​Heartbreaking. Infuriating. Degrading. Surreal. Galling. Shaming. Powerless.
 
Those aren’t the words I’m using to describe the rapes that I experienced while a graduate student at Columbia University. They are the words I am using to describe the feeling of my government dismissing experiences of sexual assault from which I have endured lasting trauma.
 
To be sure, the two rapes that I experienced have cost me greatly – years of productivity at work, years of happiness, an amount of time and money in therapy that would be too depressing to count, and it nearly cost me my life as my depression and PTSD symptoms escalated to suicidality. I have told friends. I have told doctors. I have told therapists. But I never reported to the police, and I knew that I never would.
 
The first rape was November 8, 2012 – six years to the day before sexual predator Donald Trump won the presidency. I was out celebrating President Obama’s reelection, having just returned to NYC from the campaign in Pennsylvania, where I worked for the home stretch of the election. Beers were followed by tequila shots, which were followed by Jager Bombs, which were followed by more beers. A cute man just a few years older than I smiled and bought me a drink. We flirted and kissed briefly.
 
Then I stood up, and as the room continued to spin wildly around me, I fell to the floor, then crawled my way to the bathroom, where I vomited profusely. Careening out of the bathroom and through the bar toward the exit, I paid my tab and told the man that I drank too much and was going home. As I reached for my coat, I fell to the ground again, noticing its stickiness now coated to hands, and regaining my footing, I walked out in search of a cab for the 25 blocks uptown to my apartment. He insisted that he take me home. I deliriously kept saying simply, “I’m just going home,” and I got a cab, and it took me a few minutes to realize that he was in the cab beside me, where I spent most of the ride trying (with mixed success) not to vomit more. When we arrived at my building, I did not invite him upstairs, and simply kept saying, “I’m just going home. I’m just going to bed.” Those are the only words I remember saying as I strained to make my way up the stairs to my 6th floor apartment (the elevator was out of service, with progress toward fixing it delayed by Hurricane Sandy). And then I passed out fully clothed on my bed.
 
When I woke up (I don’t know how long later), he was on top of me and inside me, and as I began to realize what was happening and struggled, he covered my mouth with his hand, before moving on to a type of sex with which I had at the time been inexperienced and that elicited a blinding pain. When he finished, I told him to leave. Leaving his name and number on my dresser as though it were a consensual hookup, he walked out the door, and I cried.
 
The next morning, I did all of the wrong things. I stripped the bed, wanting to be rid of his scent. I took the longest shower of my life, weeping as water beat down my trembling, bruised, and bleeding body and as I struggled to catch my breath. And when I went to the campus health center to find out whether I should be tested for STDs or whether they should preemptively treat for them, the doctor’s first question had been whether I had been drinking and whether I was sure that I said no. And that was it. (The doctor spent so much time researching the risks/benefits of STD testing vs. preemptive treatment that they ran out of time and sent me off without anything but a number for their counseling services.)
 
It was demoralizing. I knew rationally that it was not consensual. I had not invited him in to my apartment. I had been falling down and vomiting and passed out (a state in which I rarely find myself, thankfully, but it was a special occasion), so clearly I was not in a condition to consent. When I began to regain consciousness, he resisted my struggles. He did not use a condom. Yet the doctor viewed this as a drinking issue rather than a sexual assault issue, an exchange that hardly inspired in me the confidence to report anything further. I went to the graduate student workspace on campus, pretending to work but unable to concentrate, and after meeting with my advisor regarding a work matter, I had lunch at Tom’s Restaurant with a close friend from graduate school and I told him. And he listened. And I cried. And he let me cry.
 
For months, I threw myself into work as a distraction, sometimes working over 100 hours a week on data collection so as to leave less room in my mind for flashbacks. My relationship suffered, because even as loving and sensitive as my boyfriend was, sex had become loaded with negative associations, with flashbacks, with panic attacks. And when the relationship ended and the structure of the semester as well, the amount of space in my room to fixate on those events of November 8, 2012 terrified me.
 
And it confused me, because I felt as though a bad sexual experience should be more easily overcome, even forgotten. (Though of course I know that it’s not simply sex, but rather issues of power and control). All I knew was the shock and panic with which I reacted when touched unexpectedly, and the difficulty with which I was able to build trust with people, especially men, even though I didn’t fully understand why I experienced this with such magnitude. And I wanted to convince myself that sex was meaningless, something unworthy of derailing my personal and professional life.
 
So I had sex. A lot of sex. With a lot of people. (Sorry, mom.)  Hell, I was single in my mid-to-late 20s in New York City, so why not? I told myself that it was meaningless, so that remembering November 8, 2012 wouldn’t hurt so much, though it didn’t quite work out that way. And these antics were consequence-free for a while – I was always safe, and met nice people with whom I was simply not pursuing anything serious. But as I began a new antidepressant and prepared to go on the academic job market, I decided to lay low for a while and focus on work.
 
Until June 1, 2014, when I was watching the last 4 innings of a Mets/Phillies game in the Flatiron, waiting for a friend who due to MTA delays had decided at the last minute to do a raincheck. I met someone who seemed friendly, and we talked for an hour or so, and I stopped drinking so that I would be (more or less) sober for whatever followed. He invited me over for a glass of wine and I said yes, and when we arrived at his apartment, we opened a bottle of wine and began to talk (I don’t remember about what), then kiss, hands beginning to wander a bit. When I told him that I wanted to make it an early night and didn’t want to have sex, he was visibly annoyed, and hoping to talk me out of it as he reached up my skirt and I pushed his hand away. His kissing got rougher, and I pulled away, reaching for my purse so that I could try to make an exit, but he pushed me on to the bed, pulling down my clothes and holding me down firmly, enough for bruises to form around my neck and wrists. He turned me over so that I was lying on my stomach, his hands pressed on my back so that my face was smashed into his pillow until he finished.
 
And then I dressed and left, sobbing and trembling as I walked from his East Harlem apartment to my West Harlem apartment sometime around midnight. And as I curled up in a ball in my bed – the same bed on which my first rape occurred – I cried myself to sleep. The next morning, I put concealer over my bruises and taught my summer session course on constitutional law.
 
Again, I did not report. Especially given the campus health center’s callous reaction to the first assault, I could not imagine the number of questions that I would be forced to endure if I did so. Was I drinking? (Only a little – two drinks over four hours.). What was I wearing? (A skirt and t- shirt – nothing too alluring, not that it should matter.) How many sexual partners had I had? (Probably irrelevant.) If I didn’t want to have sex with him, why did I agree to a drink in his apartment? (Because I assumed – I thought reasonably – that there could be a few steps between a drink and flirtation and sex, and most men I knew understood and respected the word “no.”.) Why was this the time that I decided I didn’t want to have sex? (Because I simply didn’t want to, and every time I resisted, he got violent, which reinforced that I was not with someone who would respect my boundaries.)
 
I wanted to forget it all, though no amount of therapy and medication could help me to not feel their touch when I was with other men, even other men I trusted. And it is difficult to explain to a new partner why I have such visceral reactions to one moving too quickly or too aggressively (even within the realm of consent), or why certain sexual activities won’t be on the menu with me. My physical health worsened as I became worse at keeping up with medication regimens and appointments, and I contemplated dropping out of graduate school altogether. And eventually, it seemed easier to not exist than it was to heal, though my multiple severe intentional overdoses have shown to me that I’m not very good at ceasing to exist either.
 
I have struggled for years (with mixed success) to forget, to forgive, to heal. My depression has led me to an ICU with a tube down my throat. But even at my worst, I felt as though I was struggling because I had the misfortune of experiencing the bad the actions of a couple of bad people, in a world where people were generally on my side. Republicans’ defense of Donald Trump after the Access Hollywood tape, and now again as they dismiss Dr. Ford’s attempted rape allegations against Judge Brett Kavanaugh, is the time when I have felt most violated because it is my government legitimizing the actions of my rapists. This government is now saying that rapes that were a certain amount of time ago don’t matter, and that the most consequential legal and policy issues our nation faces should be able to be handled by people who themselves have committed sexual assault.
 
I do not know all that Dr. Ford has gone through, and I won’t pretend to. But I know the feeling of powerlessness and fear that consumes one when a man lies on top of you, stifling your cries for help, and not knowing what will happen next. I know the ambivalence of wanting closure versus wanting to erase the memories altogether. I know the anger toward men in bars and other such places when they more innocuously disregard consent with a wandering hand and the ignoring of personal space, and not knowing whether the anger is more from the present encounter or from the prior assault. I know the lasting fear in future sexual encounters, and the uncertainty of how to rebuild trust with people. I understand that while some moments from those nights feel as so vivid that they could have happened just yesterday, others are hazy memories (whether from alcohol or defense mechanisms, or some combination). And I understand a reticence about painful and uncomfortable reporting about sexual assault, lest one be subjected to uncomfortably personal questioning, accusations of crying rape when simply regretting the sexual encounter, or being ignored altogether so as to protect the reputation and career of the accused.
 
Indeed, looking at the probability with which those committing sexual assault are held accountable, there is very little incentive for survivors to endure the retraumatization of reporting.
 
I am grateful for Dr. Ford demonstrating the courage that I lacked (though as far as I know, those who assaulted me are not in politics or prominent positions of power). She should be rewarded for speaking out about someone who not only would be the deciding vote on women’s health care in a lifetime position on our nation’s highest court, but has himself been nominated by someone who boasted about committing sexual assault. That reward for testifying should not come in the form of being patronizing, with Lindsey Graham saying, “I’ll listen to the lady, but we’re going to bring this to a close.” Dr. Ford should not simply be given time in which to testify, but she should be respected, and she should be heard.
 
When the government signals that it is on the side of those who commit sexual assault, perpetrators win, because they see a world of consequence-free assault. And while the #MeToo movement has certainly empowered many of us to actively assert our rights, the message on November 8, 2016 was loud and clear: committing sexual assault is not a disqualifying characteristic for the President of the United States.
 
