KFF Health News' 'What the Health?': Federal Health Work in Flux
The Host
Julie Rovner
KFF Health News
Julie Rovner is chief Washington correspondent and host of KFF Health News’ weekly health policy news podcast, “What the Health?” A noted expert on health policy issues, Julie is the author of the critically praised reference book “Health Care Politics and Policy A to Z,” now in its third edition.
Two months into the new administration, federal workers and contractors remain off-balance as the Trump administration ramps up its efforts to cancel jobs and programs — even as federal judges declare many of those efforts illegal and/or unconstitutional.
As it eliminates programs deemed duplicative or unnecessary, however, President Donald Trump’s Department of Government Efficiency is also cutting programs and workers aligned with Health and Human Services Secretary Robert F. Kennedy Jr.’s “Make America Healthy Again” agenda.
This week’s panelists are Julie Rovner of KFF Health News, Jessie Hellmann of CQ Roll Call, Sarah Karlin-Smith of the Pink Sheet, and Rachel Roubein of The Washington Post.
Panelists
Jessie Hellmann
CQ Roll Call
Sarah Karlin-Smith
Pink Sheet
Rachel Roubein
The Washington Post
Among the takeaways from this week’s episode:
- Kennedy’s comments this week about allowing bird flu to spread unchecked through farms provided another example of the new secretary of health and human services making claims that lack scientific support and could instead undermine public health.
- The Trump administration is experiencing more pushback from the federal courts over its efforts to reduce and dismantle federal agencies, and federal workers who have been rehired under court orders report returning to uncertainty and instability within government agencies.
- The second Trump administration is signaling it plans to dismantle HIV prevention programs in the United States, including efforts that the first Trump administration started. A Texas midwife is accused of performing illegal abortions. And a Trump appointee resigns after being targeted by a Republican senator.
Plus, for “extra credit,” the panelists suggest health policy stories they read this week that they think you should read, too:
Julie Rovner: The Washington Post’s “The Free-Living Bureaucrat,” by Michael Lewis.
Rachel Roubein: The Washington Post’s “Her Research Grant Mentioned ‘Hesitancy.’ Now Her Funding Is Gone.” by Carolyn Y. Johnson.
Sarah Karlin-Smith: KFF Health News’ “Scientists Say NIH Officials Told Them To Scrub mRNA References on Grants,” by Arthur Allen.
Jessie Hellmann: Stat’s “NIH Cancels Funding for a Landmark Diabetes Study at a Time of Focus on Chronic Disease,” by Elaine Chen.
Also mentioned in this week’s podcast:
- The Wall Street Journal’s “Trump Administration Weighing Major Cuts to Funding for Domestic HIV Prevention,” by Liz Essley White, Dominique Mosbergen, and Jonathan D. Rockoff.
- The Washington Post’s “Disabled Americans Fear Losing Protections if States’ Lawsuit Succeeds,” by Amanda Morris.
click to open the transcript
Transcript: Federal Health Work in Flux
[Editor’s note: This transcript was generated using both transcription software and a human’s light touch. It has been edited for style and clarity.]
Julie Rovner: Hello, and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF Health News, and I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, March 20, at 10 a.m. As always, news happens fast and things might have changed by the time you hear this. So, here we go.
Today we are joined via videoconference by Rachel Roubein of The Washington Post.
Rachel Roubein: Hi.
Rovner: Sarah Karlin-Smith of the Pink Sheet.
Sarah Karlin-Smith: Hi, everybody.
Rovner: And Jessie Hellmann of CQ Roll Call.
Jessie Hellmann: Hello.
Rovner: No interview today, but, as usual, way more news than we can get to, so let us jump right in. In case you missed it, there’s a bonus podcast episode in your feed. After last week’s Senate Finance Committee confirmation hearing for Dr. Mehmet Oz to head the Centers for Medicare & Medicaid Services, my KFF Health News colleagues Stephanie Armour and Rachana Pradhan and I summarized the hearing and caught up on all the HHS [Department of Health and Human Services] nomination actions. It will be the episode in your feed right before this one.
So even without Senate-confirmed heads at — checks notes — all of the major agencies at HHS, the department does continue to make news. First, Robert F. Kennedy Jr., the new HHS secretary, speaks. Last week it was measles. This week it was bird flu, which he says should be allowed to spread unchecked in chicken flocks to see which birds are resistant or immune. This feels kind of like what some people recommended during covid. Sarah, is there any science to suggest this might be a good idea?
Karlin-Smith: No, it seems like the science actually suggests the opposite, because doctors and veterinary specialists are saying basically every time you let the infection continue to infect birds, you’re giving the virus more and more chances to mutate, which can lead to more problems down the road. The other thing is they were talking about the way we raise animals, and for food these days, there isn’t going to be a lot of genetic variation for the chickens, so it’s not like you’re going to be able to find a huge subset of them that are going to survive bird flu.
And then the other thing I thought is really interesting is just it doesn’t seem economically to make the most sense either as well, both for the individual farmers but then for U.S. industry as a whole, because it seems like other countries will be particularly unhappy with us and even maybe put prohibitions on trading with us or those products due to the spread of bird flu.
Rovner: Yeah, it was eyebrow-raising, let us say. Well, HHS this week also announced its first big policy effort, called Operation Stork Speed. It will press infant formula makers for more complete lists of ingredients, increase testing for heavy metals in formula, make it easier to import formula from other countries, and order more research into the health outcomes of feeding infant formula. This feels like maybe one of those things that’s not totally controversial, except for the part that the FDA [Food and Drug Administration] workers who have been monitoring the infant formula shortage were part of the big DOGE [Department of Government Efficiency] layoffs.
Roubein: I talked to some experts about this idea, and, like you said, they thought it kind of sounded good, but they basically needed more details. Like, what does it mean? Who’s going to review these ingredients? To your point, some people did say that the agency would need to staff up, and there was a neonatologist who is heading up infant formula that was hired after the 2022 shortage who was part of the probationary worker terminations. However, when the FDA rescinded the terminations of some workers, so, that doctor has been hired back. So I think that’s worth noting.
Rovner: Yes. This is also, I guess, where we get to note that Calley Means, one of RFK Jr.’s, I guess, brain trusts in the MAHA movement, has been hired as, I guess, in an Elon Musk-like position in the White House as an adviser. But this is certainly an area where he would expect to weigh in.
Hellmann: Yeah, I saw he’s really excited about this on Twitter, or X. There’s just been concerns in the MAHA movement, “Make America Healthy Again,” about the ingredients that are in baby formula. And the only thing is I saw that he also retweeted somebody who said that “breast is best,” and I’m just hoping that we’re not going back down that road again, because I feel like public health did a lot of work in pushing the message that formula and breast milk is good for the child, and so that’s just another angle that I’ve been thinking about on this.
Rovner: Yes, I think this is one of those things that everybody agrees we should look at and has the potential to get really controversial at some point. While we are on the subject of the federal workforce and layoffs, federal judges and DOGE continue to play cat-and-mouse, with lots of real people’s lives and careers at stake. Various judges have ordered the reinstatement, as you mentioned, Rachel, of probationary and other workers. Although in many cases workers have been reinstated to an administrative leave status, meaning they get put back on the payroll and they get their benefits back, but they still can’t do their jobs. At least one judge has said that does not satisfy his order, and this is all changing so fast it’s basically impossible to keep up. But is it fair to say that it’s not a very stable time to be a federal worker?
Karlin-Smith: That’s probably the nicest possible way to put it. When you talk to federal workers, everybody seems stressed and just unsure of their status. And if they do have a job, it’s often from their perspective tougher to do their job lately, and then they’re just not sure how stable it is. And many people are considering what options they have outside the federal government at this point.
Rovner: So for those lucky federal workers who do still have jobs, the Trump administration has also ordered everyone back to offices, even if those offices aren’t equipped to accommodate them. FDA headquarters here in Maryland’s kind of been the poster child for this this week.
Karlin-Smith: Yeah, FDA is an interesting one because well before covid normalized working from home and transitioned a lot of people to working from home, FDA’s headquarters couldn’t accommodate a lot of the new growth in the agency over the years, like the tobacco part of the FDA. So it was typical that people at least worked part of their workweek at home, and FDA really found once covid gave them additional work-from-home flexibilities, they were able to recruit staff they really, really needed with specialized degrees and training who don’t live near here, and it actually turned out to be quite a benefit from them.
And now they’re saying everybody needs to be in an office five days a week, and you have people basically cramped into conference rooms. There’s not enough parking. People are trying to review technical scientific data, and you kind of can’t hear yourself think. Or you’re a lawyer — I heard of a situation where people are basically being told, Well, if you need to do a private phone call because of the confidentiality around what you’re doing, go take the call in your car. So I think in addition to all of the concerns people have around the stability of their jobs, there’s now this element of, on a personal level, I think for many of them it’s just made their lives more challenging. And then they just feel like they’re not actually able to do, have the same level of efficiency at their work as they normally would.
Rovner: And for those who don’t know, the FDA campus is on a former military installation in the Maryland suburbs. It’s not really near any public transportation. So you pretty much have to drive to get there. And I think that the parking lots are not that big, because, as you pointed out, Sarah, the workforce is now bigger than the headquarters was created to accommodate it. And we’re seeing this across the government. This week it happened to be FDA. You have to ask the question: Is this really just an effort to make the government not work, to make federal workers, if they can’t fire them, to make them quit?
Hellmann: I definitely think that’s part of the underlying goal. If you see some of the stuff that Elon Musk says about the federal workforce, it’s very dismissive. He doesn’t seem to have a lot of respect for the civil servants. And they’ve been running into a lot of pushback from federal judges over many lawsuits targeting these terminations. And so I think just making conditions as frustrating as possible for some of these workers until they quit is definitely part of the strategy.
Roubein: And I think this is overlaid with the additional buyout offers, the additional early retirement offers. There’s also the reduction-in-force plans that federal workers have been unnerved about, bracing for future layoffs. So it’s very clear that they want to shrink the size of the federal workforce.
Rovner: Yeah, we’ve seen a lot of these people, I’ve seen interviews with them, who are being reinstated, but they’re still worried that now they’re going to be RIF-ed. They’re back on the payroll, they’re off the payroll. I mean there’s nothing — this does not feel like a very efficient way to run the federal government.
Karlin-Smith: Right. I think that’s what a lot of people are talking about is, again, going back to offices, for many of these people, is not leading to productivity. I talked to one person who said: I’m just leaving my laptop at the office now. I’m not going to take it home and do the extra hours of work that they might’ve normally gotten from me. And that includes losing time to commute. FDA is paying for parking-garage spaces in downtown Silver Spring [Maryland] near the Metro so that they can then shuttle people to the FDA headquarters. I’ve taken buses from that Metro to FDA headquarters. In traffic, that’s a 30-minute drive. They’re spending money on things that, again, I think are not going to in the long run create any government efficiency.
And in fact, I’ve been talking to people who are worried it’s going to do the opposite, that drug review, device review, medical product review times and things like that are going to slow. We talked about food safety. I think The New York Times had a really good story this week about concerns about losing the people. We need to make sure that baby formula is actually safe. So there’s a lot of contradictions in the messaging of what they’re trying to accomplish and how the actions actually are playing out.
Rovner: Well, and finally, I’m going to lay one more layer on this. There’s the question of whether you can even put the toothpaste back in the tube if you wanted to. After weeks of back-and-forth, the federal judge ruled on Tuesday that the dissolution of USAID [the U.S. Agency for International Development] was illegal and probably unconstitutional, and ordered email and computer access restored for the remaining workers while blocking further cuts. But with nearly everybody fired, called back from overseas, and contracts canceled, USAID couldn’t possibly come close to doing what it did before DOGE basically took it apart, right?.
Karlin-Smith: You hear stories of if someone already takes a new job, they’re lucky enough to find a new job, why are they going to come back? Again, even if you’re brought back, my expectation is a lot of people who have been brought back are probably looking for new jobs regardless because you don’t have that stability. And I think the USAID thing is interesting, too, because again, you have people that were working in all corners of the world and you have partnerships with other countries and contractors that have to be able to trust you moving forward. And the question is, do those countries and those organizations want to continue working with the U.S. if they can’t have that sort of trust? And as people said, the U.S. government was known as, they could pay contractors less because they always paid you. And when you take that away, that creates a lot of problems for negotiating deals to work with them moving forward.
Rovner: And I think that’s true for federal workers, too. There’s always been the idea that you probably could earn more in the private sector than you can working for the federal government, but it’s always been a pretty stable job. And I think right now it’s anything but, so comes the question of: Are we deterring people from wanting to work for the federal government? Eventually one would assume there’s still going to be a federal government to work for, and there may not be anybody who wants to do it.
Roubein: Yeah, you saw various hiring authorities given to try and recruit scientists and other researchers who make a lot, lot more in the public health sector, and some of those were a part of the probationary workforce because they had been hired recently under those authorities.
Rovner: Yeah, and now this is all sort of coming apart. Well, meanwhile, the cuts are continuing even faster than federal judges can rule against them. Last week, the administration said it would reduce the number of HHS regional offices from 10 to four. Considering these are where the department’s major fraud-fighting efforts take place, that doesn’t seem a very effective way of going after fraud and abuse in programs like Medicare and Medicaid. Those regional offices are also where lots of beneficiary protections come from, like inspections of nursing homes and Head Start facilities. How does this serve RFK Jr.’s Make America Healthy Again agenda?
Karlin-Smith: I think it’s not clear that it does, right? You’re talking about, again, the Department of Government Efficiency has focused on efficiency, cost savings, and Medicare and Medicaid does a pretty good job of fighting fraud and making HHS OIG [Office of Inspector General], all those organizations, they collect a lot of money back. So when you lose people—
Rovner: And of course the inspector general has also been laid off in all of this.
Karlin-Smith: Right. It’s not clear to me, I think one of the things with that whole reorganization of their chief counsel is people are suggesting, again, this is sort of a power move of HHS wanting to get a little bit more control of the legal operations at the lower agencies, whether it’s NIH [the National Institutes of Health] or FDA and so forth. But, right, it’s reducing head count without really thinking about what people’s roles actually were and what you lose when you let them go.
