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Fifth Circuit Court knocks down Texas abortion ban | The Latest | Gambit Weekly

The Fifth Circuit Court of Appeals struck down Tuesday evening a Texas law banning the most common and safest type of second trimester abortion, marking an unlikely victory for reproductive rights advocates from one of the most conservative appeals courts. 

The statute effectively outlawed the dilation and evacuation procedure, known as D&E, in which doctors open the cervix and remove fetal tissue from the uterus. The law would only allow the procedure, the one usually used for abortions after 14 weeks of pregnancy, if the “fetal demise” occurs in the uteruswhich would require an invasive additional step for doctors and women that is not part of a typical D&E. 

In its Whole Woman’s Health v. Ken Paxton decision, the Fifth Circuit ruled that the law unduly burdens a woman’s constitutionally-protected right to obtain a previability abortion” because it “requires a woman to undergo an additional and medically unnecessary procedure to cause fetal demise before she may obtain a dilation and evacuation abortion.”  

Louisiana passed a similar law in 2016, with exceptions only for a serious health risk to the mother, but it is not currently in effect. Several other states have had their own bans challenged in courtincluding Alabama, Kansas and Oklahoma. It is unclear if the ruling will apply to Louisiana and Mississippi, which are also in the Fifth Circuit’s jurisdiction and have similar bans on the books. 

The Texas law started out as a bill banning a late-term abortion procedure that was already outlawed at the federal level in 2003 and forbidding the sale or donation of embryonic and fetal tissue. But after several amendments, the final form of the law had many other parts, including requiring the burial or cremation of embryonic and fetal tissue. The D&E ban, however, was the biggest change. 

The law also included criminal penalties for doctors who did not adhere to it. 

Eight licensed abortion clinics and three abortion providers challenged the Texas law, and the Fifth Circuit, which covers Louisiana, Mississippi and Texas, ruled in their favor and against the state of Texas. 

The ruling in favor of abortion rights comes as Louisiana residents begin to vote on whether they want to add an amendment to the state constitution declaring it does not include the right to abortion. It also comes in the midst of Judge Amy Coney Barrett’s Senate confirmation hearings. If confirmed to the Supreme Court, Barrett would give the court and even stronger anti-abortion majority, which could impact decades of future abortion legislation. 

Barrett is from Louisiana.

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Supreme Court declines to hear South Carolina attempt to block Medicaid funding from Planned Parenthood



a large white building: Supreme Court declines to hear South Carolina attempt to block Medicaid funding from Planned Parenthood


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Supreme Court declines to hear South Carolina attempt to block Medicaid funding from Planned Parenthood

The Supreme Court on Tuesday declined to hear an appeal of a lower court ruling that blocked the South Carolina Department of Health from cutting off Medicaid funding to Planned Parenthood.

The high court’s rejection means that last year’s ruling from the Fourth Circuit Court of Appeals will remain in effect, prohibiting the state from terminating Planned Parenthood as a Medicaid provider.

While it takes four justices to approve a petition, the court doesn’t publish the vote totals and it declined to hear the case without comment.

South Carolina Gov. Henry McMaster (R) signed an executive order in 2018 prohibiting abortion clinics from participating in Medicaid.

Video: ACA unlikely to be struck down; Roberts and Kavanaugh are expected to support severability: Turley (FOX News)

ACA unlikely to be struck down; Roberts and Kavanaugh are expected to support severability: Turley

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Medicaid, the health care program for the poor, generally doesn’t pay for abortions, but conservatives have longed pushed to cut any state and federal funding flowing to the Planned Parenthood, which also provides an array of other health care services.

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Under the order, South Carolina’s two Planned Parenthood Centers, which provide family planning and preventive care services, cancer screenings, and other health care, were terminated as Medicaid providers.

Planned Parenthood South Atlantic, representing one of its patients, filed suit, arguing the order is a violation of federal law that says Medicaid beneficiaries may get care from any qualified provider, and the Fourth Circuit Court of Appeals agreed.

South Carolina appealed to the Supreme Court, arguing that the state has the right to determine what providers are “qualified” to participate in the Medicaid program.