In 1991, America similarly saw the Senate’s callous disregard for the compelling testimony that Anita Hill provided regarding sexual harassment by then-Supreme Court nominee Clarence Thomas. It would be nice if the Senate could show that it has evolved since then, but the upcoming hearings are being treated with even less seriousness in terms of the witnesses involved and the Senators’ comments regarding their determination to confirm Judge Kavanaugh despite these serious allegations. With Senator Graham and others expressing concern about ruining the life of Judge Kavanaugh by investigating these claims, it is crystal clear that the Senate Republicans are forgetting the life that was really ruined: Dr. Christine Blasey Ford, and the sexual assault survivors across the nation who are wondering if their government or communities would protect them, and if not, whether they should keep secret the sexual violence to which we’ve been subjected.
 
When the Republican men on the Senate Judiciary Committee ask in the upcoming hearings why Dr. Ford didn’t report the incident at the time that it happened, I hope that they have some mirrors handy. 

On July 9, 2018, the 150th anniversary of the ratification of the Fourteenth Amendment, President Trump announced his nominee for Associate Justice of the Supreme Court, filling the vacancy left by Justice Anthony Kennedy, who had been the swing vote on the Supreme Court. This leaves Supreme Court nominee Brett Kavanaugh (DC Circuit) in a potential position to reshape law in areas ranging from reproductive rights and health care to LGBT rights to voting to presidential powers to administrative law and discretion to agencies’ interpretations. The Senate Democrats, though in a week political position, must be poised to press Judge Kavanaugh on a number of areas of law that will be troubling to a number of Americans across the nation.

In light of post-Bork Supreme Court nominees’ general reticence about their views on precedent, their personal and political beliefs, and hypothetical cases, senators asking Judge Kavanaugh questions about his agreement with precedent will likely be relatively fruitless (though they should note that despite invocations of the “Ginsburg rule,” then-Judge Ginsburg was quite candid about her views on abortion politics, thus limiting nominees’ ability to rely on it to deflect). While we can make conjectures about his views on Roe v. Wade and Planned Parenthood v. Casey based on his being on the Federalist Society list, asking him about Roe might not be that illuminative. However, in a number of cases, the Supreme Court has laid out quite vague standards that would allow judges to reach quite different interpretations of their proper application. Thus, I have proposed below the following questions for members of the Senate to ask Judge Kavanaugh, which seek to highlight his interpretation of the scope of existing precedents, how he reached prior decisions, the authorities that he consults in reaching decisions and the balancing of competing rights, and seeking clarification on controversial remarks that he has made:

Reproductive Rights

1) While Roe v. Wade is the central abortion law holding on which many focus, Planned Parenthood v. Casey is the holding according to which we now judge the constitutionality of states' restrictions on abortion access. What is your understanding of what constitutes an undue burden or a substantial obstacle within the meaning of Casey? How do you feel that Casey compels justices to identify whether abortion restrictions are motivated by health and safety or by efforts to dissuade abortions? How do you interpret this Supreme Court precedent as clarifying how the state balances its interest in life and potential life?

2) While the Burwell v. Hobby Lobby holding was technically in regards to closely-held corporations' ability to exercise religious freedom in their decisions regarding health coverage for employees under the ACA, it affirmed notions of corporate personhood as also laid out in Citizens United, and expanded the 1st Amendment protections afforded at least some corporations. Indeed, Justice Ginsburg, in her dissent in Hobby Lobby, wrote that there as "little doubt that RFRA claims will proliferate, for the Court's expansive notion of corporate personhood -- combined with its other errors in construing RFRA --  invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith." How limited in scope do you see this holding as extending? That is, to what extend do you view it as laying the groundwork for more corporations to claim religious exemptions, and how (if at all) as a judge would you ascertain the sincerity of religious beliefs espoused by those in corporations? 

3) In a speech at the American Enterprise Institute, you appealed to Justice Rehnquist’s dissent in Roe v. Wade, and in doing so criticized the majority’s creation of unenumerated rights. You said, “Rehnquist’s dissenting opinion did not suggest that the Constitution protected no rights other than those enumerated in the text of the Bill of Rights. But he stated that under the court’s precedents, any such unenumerated right had to be rooted in the traditions and conscience of our people,” and that while Justice Rehnquist’s view was in the dissent rather than the majority, “he was successful in stemming the general tide of free-wheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.” Given the precedents of Griswold and Roe, as well as the broader notions of privacy that have been upheld by the Court, how would you define the proper extent of unenumerated rights, and on what authorities would you rely in ascertaining whether a right is consistent with enumerated rights, and what falls outside the scope of judicial power to assert?


Privacy 

4) In the context of privacy decisions under the 4th Amendment, under what conditions do you interpret the Supreme Court as calling for a "reasonable suspicion" as opposed to a "probable cause" threshold for a search, and how according to cases such as Pottawatomie v. Earls, would you identify what exactly would be grounds for "reasonable suspicion"? 

5) It is not uncommon for the interest of privacy and liberty more generally to be weighed against the interest of public safety and national security. How do you view these competing interests, and how do you interpret the Supreme Court precedent as balancing these when they're in tension? What evidence of a security threat do you see as sufficient to justify intrusions on individual liberty, and to what sources would you turn to identify this? 
 
6) You dissented in National Federation of Federal Employees v. Vilsack, a case on whether the Fourth Amendment permitted random drug testing for Forest Service Job Corps Center employees, and whether the non-law-enforcement public-safety interest in a drug-free environment outweighed the interest in guarding against privacy invasions of a random drug test. The majority found that the program was impermissible under the Fourth Amendment because there hadn’t been evidence of drug problems among the staff, suggesting that it was “a solution in search of a problem,” and that the program was overly broad in its application. I have two questions about your view on this case:
a) In your dissent, you viewed the drug testing program as being clearly reasonable and constitutionally permissible, holding that it “would seem negligent not to test” employees for drugs given the history of drug use among the at-risk students participating in the program. How do you assess a compelling state interest in combatting drug use when there is no evidence that this is a problem among the staff? When you consider compelling state interest, is it based on evidence of an existing problem, or is a more theoretical issue that the government has an interest in avoiding enabling?
b) You also viewed the drug test as being nonintrusive since it was only the provision of a urine sample. Are there more invasive oversight measures (such as blood tests or the submission of medical histories) that you would not have viewed as permissible even in light of the government’s interest in a drug-free environment?

7) In Klayman v. Obama, you decided on the National Security Agency’s Section 215 call-records program, which in your concurrence you found to be “entirely consistent with the Fourth Amendment.” How do you view this opinion now in light of the June 2018 decision of Carpenter v. United States?


Religion
 
8) You have been critical of Thomas Jefferson’s arguments about a strict wall of separation between church and state. How high do you view the proper separation of church and state, and how do you understand the Supreme Court precedents and history as shaping determinations as to what is a breach of this separation?
 
9) In the context of the Establishment Clause and the Lemon Test from Lemon v. Kurtzman (1971), the Court has held that laws are in violation of the Establishment Clause unless they 1) have a primary secular purpose, 2) have a primary secular effect, and 3) do not cause undue government entanglement in religion. You have said that application of the Lemon Test “can sometimes be counterproductive or even harmful.” Please discuss what your specific concerns are about it, and what your preferred approach to Establishment Clause cases would be.

10) Setting aside your view of the merits of keeping in place the Lemon Test and focusing instead on your understanding of its proper application, how do you understand the Court as having defined "undue government" entanglement in religious beliefs? To what sources do you believe it is legitimate to look in order to ascertain the secular vs. non-secular purpose of a policy? Do you look to facial neutrality, do you look at sources beyond the text, etc? How much evidence of someone’s personal history and comments do you feel would satisfy the qualification of being religiously-motivated?
* This is especially important in light of Justice Roberts's opinion in Trump v. Hawaii, which held that a facially neutral executive order could be treated as not constituting a non-secular purpose in large part because the religiously-motivated statements were from sources such as tweets, campaign statements, rallies, etc., as opposed to official government documents. So, if there is a policy with several statements indicating an underlying motivation of bias, should such statements enter into consideration by the Court, or should a more textual reading be applied?

11) You served as co-chairman of the Federalist Society’s “School Choice Practice Group,” and you worked on school choice litigation in Florida. One of the concerns about vouchers is that while promoting flexibility in allowing children to have more education options, they allow tax dollars to go to schools that may be non-secular, with the vouchers more likely to be used for religious schooling, which is less expensive. While the Supreme Court upheld their constitutionality in Zelman v. Simmons-Harris (2002), it was a contentious 5-4 decision and this remains a highly salient issue. Can you please discuss the evidence that you saw for their legitimacy taking into account both the state’s compelling interest in education quality, as well as the empirical fact that the vast majority participating in these program choose religious schools. When you look at data such as the differences in tuition for secular and non-secular schools and the rates of using vouchers for secular and non-secular schools, how do you evaluate the extent to which there is a true private choice?
 
Race

12) A number of Supreme Court decisions have upheld the constitutionality of affirmative action, conditional upon those policies not being administered through the use of quotas, but rather as part of a broader acknowledgement that race is one of many factors contributing to education diversity, and for which there is a compelling state interest (Grutter v. Bollinger, Fisher v. UT Austin). How should the Supreme Court balance affirmative action precedents that have been reaffirmed, against the (elected) executive branch rescission of affirmative action guidance? 
 
13) You predicted decades ago that the Supreme Court would embrace a color-blind view of the constitution, an approach that would undue much settled precedent regarding the consideration of race in admissions. You have also said, “This case is one more step along the way in what I see as an inevitable conclusion within the next 10 to 20 years when the court says we are all one race in the eyes of the government.” Please elaborate on your remark about enforcing a color-blind constitution, and to what extent (if at all) you consider the extent to which racial diversity would likely decline in the event of these programs’ termination.  

