A Texas judge just issued a national ruling against medication abortion. What now?

Originally published in Vox on April 8, 2023.

decision in a highly anticipated federal court case was issued Friday night: A district judge in Texas, with longstanding and outspoken anti-abortion views, suspended the US Food and Drug Administration’s approval of mifepristone, a widely used drug to end pregnancies.

But the judge, Matthew Kacsmaryk of the Northern District of Texas, ordered that his decision would not take effect for seven days to allow the federal government time to appeal his decision. Within hours, both the US Justice Department and Danco Laboratories, a manufacturer of mifepristone, announced their plans to challenge the ruling.

For now, access to the drug remains unchanged.

Adding to the chaos and uncertainty, a second and competing federal court decision regarding mifepristone was released Friday in Washington state, in a case led by 17 Democratic attorneys general who argued the FDA had actually been too restrictive when it approved mifepristone.

The federal judge in that case, Thomas Rice, issued a preliminary injunction blocking the FDA from taking “any action to remove mifepristone from the market or otherwise cause the drug to become less available.”

While Rice’s decision applies only to the 17 states involved in the lawsuit, his order would conflict with the nationwide injunction Kacsmaryk just issued, which could set up an accelerated path for the US Supreme Court to take up the issue. The Biden administration said it is still reviewing the Washington state decision.

Kacsmaryk’s decision was riddled with false statements about medication abortion and the risks of mifepristone, which has been used by millions of women since it was first approved by the FDA 23 years ago. It’s unprecedented for a district judge to reverse the FDA’s approval of a drug, and some reproductive rights groups warn this could set the stage for similar challenges to other drugs anti-abortion groups oppose, like birth control and emergency contraception.

On Friday night, President Biden vowed to fight the Texas decision, emphasizing that if it were to stand, “there would be virtually no prescription approved by the FDA safe from this kind of attack.”

Sen. Ron Wyden (D-OR), who chairs the Senate Finance Committee that oversees the FDA, said in a statement that he believes the FDA has the authority to ignore Kacsmaryk’s ruling. “The FDA, doctors, and pharmacies can and must go about their jobs like nothing has changed and keep mifepristone accessible to women across America,” he said.

The availability of the drug will ultimately be decided by higher courts. But if mifepristone were to be pulled off the market, the consequences for access to abortion would be severe. Medication abortion — referring to the combination of mifepristone and misoprostol — accounts for more than half of all abortions in the US, and is used typically within the first 10 to 12 weeks of a pregnancy. It’s become the most common method for ending pregnancies in the United States, partly due to its safety record, its lower cost, diminished access to in-person care, and greater opportunities for privacy.

The anti-abortion movement has been trying to restrict access to medication abortion since before the overturn of Roe, but past attempts to challenge the FDA’s approval process were all summarily rejected. The Texas lawsuit and the plaintiffs’ demand for a nationwide injunction represent the increasing aggressiveness of the anti-abortion movement to take aim at abortion access not only in conservative states controlled by Republicans, but also in deep blue states run by Democrats.

What is mifepristone?

Mifepristone is a prescription drug that works by blocking the hormone progesterone, which maintains the interior of the uterus. If progesterone is blocked, the uterus can’t support a pregnancy and the embryo is detached.

For medication abortions, a second drug — misoprostol — is then used. Misoprostol has been around since the 1970s and was first developed to treat stomach ulcers. An individual seeking to end a pregnancy would take misoprostol 24 to 48 hours after mifepristone, causing their cervix to soften and their uterus to contract and expel the embryo.

Mifepristone is also used for other situations like miscarriage management, and helping patients with Cushing’s syndrome who also have Type 2 diabetes. Lawyers for the plaintiffs insist restricting mifepristone for abortion won’t impact patients who use the drug for other reasons, but already some pharmacists and doctors have resisted prescribing misoprostol to patients, wary of breaking new laws or suspicious patients will use the drugs covertly for an abortion.

The drug was authorized by the FDA in 2000 and is approved for ending a pregnancy in the US up to 10 weeks’ gestation, though the World Health Organization recommends mifepristone up to 12 weeks.