The Supreme Court has in recent years declined to hear similar appeals from Louisiana and Kansas.

The decision Tuesday came during Judge Amy Coney Barrett’s Supreme Court confirmation hearing before the Senate Judiciary Committee, where she repeatedly declined to offer her views on landmark cases establishing a woman’s right to an abortion.

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Whether or not Amy Coney Barrett gets on the Supreme Court, abortion rights should stand

Judge Amy Coney Barrett, President Donald Trumps nominee for the U.S. Supreme Court, meets with Sen. Kevin Cramer, R-N.D., on Capitol Hill in Washington, Thursday, Oct. 1, 2020. (Erin Scott/Pool via AP)
Judge Amy Coney Barrett, President Trump’s nominee for the U.S. Supreme Court, is shown on Capitol Hill in Washington, D.C., on Oct. 1. (Erin Scott / Pool via Associated Press)

For nearly half a century, women in the United States have had a constitutional right to a safe and legal abortion.  And for most of that time, abortion opponents have been trying to take it away. Even as millions of women have availed themselves of that right, nothing short of a war has been waged on their access to abortion. The results include a congressional ban (called the Hyde Amendment) on federal money for abortions and a patchwork of unnecessary state laws that have forced numerous abortion providers to shut down and left some states with a single clinic.

U.S. District Judge Lee Yeakel aptly summarized the situation in 2013 when he issued an injunction against a Texas law that would have imposed new demands on abortion providers. Abortion, Yeakel wrote, “is the most divisive issue to face this country since slavery.”

But opponents have yet to dislodge the bedrock of abortion rights: the Supreme Court’s holding in Roe vs. Wade (1973) that the 14th Amendment guarantees a right to privacy, which includes the right to have an abortion.

Before Roe, women were at the mercy of laws handed down by a profoundly patriarchal, sexist society that believed the conception of a fetus was a sacrosanct event and that women were simply the vessels that carry it. Only four states had legalized abortion for any reason. In other states it was completely outlawed or permitted only if the woman’s life or mental health was in peril.

For many women, that meant a harrowing and often fruitless search for someone — preferably a medical doctor — who would perform an abortion illegally, often for a preposterous fee. A Guttmacher Institute researcher

estimated that in 1972 alone, 130,000 women obtained illegal or self-induced procedures, 39 of whom died; from 1972 to 1974, the mortality rate due to illegal abortion for nonwhite women was 12 times that for white women.

In the years since then, the basic tenet of Roe has been reaffirmed by the court over and over again. Revisiting the issue nearly two decades later, the high court said in Planned Parenthood of Southeastern Pennsylvania vs. Casey (1992) that women have a right to an abortion up to the point when the fetus was viable, although beyond that point, the government has an interest in protecting both the fetus and the woman’s health.  That decision set an important standard: a law cannot be enacted simply to place a substantial obstacle or burden in the way of an abortion. 

Yeakel applied that standard when he blocked the Texas law, which would have required doctors who provided abortions to have admitting privileges at nearby hospitals and abortion clinics to be outfitted like ambulatory surgical centers. The Supreme Court agreed in Whole Woman’s Health vs. Hellerstedt (2016), dismissing the law as a

Supreme Court blocks federal abortion pill delivery restrictions; first abortion decision since Ginsburg death

The Supreme Court on Thursday blocked enforcement of federal government restrictions on women seeking access to an abortion drug during the coronavirus pandemic, in the high court’s first abortion-related decision since the death of Justice Ruth Bader Ginsburg last month.

The ruling would, for now, continue to allow women to obtain an abortion pill by mail during the COVID-19 pandemic.

The high court has returned the case to a federal trial court in Maryland for further review of the issue. Justices Sam Alito and Clarence Thomas dissented.

The Supreme Court is seen in Washington, Monday, Oct. 5, 2020, as the justices begin a new term following the recent death of their colleague, Ruth Bader Ginsburg.