Rovner: Well, the Trump administration is also continuing to cut grants and contracts that seem like they’d be the kind of things that directly relate to Make America Healthy Again. Jessie, you’ve chosen one of those as your extra credit this week. Tell us about it.
Hellmann: Yeah. So my story is from Stat [“NIH Cancels Funding for a Landmark Diabetes Study at a Time of Focus on Chronic Disease”], and it’s about a nationwide study that tracks patients with prediabetes and diabetes. And it was housed at Columbia University, which as we know has been the subject of some criticism from the Trump administration. They had lost about $400 million in grants because the administration didn’t like Columbia’s response to some of the protests that were on campus last year. But that has an effect on some research that really doesn’t have much to do with that, including a study that looked at diabetes over a really long period of time.
So it was able to over decades result in 200 publications about prediabetes and diabetes, and led to some of the knowledge that we have now about the interventions for that. And the latest stage was going to focus on dementia and cognitive impairment, since some of the people that they’ve been following for years are now in their older ages. And now they have to put a stop to that. They don’t even have funding to analyze blood samples that they’ve done and the brain scans that they’ve collected. So it’s just another example of how what’s being done at the administration level is contradicting some of the goals that they say that they have.
Rovner: Yeah, and it’s important to remember that Columbia’s funding is being cut not because they deemed this particular project to be not helpful but because they are, as you said, angry at Columbia for not cracking down more on pro-Palestinian protesters after Oct. 7.
Well, meanwhile, people are bracing for still more cuts. The Wall Street Journal is reporting the administration plans to cut domestic AIDS-HIV programming on top of the cuts to the international PEPFAR [President’s Emergency Plan for AIDS Relief] program that was hammered as part of the USAID cancellation. Is fighting AIDS and HIV just way too George W. Bush for this administration?
Hellmann: It’s interesting because President [Donald] Trump unveiled the Ending the HIV Epidemic initiative in his first term, and the goal was to end the epidemic in the United States. And so if they were talking about reducing some of that funding, or I know there were reports that maybe they would move the funding from CDC [the Centers for Disease Control and Prevention] to HRSA [the Health Resources and Services Administration], it’s very unclear at this point. Then it raises questions about whether it would undermine that effort. And there’s already actions that the Trump administration has done to undermine the initiative, like the attacks on trans people. They’ve canceled grants to researchers studying HIV. They have done a whole host of things. They canceled funding to HIV services organizations because they have “trans” in their programming or on their websites. So it’s already caused a lot of anxiety in this community. And yeah, it’s just a total turnaround from the first administration.
Rovner: I know the Whitman-Walker clinic here in Washington, which has long been one of the premier AIDS-HIV clinics, had just huge layoffs. This is already happening, and as you point out, this was something that President Trump in his first term vowed to end AIDS-HIV in the U.S. So this is not one would think how one would go about that.
Well, it’s not just the administration that’s working to constrict rights and services. A group of 17 states, led by Texas, of course, are suing to have Biden-era regulations concerning discrimination against trans people struck down, except as part of that suit, the states are asking that the entirety of Section 504 of the Rehabilitation Act be declared unconstitutional. Now, you may never have heard of Section 504, but it is a very big deal. It was the forerunner of the Americans With Disabilities Act, and it prevents discrimination on the basis of disability in all federally funded activities. It is literally a lifeline for millions of disabled people that enables them to live in the community rather than in institutions. Are we looking at an actual attempt to roll back basically all civil rights as part of this war on “woke” and DEI [diversity, equity, and inclusion] and trans people?
Hellmann: The story is interesting, because it seems like some of the attorneys general are saying, That’s not our intent. But if you look at the court filings, it definitely seems like it is. And yeah, like you said, this is something that would just have a tremendous impact. And Medicaid coverage of home- and community-based services is one of those things that states are constantly struggling to pay for. You’re just continuing to see more and more people need these services. Some states have waiting lists, so—
Rovner: I think most states have waiting lists.
Hellmann: Yeah. It’s something, you have to really question what the intent is here. Even if people are saying, This isn’t our intent, it’s pretty black-and-white on paper in the court records, so—
Rovner: Yeah, just to be clear, this was a Biden administration regulation, updating the rules for Section 504, that included reference to trans people. But in the process of trying to get that struck down, the court filings do, as you say, call for the entirety of Section 504 to be declared unconstitutional. This is obviously one of those court cases that’s still before the district court, so it’s a long way to go. But the entire disability community, certainly it has their attention.
Well, we haven’t had any big abortion news the past couple of weeks, but that is changing. In Texas, a midwife and her associate have become the first people arrested under the state’s 2022 abortion ban. The details of the case are still pretty fuzzy, but if convicted, the midwife who reportedly worked as an OB-GYN doctor in her native Peru and served a mostly Spanish-speaking clientele, could be sentenced to up to 20 years in prison. So, obviously, be watching that one. Meanwhile, here in Washington, Hilary Perkins, a career lawyer chosen by FDA commissioner nominee Marty Makary to serve as the agency’s general counsel, resigned less than two days into her new position after complaints from Missouri Sen. Josh Hawley that she defended the Biden administration’s position on the abortion pill mifepristone.
Now, Hilary Perkins is no liberal trying to hide out in the bureaucracy. She’s a self-described pro-life Christian conservative hired in the first Trump administration, but she was apparently forced out for the high crime of doing her job as a career lawyer. Is this administration really going to try to evict anyone who ever supported a Biden position? Will that leave anybody left?
Roubein: I think what’s notable is Sen. Josh Hawley here, who expressed concerns and I had heard expressed concerns to the White House, and the post on X from the FDA came an hour before the hearing. There were concerns that he was not going to make it out of committee and—
Rovner: Before the Marty Makary hearing.
Roubein: Yes, sorry, before the vote in the HELP [Health, Education, Labor and Pensions] Committee on Marty Makary. And Hawley said because of that, he would vote to support him. What was interesting is two Democrats actually ended up supporting him, so he could have passed without Hawley’s vote. But I think in general it poses a test for Marty Makary when he’s an FDA commissioner, and how and whether he’s going to get his people in and how he’ll respond to different pressure points in Congress and with HHS and with the White House.
Rovner: And of course, Hawley’s not a disinterested bystander here, right?
Karlin-Smith: So his wife was one of the key attorneys in the recent big Supreme Court case that was pushed down to the lower courts for a lack of standing, but she was trying to essentially get tighter controls on the abortion pill mifepristone. But it seems like almost maybe Hawley jumped too soon before doing all of his research or fully understanding the role of people at Justice. Because even before this whole controversy erupted, I had talked to people the day before about this and asked them, “Should we read into this, her being involved in this?” And everybody I talked to, including, I think, a lot of people that have different views than Perkins does on the case, that they were saying she was in a role as a career attorney. You do what your boss, what the administration, wants.
If you really, really had a big moral problem with that, you can quit your job. But it’s perfectly normal for an attorney in that kind of position to defend a client’s interest and then have another client and maybe have to defend them wrongly. So it seems like if they had just maybe even picked up the phone and had a conversation with her, the whole crisis could have been averted. And she was on CNN yesterday trying to plead her case and, again, emphasize her positions because perhaps she’s worried about her future career prospects, I guess, over this debacle.
Rovner: Yeah, now she’s going to be blackballed by both sides for having done her job, basically. Anyway, all right, well, one big Biden initiative that looks like it will continue is the Medicare Drug Price Negotiation program. And we think we know this because CMS announced last week that the makers of all of the 15 drugs selected for the second round of negotiations have agreed to, well, negotiate. Sarah, this is news, right? Because we were wondering whether this was really going to go forward.
Karlin-Smith: Yeah, they’ve made some other signals since taking over that they were going to keep going with this, including last week at his confirmation hearing, Dr. Oz, for CMS, also indicated he seemed like he would uphold that law and they were looking for ways to lower drug costs. So I think what people are going to be watching for is whether they yield around the edges in terms of tweaks the industry wants to the law, or is there something about the prices they actually negotiate that signal they’re not really trying to get them as low as they can go? But this seems to be one populist issue for Trump that he wants to keep leaning into and keep the same consistency, I think, from his first administration, where he always took a pretty hard line on the drug industry and drug pricing.
Rovner: And I know Ozempic is on that list of 15 drugs, but the administration hasn’t said yet. I assume that’s Ozempic for its original purpose in treating diabetes. This administration hasn’t said yet whether they’ll continue the Biden declaration that these drugs could be available for people for weight loss, right?
Karlin-Smith: Correct. And I think that’s going to be more complicated because that’s so costly. So negotiating the price of drugs saves money. So yes, basically because Ozempic and Wegovy are the same drug, that price should be available regardless of the indication. But I’m more skeptical that they continue that policy, because of the cost and also just because, again, HHS Secretary Robert F. Kennedy seems to be particularly skeptical of the drugs, or at least using that as a first line of defense, widespread use, reliance on that. He tends to, in general, I think, support other ways of medical, I guess, treatment or health treatments before turning to pharmaceuticals.
Rovner: Eating better and exercising.
Karlin-Smith: Correct, right. So I think that’s going to be a hard sell for them because it’s just so costly.
Rovner: We will see. All right, that is as much news as we have time for this week. Now, it is time for our extra-credit segment, that’s where we each recognize the story we read this week we think you should read, too. Don’t worry if you miss it. We will put the links in our show notes on your phone or other mobile device. Jessie, you’ve done yours already this week. Rachel, why don’t you go next?
Roubein: My extra credit, the headline is “Her Research Grant Mentioned ‘Hesitancy.’ Now Her Funding Is Gone.” In The Washington Post by my colleague Carolyn Y. Johnson. And I thought the story was particularly interesting because it really dove into the personal level. You hear about all these cuts from a high level, but you don’t always really know what it means and how it came about. So the backstory is the National Institutes of Health terminated dozens of research grants that focused on why some people are hesitant to accept vaccines.
And Carolyn profiled one researcher, Nisha Acharya, but there was a twist, and the twist was she doesn’t actually study how to combat vaccine hesitancy or ways to increase vaccine uptake. Instead, she studies how well the shingles vaccine works to prevent the infection, with a focus on whether the shot also prevents the virus from affecting people’s eyes. But in the summary of her project, she had used the word “hesitancy” once and used the word “uptake” once. And so this highlights the sweeping approach to halting some of these vaccine hesitancy research grants.
Rovner: Yeah that was like the DOD [Department of Defense] getting rid of the picture of the Enola Gay, the plane that dropped the atomic bomb, because it had the word “Gay” in it. This is the downside, I guess, of using AI for these sorts of things. Sarah.
Karlin-Smith: I took a look at a KFF story by Arthur Allen, “Scientists Say NIH Officials Told Them to Scrub mRNA References on Grants,” and it’s about NIH officials urging people to remove any reference to mRNA vaccine technology from their grants. And the story indicates it’s not yet clear if that is going to translate to defunding of such research, but the implications are quite vast. I think most people probably remember the mRNA vaccine technology is really what helped many of us survive the covid pandemic and is credited with saving millions of lives, but the technology promise seems vast even beyond infectious diseases, and there’s a lot of hope for it in cancer.
And so this has a lot of people worried. It’s not particularly surprising, I guess, because again, the anti-vaccine movement, which Kennedy has been a leader of, has been particularly skeptical of the mRNA technology. But it is problematic, I think, for research. And we spent a lot of time on this call talking about the decimation of the federal workforce that may happen here, and I think this story and some of the other things we talked about today also show how we may just decimate our entire scientific research infrastructure and workforce in the U.S. outside of just the federal government, because so much of it is funded by NIH, and the decisions they’re making are going to make it impossible for a lot of scientists to do their job.
Rovner: Yeah, we’re also seeing scientists going to other countries, but that’s for another time. Well, my extra credit this week, probably along the same lines, also from The Washington Post. It’s part of a series called “Who Is Government?” This particular piece [“The Free-Living Bureaucrat”] is by bestselling author Michael Lewis, and it’s a sprawling — and I mean sprawling — story of how a mid-level FDA employee who wanted to help find new treatments for rare diseases ended up not only figuring out a cure for a child who was dying of a rare brain amoeba but managed to obtain the drug for the family in time to save her. It’s a really good piece, and it’s a really excellent series that tells the stories of mostly faceless bureaucrats who actually are working to try to make the country a better place.
OK, that’s this week’s show. As always, if you enjoy the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left us a review. That helps other people find us, too. Thanks as always to our producer, Francis Ying, and our editor, Emmarie Huetteman. As always, you can email us your comments or questions. We’re at whatthehealth@kff.org, or you can still find me at X, @jrovner, and at Bluesky, @julierovner. Where are you guys these days? Sarah?
Karlin-Smith: A little bit everywhere. X, Bluesky, LinkedIn — @SarahKarlin or @sarahkarlin-smith.
Rovner: Jessie.
Hellmann: I’m @jessiehellmann on X and Bluesky, and I’m also on LinkedIn more these days.
Rovner: Great. Rachel.
Roubein: @rachelroubein at Bluesky, @rachel_roubein on X, and also on LinkedIn.
Rovner: We will be back in your feed next week. Until then, be healthy.
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Julie Rovner
KFF Health News
Julie Rovner is chief Washington correspondent and host of KFF Health News’ weekly health policy news podcast, “What the Health?” A noted expert on health policy issues, Julie is the author of the critically praised reference book “Health Care Politics and Policy A to Z,” now in its third edition.
As part of a media blitz aimed at women voters, Vice President Kamala Harris this week rolled out a plan for Medicare to provide in-home long-term care services. It’s popular, particularly for families struggling to care for both young children and older relatives, but its enormous expense has prevented similar plans from being implemented for decades.
Meanwhile, President Joe Biden called out former President Donald Trump by name for having “led the onslaught of lies” about the federal efforts to help people affected by hurricanes Helene and Milton. Even some Republican officials say the misinformation about hurricane relief efforts is threatening public health.
This week’s panelists are Julie Rovner of KFF Health News, Shefali Luthra of The 19th, Jessie Hellmann of CQ Roll Call, and Joanne Kenen of the Johns Hopkins schools of public health and nursing and Politico.
Panelists
Jessie Hellmann
CQ Roll Call
Joanne Kenen
Johns Hopkins University and Politico
Shefali Luthra
The 19th
Among the takeaways from this week’s episode:
- Vice President Kamala Harris’ plan to expand Medicare to cover more long-term care is popular but not new, and in the past has proved prohibitively expensive.
