiian or Pacific Islander (29%) women ages 18-49 live in these states. People of color residing in states where abortion is banned or severely restricted may face disproportionately greater challenges accessing abortions due to longstanding underlying social and economic inequities, which could exacerbate existing disparities in maternal and infant health..
   
6. Since the Dobbs decision, abortion providers and advocates in 23 states have challenged the legality of state abortion bans and limits, and their exceptions, contending that these laws violate the state constitution or state law. Since June 2022, the Supreme Courts of 5 states – Florida, Idaho, Indiana, Oklahoma, and South Carolina – have ruled that the state constitution does not protect the right to abortion, allowing their respective state’s abortion bans or limits to stand. Challenges to abortion bans and limits, or their exceptions, are ongoing in 15 states..
   
7. National polls have consistently found that the majority of the public did not want to see Roe v. Wade overturned and that most people feel that abortion is a personal medical decision. Most of the public now supports access to abortions for patients who are experiencing pregnancy-related emergencies (86%), a patient’s right to travel for abortion care (79%) and protecting doctors who perform abortions from legal penalties (67%). About one third (32%) support laws banning the use of mifepristone, also known as medication abortion..
   
8. Voters in six states have weighed in on constitutional amendments regarding abortion, and in each state since the Dobbs decision the side favoring abortion access has prevailed. This November, up to 11 states could have abortion measures on their ballots, seeking either to affirm that their state constitution protects the right to abortion or that nothing in the state constitution provides that right. As of June 20, 2024, 4 states—Colorado, Florida, Maryland and South Dakota—have confirmed they will have measures on their ballots for the November 2024 election. Over half (53%) of Democratic women voters living in states with confirmed or potential abortion-related ballot initiatives say that they are more motivated to vote during this year’s election compared to 43% of Democratic women in states without abortion-related ballot initiatives..
   
9. 1 in 7 (14%) women of reproductive age (18 to 49) report that they or someone they know has had difficulty accessing abortion services since Roe was overturned due to restrictions in their state, according to KFF polling. This includes 1 in 5 (21%) women ages 18-49 living in states where abortion is banned, and about one in ten women of reproductive age living in states where abortion is limited (9%) or legal (12%)..
   
10. The Dobbs decision brought increased attention at the state and federal levels to protect the legal right to contraception, in part due to Justice Thomas’ concurring opinion that, in future cases, the Court should overturn Griswold v. Connecticut, the Court’s 1965 landmark decision recognizing the right to obtain contraceptives. Soon after, the Right to Contraception Act was introduced in Congress, and while it quickly passed in the then Democrat-led House, it did not garner enough support to end the filibuster in the Senate. The bill was reintroduced in the current congressional session but has yet to garner enough support to pass in either chamber of Congress. At the state level, 6 states and D.C. have passed laws or constitutional amendments to secure the right to contraception for their residents since Dobbs, bringing the total number of states that protect this right to 14..
    

KFF Abortion Resources:

• Abortion in the United States Dashboard
• Policy Tracker: Exceptions to State Abortion Bans and Early Gestational Limits
• Ballot Tracker: Status of Abortion-Related State Constitutional Amendment Measures for the 2024 Election
• State and Federal Reproductive Rights and Abortion Litigation Tracker
• State Profiles for Women’s Health Abortion Policies and Data
• State Health Facts, Women’s Health Indicators
• Key Facts on Abortion in the United States
• The Availability and Use of Medication Abortion
• What are the Implications of the Dobbs Ruling for Racial Disparities?
• The Right to Contraception: State and Federal Actions, Misinformation, and the Courts
• KFF Health Tracking Poll March 2024: Abortion in the 2024 Election and Beyond
• Women’s Views of Abortion Access and Policies in the Dobbs Era: Insights From the KFF Health Tracking Poll
•  KFF Survey of Women Voters: Key Takeaways