Between 2000 and 2018, more than 3.7 million women in the United States used the medication — sold under the brand Mifeprex — to end an early pregnancy. In 2016, the FDA reported that mifepristone’s “efficacy and safety have become well-established by both research and experience, and serious complications have proven to be extremely rare.” Three years later, the agency approved a generic version, GenBioPro.

Why is there a lawsuit attacking mifepristone?

Back in November, a lawsuit challenging the legality of mifepristone was filed on behalf of a coalition of anti-abortion groups and doctors known as the Alliance for Hippocratic Medicine. Led by the conservative legal advocacy group Alliance Defending Freedom, the lawsuit claims the FDA caved to political pressure under Bill Clinton when it approved mifepristone more than 22 years ago, and it should thus be pulled from the market.

The lawsuit claims the FDA didn’t properly assess mifepristone’s safety, and that the federal government has put people at risk more recently by making the medication easier to obtain. Examples it cites include the FDA extending in 2016 the recommended window of time to take mifepristone from seven weeks of a pregnancy up to 10, and removing a requirement in 2021 that women must pick up mifepristone in person, thereby making telehealth and mail orders more accessible.

The National Academies of Sciences, Engineering, and Medicine has affirmed medication abortion as a safe method to terminate pregnancy, and concluded that there is no medical need for the drugs to be administered in the physical presence of a health care provider. The FDA has also repeatedly rejected the evidence the plaintiffs claim shows medication abortion is unsafe.

The case has virtually no scientific merit, and challenging the use of a drug that has been studied and safely used for over two decades is highly unusual. Jack Resneck Jr., the president of the American Medical Association, said in a statement Friday night that Kacsmaryk’s “disregard for well-established scientific facts in favor of speculative allegations and ideological assertions will cause harm to our patients and undermines the health of the nation.”

Most Americans also believe medication abortion should be accessible. A poll released in early March found majorities of Americans support keeping medication abortion legal and allowing women to use it at home to end an early-stage pregnancy. Another recent survey found 59 percent of voters disapprove of overturning the FDA’s approval of abortion medication, including 72 percent of Democrats, 65 percent of independents, and 40 percent of Republicans.

But legal experts concede these are legally unpredictable times given the politicization of the courts. The federal lawsuit was intentionally filed in Amarillo, Texas, so that Kacsmaryk, a conservative judge, would hear the case. Kacsmaryk was appointed by Donald Trump and is a former Christian activist who has openly opposed abortion for decades.

Last year, he ruled that federal law prohibiting certain forms of discrimination by health providers does not protect against anti-LGBTQ discrimination, and in a separate case, he concluded that teenagers can’t access birth control without their parents’ permission under Title X, a federal program that provides family planning and preventative health services.

What are the implications of the decisions?

Both decisions in Texas and Washington state were issued by lower courts, so these legal battles are not over. The federal government has already said it will appeal the Texas decision, but it’s unclear if the Biden administration will appeal to the Fifth Circuit, or go directly to the US Supreme Court.

Will mifepristone remain available? One possibility is that the Fifth Circuit or the Supreme Court issues a “stay” as the case continues to be litigated, meaning the drug could continue to be prescribed, while the lawsuit stretches on. When Roe was on the books, there were lots of court-ordered abortion bans upheld in district courts like Kacsmaryk’s, but then never enforced because lawyers would successfully win “stays” as they proceeded to challenge the bans in higher-level courts. Whether appellate courts in the post-Roe era would be as willing to block a lower judge’s order while the case continues is an open question.

David Cohen, a law professor at Drexel University who specializes in reproductive rights law, said before Kacsmaryk issued his order that typically an appellate court would consider whether a district court order would be so disruptive to the status quo that it needs to be halted while they consider the case. In normal times, abruptly taking off the market an FDA-approved drug that has been safely used by millions of women for over 20 years would certainly meet the threshold of “very disruptive” to the status quo.

“But I think we are in a world where the conservative Fifth Circuit feels very emboldened, so we can’t count on” a stay, Cohen told Vox. It’s possible, especially given the Washington state decision, that the Biden administration skips the Fifth Circuit and appeals directly to the Supreme Court. “We’ve seen more litigants doing that in recent years, though usually it’s been conservative litigants,” Cohen explained. “I don’t know if the FDA would want to do that, but it’s possible they think they’d get a fairer shake at the Supreme Court.”