- Former President Donald Trump has abandoned support for a drug price policy he pursued during his first term. The idea, which would lower drug prices in the U.S. to their levels in other industrialized countries, is vehemently opposed by the drug industry, raising the question of whether Trump is softening his hard line on the issue.
- Abortion continues to be the biggest health policy issue of 2024, as Republican candidates — in what seems to be a replay of 2022 — try to distance themselves from their support of abortion bans and other limits. Voters continue to favor reproductive rights, which creates a brand problem for the GOP. Trump’s going back and forth on his abortion positions is an exception to the tack other candidates have taken.
- The Supreme Court returned from its summer break and immediately declined to hear two abortion-related cases. One case pits Texas’ near-total abortion ban against a federal law that requires emergency abortions to be performed in certain cases. The other challenges a ruling earlier this year from the Alabama Supreme Court finding that embryos frozen for in vitro fertilization have the same legal rights as born humans.
- The 2024 KFF annual employer health benefits survey, released this week, showed a roughly 7% increase in premiums, with average family premiums now topping $25,000 per year. And that’s with most employers not covering two popular but expensive medical interventions: GLP-1 drugs for weight loss and IVF.
Also this week, excerpts from a KFF lunch with “Shark Tank” panelist and generic drug discounter Mark Cuban, who has been consulting with the Harris campaign about health care issues.
Plus, for “extra credit,” the panelists suggest health policy stories they read this week they think you should read, too:
Julie Rovner: KFF Health News’ “A Boy’s Bicycling Death Haunts a Black Neighborhood. 35 Years Later, There’s Still No Sidewalk,” by Renuka Rayasam and Fred Clasen-Kelly.
Shefali Luthra: The 19th’s “Arizona’s Ballot Measure Could Shift the Narrative on Latinas and Abortion,” by Mel Leonor Barclay.
Jessie Hellmann: The Assembly’s “Helene Left Some NC Elder-Care Homes Without Power,” by Carli Brosseau.
Joanne Kenen: The New York Times’ “Her Face Was Unrecognizable After an Explosion. A Placenta Restored It,” by Kate Morgan.
Also mentioned on this week’s podcast:
- The New York Times’ “Biden Accuses Trump of ‘Outright Lies’ About Hurricane Response,” by Michael D. Shear.
- The Miami Herald’s “Florida Threatens To Prosecute TV Stations Over Abortion Ad. FCC Head Calls It ‘Dangerous,’” by Claire Healy and Ana Ceballos.
- KFF’s “2024 Employer Health Benefits Survey.”
Click to open the Transcript
Transcript: Yet Another Promise for Long-Term Care Coverage
[Editor’s note: This transcript was generated using both transcription software and a human’s light touch. It has been edited for style and clarity.]
Julie Rovner: Hello, and welcome back to “What the Health.” I’m Julie Rovner, chief Washington correspondent for KFF Health News. And I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, October 10th, at 10 a.m. As always, news happens fast, and things might’ve changed by the time you hear this. So, here we go.
Today we are joined via teleconference by Shefali Luthra of The 19th.
Shefali Luthra: Hello.
Rovner: Jesse Hellmann of CQ Roll Call.
Jessie Hellmann: Hi there.
Rovner: And Joanne Kenen of the Johns Hopkins Schools of Public Health and Nursing and Politico magazine.
Joanne Kenen: Hi everybody.
Rovner: Later in this episode, we’ll have some excerpts from the Newsmaker lunch we had here at KFF this week with Mark Cuban — “Shark Tank” star, part-owner of the Dallas Mavericks NBA team, and, for the purposes of our discussion, co-founder of the industry-disrupting pharmaceutical company Cost Plus Drugs. But first, this week’s news.
We’re going to start this week with Vice President [Kamala] Harris, who’s been making the media rounds on women-focused podcasts and TV shows like “The View.” To go along with that, she’s released a proposal to expand Medicare to include home-based long-term care, to be paid for in part by expanding the number of drugs whose price Medicare can negotiate. Sounds simple and really popular. Why has no one else ever proposed something like that? she asks, knowing full well the answer. Joanne, tell us!
Kenen: As the one full-fledged member of the sandwich generation here, who has lived the experience of being a family caregiver while raising children and working full time, long-term care is the unfulfillable, extremely expensive, but incredibly important missing link in our health care system. We do not have a system for long-term care, and people do not realize that. Many people think Medicare will, in fact, cover it, where Medicare covers it in a very limited, short-term basis. So the estimates of what families spend both in terms of lost work hours and what they put out-of-pockets is in, I think it’s something like $400 billion. It’s extraordinarily high. But the reason it’s been hard to fix is it’s extraordinarily expensive. And although Harris put out a plan to pay for this, that plan is going to have to be vetted by economists and budget scorers and skeptical Republicans. And probably some skeptical Democrats. It’s really expensive. It’s really hard to do. Julie has covered this for years, too. It’s just—
Rovner: I would say this is where I get to say one of my favorite things, which is that I started covering health care in 1986, and in 1986 my first big feature was: Why don’t we have a long-term care policy in this country? Thirty-eight years later, and we still don’t, and not that people have not tried. There, in fact, was a long-term-care-in-the-home piece of the Affordable Care Act that passed Congress, and HHS [the Department of Health and Human Services] discovered that they could not implement it in the way it was written, because only the people who would’ve needed it would’ve signed up for it. It would’ve been too expensive. And there it went. So this is the continuing promise of something that everybody agrees that we need and nobody has ever been able to figure out how to do. Shefali, I see you nodding here.
Luthra: I mean, I’m just thinking again about the pay-fors in here, which are largely the savings from Medicare negotiating drug prices. And what Harris says in her plan is that they’re going to get more savings by expanding the list of drugs that get lower prices. But that also feels very politically suspect when we have already heard congressional Republicans say that they would like to weaken some of those drug negotiation price provisions. And we also know that Democrats, even if they win the presidency, are not likely to have Congress. It really takes me back to 2020, when we are just talking about ideas that Democrats would love to do if they had full power of Congress, while all of us in Washington kind of know that that is just not going to happen.
Rovner: Yes, I love that one of the pay-fors for this is cutting Medicare fraud. It’s like, where have we heard that before? Oh, yes. In every Medicare proposal for the last 45 years.
Kenen: And it also involves closing some kind of international tax loopholes, and that also sounds easy on paper, and nothing with taxes is ever easy. The Democrats probably are not going to have the Senate. Nobody really knows about the House. It looks like the Democrats may have a narrow edge in that, but we’re going to have more years of gridlock unless something really changes politically, like something extraordinary changes politically. The Republicans are not going to give a President Harris, if she is in fact President Harris, her wish list on a golden platter. On the other hand there’s need for this.
Rovner: But in fairness, this is what the campaign is for.
Kenen: Right. There is a need for something on long-term care.
Rovner: And everybody’s complaining: Well, what would she do? What would she do if she was elected? Well, here’s something she said she would do if she could, if she was elected. Well, meanwhile, former President [Donald] Trump has apparently abandoned a proposal that he made during his first term to require drugmakers to lower their prices for Medicare to no more than they charge in other developed countries where their prices are government-regulated. Is Trump going soft on the drug industry? Trump has been, what, the Republican, I think, who’s been most hostile towards the drug industry until now.
Hellmann: I would say maybe. I think the “most favored nation” proposal is something that the pharmaceutical industry has feared even more than the Democrats’ Medicare negotiation program. And it’s something that Trump really pursued in his first term but wasn’t able to get done. In such a tight race, I think he’s really worried about angering pharmaceutical companies, especially after they were just kind of dealt this loss with Medicare price negotiation. And if he does win reelection, he’s going to be kind of limited in his ability to weaken that program. It’s going to be hard to repeal it. It’s extremely popular, and he may be able to weaken it.
Rovner: “It” meaning price negotiation, not the “most favored nations” prices.
Hellmann: Yeah. It’s going to be really hard to repeal that, and he may be able to weaken it through the negotiation process with drug companies. It’s definitely an interesting turn.
Rovner: Joanne, you want to add something?
Kenen: Trump rhetorically was very harsh on the drug companies right around the time of his inauguration. I think it was the week before, if I remember correctly. Said a lot of very tough stuff on drugs. Put out a list of something like dozens of potential steps. The drug companies have lots of allies in both parties, and more in one than the other, but they have allies on the Hill, and nothing revolutionary happened on drug pricing under Trump.
Rovner: And his HHS secretary was a former drug company executive.
Kenen: Yes, Eli Lilly. So we also pointed out here that former President Trump is not consistent in policy proposals. He says one thing, and then he says another thing, and it’s very hard to know where he’s going to come down. So Trump and drug pricing is an open question.
Rovner: Yes, we will see. All right, well, moving on. Drug prices and Medicare aside, the biggest health issue of Campaign 2024 continues to be abortion and other reproductive health issues. And it’s not just Trump trying to back away from his anti-abortion record. We’ve had a spate of stories over the past week or so of Republicans running for the House, the Senate, and governorships who are trying to literally reinvent themselves as, if not actually supportive of abortion rights, at least anti abortion bans. And that includes Republicans who have not just voted for and advocated for bans but who have been outspokenly supportive of the anti-abortion effort, people like North Carolina Republican gubernatorial candidate Mark Robinson, New Hampshire Republican gubernatorial candidate and former U.S. Senator Kelly Ayotte, along with former Michigan Republican representative and now Senate candidate Mike Rogers. Donald Trump has gotten away repeatedly, as Joanne just said, with changing his positions, even on hot-button issues like abortion. Are these candidates going to be able to get away with doing the same thing, Shefali?
Luthra: I think it’s just so much tougher when your name is not Donald Trump. And that’s because we know from focus group after focus group, and survey after survey, that voters kind of give Trump more leeway on abortion. Especially independent voters will look at him and say, Well, I don’t think he actually opposes abortion, because I’m sure he’s paid for them. And they don’t have that same grace that they give to Republican lawmakers and Republican candidates, because the party has a bad brand on abortion at large, and Trump is seen as this kind of maverick figure. But voters know that Republicans have a history of opposing abortion, of supporting restrictions.
When you look at surveys, when you talk to voters, what they say is, Well, I don’t trust Republicans to represent my interests on this issue, because they largely support access. And one thing that I do think is really interesting is, once again, what we’re seeing is kind of a repeat of the 2022 elections when we saw some very brazen efforts by Republican candidates for the House and Senate try and scrub references to abortion and to fetal personhood from their websites. And it didn’t work, because people have eyes and people have memories, and, also, campaigns have access to the internet archive and are able to show people that, even a few weeks ago, Republican candidates were saying something very different from what they are saying now. I don’t think Mark Robinson can really escape from his relatively recent and very public comments about abortion.
Rovner: Well, on the other hand, there’s some things that don’t change. Republican vice presidential candidate JD Vance told RealClearPolitics last week that if Trump is elected again, their administration would cut off funding to Planned Parenthood because, he said, and I quote, “We don’t think that taxpayers should fund late-term abortions.” Notwithstanding, of course, that even before the overturn of Roe, less than half of all Planned Parenthoods even performed abortions and almost none of those who did perform them later in pregnancy. Is it fair to say that Vance’s anti-abortion slip is showing?
Luthra: I think it might be. And I will say, Julie, when I saw that he said that, I could hear you in my head just yelling about the Hyde Amendment, because we know that Planned Parenthood does not use taxpayer money to pay for abortions. But we also know that JD Vance has seen that he and his ticket are kind of in a tough corner talking about abortion. He has said many times, We need to rebrand — he’s very honest about that, at least — and trying to focus instead on this nonmedical term of “late term” abortions.
It’s a gamble. It’s hoping that voters will be more sympathetic to that because they’ll think, Oh, well, that sounds very extreme. And they’re trying to shift back who is seen as credible and who is not, by focusing on something that historically was less popular. But again, it’s again tricky because when we look at the polling, voters’ understanding of abortion has shifted and they are now more likely to understand that when you have an abortion later in pregnancy, it is often for very medically complex reasons. And someone very high-profile who recently said that is Melania Trump in her new memoir, talking about how she supports abortion at all stages of pregnancy because often these are very heart-wrenching cases and not sort of the murder that Republicans have tried to characterize them as.
Rovner: I think you’re right. I think this is the continuation of the 2022 campaign, except that we’ve had so many more women come forward. We’ve seen actual cases. It used to be anti-abortion forces would say, Oh, well, this never happened. I mean, these are wrenching, awful things that happened to a lot of these patients with pregnancy complications late in pregnancy. And it is, I know, because I’ve talked to them. It’s very hard to get them to talk publicly, because then they get trolled. Why should they step forward?
Well, now we’ve seen a lot of these women stepping forward. So we now see a public that knows that this happens, because they’re hearing from the people that it’s happened to and they’re hearing from their doctors. I do know also from the polling that there are people who are going to vote in these 10 states where abortion is on the ballot. Many of them are going to vote for abortion access and then turn around and vote for Republicans who support restrictions, because they’re Republicans. It may or may not be their most important issue, but I still think it’s a big question mark where that happens and how it shakes out. Joanne, did you want to add something?
Kenen: You’re seeing two competing things at the same time. You have a number of Republicans trying to moderate their stance or at least sound like they’re moderating their stance. At the same time, you also have the whole, where the Republican Party is on abortion has shifted to the right. They are talking about personhood at the moment of conception, the embryo — which is, scientifically put, a small ball of cells still at that point — that they actually have the same legal rights as any other post-birth person.
So that’s become a fairly common view in the Republican Party, as opposed to something that just five or six years ago was seen as the fringe. And Trump is going around saying that Democrats allow babies to be executed after birth, which is not true. And they’re particularly saying this is true in Minnesota because of [Gov.] Tim Walz, and some voters must believe it, right? Because they keep saying it. So you have this trend that Shefali just described and that you’ve described, Julie, about this sort of attempting to win back trust, as Vance said. And it sounded more moderate, and at the same time as you’re hearing this rhetoric about personhood and execution. So I don’t think the Republicans have yet solved their own whiplash post-Roe.