14) In 2013 in Shelby County v. Holder, the Supreme Court controversially struck down a portion of the Voting Rights Act that required preclearance. In the immediate aftermath of the holding, several states enacted restrictions on voting laws, such as onerous voter ID requirements and limits on early voting. In his majority Chief Justice Roberts cited the limited evidence of ongoing intrusions into voting rights in the affected parts of the country, though in her dissent, Justice Ginsburg compared the decision to throwing away one's umbrella in a rainstorm because one is getting wet. One tension that we have in this country is a recognition of certain fundamental rights on which the government can only in very rare cases infringe, as well as a system of federalism according to which states often have some measure of autonomy in implementation. How would you evaluate whether legislation that imposes requirements on states is still required to be in full effect in order to safeguard rights, especially fundamental rights such as voting?

15) You wrote an opinion that upheld South Carolina's strict voter ID law. You argued in your holding that the South Carolina law did not have a "discriminatory and retrogressive effect," and that the purpose was not discriminatory. You additionally cited a precedent that legislators' knowledge of the law's potential disproportionate impact does not alone equate to a discriminatory purpose. How, in your view, are judges meant to interpret whether a law is impermissibly aimed at discrimination, and from what sources do you feel it appropriate to render such an assessment? And to follow up, to what extent do you view this application of precedent deciphering in this case the motive behind voter ID laws extend to issues of disparate impact more broadly?

16) While there has been ample controversy concerning potential racial bias in redistricting and gerrymandering, in a recent case before the Supreme Court (Abbott v. Perez) it was assessed that the district lines may have been drawn out of political bias, which in some parts of the country overlap considerably with racial demographics. Given that we treat racial discrimination with strict scrutiny, how do you view the Court precedent as informing how you would disentangle politically-motivated from racially-motivated drawing of district lines?

Separation of Powers

17) You have been highly critical of the decision Chevron v. NRDC and the Court's declaration that there should be deference to agency interpretations of their authority unless Congress had been clear about its intention. What would be a more reasonable approach to administrative law doctrine? How would one balance the Supreme Court precedent and the agency's policy expertise against concerns about the scope of government intervention?

18) Your rulings on congressional deference to agencies have been inconsistent. In the context of congressional deference to the Environmental Protection Agency, you are critical of broad agency interpretations of their prerogatives. However, in PHH Corporation et al v. Consumer Financial Protection Bureau  (2016), you characterized congressional creation of independent executive agencies as a "headless fourth branch of government," and held that the CFPB's leadership structure was unconstitutional. Under what conditions do you view it as appropriate and constitutionally permissible for Congress to create such agencies, and what do you view as the proper role of courts in checking the reach of this executive branch authority?

19) You said of the unanimous decision United States v. Nixon (1974), which compelled President Nixon to comply with the subpoena and to produce the tapes and documents pertaining to Watergate, “Maybe Nixon was wrongly decided – heresy though it is to say so. Maybe the tension of the time led to an erroneous decision.” You also said of United States v. Nixon, “Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official.” Please elaborate on what you view as erroneous about this decision, and what you view as a more appropriate remedy than the one given. In times of executive branch corruption and an effort to promote transparency and accountability, what do you view as the proper role of the Supreme Court, if any, in guarding against excessive invocation of executive privilege? What do you believe that history, precedent, and practicality suggest should be the threshold requirements for claiming executive privilege?
 
20) In 2016, you said you wanted to “put the final nail” in the 1988 Supreme Court ruling of Morrison v. Olson, which by a vote of 7-1 upheld the constitutionality of provisions that created an independent counsel under the Ethics in Government Act. You additionally said, “It makes no sense at all to have an independent counsel looking at the conduct of the president.” While the law expired in 1999, being replaced by a Justice Department regulation that governs special counsels, views on the legitimacy of independent counsels and special counsels are of obvious concern right now. Please elaborate on your rationale for opposing this holding, to what extent you view Justice Scalia’s dissenting opinion as being the proper approach to adopt, and the conditions under which you view certain types of investigations of the executive branch as legitimate or inappropriate. If you view this authority as residing solely in Congress, do you view congressional inaction (potentially a result of unified government) as effectively leaving no oversight capacity over the president until the next presidential election?
 
21) Regarding the possibility of indicting a sitting president, you said, “Having seen first-hand how complex and difficult that job is, I believe it is vital that the President be able to focus on his never-ending tasks with as few distractions as possible. The country wants the President to be ‘one of us’ who bears the same responsibilities of citizenship that all share. But I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office.” What do you view – and what do you believe that prior cases justify – as being the proper way to balance ensuring that there is rule of law and transparency amid potential issues of corruption, and promoting efficiency in the executive branch? Are there executive branch behaviors or allegations to which you would not apply that broad view of promoting flexibility and efficiency for the president, and if so, what are they?

22) The notion that there would be limits on the ability for an independent counsel, or in this case a special counsel, to investigate the President of the United States, while instead relying on the political process for impeachment, seems to be problematic in that it is difficult to obtain evidence of wrongdoing to the point of impeachment absent an investigation. How do you reconcile your reluctance to support investigatory processes into the president's conduct and a reliance on Congress, which might be looking to findings otherwise identified through that investigatory process?

23) Several political questions are currently arising that have so far been untested in the Supreme Court, particularly with respect to Article II powers. To what sources do you consult in evaluating new issues for which there is not Supreme Court precedent or is little precedent? Some of President Trump's defenders have pointed to Article II not laying out particular limits on the pardon power, and have cited this as evidence that it is unlimited, though the Constitution does not explicate limits on many rights that the Court has addressed and on which the Court has imposed bounds. In the case of issues such as the pardon power (in which specific limits are not laid out but for which immense rule of law implications can arise), to what extent do you feel that it falls within the Supreme Court's duty to interpret limits on the scope of the presidential power given broad Article II language, versus letting the issue be resolved by the democratically-elected Congress?

24) With United States v. Lopez and United States v. Morrison, the Supreme Court signaled considerable narrowing of its interpretation of the reach of Congress's power to regulate interstate commerce, instead calling upon Congress to provide greater evidence to support its claim of aggregate impact on the interstate economy. With Gonzales v. Raich, the Supreme Court broadened its interpretation, viewing the Controlled Substances Act as being within Congress's power to regulate, though in National Federation of Independent Business v. Sebelius, Chief Justice Roberts signaled another limit on what the Court viewed as a proper use of Congress's enumerated Commerce Clause authority. What do you feel is the proper test for what falls under Commerce Clause authority -- looking to whether there must be a direct impact on the interstate economy, whether the effect can be indirect, whether it has an aggregate effect on the interstate economy, whether the activity itself must be economic -- and when multiple rules have been adopted by the Court over the years (even in recent years), how would you adjudicate among them to decipher the proper scope of Congress's Article I power?

25) In United States Telecom Association v. Federal Communications Commission, you wrote a dissent in which you held that the net neutrality rule was "one of the most consequential regulations ever issued," but you ultimately claimed that it was "unlawful and must be vacated" because Congress had not explicitly authorized the FCC this rule, despite the ample record of legislative debate about the subject of net neutrality, and because restricting internet service providers' actions intruded on their editorial discretion, which you viewed as in conflict with the First Amendment. How substantial a legislative record do you view as necessary to demonstrate a legislative intent in delegating to administrative agencies, and can you please discuss where you viewed the majority on your panel as having gotten things wrong? Moreover, how do you view it as your role as a judge to balance speech rights of consumers versus the speech rights of internet providers?

Judicial Decisionmaking (general)

26) Please walk through a couple of judicial decisions that you have written in which the law led you to reach a decision that was in conflict with your personal/political beliefs, and how you reconciled that. 

27) According to what criteria would you view a precedent as having been wrongly decided? How do you weigh factors such as the extent to which it has been reaffirmed, new evidence of the impact of the holding, how popular the holding is, how recent the holding was, etc?

28) Textualists tend to seek to restrict analysis to the text, giving full meaning to the words of the text, unless doing so would produce an absurd outcome. How would you define an absurd outcome, and how would you reach that conclusion?

29) One of the consequences of lifetime appointments with longer life spans is that people are on the Supreme Court for several decades, and can in some cases be quite out of step politically with public preferences (for example, approximately 2/3 of Americans favor the upholding of Roe). To what extent, if at all, do you feel it appropriate for Supreme Court justices to consider public preferences in their judicial decisionmaking?

​It is difficult if not impossible to square the current Congress’s recent attacks on health care with its responsibility to provide for the general welfare. Not the welfare of the wealthiest 1%, but the general welfare.
 
For a number of reasons, I have felt alienated by my current government. I am a woman, and like many other women across the country, have not taken kindly to the current Congress’s assaults on access to women’s health care – whether through Planned Parenthood or essential health benefits – sometimes without the input of any women. Women comprise 51% of the population, and any efforts to undermine our full inclusion in discussions about the care of our own bodies is as absurd as it is offensive. And my own research has shown the immense public health, and in turn economic impact that Planned Parenthood clinic access has for millions, driving down rates of STDs, teen pregnancy, and HIV. Gutting Planned Parenthood funding doesn’t make America great again, it makes teen pregnancy great again.  
 
I am a rape survivor, and like many survivors of assault was appalled by the Republican Party’s normalizing of then-candidate Trump’s boasting of sexual assault, and am even more appalled by their treatment of sexual assault and domestic violence as declinable preexisting conditions under the American Health Care Act (AHCA).
 
The AHCA, which passed on May 4 with a mere 217 votes, is the most recent, and by all accounts most egregious grievance. And as with issues pertaining to women’s health, I have dual responses – those of a frequent patient, and those of a scholar whose work increasingly addresses health care policy.
 