What options for abortion are still available right now?

For at least the next week, nothing will change,

If mifepristone is ultimately pulled from the market, people seeking abortions could still access care at in-person clinics for surgical abortions. But those procedures typically cost more money, and require more time and resources from already-strapped abortion clinics. In its legal filing opposing the Texas case, the Justice Department warned that taking mifepristone off the market would lead to delays and overcrowding at these clinics, which were already managing an influx of out-of-state patients since Roe’s overturn.

Another option that would remain even if the order takes effect is ordering pills either from the European-based nonprofit Aid Access, which bypasses US restrictions by prescribing the drugs to patients from overseas, or through alternative methods vetted by the reproductive justice group Plan C such as mail forwarding. “We will not let this unjust ruling stop people from accessing abortion pills, which are readily available through alternate supply routes in the US,” Plan C co-director Elisa Wells said Friday night.

Another option would be pursuing medication abortion using only misoprostol. While not FDA-approved, this method is backed by the World Health Organization, and a common way of ending pregnancies around the world. In February, researchers found misoprostol-only abortions in the US to be 88 percent effective, with few incidents of serious adverse events or signs of a potential abortion complication. In comparison, research in the US on using mifepristone and misoprostol together has shown success rates of 95 percent. But research on misoprostol-only abortions in other countries has also shown similar efficacious results, ranging between 95 and 99 percent.

Abortion providers, though they expressed adamant opposition to the Texas lawsuit, have been preparing to offer misoprostol-only abortions if mifepristone is taken off market. The National Abortion Federation, in its clinical guidelines, says that “where mifepristone is either not legally available or inaccessible, misoprostol-alone regimens may be offered.” Because misoprostol has been FDA-approved to treat stomach ulcers and can be prescribed off-label for solo use, there is less concern that access to that drug will disappear.

There are also pending federal lawsuits to expand access to medication abortion

In addition to battling this lawsuit from anti-abortion groups, reproductive health organizations have been planning their own legal strategies to expand access to abortion pills. In January, two such lawsuits were filed, claiming two states’ restrictions on mifepristone illegally preempt the FDA.

Through the passage of the Federal Food, Drug, and Cosmetic Act in 1938, Congress empowered the FDA as the sole agency to approve drugs in the US. It’s responsible for reviewing a drug’s safety, weighing its risks and benefits, and regulating appropriate conditions for safe and effective use.

With this in mind, GenBioPro, the generic manufacturer of mifepristone, argued in a lawsuit that West Virginia’s state abortion ban is unconstitutional because it violates the supremacy and commerce clauses of the US Constitution, which empowers the FDA as the sole regulator of drugs across the country.

In response to Kacsmaryk’s ruling, GenBioPro issued a statement affirming that as it reviews the Texas decision, it will continue to make its product available. “The bottom line is, we are confident in the legality of mifepristone’s approval,” CEO Evan Masingill said.

A similar case, filed in January by an OB-GYN in North Carolina, challenged state officials for imposing restrictions on mifepristone that go beyond what the FDA requires. North Carolina requires doctors to provide mifepristone in person at a particular type of facility after a 72-hour waiting period and, in some cases, an ultrasound.

Experts say there is a “strong, though legally uncertain” argument that the supremacy clause of the Constitution gives the federal government authority over these conflicting state rules. This idea — that federal regulation of drugs would take precedence, and a state cannot ban a drug that has been given federal approval — is known as the preemption argument.

For now, legal scholars say it’s unclear how preemption arguments will play out in court. Courts often grant deference to the FDA, though there are relatively few examples involving drugs. The main precedent is a 2014 case where a federal judge struck down a Massachusetts effort to restrict the opioid Zohydro, since the FDA had approved the painkiller. If the plaintiffs win their case, millions more people could have easier access to mifepristone.


In The Fight for Reproductive Rights, Don’t Forget the Medicaid Gap

Originally published in The Intercept on October 1, 2021.