Rovner: Meanwhile, the abortion debate is getting mired in the free-speech debate. In Florida, Republican governor Ron DeSantis is threatening legal action against TV stations airing an ad in support of the ballot measure that would overturn the state’s six-week abortion ban. That has in turn triggered a rebuke from the head of the Federal Communications Commission warning that political speech is still protected here in the United States. Shefali, this is really kind of out there, isn’t it?
Luthra: It’s just so fascinating, and it’s really part of a bigger effort by Ron DeSantis to try and leverage anything that he can politically or, frankly, in his capacity as head of the state to try and weaken the campaign for the ballot measure. They have used the health department in other ways to try and send out material suggesting that the campaign’s talking points, which are largely focused on the futility of exceptions to the abortion ban, they’re trying to argue that that is misinformation, and that’s not true. And they’re using the state health department to make that argument, which is something we don’t really see very often, because usually health departments are supposed to be nonpartisan. And what I will say is, in this case, at least to your point, Julie, the FCC has weighed in and said: You can’t do this. You can’t stop a TV station from airing a political ad that was bought and paid for. And the ads haven’t stopped showing at this point. I just heard from family yesterday in Florida who are seeing the ads in question on their TV, and it’s still—
Rovner: And I will post a link to the ad just so you can see it. It’s about a woman who’s pregnant and had cancer and needed cancer treatment and needed to terminate the pregnancy in order to get the cancer treatment. It said that the exception would not allow her to, which the state says isn’t true and which is clearly one of these things that is debatable. That’s why we’re having a political debate.
Luthra: Exactly. And one thing that I think is worth adding in here is, I mean, this really intense effort from Governor DeSantis and his administration comes at a time when already this ballot measure faces probably the toughest fight of any abortion rights measure. And we have seen abortion rights win again and again at the ballot, but in Florida you need 60% to pass. And if you look across the country at every abortion rights measure that has been voted on since Roe v. Wade was overturned, only two have cleared 60, and they are in California and they are in Vermont. So these more conservative-leaning states, and Florida is one of them, it’s just, it’s really, really hard to see how you get to that number. And we even saw this week there’s polling that suggests that the campaign has a lot of work to do if they’re hoping to clear that threshold.
Rovner: And, of course, now they have two hurricanes to deal with, which we will deal with in a few minutes. But first, the Supreme Court is back in session here in Washington, and even though there’s no big abortion case on its official docket as of now this term, the court quickly declined to hear two cases on its first day back, one involving whether the abortion ban in Texas can override the federal emergency treatment law that’s supposed to guarantee abortion access in medical emergencies threatening the pregnant woman’s life or health. The court also declined to overrule the Alabama Supreme Court’s ruling that frozen embryos can be considered legally as unborn children. That’s what Joanne was just talking about. Where do these two decisions leave us? Neither one actually resolved either of these questions, right?
Luthra: I mean, the EMTALA [Emergency Medical Treatment and Labor Act] question is still ongoing, not because of the Texas case but because of the Idaho case that is asking very similar questions that we’ve talked about previously on this podcast. And the end of last term, the court kicked that back down to the lower courts to continue making its way through. We anticipate it will eventually come back to the Supreme Court. So this is a question that we will, in fact, be hearing on at some point.
Rovner: Although, the irony here is that in Idaho, the ban is on hold because there was a court stay. And in Texas, the ban is not on hold, even though we’re talking about exactly the same question: Does the federal law overrule the state’s ban?
Luthra: And what that kind of highlights — right? — is just how much access to abortion, even under states with similar laws or legislatures, really does depend on so many factors, including what circuit court you fall into or the makeup of your state Supreme Court and how judges are appointed or whether they are elected. There is just so much at play that makes access so variable. And I think the other thing that one could speculate that maybe the court didn’t want headlines around reproductive health so soon into an election, but it’s not as if this is an issue that they’re going to be avoiding in the medium- or long-term future. These are questions that are just too pressing, and they will be coming back to the Supreme Court in some form.
Rovner: Yes, I would say in the IVF [in vitro fertilization] case, they simply basically said, Go away for now. Right?
Luthra: Yeah. And, I mean, right now in Alabama, people are largely able to get IVF because of the state law that was passed, even if it didn’t touch the substance of that state court’s ruling. This is something, for now, people can sort of think is maybe uninterrupted, even as we all know that the ideological and political groundwork is being laid for a much longer and more intense fight over this.
Rovner: Well, remember back last week when we predicted that the judge’s decision overturning Georgia’s six-week ban was unlikely to be the last word? Well, sure enough, the Georgia Supreme Court this week overturned the immediate overturning of the ban, which officially went back into effect on Monday. Like these other cases, this one continues, right?
Luthra: Yes, this continues. The Georgia case continued for a while, and it just sort of underscores again what we’ve been talking about, just how much access really changes back and forth. And I was talking to an abortion clinic provider who has clinics in North Carolina and Georgia. She literally found out about the decision both times and changed her plans for the next day because I texted her asking her for comment. And providers and patients are being tasked with keeping up with so much. And it’s just very, very difficult, because Georgia also has a 24-hour waiting period for abortions, which means that every time the decision around access has changed — and we know it very well could change again as this case progresses — people will have to scramble very quickly. And in Georgia, they have also been trying to do that on top of navigating the fallout of a hurricane.
Rovner: Yeah. And as we pointed out a couple of weeks ago when the court overturned the North Dakota ban, there are no abortion providers left in North Dakota. Now that there’s no ban, it’s only in theory that abortion is now once again allowed in North Dakota. Well, before we leave abortion for this week, we have two new studies showing how abortion bans are impacting the health care workforce. In one survey, more than half of oncologists, cancer doctors, who were completing their fellowships, so people ready to go into practice, said they would consider the impact of abortion restrictions in their decisions about where to set up their practice. And a third said abortion restrictions hindered their ability to provide care.
Meanwhile, a survey of OBGYNs in Texas by the consulting group Manatt Health found “a significant majority of practicing OB/GYN physicians … believe that the Texas abortion laws have inhibited their ability to provide highest-quality and medically necessary care to their patients,” and that many have already made or are considering making changes to their practice that would “reduce the availability of OB/GYN care in the state.” What’s the anti-abortion reaction to this growing body of evidence that abortion bans are having deleterious effects on the availability of other kinds of health care, too? I mean, I was particularly taken by the oncologists, the idea that you might not be able to get cancer care because cancer doctors are worried about treating pregnant women with cancer.
Luthra: They’re blaming the doctors. And we saw this in Texas when the Zurawski case was argued and women patients and doctors in the state said that they had not been able to get essential, lifesaving medical care because of the state’s abortion ban and lack of clarity around what was actually permitted. And the state argued, and we have heard this talking point again and again, that actually the doctors are just not willing to do the hard work of practicing medicine and trying to interpret, Well, obviously this qualifies. That’s something we’ve seen in the Florida arguments. They say: Our exceptions are so clear, and if you aren’t able to navigate these exceptions, well, that’s your problem, because you are being risk-averse, and patients should really take this up with their doctors, who are just irresponsible.
Rovner: Yes, this is obviously an issue that’s going to continue. Well, moving on. The cost of health care continues to grow, which is not really news, but this week we have more hard evidence, courtesy of my KFF colleagues via the annual 2024 Employer Health Benefit Survey, which finds the average family premium rose 7% this year to $25,572, with workers contributing an average of $6,296 towards that cost. And that’s with a distinct minority of firms covering two very popular but very expensive medical interventions, GLP-1 [glucagon-like peptide-1] drugs for obesity and IVF, which we’ve just been talking about. Anything else in this survey jump out at anybody?
Hellmann: I mean, that’s just a massive amount of money. And the employer is really paying the majority of that, but that doesn’t mean it doesn’t have an impact on people. That means it’s going to limit how much your wages go up. And something I thought of when I read this study is these lawsuits that we’re beginning to see, accusing employers of not doing enough to make sure that they’re limiting health care costs. They’re not playing enough of a role in what their benefits look like. They’re kind of outsourcing this to consultants. And so when you look at this data and you see $25,000 they’re spending per year per family on health care premiums, you wonder, what are they doing?
Health care, yes, it’s obviously very expensive, but you just kind of question, what role are employers actually playing in trying to drive down health care costs? Are they just taking what they get from consultants? And another thing that kind of stood out to me from this is, I think it’s said in there, employers are having a hard time lately of passing these costs on to employees, which is really interesting. It’s because of the tight labor market. But obviously health care is still very expensive for employees — $6,000 a year in premiums for family coverage is not a small amount of money. So employers are just continuing to absorb that, and it does really impact everyone.
Rovner: It’s funny. Before the Affordable Care Act, it was employers who were sort of driving the, You must do something about the cost of health care, because inflation was so fast. And then, of course, we saw health care inflation, at least, slow down for several years. Now it’s picking up again. Are we going to see employers sort of getting back into this jumping up and down and saying, “We’ve got to do something about health care costs”?
Hellmann: I feel like we are seeing more of that. You’re beginning to hear more from employers about it. I don’t know. It’s just such a hard issue to solve, and I’ve seen more and more interest from Congress about this, but they really struggle to regulate the commercial market. So …
Rovner: Yes, as we talk about at length every week. But it’s still important, and they will still go for it. Well, finally, this week in health misinformation. Let us talk about hurricanes — the public health misinformation that’s being spread both about Hurricane Helene that hit the Southeast two weeks ago, and Hurricane Milton that’s exiting Florida even as we are taping this morning. President [Joe] Biden addressed the press yesterday from the White House, calling out former President Trump by name along with Georgia Republican congresswoman Marjorie Taylor Greene for spreading deliberate misinformation that’s not just undermining efforts at storm relief but actually putting people in more danger. Now, I remember Hurricane Katrina and all the criticism that was heaped, mostly deservedly, on George W. Bush and his administration, but I don’t remember deliberate misinformation like this. I mean, Joanne, have you ever seen anything like this? You lived in Florida for a while.
Kenen: I went through Andrew, and there’s always a certain — there’s confusion and chaos after a big storm. But there’s a difference between stuff being wrong that can be corrected and stuff being intentionally said that then in this sort of divided, suspicious, two-realities world we’re now living in, that’s being repeated and perpetuated and amplified. It damages public health. It damages people economically trying to recover from this disastrous storm or in some cases storms. I don’t know how many people actually believe that Marjorie Taylor asserted that the Democrats are controlling the weather and sending storms to suppress Republican voters. She still has a following, right? But other things …
Rovner: She still gets reelected.
Kenen: … being told that if you go to FEMA [the Federal Emergency Management Agency] for help, your property will be confiscated and taken away from you. I mean, that’s all over the place, and it’s not true. Even a number of Republican lawmakers in the affected states have been on social media and making statements on local TV and whatever, saying: This is not true. Please, FEMA is there to help you. Let’s get through this. Stop the lies. A number of Republicans have actually been quite blunt about the misinformation coming from their colleagues and urging their constituents to seek and take the help that’s available.
This is the public health crisis. We don’t know how many people have been killed. I don’t think we have an accurate total final count from Helene, and we sure don’t have from Milton. I mean, the people did seem to take this storm seriously and evacuated, but it also spawned something like three dozen tornadoes in places where people hadn’t been told, there’s normally no need to evacuate. There’s flooding. It’s a devastating storm. So when people are flooding, power outages, electricity, hard to get access to health care, you can’t refrigerate your insulin. All these—
Rovner: Toxic floodwaters, I mean, the one thing …
Kenen: Toxic, yeah.
Rovner: … we know about hurricanes is that they’re more dangerous in the aftermath than during the actual storm in terms of public health.
Kenen: Right. This is a life-threatening public health emergency to really millions of people. And misinformation, not just getting something wrong and then trying to correct it, but intentional disinformation, is something we haven’t seen before in a natural disaster. And we’re only going to have more natural disasters. And it was really — I mean, Julie, you already pointed this out — but it was really unusual how precise Biden was yesterday in calling out Trump by name, and I believe at two different times yesterday. So I heard one, but I think I read about what I think was the second one really saying, laying it at his feet that this is harming people.
Rovner: Yeah, like I said, I remember Katrina vividly, and that was obviously a really devastating storm. I do also remember Democrats and Republicans, even while they were criticizing the federal government reaction to it, not spreading things that were obviously untrue. All right. Well, that is the news for this week. Now we will play a segment from our Newsmaker interview with Mark Cuban, and then we will be back with our extra credits.
On Tuesday, October 8th, Mark Cuban met with a group of reporters for a Newsmaker lunch at KFF’s offices in Washington, D.C. Cuban, a billionaire best known as a panelist on the ABC TV show “Shark Tank,” has taken an interest in health policy in the past several years. He’s been consulting with the campaign of Vice President Harris, although he says he’s definitely not interested in a government post if she wins. Cuban started out talking about how, as he sees it, the biggest problem with drug prices in the U.S. is that no one knows what anyone else is paying.
Mark Cuban: I mean, when I talk to corporations and I’ve tried to explain to them how they’re getting ripped off, the biggest of the biggest said, Well, so-and-so PBM [pharmacy benefit manager] is passing through all of their rebates to us.
And I’m like: Does that include the subsidiary in Scotland or Japan? Is that where the other one is?
I don’t know.
And it doesn’t. By definition, you’re passing through all the rebates with the company you contracted with, but they’re not passing through all the rebates that they get or that they’re keeping in their subsidiary. And so, yeah, I truly, truly believe from there everybody can argue about the best way. Where do you use artificial intelligence? Where do you do this? What’s the EHR [electronic health record? What’s this? We can all argue about best practices there. But without a foundation of information that’s available to everybody, the market’s not efficient and there’s no place to go.
Rovner: He says his online generic drug marketplace, costplusdrugs.com, is already addressing that problem.
Cuban: The crazy thing about costplusdrugs.com, the greatest impact we had wasn’t the markup we chose or the way we approach it. It’s publishing our price list. That changed the game more than anything. So when you saw the FTC [Federal Trade Commission] go after the PBMs, they used a lot of our pricing for all the non-insulin stuff. When you saw these articles written by the Times and others, or even better yet, there was research from Vanderbilt, I think it was, that says nine oncology drugs, if they were purchased by Medicare through Cost Plus, would save $3.6 billion. These 15, whatever drugs would save six-point-whatever billion. All because we published our price list, people are starting to realize that things are really out of whack. And so that’s why I put the emphasis on transparency, because whether it’s inside of government or inside companies that self-insure, in particular, they’re going to be able to see. The number one rule of health care contracts, particularly PBM contracts, is you can’t talk about PBM contracts.