The Supreme Court is seen in Washington, Monday, Oct. 5, 2020, as the justices begin a new term following the recent death of their colleague, Ruth Bader Ginsburg.
(AP)

The ruling comes nearly three months after a federal judge in Maryland ruled that, during the coronavirus pandemic, health care providers can arrange for mifepristone to be mailed or delivered to patients. The FDA has approved mifepristone to be used in combination with a second drug, misoprostol, to end an early pregnancy or manage a miscarriage.

Thursday’s ruling from the high court is temporary in nature, while the larger legal ramifications play out in court. It comes in response to the case, “FDA vs. American College of Obstetricians and Gynecologists.”

DEMOCRATS RESIGNED THAT AMY CONEY BARRETT CONFIRMATION IS INEVITABLE: ‘WE CAN’T STOP THE OUTCOME’

The administration is asking to be allowed to enforce a U.S. Food and Drug Administration rule. The administration has suspended similar in-person visits for other drugs, including opioids in some cases, but refused to relax the rules for getting the abortion pill.

Alito and Thomas said they would have granted the administration’s request. “Six weeks have passed since the application was submitted, but the Court refuses to rule,” Alito wrote.

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The court called for the federal judge to take a new look at the issue and rule within 40 days – postponing any further high court action until after the November Election.  

This story contains material from the Associated Press.

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Supreme Court puts on hold Trump administration request to reimpose medication abortion restrictions

“While COVID-19 has provided the ground for restrictions on First Amendment rights, the District Court saw the pandemic as a ground for expanding the abortion right recognized in Roe v. Wade,” wrote Justice Samuel A. Alito Jr., who was joined by Justice Clarence Thomas.

Alito said the court has “stood by” while officials imposed restrictions on religious activities and “drastically limited speech, banning or restricting public speeches, lectures, meetings, and rallies.”

The court’s action in this case cannot be squared with that, Alito wrote.

Chuang ruled in July that requiring an in-person visit to obtain the medications needed to induce abortion was unduly burdensome. There is no requirement that a woman take the medication in a clinic setting, and most take the pills that end a pregnancy in its early stages at home.

At the request of abortion providers and the American College of Obstetricians and Gynecologists, Chuang imposed a nationwide injunction against the Food and Drug Administration directive.

After a panel of the U.S. Court of Appeals for the 4th Circuit refused to put Chuang’s order on hold, acting solicitor general Jeffrey B. Wall went to the Supreme Court.

Instead of agreeing with the government’s petition, the court’s order issued Thursday night directed Chuang to “promptly consider a motion by the government to dissolve, modify, or stay the injunction, including on the ground that relevant circumstances have changed.”

The case took on added significance because it was the first abortion order issued after the death of Justice Ruth Bader Ginsburg, the court’s most outspoken advocate for abortion rights.

The unsigned order and compromise decision may indicate the court was deadlocked, although only Thomas and Alito declared their views.

Wall told the court that, even in the pandemic, the government had not changed its views on how the drugs should be dispensed.

“The FDA has made, and continuously adhered to, the judgment that these requirements mitigate serious health risks associated with the drug, which can increase if the patient delays taking the drug or fails to receive proper counseling about possible complications,” Wall wrote.

Abortion providers told the court that there was no reason an in-office visit was necessary.

The rules “force patients seeking early abortion care and their health care providers to unnecessarily risk exposure to a life-threatening disease by mandating that patients travel to a health center for the sole purpose of picking up a pill and signing a form,” Julia H. Kaye of the American Civil Liberties Union wrote in a brief to the court.

Medication abortions require taking two drugs, mifepristone and misoprostol, up to 10 weeks into a pregnancy. They have been in use since 2000, and in 2016 the FDA eliminated the requirement that the first drug be administered in a hospital, clinic or doctor’s office. FDA experts said it was just as safe for a woman to take the medications at home.

But the FDA did not relax the requirement that women pick up the pills in person and sign for

Supreme Court refuses to restore abortion pill restrictions, for now

Two of the court’s most conservative justices, Samuel Alito and Clarence Thomas, dissented, saying the Court should have stayed the lower court ruling and reinstated the restriction on abortion pills.