IN ONE OF the grimmest periods ever for reproductive rights, advocates are scrambling to react to a spate of new restrictions on abortion. The Biden Justice Department filed a lawsuit against Texas in the wake of S.B. 8, the state’s new law that invites private citizens to enforce abortion bans through civil litigation. House Democrats passed the Women’s Health Protection Act, a bill that would protect abortion providers and remove barriers for patients. And some advocates see hope in medication abortion, a combination of two drugs — mifepristone and misoprostol — which people can take to safely end pregnancies.

But many states still restrict where providers can mail drugs, and most groups still only service states with relatively friendly abortion laws. Last week, a Republican state representative in Florida introduced a bill that mirrors S.B. 8, and lawmakers in other GOP-controlled states have signaled interest in following suit. The U.S. Supreme Court has refused thus far to block Texas’s notorious statute, and the Women’s Health Protection Act stands little chance of passage in the Senate.

As long as the Senate filibuster remains in place, and the U.S. Supreme Court maintains its anti-abortion majority, advocates in the South say there’s little that Washington can really do to aid their plight. There is one crucial method, though, which often falls off the radar: Medicaid expansion.

“What people have forgotten is [in] this entire swath of the southeast, from Texas and Georgia and Florida, we never got Medicaid expansion, so there’s a lot of people, especially people capable of becoming pregnant, unable to access any sort of insurance,” said Robin Marty, a journalist, activist, and head of operations for West Alabama Women’s Center, an independent abortion clinic in Tuscaloosa. “We need national organizations to remember that we’re still five steps behind. While they’re trying to get new medication abortion programs standing, we’d like to even use the [Affordable Care Act] birth control mandate.”

As Congress considers proposals to include in the upcoming reconciliation bill — a $3.5 trillion social spending package that Sens. Kyrsten Sinema, D-Ariz., and Joe Manchin, D-W.Va., are threatening to derail — Democrats are weighing at least two measures that would expand Medicaid access in the 12 states that have refused. One pathway, led by Democratic Sens. Raphael Warnock and Jon Ossoff of Georgia and Tammy Baldwin of Wisconsin, would create a program that’s like Medicaid but administered by the federal government rather than by individual states. Their proposal would require the Centers for Medicare and Medicaid Services to offer coverage to those eligible in the 12 holdout states. Texas Democratic Rep. Lloyd Doggett also has a bill that would allow cities and counties to expand Medicaid in states that have refused. And some powerful lawmakers, including House Majority Whip Jim Clyburn, D-S.C., have cited Medicaid expansion as a top priority for inclusion.

Sen. Jon Ossoff, D-Ga., speaks on Medicaid expansion and the reconciliation package during a press conference with fellow lawmakers at the Capitol in Washington, D.C., on Sept. 23, 2021.

The cost for expansion so far is estimated at potentially $250 to $300 billion, but the price could shrink if legislators put an expiration date on their plans. Clyburn suggested last week that he would back a few years of Medicaid expansion, which he said could be harder to strip away once it’s in place.

Lawmakers are under pressure to reduce the cost of the reconciliation package — despite the fact that the $3.5 trillion price tag would be spread over 10 years and partially covered by raising taxes on the wealthy — and several health care priorities are competing for space. These include expanding Medicare, bolstering Obamacare subsidies, and ensuring access to in-home care for the elderly. A Washington Post report on Thursday made the chances for a permanent Medicaid expansion look less likely: Some advocates and Democratic senators expressed concern that it might reward recalcitrant GOP lawmakers, or even incentivize states that have expanded Medicaid to reverse course, potentially forcing the federal government to pick up the tab for states that had previously expanded Medicaid.

THERE ARE MORE than 2 million poor, uninsured adults in the so-called Medicaid gap. Of those, roughly 800,000 are women of reproductive age. Most people who fall into the gap are unlikely to afford insurance on the individual marketplace because they’re ineligible for premium subsidies, which help offset high monthly costs. And while the Affordable Care Act applies to most private insurance plans, according to the Guttmacher Institute, 13 percent of workers in 2019 were enrolled in “grandfathered” plans exempt from the ACA’s protections — including the mandate for contraception coverage.