Rovner: Cuban also says that more transparency can address problems in the rest of the health care system, not just for drug prices. Here’s how he responded to a question I asked describing his next big plan for health care.
We’ve had, obviously, issues with the system being run by the government not very efficiently and being run by the private sector not very efficiently.
Cuban: Very efficiently, yeah.
Rovner: And right now we seem to have this sort of working at cross-purposes. If you could design a system from the ground up, which would you let do it? The government or—
Cuban: I don’t think that’s really the issue. I think the issue is a lack of transparency. And you see that in any organization. The more communication and the more the culture is open and transparent, the more people hold each other responsible. And I think you get fiefdoms in private industry and you get fiefdoms in government, as well, because they know that if no one can see the results of their work, it doesn’t matter. I can say my deal was the best and I did the best and our outcomes are the best, but there’s no way to question it. And so talking to the Harris campaign, it’s like if you introduce transparency, even to the point of requiring PBMs and insurers to publish their contracts publicly, then you start to introduce an efficient market. And once you have an efficient market, then people are better able to make decisions and then you can hold them more accountable.
And I think that’s going to spill over beyond pharm. We’re working on — it’s not a company — but we’re working on something called Cost Plus Wellness, where we’re eating our own dog food. And it’s not a company that’s going to be a for-profit or even a nonprofit, for that matter, just for the lives that I cover for my companies, that we self-insure. We’re doing direct contracting with providers, and we’re going to publish those contracts. And part and parcel to that is going through the — and I apologize if I’m stumbling here. I haven’t slept in two days, so bear with me. But going through the hierarchy of care and following the money, if you think about when we talk to CFOs and CEOs of providers, one of the things that was stunning to me that I never imagined is the relationship between deductibles for self-insured companies and payers, and the risk associated with collecting those deductibles to providers.
And I think people don’t really realize the connection there. So whoever does Ann’s care [KFF Chief Communications Officer Ann DeFabio, who was present] — well, Kaiser’s a little bit different, but let’s just say you’re employed at The Washington Post or whoever and you have a $2,500 deductible. And something happens. Your kid breaks their leg and goes to the hospital, and you’re out of market, and it’s out of network. Well, whatever hospital you go to there, you might give your insurance card, but you’re responsible for that first $2,500. And that provider, depending on where it’s located, might have collection — bad debt, rather — of 50% or more.
So what does that mean in terms of how they have to set their pricing? Obviously, that pricing goes up. So there’s literally a relationship between, particularly on pharmacy, if my company takes a bigger rebate, which in turn means I have a higher deductible because there’s less responsibility for the PBM-slash-insurance company. My higher deductible also means that my sickest employees are the ones paying that deductible, because they’re the ones that have to use it. And my older employees who have ongoing health issues and have chronic illnesses and need medication, they’re paying higher copays. But when they have to go to the hospital with that same deductible, because I took more of a rebate, the hospital is taking more of a credit risk for me. That’s insane. That makes absolutely no sense.
And so what I’ve said is as part of our wellness program and what we’re doing to — Project Alpo is what we call it, eating our own dog food. What I’ve said is, we’ve gone to the providers and said: Look, we know you’re taking this deductible risk. We’ll pay you cash to eliminate that. But wait, there’s more. We also know that when you go through a typical insurer, even if it’s a self-insured employer using that insurer and you’re just using the insurance company not for insurance services but as a TPA [third-party administrator], the TPA still plays games with the provider, and they underpay them all the time.
And so what happens as a result of the underpayment is that provider has to have offices and offices full of administrative assistants and lawyers, and they have to not only pay for those people, but they have the associated overhead and burden and the time. And then talking to them, to a big hospital system, they said that’s about 2% of their revenue. So because of that, that’s 2%. Then, wait, there’s more. You have the pre-ops, and you have the TPAs who fight you on the pre-ops. But the downstream economic impacts are enormous because, first, the doctor has to ask for the pre-op. That’s eating doctor’s time, and so they see fewer patients. And then not only does the doctor have to deal with them, they go to HR at the company who self-insures and says, Wait, my employee can’t come to work, because their child is sick, and you won’t approve this process or, whatever, this procedure, because it has to go through this pre-op.
Or if it’s on medications, it’s you want to go through the step-up process or you want to go through a different utilization because you get more rebates. All these pieces are intertwined, and we don’t look at it holistically. And so what we’re saying with Cost Plus Wellness is, we’re going to do this all in a cash basis. We’re going to trust doctors so that we’re not going to go through a pre-op. Now we’ll trust but verify. So as we go through our population and we look at all of our claims, because we’ll own all of our claims, we’re going to look to see if there are repetitive issues with somebody who’s just trying to —there’s lots of back surgeries or there’s lots of this or there’s lots of that — to see if somebody’s abusing us. And because there’s no deductible, we pay it, and we pay it right when the procedure happens or right when the medication is prescribed. Because of all that, we want Medicare pricing. Nobody’s saying no. And in some cases I’m getting lower than Medicare pricing for primary care stuff.
Rovner: OK, we are back. Now it’s time for our extra credits. That’s when we each recommend a story we read this week we think you should read too. Don’t worry if you miss the details. We will include the links to all these stories in our show notes on your phone or other device. Joanne, why don’t you go first this week.
Kenen: There was a fascinating story in The New York Times by Kate Morgan. The headline was “Her Face Was Unrecognizable After an Explosion. A Placenta Restored It.” So I knew nothing about this, and it was so interesting. Placentas have amazing healing properties for wound care, burns, infections, pain control, regenerating skin tissue, just many, many things. And it’s been well known for years, and it’s not widely used. This is a story specifically about a really severe burn victim in a gas explosion and how her face was totally restored. We don’t use this, partly because placenta — every childbirth, there’s a placenta. There are lots of them around. There’s I think three and a half million births a year, or that’s the estimate I read in the Times. One of the reasons they weren’t being used is, during the AIDS crisis, there was some development toward using them, and then the AIDS crisis, there was a fear of contamination and spreading the virus, and it stopped decades later.
We have a lot more ways of detecting, controlling, figuring out whether something’s contaminated by AIDS or whether a patient has been exposed. It is being used again on a limited basis after C-sections, but it seems to have pretty astonishing — think about all the wound care for just diabetes. I’m not a scientist, but I just looked at the story and said, it seems like a lot of people could be healed quicker and more safely and earlier if this was developed. They’re thrown away now. They’re sent to hospital waste incinerators and biohazard waste. They’re garbage, and they’re actually medicine.
Rovner: Definitely a scientist’s cool story. Shefali.
Luthra: My story is from my brilliant colleague Mel Leonor Barclay. The headline is “Arizona’s Ballot Measure Could Shift the Narrative on Latinas and Abortion,” and as part of this really tremendous series that she has running this week, looking at how Latinas as a much more influential and growingly influential voter group could shape gun violence, abortion rights, and housing. And in this story, which I really love, she went to Arizona and spent time talking to folks on all sides of the issue to better understand how Latinas are affected by abortion rights and also how they’ll be voting on this.
And she really challenges the narrative that has existed for so long, which is that Latinas are largely Catholic, largely more conservative on abortion. And she finds something much more complex, which is that actually polls really show that a large share of Latina voters in Arizona and similar states support abortion rights and will be voting in favor of measures like the Arizona constitutional amendment. But at the same time, there are real divides within the community, and people talk about their faith in a different way and how it connects their stance on abortion. They talk about their relationships with family in different ways, and I think it just underscores how rarely Latina voters are treated with real nuance and care and thoughtfulness when talking about something as complex as abortion and abortion politics. And I really love the way that she approaches this piece.
Rovner: It was a super-interesting story. Jesse.
Hellmann: My story is from The Assembly. It’s an outlet in North Carolina. It’s called “Helene Left Some North Carolina Elder-Care Homes Without Power.” Some assisted living facilities have been without power and water since the hurricane hit. Several facilities had to evacuate residents, and the story just kind of gets into how North Carolina has more lax rules around emergency preparedness. While they do require nursing homes be prepared to provide backup power, the same requirements don’t apply to assisted living facilities. And it’s because there’s been industry pushback against that because of the cost. But as we see some more of these extreme weather events, it seems like something has to be done. We cannot just allow vulnerable people living in these facilities to go hours and hours without power and water. And I saw that there was a facility where they evacuated dozens of people who had dementia, and that’s just something that’s really upsetting and traumatizing for people.
Rovner: Yeah, once again, now we are seeing these extreme weather events in places that, unlike Florida and Texas, are not set up and used to extreme weather events. And it is something I think that a lot of people are starting to think about. Well, my story this week is from our KFF Health News public health project called Health Beat, and it’s called “A Boy’s Bicycling Death Haunts a Black Neighborhood. 35 Years Later, There’s Still No Sidewalk,” by Renuka Rayasam and Fred Clasen-Kelly. And it’s one of those stories you never really think about until it’s pointed out that in areas, particularly those that had been redlined, in particular, the lack of safety infrastructure that most of us take for granted — crosswalks, sidewalks, traffic lights are not really there. And that’s a public health crisis of its own, and it’s one that rarely gets addressed, and it’s a really infuriating but a really good story.
All right, that is our show. Next week, for my birthday, we’re doing a live election preview show here at KFF in D.C., because I have a slightly warped idea of fun. And you’re all invited to join us. I will put a link to the RSVP in the show notes. I am promised there will be cake.
As always, if you enjoy the podcast, you can subscribe wherever you get your podcast. We’d appreciate it if you left us a review. That helps other people find us, too. Thanks as always to our technical guru, Francis Ying, and our fill-in editor this week, Stephanie Stapleton. Also, as always, you can email us your comments or questions. We’re at whatthehealth, all one word, @kff.org, or you can still find me for the moment at X. I’m @jrovner. Joanne, where are you?
Kenen: @JoanneKenen sometimes on Twitter and @joannekenen1 on Threads.
Rovner: Jessie.
Hellmann: @jessiehellmann on Twitter.
Rovner: Shefali.
Luthra: @shefalil on Twitter.
Rovner: We will be back in your feed next week. Until then, be healthy.
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Inside Conservative Activist Leonard Leo’s Long Campaign To Gut Planned Parenthood
A federal lawsuit in Texas against Planned Parenthood has a web of ties to conservative activist Leonard Leo, whose decades-long effort to steer the U.S. court system to the right overturned Roe v. Wade, yielding the biggest rollback of reproductive health access in half a century.
A federal lawsuit in Texas against Planned Parenthood has a web of ties to conservative activist Leonard Leo, whose decades-long effort to steer the U.S. court system to the right overturned Roe v. Wade, yielding the biggest rollback of reproductive health access in half a century.
Brought by an anonymous whistleblower and later joined by Texas Attorney General Ken Paxton, the suit alleges the Planned Parenthood Federation of America and three Planned Parenthood affiliates defrauded the Texas and Louisiana Medicaid programs by collecting $17 million for services provided while it fought state efforts to remove it as an approved provider.
The suit claims violations of the False Claims Act, an obscure but powerful law protecting the government from fraud, and seeks $1.8 billion in penalties from Planned Parenthood, according to a motion that lawyers for the whistleblower filed in federal court in 2023.
The lawsuit builds on efforts over years by the religious right and politicians who oppose abortion to deliver blows to Planned Parenthood — which provides sexual and reproductive health care at nearly 600 sites nationwide — now bolstered by Leo’s work reshaping the American judiciary.
Anti-abortion groups and their allies secured a generational victory in 2022 when the Supreme Court overturned Roe v. Wade, which ended the constitutional right to abortion and paved the way for bans or severe restrictions in 20 states. The court challenge in Texas demonstrates how the forces behind the end of Roe threaten access to other health and family planning services.
The Planned Parenthood clinics being sued do not provide abortions. They are in Texas and Louisiana, which banned nearly all abortions, respectively, in 2021 and 2022.
Leo, an anti-abortion Catholic, is connected to the key players in the Texas lawsuit — the whistleblower plaintiff, an attorney general, and the judge — according to a KFF Health News review of tax records, court documents from multiple lawsuits, statements to lawmakers, and website archives.
Leo provided legal counsel to the anti-abortion group at its center, and he has financial and other connections to Paxton.
They filed the case in federal court in Amarillo, Texas, where Matthew Kacsmaryk is the only judge. He is a longtime member of the Federalist Society, the conservative legal juggernaut for which Leo has worked for over 25 years in various capacities and currently serves as co-chair.
Kacsmaryk’s rulings have curtailed access to reproductive health since the Senate confirmed him in 2019. He suspended the FDA’s approval of mifepristone, a drug used in medication abortion, propelling the issue to the Supreme Court, which ultimately threw out the case. In another case, Kacsmaryk ruled to limit young people’s access to birth control through a federal family planning program.
Leo did not respond to questions for this article and a spokesperson declined to comment. Through a court spokesperson, Kacsmaryk declined to comment for this article.
The anonymous whistleblower in 2021 accused the Planned Parenthood Federation of America and Planned Parenthood affiliates of defrauding the Medicaid programs of Texas and Louisiana. Paxton, who has repeatedly acted to thwart abortion rights and joined the case in 2022, alleges in the lawsuit that clinics received payments they weren’t entitled to from Texas Medicaid from early 2017 to early 2021 as the state was pushing to end Planned Parenthood’s status as a Medicaid provider. Louisiana and the Department of Justice have not joined the complaint.
The lawsuit’s origins go back a decade. The anonymous whistleblower, between 2013 and 2015, “conducted an undercover investigation to determine whether Planned Parenthood’s fetal tissue procurement practices were continuing, and if they were legal and/or ethical,” according to the whistleblower’s complaint filed in 2021.
The explanation mimics how the Center for Medical Progress, a California-based anti-abortion group founded by activist David Daleiden in 2013, has publicly described its work. “The Human Capital project is a 30-month-long investigative journalism study by The Center for Medical Progress, documenting how Planned Parenthood sells the body parts of aborted babies,” the group states on its website.
In a November 2022 court order, Kacsmaryk said the private party initiating the lawsuit is “the president of CMP,” the title Daleiden held at that time, according to a Center for Medical Progress tax filing.