As a scholar, I trust data, and while the House failed to wait for a CBO report, we know from the prior iteration that at least 24 million will lose coverage, and that many will face higher health costs on account of their being older, poorer, sicker, or (gasp!) born with a vagina. We know that the estimated premium hikes for those with asthma are $4,000, for those with diabetes are $5,500, for pregnancy are $17,000 (ironic given Republicans’ constraints on contraception and abortion), and for cancer are a whopping $140,000.
 
Cancer does not discriminate between Democrats and Republicans. It afflicts the young and the old, the rich and the poor, the liberal and the conservative, and we owe it to ourselves as a nation to care for individuals in need. And from an economic standpoint, we know that contributing to the nation’s economy is hardly as feasible when people are not physically or emotionally well. We know that while people will be grandfathered in to plans, 85% of people stop working when they receive cancer treatment, resulting in gaps in coverage that would lead them painfully vulnerable under this plan.
 
Moreover, by undermining essential health benefits and protections for those with preexisting conditions, this includes mental health treatment, which is essential for treating both mental illness and substance abuse amid a rampant opioid epidemic. And we know that mental illness and poverty are all-too-commonly linked, such that the economic impact of restricting access to care in this domain is devastating. Moreover, full-time employees with depression miss nearly twice as many work days each year than do their non-depressed counterparts, a pattern that could potentially have consequences resulting in gaps in coverage and in turn, the effect of changes to preexisting condition provisions.
 
While I have never had cancer, I have struggled with chronic illness from early childhood onward. With chronic kidney infections and ear infections, scarce were the days I wasn’t on an antibiotic. Throughout my teens and early twenties, I struggled with severe anemia with a then-unknown cause (it was later determined to be an autoimmune gastrointestinal condition), which ultimately required iron infusions. My final year of college, I was hospitalized for severe electrolyte abnormalities ultimately diagnosed years later when I was in graduate school (it is a rare parathyroid condition). With several subsequent hospitalizations, as well as ongoing depression and PTSD, I have for now several years had several doctors overseeing my care, with my survival (not to mention thriving) contingent upon taking a job that has good medical benefits in close proximity to high-quality research hospitals.
 
It is both dismaying and offensive that Representative Mo Brooks views those with preexisting conditions as being at fault for their conditions, for not leading good lives. With multiple autoimmune conditions, and extensive childhood illness, there is little question that I would have been in the 27% well before I could be blamed for what I eat or drink. And even if it were lung cancer, don’t patients deserve some measure of compassion? Are we so soulless that we are unwilling to help people to heal?
 
If we measure a country not by how it treats its wealthiest 1%, but rather by how it treats its most vulnerable, the Republican Party has a lot of explaining to do.

Before proclaiming oneself to be “pro-life,” it is incumbent upon the person to answer the following question: For whose life?
 
I support the lives of women around the nation and their entitlement to bodily autonomy, because I know that we thrive and our families thrive when we can properly care for ourselves and our families.
 
I support the lives of survivors of sexual assault, for whom we should provide compassionate care rather than sentencing to motherhood on account of punitive legislation that values a 25-day old (or even two day-old) cluster of cells more so than we do a twenty-five year-old woman, especially when the pregnancy is the result of a violent crime.
 
I am for the lives of women who want to become mothers but whose health precludes a safe and healthy pregnancy and delivery, and thus who cannot carry their pregnancies to term.
 
I am for the lives of pregnant women seeking to obtain quality and affordable prenatal care, and who should not be denied access to health insurance because of the “preexisting condition” of having been pregnant.  And I am for the soon-to-be babies who will benefit from their mothers having received that medical care, and will suffer in that absence.
 
I am for the lives of the millions of women served by Planned Parenthood, which apart from abortion services delivers access to invaluable contraceptive care, STD testing, and cancer screenings, because early detection is imperative. Moreover, with over half of Planned Parenthood patients relying on Medicaid and still many others being low-income, few alternatives exist for receiving quality women’s health services.
 
I am for the lives of the millions of women around the globe who will suffer as a consequence of the Trump Administration’s reinstatement of the global gag rule and its adverse consequences for a range of health services extending well beyond the domain of abortion.
 
I am for the lives of the millions all across this country who depend on quality, affordable health care, whether for preventive care or for the treatment of preexisting conditions, which 27% of Americans have and thus would be denied health care coverage in the absence of the Affordable Care Act. I am for the lives of those who have been able to access essential care through Medicaid, without which they would be unable to receive treatment, potentially dying as a consequence.
 
I am for the lives of the refugees fleeing war-torn countries in hope of a better life, in a nation where they can thrive away from the devastation and violence of their native land. As a nation of immigrants who preach about the American dream, I believe that while we can be a land of opportunity, such opportunities are rarely obtained through Horatio Alger stories, but rather through a collective commitment to our remembering our nation’s history, and an investment in helping people to rise up and contribute to our society.
 
I am for the lives of those who have committed crimes and for whom many other first-world nations would deem a life sentence to be a worthy punishment, rather than the death penalty. And I am for the lives of those who could have been better protected with tighter regulations on the sales and distribution of guns. 
 
I am for the lives of all who drink the water and breathe the air on which we depend, and for which we require an Environmental Protection Agency to responsibly regulate rather than subject populations to dangerous and life-threatening toxins as we have seen in Flint, Michigan and beyond.
 
I am for life. But I am not simply for life until birth.
 
We could claim that the anti-abortion movement is motivated by hostility to abortion, but were that simply the case, they would support Planned Parenthood’s provision of contraception, which significantly obviates the need for the abortions that they abhor. Indeed, in 2010 alone, publicly funded family planning services helped women to prevent more than 2 million unintended pregnancies. We can claim that they are for the life of the unborn, but were that the case, they would invest in prenatal care to enable a safe and healthy pregnancy and delivery (services also, incidentally, offered at Planned Parenthood).
 
We could claim that the anti-abortion movement is about protecting women’s health in the conducting of this procedure. Were that the case, they would not push TRAP laws that serve to ultimately restrict access to one of the safest medical procedures when it is done early and legally. Importantly, restricting abortion access does more to restrict access to medically safe abortions than it does to restrict access to the procedure more generally.
 
We could claim that attacks on Planned Parenthood and the Affordable Care Act (“Obamacare”) are grounded in simply different visions of how best to deliver quality and affordable healthcare to the broadest swath of the American public. Were that true, Republicans in Congress would not have voted in favor of stripping away health insurance absent a viable replacement plan that does not reduce the amount of coverage or the number of individuals covered.
 
Conservatives have opposed health care access for women and for mothers-to-be, thus severely compromising any credibility that they might have in making such claims as to the motivations underlying their attacks on women’s bodies, and on health care access more generally.
 
It is not an attack on abortion. It is an attack on women, and an attack on the poor or otherwise vulnerable.
 
With many counties relying heavily– or in some cases, exclusively – on Planned Parenthood as the safety-net health center providing contraceptive care and other basic services, and with many such individuals having incomes unable to support more expensive care (or the resources to travel farther for those services), by restricting support for this organization we relegate women (especially poor women) to second-class citizenship even in this nation that so often preaches language of equality.
 
With 20 million gaining health insurance under the Affordable Care Act and many benefitting from Medicaid expansion, by stripping away the Act we – while purportedly being pro-life – deny millions the ability to obtain reasonably priced and quality medical care that they gained under President Obama – medical care that could be life saving.
 
Those insisting on the rights of a fertilized egg while failing to protect the health or life of millions of women and children, preaching of “regulatory relief” and “personal responsibility,” and insisting on the necessity of reducing health care access are not pro-life. They are only pro-birth.
 
We cannot simply be a nation that fights for the right to simply be born, but rather must fight for the right to thrive once we are brought into the world. As a nation of immigrants and one that purportedly champions equality and opportunity, it is time that we practice what we preach and halt the rollback care that saves lives and enhances quality of life.
 
If it is true that we measure a society by how it treats its most vulnerable members, those pushing for this legislation have a lot to which they must answer in advance of the 2018 and 2020 elections.

​Among the more common phrases of the 2016 presidential election campaign of President-Elect Donald Trump was “repeal and replace Obamacare.” What many were – and to a certain extent, still are – left wondering is, “with what?” The announcement of Representative Tom Price (GA-6) provides some, but by no means all, of the answers.
 
To his credit, over the course of his long-standing effort to repeal the Affordable Care Act, Mr. Price has offered numerous replacement plans and of unmatched detail, with his Empowering Patients First Act being 242 pages in length. However, absent from his legislation is adequate guarantees against loss of coverage from which over 20 million who gained insurance coverage under the Affordable Care Act and who those benefited its associated Medicaid expansion.
 
Those Who Are Younger but Sick May Suffer
 
In lieu of the marketplace plans, according to his Empowering Patients First Act, individuals would be offered tax credits on the basis of their age rather than their income, with those tax credits allotted toward the payment of health insurance in the private market. This is based largely on the fact that health insurance premiums are determined based on age, with older people expected to use more healthcare, and in turn requiring a more substantial tax credit to support payment for insurance. This, of course, makes important assumptions that those who are younger will also be healthier and thus require less in the way of coverage.
 
Yet there has been in recent years a documented rise in the prevalence of chronic illnesses among children in the United States, rising from 12.8% in 1994 to 26.6 in 2006, in particular with respect to such issues as asthma, obesity, and behavioral conditions such as Attention Deficit Hyperactivity Disorder (ADHD), and rates of many conditions have since risen further. The last decade has seen only greater attention to issues of childhood obesity and relatedly, type II diabetes, with the additional rises in teen depression. (It is worth noting also that mental health conditions often have an age-of-onset in teens and twenties, both age groups allotted the lowest tax credits but potentially in need of many services within this domain). This is not the only time that Mr. Price’s policies have gone against the interest of investing in children’s healthcare. Indeed, in 2007 he voted against the reauthorization of the Children’s Health Insurance Program (CHIP), which provides medical care to approximately 8 million low-income children. This Children’s Health Insurance Program and Medicaid combine to provide health coverage to approximately 1 in 5 Americans.
 