In Washington, D.C., and 38 states that have expanded Medicaid since 2014, public health researchers found an immediate and large increase in insurance coverage for low-income women of reproductive age. Health and economics researchers also found that low-income women in expansion states were more likely to use effective birth control methods during their postpartum period than their counterparts in holdout states, and were more likely to use long-acting reversible contraception, considered among the best methods for preventing unwanted pregnancies. The proposed Medicaid expansion plans would increase access to birth control and reproductive services in the remaining 12 states.

On Tuesday, Planned Parenthood Federation of America issued new fact sheets detailing what Medicaid expansion would mean for each state that has until now resisted broadening coverage. In Alabama, for example, Planned Parenthood says 51,000 women of reproductive age would gain access to affordable health insurance, including more than 20,000 Black women. In Texas, more than 324,000 women of reproductive age would gain affordable health insurance and access to services, including 48,000 Black women and 1930,000 Latina women.

“I can’t tell you how many people I’ve seen who wanted birth control and were not able to get it,” said Marty. “The county health departments are booked two to three months in advance, so by the time they get there it’s too late; and then we have patients who do have private doctors, but the doctors are denying them the coverage.”

Jamila Taylor, the director of health care reform and a senior fellow at the Century Foundation, said expanding Medicaid could definitely help support women who fall into the coverage gap, who lack insurance or access to comprehensive maternal services. “We know this affects people not ready to be parents, and those who are ready to have children,” she said.

So if either the Ossoff-Warnock-Baldwin plan or the Doggett proposal passes, the changes could expand access to contraception for thousands of currently uninsured people. But would they allow Medicaid to cover solutions like medication abortion? Thanks to the Hyde Amendment — a prohibition on using federal funds to cover abortions outside of the exceptions of rape, incest, and endangerment to a woman’s life, which Congress has reauthorized every year since 1976 — the answer is still no.

There is legislation pending in the House and Senate, called the Equal Access to Abortion Coverage in Health Insurance Act of 2021, or EACH Act, that would overturn the Hyde Amendment — but like the Women’s Health Protection Act, it stands little chance of passage with the filibuster in place. On Wednesday, Manchin told the conservative National Review that he was open to considering Medicaid expansion as part of reconciliation — but only if the package includes the Hyde Amendment. States can, however, still opt to use their own Medicaid funding to cover abortions, and 16 primarily blue states already do.

As long as the Hyde Amendment remains in place, those living in regions at odds with reproductive health access will have to rely on more difficult and sometimes risky measures to terminate their pregnancies. If the amendment were repealed, Medicaid funds could potentially be used to prescribe medication abortion, offering an alternative in places where clinics are closed. But many hostile states have broadened their anti-abortion measures to cover mifepristone and misoprostol. Since April, lawmakers in Republican-led states, working closely with anti-abortion groups like the Susan B. Anthony List, have moved to pass even more restrictions on medication abortion.

Marty, who authored “Handbook for a Post-Roe America” in 2019, said for now people should consider obtaining medication abortion pills before they are pregnant, a process known as advanced provision. Some are are already doing this in Texas through Aid Access, an organization based in Europe that a Dutch doctor started in April 2018.

“At this point [activists] do not believe that someone who takes this step is under threat of a lawsuit because pregnant people are explicitly excluded from [SB8], but it could be a potential lawsuit if that person who ordered it gave it to someone else,” said Marty.

But shipping pills from Europe can result in delays. “Hypothetically, there might be people who try get ahold of medication abortion from one of these online retailers despite living in a different city,” said Marty, referring to U.S.-based telehealth organizations like Abortion on Demand. In those cases, which could also present legal risk, women might ask contacts they know living in more abortion-friendly states to obtain the medication and then quietly mail them the pills.

“As an author and activist, I firmly believe that all people need to be [ready] for when abortion is completely illegal and inaccessible,” said Marty. “It’s become clear to me that abortion will mostly disappear in red states.”

With New Protections Tied Up in the Courts, Home Health Care Workers Aren’t Waiting Around

Originally published in The American Prospect on April 3rd, 2015.