The Center for Medical Progress and Daleiden did not respond to requests for comment.
By law, federal funds can’t pay for abortions unless the pregnancy threatens the life of a woman or is the result of rape or incest, but the program reimburses for other care such as contraception, screenings for sexually transmitted infections, and cancer screenings. Medicaid, which provides health coverage for people with low incomes, is jointly financed by states and the federal government.
According to its 2022-23 annual report, Planned Parenthood affiliate clinics provided 9.13 million health care services to 2.05 million patients nationally in 2022. Testing and treatment for sexually transmitted infections accounted for about half of those services, contraception amounted to a quarter, and abortions constituted 4%.
Planned Parenthood Gulf Coast, which operates clinics in Texas and Louisiana, is among the branches Paxton and the whistleblower are suing. From July 2022 to June 2023, its clinics provided patients more than 86,000 tests for sexually transmitted infections, 44,000 visits for birth control, and nearly 7,000 cancer screening and prevention services, CEO Melaney Linton told KFF Health News.
“All of these services and more are at risk in this politically motivated lawsuit,” Linton said. The lawsuit’s allegations “are false. Planned Parenthood did not commit Medicaid fraud.”
Linton has said the lawsuit’s purpose is clear: “trying to shut Planned Parenthood down.”
Texas terminated Planned Parenthood’s Medicaid participation in March 2021. Until then, affiliates “were entitled to receive reimbursement” for services to Medicaid patients because their provider agreements with Texas’ Medicaid program were valid, attorneys for the Planned Parenthood clinics wrote in a February 2023 court filing in support of their motion for summary judgment.
Louisiana has not removed Planned Parenthood from its Medicaid program.
Leo served as legal counsel to the Center for Medical Progress, according to documents produced as part of a separate lawsuit Planned Parenthood filed in federal court in California against the anti-abortion group. Among those, a July 2018 document lists 25 emails Leo and Daleiden traded in June and July 2015, including in the days before the anti-abortion group released its first video.
Paxton’s ties to Leo can be traced back at least a decade to when the former state senator and rising conservative star was about to begin his first term as attorney general.
In 2014, Leo, then executive vice president of the Federalist Society, was a rare non-Texan named to Paxton’s attorney general transition advisory team. Tax filings show that the Concord Fund, one of several Leo-linked groups that spend money to influence elections and aren’t required to disclose their donors, gave $20.3 million from July 2014 through June 2023 to the Republican Attorneys General Association, the political nonprofit that works to elect Republicans as states’ top law enforcement officers. Known as RAGA, the group funneled more than $1.2 million to Paxton’s campaign over three election cycles from 2014 to 2022, Texas campaign finance records show.
Texas government officials knew the state was reimbursing Planned Parenthood clinics for medical services from 2017 to 2021, which renders the state’s argument that clinics violated the False Claims Act “without merit,” said Jacob Elberg, a professor at Seton Hall Law School and an expert in health care fraud.
The law is intended for situations “where essentially someone submits a claim for payment or keeps money that they’re not entitled to where they have information that the government doesn’t have,” Elberg said. “And they essentially know that if the government knew the truth, the government wouldn’t pay them or would be demanding money back.”
But with Planned Parenthood, “everything involved here happened out in the open,” Elberg said. “They were submitting bills and the government knew what was going on and was paying those bills.”
The plaintiffs’ arguments are a “tortured use” of the False Claims Act, said Sarah Saldaña, a former U.S. attorney for the Northern District of Texas.
“Things like this, which have these obvious political overtones, tend to undermine further the view of the public of the judicial courts system,” Saldaña said.
The office of the attorney general did not respond to requests for comment.
Anti-abortion groups support the Paxton lawsuit even though abortion is essentially outlawed in the Lone Star State. Planned Parenthood “is still a pro-abortion organization,” said John Seago, president of Texas Right to Life. Even though Planned Parenthood provides other care, “all of those services are tainted by their pro-abortion mindset,” he said.
“Planned Parenthood is a danger to Texans. We wish that Planned Parenthood didn’t have a single location within our state,” Seago said. “Whenever the state pays Planned Parenthood to do something, even if it’s a good service, we are building up their brand and giving them more reach into our Texas communities.”
Roughly three dozen Planned Parenthood clinics in Texas continue to provide non-abortion services like birth control and STI screenings. The $1.8 billion the whistleblower is seeking is equivalent to nearly 90% of Planned Parenthood’s annual revenue, according to its most recent annual report.
The Campaign Against Planned Parenthood
The Center for Medical Progress was little known in 2015 when it began releasing videos containing explosive allegations that Planned Parenthood was illegally selling tissue from aborted fetuses, which Planned Parenthood denies.
The group and Daleiden had ties to powerful anti-abortion organizations. They include Live Action, where Daleiden worked before creating the Center for Medical Progress, and Operation Rescue, the Kansas-based group that staged demonstrations against George Tiller’s abortion clinic in that state before a gunman killed the physician in 2009.
“The evidence I am gathering deeply implicates Planned Parenthood affiliates across the country in multiple felonies and can trigger severe legal and financial consequences for PP and their associates, while providing new justifications for state defunding efforts and turning public opinion against Planned Parenthood and abortion,” Daleiden wrote in a May 2013 email produced as part of the litigation Planned Parenthood brought in California. The subject line: “Meeting to Take Down PP.”
Texas tried to remove Planned Parenthood clinics from its Medicaid program following the center’s release of the undercover videos, a move that was part of a larger political firestorm. Roughly a dozen states launched investigations into the reproductive health provider, and Republicans in Congress renewed calls to strip Planned Parenthood of government funding.
Paxton made his feelings clear about abortion as he pursued an investigation of Planned Parenthood in Texas. During a July 29, 2015, legislative hearing, he said “the true abomination in all of this is the institution of abortion.”
“We are rightfully horrified by what we’ve seen on these videos,” Paxton said. “However these videos also serve as a larger reminder that, as a society, we’ve turned a blind eye to the gruesome horrors that occur in abortion clinics across America every single day. They remind us that this industry as a whole has lost the perspective of humanity.”
Planned Parenthood denied selling fetal tissue and other claims in the videos, some of which contained graphic footage. It said the videos were “deceptive” and heavily edited to be misleading. A grand jury in Texas cleared Planned Parenthood of wrongdoing.
Daleiden worked on the center’s “Human Capital Project” for years, receiving advice from Leo and his associates, according to the Center for Medical Progress’ website, and Daleiden’s email correspondence and other documents produced as part of the separate lawsuit in federal court in California.
The July 2018 document filed as part of the litigation in California describes emails between Leo and Daleiden as “providing legal communication with counsel regarding legal planning” and “for counsel to provide legal advice regarding investigative journalism methods and the legality of fetal tissue procurement practices,” among other descriptions. Daleiden sent one email to Leo “regarding legal planning” on July 13, 2015, the day before the Center for Medical Progress released its first video.
A November 2018 letter from the Center for Medical Progress’ lawyers stated “CMP was receiving legal advice” from Leo, as well as other conservative lawyers and organizations. Lawyers representing the center and Daleiden in a December 2018 legal filing said Leo “provided legal advice on how to ensure successful prosecutions of the criminal actors which CMP identified.”
In its defense, Planned Parenthood has said it billed the Texas Medicaid program for reimbursement for “lawfully provided” services from February 2017 to March 2021 as a participating Medicaid provider in the state.
In 2015 and 2017, federal courts in Louisiana and Texas blocked those states from terminating Planned Parenthood’s Medicaid provider agreements. Judge John deGravelles of the U.S. District Court for the Middle District of Louisiana said the state was prohibited “from suspending Medicaid payments to [Planned Parenthood Gulf Coast] for services rendered to Medicaid beneficiaries.”
The 5th Circuit Court of Appeals in November 2020 vacated the Texas and Louisiana injunctions, but the court never weighed in on clawing back Medicaid funds that had been paid to clinics. Texas terminated Planned Parenthood in March 2021, following a state court ruling.
Texas and the whistleblower argue that, once the court injunctions were lifted, Planned Parenthood’s termination from each state’s Medicaid program became effective years earlier — 2015 in Louisiana and 2017 in Texas — due to the dates that state officials gave clinics final notice.
Planned Parenthood has argued that it is under no obligation to return payments received while injunctions were in place. Kacsmaryk disagrees. In a recently unsealed summary judgment order in the case, the judge wrote that Planned Parenthood clinics “had an obligation to repay the government payments they received as a matter of law.”
The order was unsealed after attorneys for the Reporters Committee for Freedom of the Press intervened. The committee argued the public has a presumptive and constitutional right to access judicial records, and that Kacsmaryk’s stated concerns — which included the tainting of a potential jury pool or jeopardizing the safety of those involved in the lawsuit — didn’t justify keeping the document secret.
Kacsmaryk’s brief justification for sealing the document, contained in the order itself, “was very thin,” said Katie Townsend, legal director for the Reporters Committee for Freedom of the Press.
She said his decision to seal such an important document was “highly unusual” and “very troubling.”
“Those orders are almost always completely public,” she said.
What Paxton Gains
Paxton has publicly toyed with the idea of pursuing federal office, and former President Donald Trump has said he’d consider him for U.S. attorney general should Trump return to the White House.
For Republicans in Texas, there are political benefits to going after Planned Parenthood, said Mark Jones, a political scientist at Rice University in Houston. “Doing anything punitive against Planned Parenthood and anything that would reduce the ability of Planned Parenthood to be active and effective in Texas is going to be greeted with near-universal consensus within the Republican primary electorate,” Jones said. “There’s no downside to it.”
The Republican Attorneys General Association, which can accept unlimited political donations that it distributes to candidates, is a Paxton supporter. Campaign finance records show it gave more than $730,000 to Paxton’s attorney general campaigns in 2014 and 2018.
Tax filings show that the Marble Freedom Trust, a political nonprofit where Leo serves as trustee and chair, gave the Concord Fund $100.9 million from May 2020 through April 2023. During the 2022 election cycle, the Concord Fund gave $6.5 million to RAGA, which then contributed $500,000 to Paxton’s campaign. It was tied as the highest contribution to the Texas attorney general, matched by a $500,000 contribution from a political action committee backed by conservative Texas billionaires, according to Transparency USA, a nonprofit that tracks spending in state politics.
RAGA has praised Leo’s role, calling him its “greatest champion.”
“Leonard Leo has helped shape the trajectory of RAGA and the conservative legal movement more than anyone else. As RAGA’s greatest champion, Leonard Leo reimagined the role of the state attorney general and promoted men and women dedicated to the persistence of the rule of law and the original meaning of the Constitution,” reads a RAGA website post from 2019 that has since been deleted.
“You want access to Leo because Leo gives you access to money,” said Chris Toth, former executive director of the National Association of Attorneys General.
In many conservative states like Texas, Toth said, “the issue is worrying about getting primaried. And that is where playing nice with Leonard Leo and the Concord Fund come in because if you’re on their side, basically, you’re going to have no problem getting reelected.”
The Concord Fund gave $4 million to RAGA between July 1, 2022, and June 30, 2023, four times what it gave the prior fiscal year.
Abortion rights supporters have warned that they anticipate ongoing reproductive health battles in Texas and beyond, with access to contraception, fertility services, and other types of care under threat.
As an example, some point to the Griswold v. Connecticut decision from 1965, in which the Supreme Court legalized the use of contraception among married couples. The high court ruled that a state law violated a constitutional right to privacy, a rationale that was central to Roe v. Wade eight years later.
In a 2017 speech at the Acton Institute, a conservative think tank, Leo criticized Griswold as a decision amounting to “the creation of rights found nowhere in the text or structure of the Constitution.”
The Planned Parenthood lawsuit in Texas is expected to go to trial, potentially this year. The central question is whether Planned Parenthood knowingly withheld money owed to the government.
All the while the public is expressing greater uncertainty about rights once considered constitutionally guaranteed. In a KFF poll conducted in February, 1 in 5 adults said the right to use contraception is threatened and likely to be overturned.
Fewer than half of adults considered it to be secure.
KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.
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11 months 3 weeks ago
Courts, States, Abortion, Contraception, Privacy, reproductive health, texas, Women's Health
KFF Health News' 'What the Health?': Abortion Heats Up Presidential Race
The Host
Julie Rovner
KFF Health News
Julie Rovner is chief Washington correspondent and host of KFF Health News’ weekly health policy news podcast, “What the Health?” A noted expert on health policy issues, Julie is the author of the critically praised reference book “Health Care Politics and Policy A to Z,” now in its third edition.
The change at the top of the likely Democratic presidential ticket is prompting both abortion rights and anti-abortion organizations to recalibrate their campaigns, even as they fight over finalizing fall ballot proposals in many states.
Meanwhile, former President Donald Trump’s campaign is trying to distance itself from “Project 2025,” the controversial plan reportedly designed for the next GOP administration and put together by the conservative Heritage Foundation and former Trump administration officials. Although the head of the project’s policy arm was pushed out this week, the part of the project creating a database of Trump loyalists to staff a potential new administration remains up and running.
This week’s panelists are Julie Rovner of KFF Health News, Alice Miranda Ollstein of Politico, Lauren Weber of The Washington Post, and Sarah Karlin-Smith of the Pink Sheet.
Panelists
Sarah Karlin-Smith
Pink Sheet
Alice Miranda Ollstein
Politico
Lauren Weber
The Washington Post
Among the takeaways from this week’s episode:
- Vice President Kamala Harris is promising to “restore reproductive freedom” if elected president; her campaign says that means restoring the constitutional right to an abortion under Roe v. Wade. Despite that goal having slim prospects in Congress, some abortion rights supporters are hoping the federal government would expand abortion access even beyond Roe under her presidency.
- President Joe Biden this week recommended a sweeping overhaul of the Supreme Court, including term limits for justices. Famously an institutionalist, Biden stopped short of embracing the progressive call to add more justices to the high court. Nonetheless, his proposal has been considered politically dangerous, even as the conservative-tilted court has overturned its own precedents and shrugged at its ethics policies — and shifts in the national conversation about the court could have a long-term effect.