“Block Granting of Medicaid” = Medicaid Cuts
 
It is presently the case that the federal and state governments share the cost of Medicaid allocations, with 32 states adopting the Medicaid expansion under the Affordable Care Act. In addition to an ACA repeal doing away with its expansions of Medicaid and CHIP, Medicaid block grant proposals (which Price supports) have been estimated to reduce the extent of Medicaid spending, with Medicaid spending currently having a 7% growth rate compared to an estimated 3% when delivered via block grants. Indeed, in the 2017 House Budget, which Mr. Price oversaw as Budget Chair, the Congressional Budget Office estimated that the block grants would reduce Medicaid spending by $1 trillion over the course of a decade.
 
While the role of government in program delivery is an issue over which well-reasoned partisans disagree, it is important to note the medical consequences of these program outcomes, particularly in light of Mr. Price’s medical expertise. But The Medicaid programs that Price seeks to restrict not only are more cost-effective in the long run to administer – with the Robert Wood Johnson Foundation estimating that Medicaid coverage expansion reduced hospitals’ uncompensated care by 21 percent, with states saving in costs of caring for the uninsured – but have had demonstrably positive health outcomes for vulnerable populations. For example:
 
A Health Affairs study revealed that in the aftermath of Wisconsin’s 2009 creation of a new public insurance program for low-income adults, not only did outpatient medical appointments increase 29% – indicating a greater access to care among this population – but preventable hospitalizations fell 48%. Thus, the introduction of this government program had a cost-saving outcome of shifting care from hospitalization to outpatient treatment, in addition to expanding overall care to those in need.
 
The Kaiser Family Foundation reported that Medicaid expansion under the Affordable Care Act not only reduced the uninsured rates of those states, but in many (though not all) cases improved access to care and utilization of some physical health as well as behavioral health services.
 
Moreover, the Urban Institute’s 2012 report on outcomes related to Medicaid revealed striking differences between the Medicaid and the uninsured patient populations, with 89% of Medicaid recipients having had an outpatient doctor’s visit in the last 12 months compared with 53% among those without insurance; 8% of Medicaid recipients delaying medical care due to cost, compared with 34% of the uninsured delaying care due to cost; and 27% of Medicaid recipients having unmet healthcare needs due to cost, compared with 56% among the uninsured. There are few if any policies in which the human consequences of policy delivery are so bold. Indeed, it can be difficult to reconcile restricting this access to medical care with the principle of “do no harm,” a central tenet of the Hippocratic Oath, according to which Mr. Price presumably operated as a practicing physician.
 
Continuing Protection of Those with Pre-Existing Conditions Won’t Be Easy (Feasible)
 
In the aftermath of his meeting with President Obama, President-Elect Trump indicated some interest in preserving some of the more favorable aspects of the Affordable Care Act – namely, ensuring that people not be denied insurance coverage due to preexisting conditions, as well as the ability for one to stay on their parents’ insurance plan until age 26. A challenge in doing this, however, is the reality that insurers’ ability to guarantee coverage regardless of preexisting conditions came in no small part from the ACA’s mandate that all individuals enroll in at least some baseline level of coverage, the effect of which was to bring healthy patients into the risk pool. Absent the mandate, of which the Republican Party has been vocally critical, and thus with a sicker risk pool, much of the Act becomes infeasible.
 
Within Mr. Price’s Empowering Patients First Act, there is minimal discussion of pre-existing conditions, and while it provides that insurers will not deny on those grounds, it does not guard against insurers charging patients with pre-existing conditions higher rates if they do not maintain continuous coverage for at least 18 months. Thus, should should one not have a lapse in coverage, one would not be adversely affected in this regard, but should one be rendered unemployed for some period of time and unable to afford coverage in between jobs (e.g., through COBRA, which is very costly), they would be rendered vulnerable under the Empowering Patients First Act if they have a history of medical conditions.
 
It is difficult to overstate the magnitude of this impact for those who lack the income to support potentially dramatically increased healthcare premiums. After all, the Centers for Disease Control and Prevention estimated in 2012 that about half of the American population (117 million) had at least one chronic health condition, with one in four adults having two or more chronic health conditions, with seven of the top ten causes of death being chronic diseases.
 
Consider the magnitude for only the 20 million who newly obtained insurance through the Affordable Care Act. In expectation, 10 million would be subjected to higher (potentially unfeasibly higher) healthcare premiums with Mr. Price’s replacement option. Indeed, the Government Accountability Office investigated numerous studies of pre-exiting conditions and found ranges of estimates ranging from 20 percent to 66 percent, neither of which is a trivial share of American adults. And should an individual who is deemed to be “high risk” suffer a lapse in coverage, such as a period of time between jobs, the Empowering Patients First Act would allow insurers to charge the individual up to 150 percent of their standard premium. Amid high costs of prescription drugs and other treatments for their conditions, such a marked premium increase could in some cases be devastating.
 
The Mental Health Care Expansion of the ACA will Face Setbacks
 
Within the context of pre-existing conditions, it is worth emphasizing also that the CDC estimate above focused on behavioral and not mental health, the diagnosis of which would also constitute a pre-existing condition. Yet it is estimated that 16.1 million Americans had a major depressive episode in the past year, a rate that does not account for milder forms of depression, or other behavioral health conditions such as anxiety or psychotic disorders. Indeed, it has been estimated that 1 in 5 American adults will struggle with mental illness in a given year. Mental health – for reasons pertaining to both access and stigma – remains woefully undertreated, though the Affordable Care Act provided a marked expansion in access to care, requiring that most individual and small group plans and all marketplace plans provide mental health benefits. Price’s repeal of the Affordable Care Act both leaves the state of mental health care very much in question, and renders particularly vulnerable those who have capitalized on the ACA’s access to mental health coverage and in doing so, accumulated preexisting conditions. 
 
Consequences of Price’s Opposition to Reproductive Rights
 
Within the domain of women’s health, Mr. Price is far from the first Republican to be outspokenly opposed to federal funding of Planned Parenthood given a staunchly pro-life political standpoint. Indeed, Republican majorities and other social conservatives have coalesced strongly around the issue. However, it is worth emphasizing a couple of points that make Mr. Price’s case unique. First, he did not simply vote for the legislation to defund Planned Parenthood (HR 3134 in 2015), but co-sponsored it. But Mr. Price is also a physician, and thus – while an orthopedic surgeon and not an OB-GYN – possesses the medical expertise to balance against his partisan preferences.
 
Abortion introduces many political and religious conflicts, with many holding deep personal religious convictions as to when life begins. Mr. Price has signed on to the more extreme elements of this domain, cosponsoring his first term in Congress the Right to Life Act, which afforded 14th Amendment personhood to a fertilized egg, without providing exceptions such as rape, incest, or the health of the woman. But even beyond the realm of abortion, his efforts to defund Planned Parenthood have broader public health ramifications given the wealth of other services that they provide, such as contraception, STD testing, cancer screenings, and prenatal care. Indeed, increasing access to these services helps to curb rates of teen childbearing and sexually transmitted diseases, both of which are highly costly to American taxpayers, both in treatment and in costs associated with teen childbearing such as welfare and increased chance of incarceration.
 
To be sure, women can in theory obtain contraceptive care from many sources, particularly in more urban regions in which there are broader ranges of services at one’s fingertips. Yet nonpartisan analysis revealed that in two-thirds of the 491 counties surveyed, Planned Parenthood clinics served at least half of the women who obtained contraceptive care from safety-net health centers, with Planned Parenthood being the sole provider in one fifth of those counties. And unsurprisingly, increased contraceptive use has been the main cause of observed declines in teen pregnancy in recent decades. Thus, while tabling the more controversial issue of abortion, with Planned Parenthood serving as the sole provider of contraception for many women, the impact on women’s health and in turn, the American healthcare system and economy, could potentially be dramatic absent the introduction of legislation to provide comparable women’s health services absent the provision of abortions. Such an addition to his healthcare agenda would be a welcome form of moderation of his efforts to scale back access to women’s healthcare, though such legislation has not yet been crafted.  
 
Which Patients Are Empowered? (Probably Wealthy and Healthy)
 
While Mr. Price may seek to respond to some physicians’ frustrations with respect to the arduousness of the American healthcare system’s complex reimbursement procedures and associated administrative burdens, his challenges to much of the healthcare status quo has sparked outrage among many in the medical community. In the aftermath of the American Medical Association’s endorsement of Mr. Price, an open letter by physicians was drafted to challenge the AMA’s support of Mr. Price, and the letter has since received over 5,000 signatories in the American physician community.
 
Mr. Price’s vision for American healthcare is one that is market-based and restricts the extent of government involvement. Such an approach is by all means consistent with the preferences of those within his party. However, the empirical evidence in favor of the programs that he seeks to scale back or eliminate altogether, and his medical expertise having treated patients who may have benefitted from receiving these health programs, should temper the vigilance with which he is approaching the overhaul of the American healthcare system. Such tempering is not yet apparent. How Senate Democrats and moderate Republicans – perhaps those in states that accepted and benefited from Medicaid expansion –  respond to Price in the looming confirmation battle may provide some answers to who is empowered first under Mr. Price’s leadership. 

Note: An abridged version of this piece appeared in The Conversation on December 8. 

Dear Congressman Price,

If you and your family are healthy, I truly am happy for you.

But if you would be willing to indulge me, I’d like to discuss with you just a few concerns from the perspective of someone who has not had such luck.

When I was a young child, I was constantly sick and shuffling between doctors. Between chronic ear infections and chronic kidney infections, I was near constantly on Amoxicillin and Septra. Thankfully, my mother had extraordinary medical benefits at the nonprofit organization at which she worked, allowing for the out-of-pocket costs to be relatively minimal. That is not true of many Americans, which is difficult enough when it is one’s own health, and devastating when it is the health of one’s child. Sadly, your health plan — and indeed, the health plans of all members of your party — have been estimated to reduce coverage and thus access to care for those who are cost-conscious, making these decisions of whether one can afford to go to the doctor all too heart-wrenching.