“Changes in the severity of the problems caused by the COVID–19 pandemic…does not justify the Court’s refusal to rule,” they wrote.

How we got here: At issue is a challenge by medical and advocacy organizations to the FDA rules that require a patient to obtain abortion medication in-person from a provider, though the pill itself — prescribed only for abortions early in pregnancy — can be taken at home. The groups, pointing out that FDA allows higher-risk drugs to be provided through telemedicine, argue the policy is medically unnecessary and puts both patients and providers at risk during the pandemic.

In July, a federal judge in Maryland agreed with the groups and blocked the in-person requirement for the duration of the pandemic. The 4th U.S. Circuit Court of Appeals rejected the Trump administration’s request to keep the restrictions in place while it appealed the Maryland judge’s ruling, prompting the Justice Department in late August to request an emergency stay from the Supreme Court.

Why it matters: Both sides of the abortion debate had been closely watching the case for signals of how the Supreme Court would approach the issue after Ginsburg’s death gave Trump the opportunity to shift the court further right.

In the two years since Justice Brett Kavanaugh joined the bench, the Supreme Court had largely avoided abortion cases before Chief Justice John Roberts this summer joined with the court’s liberal wing to strike down Louisiana restrictions on abortion providers. The ruling angered conservatives, though Roberts’ opinion in the case could lay the groundwork for the court to uphold more state restrictions on the procedure. Anti-abortion groups supporting Judge Amy Coney Barrett’s nomination to the Supreme Court are hoping a 6-3 conservative majority would curtail abortion rights, including the reversal of Roe v. Wade.

What’s next: The justices weighed in only on the injunction, not the merits of the case. It could very well come back to the Supreme Court.

There are more pending lawsuits in the federal courts regarding abortion medication, the most common method of abortion in the first 10 weeks of pregnancy. The ACLU, which is representing the groups in the challenge to pandemic restrictions, in separate litigation is pushing for the courts to permanently lift FDA restrictions on abortion medication and allow patients to receive the pills through the mail. Meanwhile, Republican lawmakers and anti-abortion groups have called on FDA to revoke access to the abortion pill entirely.

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Supreme Court Won’t Immediately Revive Abortion-Pill Restriction

The first drug, mifepristone, blocks the effects of progesterone, a hormone without which the lining of the uterus begins to break down. A second drug, misoprostol, taken 24 to 48 hours later, induces contractions of the uterus that expel its contents.

The contested measure requires women to appear in person to pick up the mifepristone and to sign a form, even when they had already consulted with their doctors remotely. The women can then take the drug when and where they choose. There is no requirement that women pick up misoprostol in person, and it is available at retail and mail-order pharmacies.

The American College of Obstetricians and Gynecologists and other groups, all represented by the American Civil Liberties Union, sued to suspend the requirement that women make a trip to obtain the first drug in light of the pandemic. There was no good reason, the groups said, to require a visit when the drug could be delivered or mailed.

Judge Theodore D. Chuang, of the Federal District Court in Maryland, blocked the measure, saying that requiring pregnant women, many of them poor, to travel to obtain the drug imposed needless risk and delay, particularly given that the pandemic had forced many clinics to reduce their hours.

He imposed a nationwide injunction, reasoning that the American College of Obstetricians and Gynecologists has more than 60,000 members practicing in all 50 states and that its membership includes some 90 percent of the nation’s obstetricians and gynecologists.

A unanimous three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., refused to stay Judge Chuang’s injunction while an appeal moved forward. The Trump administration, which often seeks Supreme Court intervention on an emergency basis when it loses in the lower courts, asked the justices to stay the injunction.

The acting solicitor general, Jeffrey B. Wall, argued that the regulation was sensible, as it gave women an opportunity to consult with their doctors and ensured that they would receive the drug without delay. He added that the regulation did not impose the sort of substantial obstacle to access to abortion barred by the court’s precedents because it was still possible to obtain surgical abortions.