- The Trump campaign’s attempts to distance itself from the controversial ideas of Heritage’s Project 2025 are more savvy marketing than anything: Even without adopting the document, the conservative policy personnel behind it could well become the conservative policy personnel of a second Trump administration.
- GOP state officials and anti-abortion groups are launching their next attempts to block potential abortion rights victories at the ballot box. The next few weeks will reveal whether voters in certain influential states — like Arizona and Florida — weigh in on abortion this fall.
Also this week, Rovner interviews KFF Health News’ Elisabeth Rosenthal, who reported and wrote the latest KFF Health News-NPR “Bill of the Month” installment about a preauthorized surgery that generated a six-figure bill.
Plus, for “extra credit” the panelists suggest health policy stories they read this week that they think you should read, too:
Julie Rovner: The Washington Post’s “Online Portals Deliver Scary Health News Before Doctors Can Weigh In,” by Fenit Nirappil.
Alice Miranda Ollstein: ProPublica’s “A Lab Test That Experts Liken to a Witch Trial Is Helping Send Women to Prison for Murder,” by Duaa Eldeib.
Lauren Weber: The Tributary’s “Testimony: Florida Wrongly Cut People From Medicaid Due to ‘Computer Error,’ Bad Data,” by Charlie McGee.
Sarah Karlin-Smith: KFF Health News’ “Why Many Nonprofit (Wink, Wink) Hospitals Are Rolling in Money,” by Elisabeth Rosenthal; and The Hollywood Reporter’s “New York’s Largest Hospital System Is Setting Its Sights on the Entertainment Business,” by Alex Weprin.
Also mentioned on this week’s podcast:
Politico’s “States Break Out New Tactics To Thwart Abortion Ballot Measures,” by Alice Miranda Ollstein.
click to open the transcript
Transcript: Abortion Heats Up Presidential Race
KFF Health News’ ‘What the Health?’ Episode Title: ‘Abortion Heats Up Presidential Race’Episode Number: 358Published: Aug. 1, 2024
[Editor’s note: This transcript was generated using both transcription software and a human’s light touch. It has been edited for style and clarity.]
Mila Atmos: The future of America is in your hands. This is not a movie trailer. And it’s not a political ad. But it is a call to action. I’m Mila Atmos, and I’m passionate about unlocking the power of everyday citizens. On our podcast “Future Hindsight,” we take big ideas about civic life and democracy and turn them into action items for you and me. Every Thursday, we talk to bold activists and civic innovators to help you understand your power, and your power to change a status quo. Find us at futurehindsight.com, or wherever you listen to podcasts.
Julie Rovner: Hello, and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF Health News, and I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, Aug. 1, at 10 a.m. As always, news happens fast and things might change by the time you hear this, so here we go.
We are joined today via video conference by Lauren Weber, of The Washington Post.
Lauren Weber: Hello, hello.
Rovner: Alice Miranda Ollstein of Politico.
Alice Miranda Ollstein: Hello.
Rovner: And Sarah Karlin-Smith of the Pink Sheet.
Sarah Karlin-Smith: Hi, everybody.
Rovner: Later in this episode, we’ll have my interview with KFF Health News’ Elisabeth Rosenthal, who reported and wrote the latest KFF Health News-NPR “Bill of the Month.” It’s about a woman who had a cochlear implant surgery that was preapproved by her insurer, but still, and say it with me, got an enormous bill anyway. But first, this week’s news.
We’re going to start this week with presidential politics, because I think everyone, or at least me, is still kind of processing the idea that the race is no longer Biden versus Trump, but Harris versus Trump. One thing we have already seen from Vice President [Kamala] Harris is a new focus on reproductive rights. As we mentioned last week, Iowa’s six-week abortion ban took effect this past Monday, making it the 22nd state to impose what the vice president is now calling a “Trump abortion ban,” referring to total bans as well as restrictions that wouldn’t have been allowed under Roe [v. Wade]. Alice, how are abortion rights groups refocusing themselves now that Harris, rather than Biden, is at the top of the ticket?
Ollstein: Well, in one sense, a lot has changed, and in another sense, nothing has changed. I mean, these groups were already holding events with Harris around the country. They stressed that when they endorsed Biden, they also endorsed Harris. They endorsed the ticket, and so it wasn’t a surprise or much of an internal discussion to decide to come out strong and endorse. What’s been sort of interesting for me is the politics and the messaging versus the policy on this front. So these activist groups were really excited about Harris and were saying that they’re confident that she’s going to both campaign and govern more aggressively in favor of abortion rights. And we haven’t really seen concrete signs that that’s the case. We wrote about how she was giving these speeches in her first week as the candidate at the top of the ticket, saying, “I’m going to restore reproductive freedom.” And she kept saying that over and over. And I saw that that became a Rorschach test for a lot of people. And some people said, “Oh, that is code for she’s going to go beyond Roe v. Wade.”
I saw a lot of projection on that front. But when we got the campaign to confirm, they said, “No, she means Roe v. Wade.” So she’s endorsing the exact same policy that Biden was endorsing, which a lot of abortion rights groups say is not good enough. They point out that many people were denied abortions under Roe v. Wade. States could impose all these restrictions, they could have bans on abortions later in pregnancy, they could have restrictions throughout pregnancy, they put clinics out of business, etc. And so the hopes that she would really advocate for going beyond restoring Roe v. Wade have sort of fizzled. Although there’s also a divide between sort of the big mainstream groups and the smaller, scrappier, more sort-of-militant progressive groups.
Rovner: It’s kind of the mirror image of what’s going on on the anti-abortion side.
Ollstein: Absolutely, absolutely. You have hard-liners and then you have more politically pragmatic, “Let’s just get done what we can get done.” And a lot of this conversation is theoretical because the likelihood of a Congress willing to pass either restoring Roe v. Wade, or going further, is very slim. What the administration could do on the executive front is also curtailed by recent Supreme Court opinions on Chevron. So, some of this is theoretical. It’s not totally clear to me what Kamala Harris would do on abortion rights that Biden has not already done. And it seems that a lot of this race is pledging to stop Donald Trump from undoing those things and imposing restrictions.
Rovner: So it looks like another issue that Harris is appearing to be highlighting is medical debt, something she’s been working on as vice president. The federal government this week approved a novel program out of North Carolina that would raise Medicaid rates for hospitals that forgive patient medical debt, as well as automatically enroll eligible low-income patients in financial assistance programs.
Now, there was a study a couple of months back that showed that forgiving medical debt after it’s gone to collections doesn’t actually help people all that much. Their credit rating is still a mess, and they still can’t afford a lot of things. What does seem to help is preventing those debts in the first place. So is this project — which includes some of these things like enrolling people automatically in assistance programs — maybe the beginning of an effort to address this debt further upstream?
Weber: I think, theoretically, it’s the beginning of an effort, but if you read the fine print, none of the hospitals have signed on yet, from what I understand. So, when you’ve got the hospital association saying, “Oh, we’re working on it,” but no one signed on, I don’t know that you have a deal yet. I mean, that remains to be seen. Obviously, this is something that they’re really hoping to get done. But if you don’t have hospital buy-in — which is the major player here — and the hospitals in lobbyists-speak are saying things like, “We think the insurers and other parts of the health care system should be involved,” I’m just hesitant to comment on the longevity of this project before these people actually sign on the dotted line.
Rovner: And it’s important to remember that hospitals are supposed to be doing this anyway. Nonprofit hospitals, at least, are supposed to be doing this anyway. That’s one of the things that they keep their nonprofit status for. And yet we have seen, obviously, rather painfully, over particularly more in this last decade or so, that that’s just not happening. And people are ending up with these big bills, and they’re being sent to collections, and their credit ratings are being ruined, and makes it harder for them to find a place to live, or in some cases get a job. I mean, this spin-out from unpaid medical debt is not great, and affects many other parts of people’s lives.
OK, well meanwhile, President Biden, who is still president for another five and a half months, this week proposed a pretty sweeping overhaul of the Supreme Court, including term limits and enforceable ethics requirements. This obviously isn’t going to happen while he’s still in office, but it lays down a marker going forward for Democrats. I know President Biden was very resistant to calls for major Supreme Court change earlier in his term. I guess some of the scandals that we’ve been hearing about with some of these Supreme Court justices have perhaps made him soften a little bit towards doing something.
Ollstein: I mean, this has kind of bubbled up for a while, and you’ve slowly seen more members of Congress endorsing these kinds of reforms. Biden has, he’s famously an institutionalist. He was resistant to calling for the end of the Senate filibuster. He was resistant to some of these big reforms. He sort of convened committees to study the issue and sort of kick it down the road a bit. But I think in the context of some of this was starting to be announced when he was attempting to save his own presidential candidacy and was shoring up support from progressives on that front. But there is not a Congress, and there is not likely to be a Congress, willing to pass these reforms. And so I think the shift in conversation is still important. And I think some of these reforms that were once considered crazy, fringe ideas are now being taken more seriously by top-level folks. Still, obviously a long way to go. But like you said, all of the scandals around ethics at the Supreme Court have really highlighted and brought this to the fore.
Karlin-Smith: It does seem notable to me that even though he did sort of tease this a little bit as he was still trying to save his campaign, he really didn’t lean into it until he was in this lame-duck period. And that gives you that sense of, it felt politically dangerous a bit to go this far, and gives you a sense of where we are on it. And that he has not brought up what I think some people on the left would like Democrats to think about, which is adding more justices to the Supreme Court, which could be something that I think might have a bigger impact. And there is some justification for that given that the expansion of the circuit court system and so forth over the years. So I think those are two big markers for me that give a sense of, there’s progress in this area, but for people that really want to see major reform, we’re a long way off from that.
Rovner: Yeah. It bears noting that the way that the term-limit proposal is structured, every president would get two appointments, because it would be 18 years and they would be staggered. So you wouldn’t have sort of the odd situation we’re in now, where Democrats have been in the presidency, in the nominating form, for more years than Republicans, and yet there’s now a 6 to 3, basically Republican-appointed majority, on the court. But as Alice says, I don’t think anybody thinks this is going to happen. Somewhat like medical debt, this is going to be a political talking point for this fall.
So, in Republican political news, the head of the Heritage Foundation’s Project 2025 resigned this week, as top staff at the Trump campaign tried to distance their candidate from some of the really-out-there proposals in the 900-page blueprint for the next Republican administration. But while the policy part of Project 2025 may or may not be winding down, we’ve heard differing ideas about the personnel part of the project. The presidential personnel database, which is arguably even more important, remains up and running. Trump has said he wants to remove civil service protections from tens of thousands of federal workers and replace them with people loyal to him and his agenda. And Project 2025 is presumably going to have those people ready, and waiting, and vetted. Sarah, just as an example, what could this mean in an agency like the FDA [Food and Drug Administration]?
Karlin-Smith: The FDA has a pretty small amount of political appointees and so forth, but it could kind of impact tenure of people higher up in senior positions and their ability to stay in them. And even if it doesn’t impact, even if the Trump administration didn’t necessarily go after them directly, I have heard reports from people that suggest it might initiate a series of people leaving, and then trickle-down effect there. And it really makes career positions a lot less secure, in part because it could give a lot of ammunition to basically move people around to jobs they don’t want to be in, or don’t like.
Rovner: Yeah, I mean we saw this during the Trump administration, just with the Trump administration picked up the Bureau of Land Management, moved it to Colorado, and a lot of people quit their jobs. There was, I think a piece of the Ag[riculture] Department that they moved to Kansas City. And civil servants — we’re not talking about these top political appointees — civil servants have wives and spouses, and kids in school, and it’s hard for them to just sort of up and say, “I’m going to move to another part of the country,” without really very much warning.
Weber: If anybody’s wondering, they should probably pick up Michael Lewis’ The Fifth Risk. I would highly recommend it as a very interesting book that gets at what happens if you eliminate career federal employees that you have no idea how important their job is because they operate in the background. So, it’s really helpful background. I just wanted to also add, I think we have to read aloud what the Trump campaign said about Project 2025, which is reports of Project 2025’s demise would be greatly welcomed and serve as notice to anyone or any group trying to misrepresent their influence of President Trump in his campaign: it will not end well with you. Which I found to be just a particularly savvy bit of marketing. Because I mean, the president, former President Trump, has made it very clear that he’s not going to give positions on things that he thinks could cost him votes, which is what I think this statement is from. That doesn’t necessarily mean he’s not going to take Project 2025’s guidebook by letter and key. I find this messaging moment to be very interesting.
Rovner: The people who wrote Project 2025 are people who are currently loyal to President Trump. Many of them are former Trump appointees, or people who worked for Trump. Basically what this is is a much more sophisticated preparation for if he gets back into office than he had in 2016 when he famously said he didn’t think he was going to win. And it took them months, and in some cases years, to actually get people into the administration.
Ollstein: Yeah, it’s become this interesting double-edged sword. Because like you said, when he was elected in 2016, they were clearly unprepared. And when they attempted to do all of these rule changes at federal agencies, a lot of them got blocked in court. They weren’t really ready for prime time. And so this was an attempt to have all of the groundwork laid, so that they could have this sort of blitz to remake federal law as soon as they entered office and have the loyal personnel ready to execute it. But it’s now backfiring politically, and Trump has always sort of been sensitive to portrayal of any group or person being the ideas generator and not himself. I’m thinking of “No puppet” from … if people remember that.
So any sort of portrayal of him as the mouthpiece or the puppet of some other group has always really sort of triggered him. And so you see him lashing out now and saying, “I have nothing to do with this group.” Even though, like you said, this group has lots and lots and lots of ties to him. And the repeated disavowals show that this is a sensitive point for them. But like Lauren said, there’s no sign this is stopping or severing ties to them in the future.
Rovner: And of course, Trump rather famously wants to preserve his ability to say different things to different audiences at different times. Sometimes he contradicts himself in the same paragraph. In fact, frequently he contradicts himself in the same paragraph. He’s thinking aloud, that’s sort of his thing. So he can pretend to be all things to all people. And having things written down, like Project 2025, sort of hamper his ability to do that. I think we all agree that the fact that this guy stepped down does not mean that this is not going to be what’s very much the plan for the administration, assuming he gets back into office.