My final year of college, while spending a semester in Washington, DC, I fell very ill and had to go to the emergency room for what ultimately was a three-day hospital admission for a rare condition that would not become diagnosed for years later. My electrolytes were critically abnormal and no one knew why. Unfortunately, my health insurance was an HMO whose networks were broader in the San Francisco Bay Area, where I had been living and going to college, than in Washington, DC, where I was studying for the semester. Every endocrinologist in the hospital at which I was admitted was out-of-network, and rational or not, my financial concerns exceeded my medical concerns. Absent in-network specialists with whom to consult, I was discharged when no longer critical, though without a diagnosis let alone a treatment plan.

As a graduate student at Columbia University, I benefited from outstanding health insurance with which to benefit from my proximity to some of the best medical care in the nation and indeed the world. It was there that I made my long-awaited specialist appointments, and obtained my long-awaited diagnoses, all the while aggregating pre-existing conditions that would constitute grounds for insurance denials in the absence of the Affordable Care Act and in the event of a loss of university-provided insurance. And were I relying on your plan rather than coverage supplied by the university, with your refundable tax credits allotted based on age rather than income, I would have obtained only minimal coverage with which to treat these conditions despite my earning merely $28,000 per year in New York City at the time.

Following a violent assault my second year of graduate school, I fell into a deep depression and for the first time in my life, I began to spend time every week “on the couch,” in addition to having some combination of adventure and misadventure with the world of psychopharmacology. Such resources would surely have been unattainable absent insurance coverage given my limited financial means as a graduate student. With the passage of the Affordable Care Act, these highly valuable mental health benefits became requirements of far more individual and small group insurance plans, as well as all marketplace insurance plans. People around the nation still struggle to find in-network providers, with psychiatrists among the physicians least likely to accept insurance. This struggle is indicative of a need for an expansion rather than reduction of mental health benefits for our nation.And moreover, had this assault rendered me pregnant, which thankfully it did not, under the Right to Life legislation that you cosponsored your first term in the House of Representatives, you would have sentenced me to motherhood because I experienced, rather than perpetrated, a crime. That is not medicine. That is cruelty.

As a postdoctoral fellow at Washington University in St. Louis, I fell seriously ill due to a medication problem the details of which I will not go into but which left me severely hypotensive and bradychardic, among other issues. I was taken to the hospital by an ambulance that I did not call (and the insurance coverage of which has not yet been resolved), and was in the hospital for seven days, the first two of them in the intensive care unit. While all of the medical care was without regard to insurance but rather what was viewed as medical necessity — from CPR and intubation to head and abdominal CTs to EKGs to many rounds of IV medications — the costs aggregating well beyond $30,000 would have induced in me a heart attack had I not had the insurance to account for all but $300 of the expenditures. To be sure, I aggregated that week a medical history sufficient to preclude insurance coverage absent employment and the Affordable Care Act’s safeguards. Had I lacked insurance with which to treat these conditions and been conscious at the time, I doubtless would have resisted going to the hospital, a financial anxiety that would have produced life-threatening consequences.

Between the conclusion of my position at Washington University in St. Louis on June 30 and the commencement of my position at Yale University on August 1, I lacked health insurance. Having been in and out of the hospital, I was reluctant to run the risk of being vulnerable in this regard. I was lucky to have the credit limit to permit my enrollment in the (exceedingly expensive) COBRA insurance to extend my coverage. Under most circumstances in my life, such an investment would not have been financially feasible, and for many Americans, this would not be feasible (consider, for example, that my monthly contribution toward my health premium had been about $90, while the COBRA premium was about $700).

Ultimately, I was very lucky to have made this investment, because on July 9th (not an optimal month for a hospitalization…), I became sick yet again, went to the emergency room, and consistent with my dread upon entering those doors, I was admitted for three days, until my electrolytes and EKG became less severely abnormal. For all of the treatment — from the emergency room, to the intravenous medications to the EKGs to the board in a semi-private room — with my insurance I faced (admittedly in addition to the excessive COBRA premium) a total hospital copay of $300. Had I lacked that coverage, the total amount of the hospitalization was $18,700 (though admittedly were I absent insurance, I would not have been wiling to go to the emergency room in the first place, but that could have carried potentially more egregious health complications such as greater cardiac effects of the hypokalemia and hypocalcemia, potentially yielding even greater medical costs down the line). And had I been unable to afford COBRA and had less guarantee about future health insurance, thus instead seeking to apply for individual health insurance, absent the ACA guards against denials for preexisting conditions (of which I have many), I would have been unable to secure coverage. And even with the coverage that I have had over the years, I still have thousands in medical debt, which remains a consistent stressor.

From thyroid to gastrointestinal to hematological problems (not to mention a predisposition to depression that was activated by a traumatic event), I live every day knowing that absent employment with healthcare benefits (and in a region of the country with access to good care), I am at risk. I live knowing this because your plan would eliminate safeguards against loss of insurance coverage due to the preexisting conditions that make individuals vulnerable and thus all the more deserving of care, yet too often denied it. You may say that your plan would prevent insurers from denying coverage on these grounds, but you do not preclude insurers from charging higher rates. And until you have had to wait until your paycheck clears to purchase groceries and prescriptions, or have put off needed treatment because it would compromise your ability to pay for other necessities, you cannot make a legitimate claim to offer Americans insurance while enabling the charging of exorbitant fees for it.

Healthcare is meant to protect the vulnerable. I believe that the United States’ intertwining of medicine and business is deleterious to the well-being of its citizenry. You disagree and are entitled to do so. But as a physician who as a resident at Emory and as an attending at Grady Memorial, I know that you would have seen patients whose medical care — whether Medicare, Medicaid, or private insurance — enabled them to obtain medical services that would otherwise be foreclosed, with Medicaid and CHIP (whose reauthorization you voted against in 2007) providing health coverage to 1 in 5 Americans. I also know that you treated patients whose conditions would preclude their being covered at anything but exorbitant rates under your insurance plan, and who might well have suffered as a result. Such patients — stripped of many medical benefits and the adequate subsidies with which to obtain them — would be, if anything, disempowered.

While often called “Obamacare,” we too often ignore the full title of the legislation that you attack so virulently: the Patient Protection and Affordable Care Act. It is true that for too many Americans, affordability remains a goal that is yet to be achieved. While 20 million more Americans have health insurance, bringing the insured rate to a historic low, it is likewise true that millions continue to be underinsured, leaving many healthcare services out of reach. But these problems point to a need for the Act’s expansion, not its rescission. Because while we talk so often of the Affordable Care Act, we must also remember the core concept in the Act’s title: patient protection.

Decent and intelligent people differ over the proper role of government and its relationship to private markets, but I do not believe that it protects patients to strip them of the legislation that expanded coverage to 20 million more Americans. I do not believe that it protects patients to strip away requirements that marketplace and most insurance and small group plans provide mental health benefits. I do not believe it protects patients to roll back the Medicaid expansion that delivered expanded access to preventive as well as live-saving care for millions of low-income Americans. I do not believe that it protects patients to allow insurers to charge them exorbitant rates as punishment for having medical histories.

Could you look your former patients in the eye and tell them that you believe that these outcomes are the path to healthcare’s greatness?

Thank you for listening.
​
Best,
Miranda Yaver

After an election dominated by rhetoric and anti-establishment sentiment more so than policy specifics, the upset of November 8th left open many policy questions as to the course on which President-Elect Trump would steer the nation. More questions still were raised when it was suggested that some aspects of the Affordable Care Act might, indeed, be salvaged. Such hopes have recently been dashed.

Among President-Elect Donald Trump’s recent cabinet announcements is that of Health and Human Services, for which he has chosen staunch ACA and reproductive choice opponent Representative Tom Price. While qualified for the position as a long-time orthopedic surgeon and member of Congress, much of his political record are deeply troubling in looking to the future of the American healthcare system.

To a long-time observer of American politics, it comes as little surprise that there is ample politics in policy. Yet one domain in which this can be troubling is that of healthcare. After all, cancer, heart disease, and diabetes do not discriminate among Democrats and Republicans. Physicians treat patients of different ideologies and socioeconomic status, and following the Hippocratic Oath they look after the safety and wellbeing of those who are in their care.

To be sure, physicians have their own policy and partisan preferences, though typically they are not (or should not be) on display in an exam room. Indeed, there are are matters of healthcare that may well be in contest with one’s own partisan politics, such as the virtues of Medicaid expansion under the ACA or access to women’s health clinics that, among many other services such as cancer screenings and family planning services, do provide abortions. While scaling back the ACA and restricting access to clinics such as Planned Parenthood is a popular talking point for members of the Republican Party, many physicians see the benefit that their patients reap from obtaining insurance regardless of preexisting conditions and from obtaining affordable contraception.

Yet Mr. Price, placing his partisan politics above medical judgments in many prominent respects, does not recognize these benefits. Rather, he has been among the fiercest opponents.

Indeed, in 2015 he co-sponsored HR 3134, the Defund Planned Parenthood Act of 2015. He has additionally voted against Infant Mortality Pilot Programs (2010), Funding to Combat AIDS, Malaria, and Tuberculosis (2008); Children’s Health Insurance Reauthorization Act of 2007, and he has voted in favor of repeals of provisions of the ACA.

As an orthopedic surgeon whose residency was completed at Emory University and after which directed an orthopedic division of a large hospital in Atlanta, Mr. Price likely saw patients of a range of ages, from younger athletes to more elderly patients whose injuries associated with older age required treatment. And having provided these medical services at major hospitals accepting both Medicare and Medicaid, rather than serving wealthy private-pay clients who would seek medical attention without regard to insurance status, Mr. Price doubtless saw the benefits that his patients reaped from having access through these government programs to the care that aided their healing and mobility. These programs accepted by the hospitals at which he provided care, and from which his patients benefited, are the very programs that he seeks to privatize, thus stripping federal protection of these core medical benefits for seniors and the poor.