Almost two years after the Obama administration extended historic labor protections to the nation’s 1.79 million home healthcare workers, those new rights remain in limbo. In September 2013, the Department of Labor (DOL) announced plans to amend a longstanding regulation that has excluded them from earning the federal minimum wage, overtime pay, and compensation for travel on the job. For home healthcare workers in the United States—a group that is nearly 90 percent female—this move marked a significant step towards setting a floor of decent labor standards.

But the rule-change, which was set to go into effect on January 1st, now faces a challenge in federal court, and critics say state legislators are using the ongoing litigation as an excuse to avoid implementing the new protections. At the same time, given that most home healthcare workers are paid through Medicaid and Medicare—two underfunded public programs—many also worry that states will respond to the rule-change by curtailing consumers’ access to quality care. Activists across the country are working to pressure their lawmakers to reckon with these new standards and avoid potential calamity.

Four decades ago, Congress decided that home healthcare workers should be classified more like babysitters who provide “companionship,” rather than as workers entitled to basic protections. Nursing home employees, by contrast, are fully covered under the Fair Labor Standards Act (FLSA), despite performing many of the same tasks. As home healthcare has ballooned in recent years, these occupational distinctions have become harder to justify.

According to the Bureau of Labor Statistics, the U.S. will need one million new home healthcare workers by 2022. But the work is draining, the pay is paltry, and turnover is high. When adjusted for inflation, home healthcare workers’ average hourly wages have declined by nearly 6 percent since 2004. In 2013, the average earnings of home healthcare workers totaled just $18,598. 2013 was also the year that the Obama administration decided it was well past time to update FLSA’s policy. Because the DOL has the authority to amend federal regulations, it was able to enact this change without seeking Congress’s approval.

Though the new DOL rule-change would most directly benefit home healthcare workers, it carries implications for all domestic workers, including nannies and housekeepers. “By improving the conditions and protections in one area, you’re broadly boosting the sense that this is dignified work,” says Elly Kugler, an attorney with the National Domestic Workers Alliance, (NDWA) a group representing domestic workers in the United States.

Whether that change will actually be implemented is another question. Last year three industry groups filed a lawsuit against the DOL rule-change, insisting that it would have a “destabilizing impact” on home healthcare and hurt millions of elderly individuals. On December 22, 2014, a D.C. district judge vacated the rule for third-party employers, arguing that the executive branch cannot make such a regulatory change. A few weeks later, the same judge also vacated FLSA’s revised definition of “companionship services.” The DOL filed a challenge in appeals court, and arguments will be heard later this spring. Some suspect this may ultimately make its way to the Supreme Court.

Then, on March 20th, Labor Secretary Tom Perez sent a letter out to all 50 governors, urging them to focus on budgeting the minimum wage and overtime protections now, “to ensure that [they] will prepared if the Department prevails” in appeals court. Across the country, activists are also pressuring their representatives to focus on these issues. Yet many lawmakers are using the litigation as an excuse to avoid reckoning with the thorny budgetary questions. This means workers may not see minimum wage, overtime, and travel pay increases anytime soon.

“In Georgia, we’re seeing that our lawmakers are not talking about these issues,” says Tamieka Atkins, who leads Atlanta’s chapter of NDWA. “They have the attitude that we’re not going to move on this until the lawsuit comes down.” In response, Atkins’ group launched a campaign to lobby lawmakers and health agency commissioners in advance of their next legislative session. They also started a petition—“Governor Deal: All Eyes Are On Georgia”—asking for gubernatorial support towards minimum wage and overtime.

Activists in Texas are also applying pressure to their leaders. In January, domestic workers launched a home healthcare campaign, bringing together consumer groups, disability rights organizations, and labor unions. The following month—for the first time ever—domestic workers traveled to Austin to share their personal stories and lobby state legislators. “It was a really great opportunity because we agitated on different levels,” says Mitzi Ordonez, a domestic worker organizer at the Fe Y Justicia Worker Center in Houston.What we found is that many of the lawmakers just didn’t know about these [DOL] changes.”