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Dentist’s COVID-19 Coverage Suit Sent Back to State Court


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href=”https://www.law360.com/#”>Daphne Zhang

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Law360 (October 8, 2020, 6:44 PM EDT) —
A Texas federal judge remanded a dentist’s COVID-19 coverage suit against Allstate Insurance Co. back to state court, ruling that the insurer failed to show that a claims adjuster was wrongly joined, defeating the suit’s diversity of jurisdiction required in federal court.

U.S. District Judge Richard B. Farrer said Wednesday that Orsatti DDS PC, a dental office of Bexar County, Texas, sufficiently showed that it properly included an insurance claims adjuster in the suit, which lacks complete diversity of citizenship to stay in the district court.

Orsatti suspended business and could operate only for dental emergencies due to government closure orders amid the COVID-19 pandemic in March. The office claimed that it lost income and filed a coverage claim to Allstate. The Illinois-based carrier then assigned commercial property adjuster Blessing Sefofo Wonyaku — a Texas citizen — to investigate the claim.

Allstate subsequently denied coverage, asserting a virus exclusion and a lack of physical damage to Orsatti’s property. In June, the dental office sued the insurer in Bexar County state court before the insurer removed the case to federal court a month later.

Orsatti alleged that the insurer and its adjuster failed to conduct a proper investigation of its claim because they never asked for any documents or information relating to its claim. The office contended that both Allstate and Wonyaku “conspired to delay and deny or underpay its claim”

Allstate had argued that Wonyaku was improperly joined because Orsatti failed to show Wonyaku engaged in any conduct separate from the coverage denial. On Wednesday, Judge Farrer said Allstate’s arguments “lack merit.”

Orsatti “has properly stated a claim against [Wonyaku] for h[er] conduct as an individual adjuster,” and has plausibly alleged that she engaged in “an outcome-oriented investigation” and “unfair settlement,” the judge said.

Judge Farrer pointed out that Orsatti had adequately alleged that Wonyaku never asked “any questions upon learning [the dental practice] had to close business” due to government closure orders but “immediately” sent over a denial letter stating no coverage.

“Had Wonyaku requested additional information, as she was obliged to do, Orsatti’s amended petition suggests that Wonyaku would’ve found the virus exclusion provision inapplicable in this context,” the judge said.

Additionally, Judge Farrer said, although Allstate argued that it was not required to investigate the claim because the policy bars coverage for virus loss and mandates coverage denial, its argument “is more properly an attack on the merits of the claim, rather than an inquiry into the propriety of the joinder of the local party,” the judge said.

Allstate failed to demonstrate that

If the Supreme Court strikes down the Affordable Care Act, Trump’s health care order is not enough to replace it

Courtesy of Simon F. Haeder, Pennsylvania State University

The battle over the replacement of Justice Ruth Bader Ginsburg has refocused American attention on the future of the Affordable Care Act. The Supreme Court is scheduled to hear oral arguments Nov. 10 in a case seeking to overturn the law that brought insurance coverage to millions of Americans.

Meanwhile, Trump recently released his “America-First Healthcare Plan.” In it, the president claims significant achievements. He also outlines broad principles of his vision for the future of health care in America.

Over the past three years, the Trump administration has taken a number of steps to dismantle pieces of the ACA. And his recently introduced executive order lacks a number of key details and the legal grounds for enacting much of the proposal.

The two factors leave me – a health policy and politics scholar who has closely followed the Affordable Care Act – skeptical about the emergence of a meaningful replacement to the ACA that would expand insurance access should the Supreme Court invalidate the Obama administration’s signature achievement.

Trump’s moves on health care

President Trump campaigned and entered office with the pledge to “repeal and replace” the ACA. In his own words, there would be a “really great HealthCare Plan with far lower premiums (costs) & deductibles” right after the election.

Since 2016, Congress has made little headway besides eliminating the ACA’s penalty for not carrying insurance. This is the basis for the current lawsuit to be heard before the Supreme Court in November. The argument is that because Congress did away with the penalty, the individual mandate can no longer be constitutionally justified as a tax. As a result, the entire law should fall.