Mr. Price may have pledged to do no harm as a practicing physician, but as a legislator and presumptive Secretary of Health and Human Services, it is difficult to see as anything but deeply harmful his assault on programs that care for the physical and mental well-being of some of the most vulnerable subsets of the population.

While Mr. Price and his family currently live a life of much privilege, as a father no doubt Mr. Price understands the fear that a parent would have should their child fall ill when medical treatment is difficult to come by. And as a resident and then attending at major hospitals, no doubt Mr. Price treated families experiencing just those concerns, which the Children’s Health Insurance Program (CHIP) works to address by providing health care coverage to over 8 million low-income children. And yet despite knowing — and as a physician, seeing up close — the importance of delivering quality, affordable healthcare to children so that they may go on to thrive in their adulthood, Mr. Price voted against its reauthorization.

Among the most deeply partisan issues of the recent election cycle was the expansion versus repeal of the ACA which — for all its faults with respect to continued underinsurance of millions — expanded the number of insured Americans by approximately twenty million. As someone who practiced as an orthopedist for over twenty years, Mr. Price should know the impact that insurance coverage has on one’s willingness to pursue treatment for their injuries, and the sometimes dire consequences of going untreated due to lack of insurance. Despite this, he has sought to repeal the Act, challenging the “stifling and oppressive federal government,” with the GOP replacement plans all estimated to reduce the number of insured Americans and the extent to which they are covered. If there were any doubt as to Mr. Trump’s seriousness about dismantling the ACA, those doubts have now been vanquished.

As both a politician engaging in diverse matters of public policy, and as a physician who had many patients with diverse stories, Mr. Price no doubt understands the important role that mental health plays in physical health as well as worker productivity and potential proclivity toward substance use and abuse. Indeed, Mr. Price’s own state of Georgia ranks 47th out of 51 in access to mental health care according to Mental Health America. This carries physical, emotional, and economic consequences, with major depressive disorder costing an estimated $210.5 billion, raising the prevalence of other medical conditions that require treatment (which carries additional expenses and stressors), and in extreme cases, suicide.

The legislation of which Mr. Price has been a fierce critic, the Affordable Care Act, created one of the largest expansions of mental health and substance abuse coverage in a generation. Among its requirements were that all marketplace insurance plans, and most individual and small employer health insurance plans, provide coverage for mental health and substance use treatment services. While some attention has been paid to addressing ways to continue to protect those with pre-existing conditions, Mr. Price and his Republican colleagues have yet to provide answers as to the future of mental health treatment in the absence of the ACA, whose progress has not yet had the chance to be fully realized. Leaving these populations of individuals, already vulnerable, without an affordable means to address mental health or substance use concerns, would be deleterious to their physical health, and well beyond what many physicians would deem permissible.

Moreover, while opposition to abortion access is a position commonly held among those on the right, the Planned Parenthood clinics that Mr. Price has sought to defund provide a range of affordable family planning services that contribute to the physical and economic well-being of the nation. The National Campaign to Prevent Teen and Unplanned Pregnancy estimated that the cost to taxpayers associated with teen childbearing was $9.4 billion in 2010 alone. As Figure 1 illustrates, greater access to Planned Parenthood clinics is associated with marked declines in teen childbearing, with my own research showing additional effects of curbing sexually transmitted diseases and HIV.
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​Similarly, Figure 2 shows that greater access to women’s health clinics is associated with lower rates of sexually transmitted disease diagnoses, the medical treatment of which aggregated to an estimated $16 billion in 2010. These issues will never disappear, but they can be minimized by maximizing access to these medical services that Mr. Price has shown himself committed to eliminate. The Vice President-Elect Mike Pence is himself, though vehemently pro-life, well-acquainted with the pitfalls of aggressively curbing access to Planned Parenthood clinics, with his slashing of funding to the organization in Indiana sparking an HIV outbreak in Scott County, which in the absence of Planned Parenthood no longer had an HIV testing center.

The outcomes of fewer teen births and fewer STD diagnoses are surely beneficial from both medical and economic standpoints, and yet even as a physician this information has yet to sway Mr. Price in his vehemently supporting the organization’s defunding and even going so far as to dispute that any women struggle to afford birth control. He even went so far as to cosponsor in his first year as a congressman HR 552: Right to Life Act, which was legislation to define personhood in the 14th Amendment of the Constitution as beginning at the point of fertilization, without any exceptions listed with regard to rape, incest, or the health of the woman. While an orthopedist and not an obstetrician, as a physician Mr. Price surely had some female patients, and as their physician it was incumbent upon him to provide them with the best care. That care does not include contributing toward their being sentenced to motherhood because they were subjected to a violent crime, nor should it include forcing a woman into a life-changing decision that would carry a high risk of compromising her health and safety.

One cannot expect a cabinet appointee to be devoid of partisan preferences. Indeed, partisan political experience often contributes heavily toward their nominations. And unlike the selection of Senator Sessions for Attorney General, despite his staunch conservatism even relative to his own party (see Figure 3), Mr. Price does not present existential threats to democratic institutions, but rather strident challenges to policy issues that too often are rendered partisan.
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However, the consequences of Mr. Price consistently ignoring the empirical evidence in favor widely-used healthcare programs — even despite his medical expertise — have both vast economic and human consequences that will be all the graver upon his presumptive confirmation as Secretary.

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Note: An abridged version of this piece appeared in The Guardian on November 30, 2016.

​On November 8, Americans had an opportunity.
 
We had an opportunity to reject the cynicism and unbridled fear on which Mr. Trump’s campaign was based.
 
We had an opportunity to resoundingly declare that a man whose campaign is about building walls rather than bridges is un-American, and that banning individuals on the basis of their religious affiliation defies the basic principles for which we stand.
 
We had an opportunity to defeat the most dangerous demagogue to receive a major party nomination in modern United States history.
 
We had an opportunity to take a much-needed stand for the higher principles of justice, fairness, and equality, the fundamental tenets of the Constitution of the United States, and the very notion that America does better when we work to lift one another up from hardship and expand opportunity.
 
We had an opportunity to affirm that our self-worth is not determined by the color of our skin, our gender, to which god we pray, or who we love. 
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We had an opportunity to provide an example for the women and young girls of our nation that with enough hard work and determination, they can be anything to which they set their minds, even President of the United States.
 
We had an opportunity to elect the most deeply and broadly qualified person to receive a major party nomination, and to affirm the seemingly basic principle that competence is an important dimension of governance.
 
We had an opportunity to move America forward on healthcare, climate change, reproductive rights, the economy, and the Supreme Court.
 
We squandered this opportunity, and in doing so, we failed ourselves.  
 
Shame on us. 

In the immediate aftermath of the release of the now infamous tape in which Mr. Trump bragged about celebrity status giving him license to grab women by their genitals and do what he wanted with them -- in many ways just confirming other accounts of his objectification of women but perhaps more striking when seeing the video footage itself -- author Kelly Oxford sent out a tweet that read simply: "Women: tweet me your first assaults," and she included hers.  

Within hours, she was receiving 50 responses per minute. By Monday, she had received 27 million. (Based on when I tweeted mine, it was probably around the 15 million mark). 

If 27 million tweets of FIRST assaults -- and this is just people on Twitter who are aware of this -- doesn't hit home the magnitude of those who would be personally and deeply moved by the callousness of the Trump tape, I don't know what will. And this is in addition to those men who reminded us that they have wives and daughters, thus bolstering their explanation of why they would care about predatory behavior that violates the law and is aimed at 51% of the population (not to mention a subset of the population that votes in large numbers).

The subject of Mr. Trump's mental health has been discussed, admittedly in violation of the "Goldwater Rule." Therapists more recently have begun to weigh in on the mental health impacts of this election -- the negativity, the cynicism, the blame, the hostility, the fear. Now in the mix is the aspect of triggering trauma histories made sadly more salient by Mr. Trump's casual admission of being a feckless thug with no respect for women, and perhaps more sadly the willingness of his surrogates Rudy Giuliani, Jeff Sessions, and Scott Baio to come to his defense, calling it "locker room talk" that was not assault, and Baio even going to far as to fell Fox News viewers to "grow up and get over it." To hear the former mayor of New York City not only dismiss the language as locker room talk but to joke about it is horrifying even in this election, especially given conservatives' purported support for family values. (For the record, professional athletes in the NFL ("we never had anyone say anything as foul and demeaning as you did on that tape"), NBA, and beyond have done their part to show that advocacy of sexual assault is not a feature in their locker rooms, nor would it hypothetically be accepted). Of course, there is irony in the fact that the candidate who joked about sexual assault, when asked by his party to step down as the Republican nominee, insisted "no means no." A little late on that lesson, Donald.

These have not been comfortable subjects for anyone. No sane person enjoys watching this tape. But having a history of sexual trauma -- which applies to far too many – makes it all the more difficult to hear about sexual predation left, right, and center in the news and social media, whether triggering actual flashbacks or otherwise unpleasant memories, potentially stirring depressive symptoms (which Secretary Clinton’s healthcare plan will at least treat comprehensively). Whether visible outwardly or not, sexual assault's impact on the person -- as well as those around them -- is lasting, leading to higher rates of depression, PTSD, substance abuse, and even suicide. The news provides a constant reminder of something that strikes a nerve with respect to an issue that may still feel acute. For those who have been private about their experiences, there is the question of whether to share one's story -- as in the Twitter collection, or among acquaintances -- to reflect on recent events in a productive dialogue about the proper boundaries of sexual conduct, or to maintain privacy (and the emotions that that brings up). And aptly, the organization End Rape on Campus tweeted on Friday upon the release of the tape, the message, "To those affected by the damaging rhetoric issued by Mr. Trump in the video released today -- we stand with you, we hear you, we support you." 