Compared to Texas and Georgia, some states have made greater progress towards implementing the new labor protections. California, which already pays its home healthcare workers minimum wage, allocated new funds for overtime pay in its 2014-2015 budget, and was prepared to pay workers more at the start of 2015. But after learning about the federal lawsuit, California Governor Jerry Brown decided to postpone the overtime pay, even though there is nothing legally obligating him to do so. Frustrated activists have launched a campaign in protest; they organized meetings with state legislators, held rallies and candle light vigils, and even set up a“Justice for Homecare Tribunal”—a mock trial against the state. “The best thing for us to do is to not rest on our laurels,” says Doug Moore, the executive director of the United Domestic Workers of America. “The governor wants this to go through the courts, but we will use pressure to change his position.” Moore says that if the DOL rule-change is upheld in appeals court, they will then move to demand retroactive overtime pay back to January 1st.

Yet for some states that have reckoned with the rule-change, the results haven’t always been encouraging. “What we have been seeing, unfortunately, is that you can equally comply with FLSA by paying overtime and travel time, or by setting caps on the number of working hours,” says Alison Barkoff, the Director of Advocacy at the Bazelon Center for Mental Health Law. This scenario is playing out in states like Arkansas, which is looking to cap homecare workers to just 40 hours per week, and to limit each worker to just one customer per day. In effect, this would enable states to avoid paying workers overtime and travel costs. But such measures will hurt employees who make their living by piecing together multiple part-time jobs. It may also impact consumers who need more than 40 hours of care, or who may have a harder time finding someone willing to work for just a few hours per day.

Some hope that the Americans With Disabilities Act (ADA) and the Olmstead v. L.C. Supreme Court case, both of which protect disabled individuals from discrimination and unjustified segregation, will help consumers fight back against cuts to healthcare services. “The ADA and Olmstead provide important protections to consumers, but they won’t completely prevent a state from implementing restrictive policies,” Barkoff explains. “The laws do not prohibit a state from capping worker hours, so long as the state has a process for exempting individual consumers who will be seriously harmed. Most consumers will have to shift the way their care is provided.”

Meanwhile, labor activists maintain that their interests are not at odds with those of healthcare consumers, because quality care depends on creating sustainable working conditions. Many in the disability community have also signed amicus briefs in support of extending minimum wage, travel time, and overtime protections to home healthcare workers. “I think it’s important to know that there isn’t just one disability rights community,” says Sarah Leberstein, an attorney with the National Employment Law Project. “Many groups are very supportive, but they’re also really concerned about states taking it seriously and implementing the rules in a thoughtful way that doesn’t result in cuts to services.”

Even if upheld, the DOL rule-change may be hard to enforce. In New York City—a place that has instituted a progressive domestic workers’ bill of rights and a paid sick leave policy—activists have learned first-hand how enforcing these types of laws can be quite challenging.

“It’s really hard to be reliant on a complaint-driven process where workers have to come forth, but still fear retaliation,” says Irene Jor, a New York organizer with NDWA. Many domestic workers are also isolated in private homes, without much regular interaction with other workers who might provide them with moral support to raise grievances. Even once complaints are filed, not all are likely to be dealt with. “The Department of Labor, both on the federal and state level, is incredibly underfunded and does not have enough investigators,” says Leberstein. “So often they can’t simply respond quick enough, and they can’t do targeted enforcement.”

Nevertheless, if the DOL rule-change were upheld, it would be an important achievement. Some businesses would certainly have to adjust their operations to accommodate the new labor protections, but supporters of the rule-change insist that the industry’s opposition is overblown. According to national surveys, less than 10 percent of home healthcare workers even report working more than 40 hours a week. “We’ve also got many examples of big home care agencies that have figured out ways to pay workers properly, and still provide good care,” says Leberstein, who points out that many organizations already operate in states that require minimum wage and overtime protections. “So they’ve either figured out a way to do it and still earn profits, or they’re admitting to violating the laws in their state.”

Asking the public to pick between providing quality care and treating workers fairly is ultimately a false choice wrought through a political culture of austerity. States could avoid this by increasing funds towards Medicare and Medicaid, which would help ensure that the disabled and elderly can access the high-quality and flexible care without compromising national labor standards and worker dignity.

Though the future of the law is still unknown, one thing is clear. This is an issue that cannot be put on hold—thousands of health homecare workers live in poverty and 10,000 more baby boomers turn 65 every single day.