While Republicans have been unable to repeal the law, the Trump administration has taken a number of executive actions to limit its reach. In combination, these efforts have contributed to bringing the uninsured rate to 14% by 2019 from a low of 11% in 2016. This leaves millions of Americans without coverage and exposed to medical bills should they fall ill.

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With few details in Trump’s executive order on health care, the plan lays out goals for improved care and lower prices but offers no legal basis for implementing reforms. Brian Blanco via Getty Images

One of the major targets of the Trump administration has been reducing enrollment through the ACA’s marketplaces. Here, the administration shortened the periods in which people are allowed to purchase insurance and drastically reduced funding for individuals who help consumers enroll in coverage as well as advertising. It also withheld subsidies to support low-income individuals with out-of-pocket costs, which also caused problems to insurers offering plans to those people.

The administration has also worked to expand alternative insurance plans like so-called short-term, limited-duration health plans and association health plans. While these plans have lower premiums, they do not carry the consumer protections of the ACA like preexisting condition coverage. They also do not pay for prescription drugs

If the Supreme Court strikes down the Affordable Care Act, Trump’s health care order is not enough to replace it

<span class="caption">The Supreme Court will face another challenge to the Affordable Care Act that is more likely to succeed with the death of Justice Ruth Bader Ginsburg.</span> <span class="attribution"><a class="link rapid-noclick-resp" href="https://newsroom.ap.org/detail/SupremeCourtHealthOverhaulLawsuit/16788a32df5e42e6b50c77aeea97f7d5/photo?Query=affordable%20care%20act&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=3323&currentItemNo=31" rel="nofollow noopener" target="_blank" data-ylk="slk:AP Photo/Susan Walsh">AP Photo/Susan Walsh</a></span>
The Supreme Court will face another challenge to the Affordable Care Act that is more likely to succeed with the death of Justice Ruth Bader Ginsburg. AP Photo/Susan Walsh

The battle over the replacement of Justice Ruth Bader Ginsburg has refocused American attention on the future of the Affordable Care Act. The Supreme Court is scheduled to hear oral arguments Nov. 10 in a case seeking to overturn the law that brought insurance coverage to millions of Americans.

Meanwhile, Trump recently released his “America-First Healthcare Plan.” In it, the president claims significant achievements. He also outlines broad principles of his vision for the future of health care in America.

Over the past three years, the Trump administration has taken a number of steps to dismantle pieces of the ACA. And his recently introduced executive order lacks a number of key details and the legal grounds for enacting much of the proposal.

The two factors leave me – a health policy and politics scholar who has closely followed the Affordable Care Act – skeptical about the emergence of a meaningful replacement to the ACA that would expand insurance access should the Supreme Court invalidate the Obama administration’s signature achievement.

Trump’s moves on health care

President Trump campaigned and entered office with the pledge to “repeal and replace” the ACA. In his own words, there would be a “really great HealthCare Plan with far lower premiums (costs) & deductibles” right after the election.

Since 2016, Congress has made little headway besides eliminating the ACA’s penalty for not carrying insurance. This is the basis for the current lawsuit to be heard before the Supreme Court in November. The argument is that because Congress did away with the penalty, the individual mandate can no longer be constitutionally justified as a tax. As a result, the entire law should fall.

While Republicans have been unable to repeal the law, the Trump administration has taken a number of executive actions to limit its reach. In combination, these efforts have contributed to bringing the uninsured rate to 14% by 2019 from a low of 11% in 2016. This leaves millions of Americans without coverage and exposed to medical bills should they fall ill.

Trump health care executive order event
Trump health care executive order event

One of the major targets of the Trump administration has been reducing enrollment through the ACA’s marketplaces. Here, the administration shortened the periods in which people are allowed to purchase insurance and drastically reduced funding for individuals who help consumers enroll in coverage as well as advertising. It also withheld subsidies to support low-income individuals with out-of-pocket costs, which also caused problems to insurers offering plans to those people.

The administration has also worked to expand alternative insurance plans like so-called short-term, limited-duration health plans and association health plans. While these plans have lower premiums, they do not carry the consumer protections of the ACA like preexisting condition coverage. They also do not pay for prescription drugs or hospital stays. And unlike