There is the legitimate fear of physical and emotional harm caused by the normalization of "locker room talk" (or worse, acting on it as Trump has been alleged to have) akin to the misguided notion that "boys will be boys" in the context of date rape. When people accept misbehavior -- or worse, assault -- in public discourse and behavior, we facilitate its perpetuation and dampen the vigilance with which we assert our rights as human beings deserving of respect. Please, let us not conflate how men talk in locker rooms with how some bad men may talk in locker rooms. 

They (we) then got to see sexual assault allegations made a spectacle of with a photo op leading into the second presidential debate from the same person dismissing his own taped remarks as locker room banter (note: without evidence of actually spending time in locker rooms himself) and as part of a cheap ploy transparently aimed at rattling his opponent (who actually does argue that women's rights are human rights). 

​Hearing what may have sounded like a familiar experience of unwanted contact (even rape) simply excused -- and in a presidential candidate, no less -- seemingly mocks and disregards the immense emotional impact that it has on the person, whose control was taken from them in a deeply personal way. Experiencing such events at all is more than one should have to endure. Having to defend their status as assaults is abhorrent. And worst of all, it facilitates far too many future opportunities to relive these sorts of experiences when we normalize in the public discourse sexist language and patently illegal behavior amid a marked number of sexual assaults on college campus and beyond. 
 
And it has already happened, with a man at Mr. Trump’s recent rally photographed wearing a shirt reading “She’s a Cunt, Vote for Trump.” Apart from the bad effort at rhyming, the negativity toward women – and the acceptance of transparent misogyny in the public sphere – can have distressingly boundless consequences. The issue is not political correctness for the sake of political correctness. It is moral decency that transcends party identification, and certainly transcends the aesthetics of one’s body, on which Mr. Trump appears to be creepily fixated.
​
No one is perfect, despite Mr. Trump's assertion that he himself is perfect and devoid of faults. Presidents are human, and humans are allowed to make mistakes. But we are also allowed to hold them to higher standards than we do ordinary Americans because they are meant to serve as positive examples for our citizenry and for other nations of the world. (Though to be sure, this behavior would not be accepted in our neighbors either). That we have not only shifted in our campaign season the discussion to an issue that is deeply painful for many to discuss -- with many dismissing the impact and legitimacy of such language and actions -- but creating a culture of violence against women in which we are all the more vulnerable to its greater perpetuation and acceptance.

We deserve better, as women and more importantly, as human beings. We need to prove it on November 8.  

In Planned Parenthood v. Casey (1992), the Supreme Court evaluated in light of Roe v. Wade (1973) the constitutionality of a Pennsylvania law mandating a 24-waiting period prior to obtaining abortions, and in so doing established a new standard according to which the Court determined whether the purpose of the given restriction was to impose an "undue burden" on the woman seeking the abortion. An undue burden was construed as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." This landmark holding on abortion policy paved the way toward state innovation in abortion policy to test the reach of this "undue burden" provision that the Court's 5-4 majority laid out. 

In the years since, states have answered the call. For example, 43 states prohibit abortions after a specified point of the pregnancy, typically fetus viability; 19 states prohibit late-term ("partial birth") abortions; 32 states and the District of Columbia prohibit the use of state funds except where federal funds are available (to protect the life of the woman or in the case of rape or incest); 17 states mandate that women receive counseling prior to obtaining an abortion; 27 states mandate that women wait a specified amount of time between receiving counseling and receiving the abortion (typically 24 hours but as many as 72); and 38 states require some parental involvement in obtaining an abortion for a minor, with 25 of those states requiring parental consent and 13 states requiring notification but not consent of the parent.

Whole Woman's Health v. Hellerstedt (2016), decided in a surprise 5-3 decision with Justice Kennedy (also in the majority in Planned Parenthood v. Casey) joining the liberal coalition,  centered on the Texas State Legislature's HB 2, passed in 2013 and signed into law by then-Governor Rick Perry. HB 2 out a number of provisions pertaining to abortions under the guise of protecting the health of the women in question but with the ultimate effect of precluding providers from meeting standards necessary to lawfully provide abortion access to those in need. Among those provisions were that physicians performing abortions have admitting privileges at a hospital within 30 miles of where the abortion was being performed, and that the abortion facility meet the requirements of ambulatory surgical centers despite the fact that abortions are highly safe outpatient procedures (indeed, evaluating the risks of childbirth versus abortions, compared with a mortality rate of 8.8 deaths per 100,000 live births, there is a mortality rate of 0.6 deaths per 100,000 abortions). While nominally still allowing abortion access, the legislation was deemed to have the effect of all but eliminating abortion facilities in the State of Texas. 

To impose marked restraints on abortion access is not unheard of. The State of Missouri has only 1 abortion provider in the entire state, and 89% of counties in the United States have no abortion provider. States are not always overt in their means of excluding abortion access, rather imposing requirements in the name of "safety," with the notion that satisfying the requirements of being a surgical suite will be positively correlated with the health outcomes of the abortions performed there. (Remember, even absent this requirement in most states, the mortality rate is still extraordinarily low). While meeting high standards of medical care is all well and good, the types of regulations that the legislation targets involve such issues as the width of corridors and the size of procedure rooms, neither criteria of which are demonstrably associated with better patient outcomes. (After all, when in the first ten weeks of pregnancy, it can be carried out without any procedure but rather with the so-called "abortion pill," or Mifepristone (RU 486)).The marked implications of such legislation has garnered it the title "clinic shutdown" law, and in the aftermath of the legislation's passage, while Texas previously had approximately forty abortion clinics, approximately half had closed due to the requirement of admitting privileges, and it was estimated that only eight or nine would remain if enforcing provisions requiring that the clinics meet the requirements of surgical centers. 

In his majority opinion, Justice Breyer noted the absence of scientific evidence for the necessity of HB 2, writing that "there was no significant health-related problem that the new law helped to cure." The majority cites a number of studies brought to the attention of the Court, noting that among first trimester abortion complications, the highest rate of major complications was less than 0.25%, and that even in the rarer second trimester abortion, the rate of major complication was still less than 0.5%, and that complication only required hospital admission 0.23% of the time and not necessarily on the day of the abortion (making admitting privileges far from a necessity, particularly given that patients will not be turned away from an emergency room). Thus, the majority notes, "We have found nothing in Texas’ record evidence that shows that, compared to prior law (which required a 'working arrangement' with a doctor with admitting privileges), the new law advanced Texas’ legitimate interest in protecting women’s health. We add that, when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case."

While not providing evidence in support of the health advantages of this different standard of care, the Court notes that the admitting privileges requirement appeared to have had a marked impact on abortion facility closures, with the number of women of reproductive age living 150 miles or farther from an abortion provider going from 86,000 to 400,000, and the additional problems of longer waiting times, fewer doctors, and increased crowding. While increasing the driving distance is not alone enough to support a claim of undue burden, the Court said, the increases constitute an "additional burden" that combine with the abortion clinic closures and the virtually absent proven health benefit to support the District Court's finding that HB 2 constituted an "undue burden" in violation of Casey.

A number of states have so-called TRAP (targeted regulation of abortion providers) laws, which the Court's recent holding will implicate. Not unlike Casey, while affirming the right to abortion, the Court here still did not hold that any restriction on abortion access constitutes an undue burden. Indeed, effecting a change that would have the result of some clinic closures might still pass constitutional muster. But the intent and effect of the legislation here, given the absence of scientific support and the clearly marked policy effects, were both to restrict if not altogether preclude abortion access to an extent within the realm of the "undue burden" that Casey sought to avoid in negotiating reproductive freedom at the national level and the right of states to forge their own paths (within bounds). What remains to be seen is the extent to which Texas abortion facilities will reopen in the aftermath of the decision, and the trajectory of policy in the other states that had enacted similar legislation (for example, Arizona, on which I wrote previously). 

The Court appealed to states' legitimate interest in protecting women's health, with police powers -- typically, the protection of health, safety, and welfare -- typically falling within states' regulatory prerogatives under the Tenth Amendment. What is, of course, at odds in the abortion debate is what precisely constitutes protection of health, safety, and welfare. As Breyer finds, "The surgical-center requirement also provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an 'undue burden' on their constitutional right to do so... Record evidence shows that the new provision imposes a number of additional requirements that are generally unnecessary in the abortion clinic context." The Court rightly emphasized the health benefits, or lack thereof, provided by HB 2 (and by extension, other TRAP laws imposed by states) relative to other policies according to which women may obtain abortions. But an important additional dimension of states' protection of women's (indeed, citizens') health and safety is that in the absence of abortion access. 

By making abortion less accessible (reminder: these are laws on the ability to provide abortions and thus do not create exceptions for rape or incest), women are more likely to obtain abortions later in their pregnancy, and while abortions are very safe early in the pregnancy (when the vast majority of abortions are performed), the risks do go up when performed later (though as the statistics cited above indicate, the risks are still low). If unable to obtain a legal abortion, one may be more likely to seek an illegal, unregulated abortion, thus subjecting oneself to a host of potential harms to which one is not exposed when in regulated medical care. Indeed, cracking down on legalized abortion has been argued by some to have more impact on the safety than the incidence of abortion. And if one is unable to provide adequate care to a child but is unable to terminate the pregnancy, we are not only sentencing women to motherhood but are faced with a further question of whose life we really are protecting. If we are only protecting life before birth, we might need to reevaluate what we're fighting for. 

The Supreme Court's decision in Whole Woman's Health made important progress toward cracking down on overly restrictive state legislation and better defining what falls within the realm of "undue burden" on women's reproductive choice. By implication, the similar laws in effect in dozens of other states will likely be determined to be unconstitutional, though time will tell the speed with which we see policy changes go into effect.