Well, speaking of former President Trump, on Wednesday he took the stage at the National Association of Black Journalists conference in Chicago. And let us say, it was not very pretty. On abortion, he repeated his false claim that Democrats support abortion in the ninth month and even after birth. That’s murder, people. And he tried to make it clear that the issue is now successfully back to the states to decide, which is what he said he wanted. But Alice, you have a story this week about how anti-abortion forces in several different states are working hard to keep voters from getting to express their views on abortion-related ballot questions. So, what’s sort of the rundown here?
Ollstein: We’ve seen the states that are working to put this on the ballot. They’ve already overcome several waves of lawsuits and attempts by state legislatures to pass new rules, making the ballot initiative process more difficult. And so now we’re nearing the deadline, and we’re seeing a new blitz of efforts, both from Republican state officials and outside anti-abortion groups, to keep these off the ballot, or sort of put a thumb on the scale in terms of inserting wording that is favorable to the anti-abortion side. Inserting cost estimates saying, “Oh, if this passes, it’ll cost the state so much in litigation.” That’s happening in Florida.
And so I think the next few weeks, the certification deadlines, a lot of them are in late August so the next few weeks will be really crucial to see if these will or will not get on the ballot. In certain states, they could also have ripple effects on other political races by spurring higher turnout potentially. You see Democrats hoping that’s the case. But we’re seeing things are not yet settled in a lot of really major states — Arizona, Missouri, Montana, South Dakota, Florida — so wanting to keep a close eye on these fights. Obviously, all of the ones that have happened so far over the past two years have been victories for the pro-abortion-rights side. And knowing that, and anticipating that will continue, you see anti-abortion forces really mobilizing to make sure these votes don’t happen in the first place.
Weber: And as you pointed out, I mean, this is obviously important because this is a turnout election, especially now with the new Harris-Trump dynamic. And so all of these battles that are down-ticket have so much more emphasis now with what we’re looking at, especially as new poll results show this election could be pretty tight. We’ll still see. Obviously, there’s still a lot of adjustment to be done. But I think these battles that Alice reported on are so critical, because they have so much more reverberation than even just the abortion reverberation, but in the possible turnout that could drive other factors.
Rovner: In some of these very swingy states, too. Well, one final interesting piece of news on the reproductive health front this week. A patient in Kansas is suing the University of Kansas Health System for denying her an emergency abortion in 2022 in violation of the federal EMTALA law, the Emergency Medical Treatment and Active Labor Act. This appears to be the first such lawsuit of its type, and the patient is seeking not just financial compensation — her water broke early and she ended up having to go to another state — but she wants the hospital to admit that it violated both federal and Kansas law so that this doesn’t happen to anybody else. Do we expect to see more of these kinds of actions? And somebody remind us what EMTALA does and doesn’t do, and how the fight over this is still live because Supreme Court decide the case out of Idaho anyway.
Ollstein: Yeah. So we have seen some other patients sue over being turned away from hospitals. But what I think is really interesting is that the Biden administration pledged really aggressive enforcement of EMTALA. But yet you’re not seeing this lawsuit come from the administration, you’re seeing it come from a patient, an outside advocacy group. So I think that’s really notable. Maybe the Biden administration is doing more behind the scenes that we don’t know about. I’ve tried to ask them and they have not said. Like you said, the Supreme Court punted on this issue of the intersection between federal patient protections under EMTALA and state abortion bans and where to draw the line. And which one takes precedence when they’re in conflict, or whether they’re in conflict, is also up for debate.
So we could see more of this, but we’ve also seen over the past two years that a lot of patients don’t want to put themselves out there like this and become a public figure in the face of a lawsuit for very understandable reasons in this really painful moment. And so I think that’s why you see groups wanting the administration to do more on the front end to prevent this from happening, rather than patients having to take this on after it happens to them in a devastating way.
Rovner: I have also talked to people in the administration who have suggested to me that they are in fact doing more on this. Although Alice, as you say, we haven’t really seen it publicly. But I mean, I had somebody approach me to make it known that this is something that they are extremely concerned about. There is some reporting out this week from my former colleague, Joan Biskupic, who covers the Supreme Court for CNN, about speculation about that Idaho case was exactly correct. They took the case and they didn’t decide it. They sent it back to the lower court, because they had split 3-3-3. That the liberals wanted to dismiss the case entirely. The three hard-line conservatives wanted to find that Idaho did not have to provide abortions in emergency cases unless the life, rather than both the life and the health, were threatened. And that Chief Justice [John] Roberts and Justice [Brett] Kavanaugh and [Justice] Amy Coney Barrett were concerned and were stuck in the middle.
And the deal that they struck was to put back the stay that had kept the Iowa law from taking effect, but send it back to the lower court, which, of course, is what they ended up doing. So, as we said at the time, this case continues to go on. There is still not sort of a judicial decision about the situations in which hospitals have to provide emergency abortions for people in these cases that are health-threatening, and/or life-threatening, but not imminently life-threatening, which is what we’ve been seeing. So this is obviously something that’s going to continue.
All right, moving on. Medicare and Medicaid turned 59 this week, making the program almost old enough to qualify for benefits. And as of today, we are exactly a month away from the first 10 negotiated drug prices being officially unveiled. Sarah, what are you hearing about how this is going? I think there was another court case this week that pharma lost. So I mean, this is definitely going forward, right?
Karlin-Smith: Right. Novo Nordisk joined the slew of losses for the industry here. There are appeals, but I don’t think anybody is expecting anything to change the dynamic leading up to the announcements around this first set of drugs. The thing to remember is, and a number of the pharma companies that have drugs impacted have been speaking about the dynamics on their financial earnings calls, which just sort of are happening around now for this quarter of the year, and have kind of made some suggestions that have gone headlines like, “Oh, it’s not so bad, it’s fine.” But there’s sort of these caveats that, like, “We still hate the law!” And it’s still problematic. And I think it’s important to kind of understand the dynamics here. So one thing is this first set of drugs that’s going for negotiations are older drugs, just based on the way the law was written. The things around the money, and how long they have to be on the market. When you start a program like this, the first drugs are going to be older. So they’ve been on the market longer than drugs that’ll come up as part of the program in the past. A lot of them have competition, brand competition, are actually in some ways competitors to each other. So there’s a sense that Medicare Part D private plans are already getting pretty significant discounts through that private process.
So I think there’s not a ton of optimism in some ways that the government can do much better. And it’s going to be very hard to figure out whether they did or didn’t. Again, because so much of this is not transparent, right? We don’t actually know. Every Part D plan is going to have different discounts. And even one of the things that’s said is could we look at what other countries are paying compared to what the government gets. Well, even when many of these country systems negotiate discounts, we have a sense they’re getting better discounts than the U.S., but we don’t actually know what they are. So lack of transparency makes it hard.
So, it’s going to be a little bit of, I think, like this thing where the headlines are going to be a bit confusing for people to parse. That doesn’t mean that there may not be savings for taxpayers. There may not be savings for some consumers when they get their copay. But I think we’re going to have to wait and see later on as this law progresses what happens when drugs actually get thrown into the mix earlier on in their life cycle, and when we get what are known as Medicare Part B drugs, which are the drugs that you get at a doctor’s office administered to you, like say, an expensive chemotherapy or something. With those drugs, there really is no negotiation system going on now in the private sector, the government just pays a set formula that people say inflates the cost of drugs.
So, it’s going to be interesting to watch. Democrats are certainly going to highlight this. There’s some thought process they’ll actually try and time the government announcements to the Democratic [National] Convention. But I think it’s going to be really hard for people initially to make clear claims as to whether this is a success or a failure. And certainly industry is going to keep going after the law, particularly on the idea that just even this threat of government negotiation down the line impacts the amount of money and investment that goes into new innovation and treatments for people down the road.
Rovner: Well, I mean, obviously this was sort of a big deal for the administration. So one would think that they would want to have a chance. And of course, I think the first is the Friday before Labor Day. So it’s not the biggest news week in general. So yeah, I wouldn’t be surprised if they tried to do something a little bit beforehand.
OK, that is the news for this week. Now we will play my Bill of the Month interview with Elisabeth Rosenthal, and then we will come back and do our extra credits.
I am so pleased to welcome back to the podcast my KFF Health News colleague, Elisabeth Rosenthal, who reported and wrote the latest KFF Health News-NPR Bill of the Month. Libby, of course, is the person who launched this entire project in the first place more than six years ago. Libby, welcome back to “What the Health?”
Elisabeth Rosenthal: Thanks for having me again.
Rovner: So, tell us about this month’s patient. Who she is, where she’s from, and what kind of medical care she got.
Rosenthal: Well, her name is Caitlyn Mai, and she’s this wonderful woman from Oklahoma who, basically she needed a cochlear implant, because she’s had single-sided deafness since an infection when she was 12. And people will go like, “Single-sided deafness, what’s the big deal? She has one hearing ear.” But she couldn’t locate where things were, she couldn’t have conversations because she didn’t know who was talking. So actually, over time it’s become a real impediment in school and in work life. She got approved to have a cochlear implant. She was so excited, because it really would change her life. And she gets the implant: It’s magic. She can suddenly find her phone if it’s lost when it rings. And she’s so excited, except then she gets a bill for $139,000.
Rovner: Yeah. So let’s go back a second. As you have advised us so many, many times, she did all of her homework before the surgery …
Rosenthal: Totally.
Rovner: … checking to make sure she had the paperwork for the prior authorization from her insurance company, and checking to make sure that the hospital and all of the doctors were in-network. And as you say, the bill came! So what happened here?
Rosenthal: Well, the problem is we say, “Oh, the patient’s not responsible, there’s prior authorization,” blah, blah, blah, but there’s no problem in trying. You generate a bill, you send it to a patient, it scares the pants off of them. She said she had to leave work she was so upset. And my first piece of advice, which I would never give people in any other part of their lives is, “Don’t pay the bill.” You get a bill, it says you owe $139,000. Of course, she couldn’t pay it. And I believe it also said, “Hey, if you don’t have $139,000, you can pay it off with $19,000-a-month payments.”
And this is a young woman, getting started in life, newly married. And I guess $19,000 a month wasn’t a viable alternative. So Caitlyn starts doing what many patients do, and we’ve seen this more and more in Bill of the Month: She calls the hospital, she calls the insurer. She’s like the referee. Like, the insurer says they didn’t do the billing codes right. She calls the hospital and says, “Oh, you didn’t give us an itemized bill. Can you generate one?” She calls the insurance, says they’re generating an itemized bill. They go back and forth, and back and forth. Then the itemized bill isn’t right, it contains the wrong codes. And in the meantime, for three months, or four months even, she’s getting these bills that say what you owe now: “prompt payment,” “discount,” and “overdue.” And many patients now are in the terrifying position of playing go-between between their provider and their insurance.
She actually said to the provider, “Send me an itemized bill. Send it to me and I will send it to the right person at the insurance company.” And she said to them, “Look, I’ve done all your work for you. Now just figure it out, you guys.” And, in the meantime, she wasn’t actually sent to collections, but threats were made and it was scary. And she spent endless amounts of time. She works for a nonprofit. She’s lucky, she has a job where she can play this kind of go-between role. But really it should be the provider and the insurer that work it out when you have preauth[orization]. There was no reason why any bills should be sent. And that’s one of my mantras. While you’re working this stuff out, don’t send patient bills, because they’re not responsible for this stuff.
Rovner: Well, that’s the whole point of Congress passing the No Surprises Act, that was supposed to take the patient out of the middle. Why is the patient still in the middle?
Rosenthal: Well, because the No Surprises Act did a lot of great things. It held the patient harmless. And this is actually not a surprise bill, it’s a slightly different issue. But even with the No Surprises Act and with surprise bills, it never said you can’t try. And that’s the problem. Americans are good bill-paying citizens. You send people a bill, and they think, “Wow, I guess I owe it.” So what should be added to the No Surprises Act — and I’m not supposed to use the word should — is you can’t send a bill until the insurer and the provider work it out. I know my mailbox is filled with medical bills that I know I don’t owe, right? But the mantra of the provider is, “Well, there’s no harm in trying. Let’s see if someone pays.”
Rovner: Eventually, she did get this worked out.
Rosenthal: She did get this worked out after hours of her time playing go-between, and many hours spent terrified that she would end up somehow having to foot this bill. Once again, the treatment is miraculous. The bills are not miraculous. I mean, they’re miraculous, but in a really different way. They’re horrifying.
Rovner: So what’s the takeaway here? I mean, we’ve given all the advice, “Don’t pay the first bill. Do your homework in advance.” Is there anything else that you can do to avoid getting six-figure bills for preauthorized surgery?
Rosenthal: Well, there is that “don’t pay your bill” advice, and “don’t be scared by the prompt payment discount,” which she had, too. But I think, unfortunately, you have to be the go-between often. And that’s a terrible position for Americans to be in, because it’s really an equity issue. You and I have jobs and knowledge where we can navigate between these two warring parties, essentially, being the peacemaker. And Caitlyn was lucky she had that kind of job. But many Americans don’t have 20 hours to spend on the phone to avoid a huge bill, and they end up in collections if it’s huge. Or if it’s a small bill — and I’ve done this, and I feel like I’m so angry when I do — if it’s a small bill, you’re like, “All right, fine. I’ll just pay it to get this over with.” Even though I know I don’t owe it.
So I do think there should be a policy that you can’t try to send bills to patients that they don’t owe. They know the patients don’t owe these bills. But like I said, there’s no harm in trying, and there’s no HHS [Department of Health and Human Services] police force out there saying, “You shouldn’t do this.” So, it should have been part of the act, but I think the health care system is endlessly agile in figuring out ways to get around laws that Congress has passed to rein in some of their more outrageous practices.
Rovner: As I like to say, full employment for health care reporters. Libby Rosenthal, thank you so much.
Rosenthal: Take care, Julie. Thanks.
Rovner: OK, we are back. It’s time for our extra-credit segment. That’s when we each recommend a story we read this week we think you should read, too. As always, don’t worry if you miss it. We will post the links on the podcast page at kffhealthnews.org and in our show notes on your phone or other mobile device. Sarah, why don’t you go first this week?
Karlin-Smith: Sure. I looked at a piece from Elisabeth Rosenthal, “Why Many Nonprofit (Wink, Wink) Hospitals Are Rolling in Money.” And we sort of alluded to this in the conversation around medical debt. But nonprofit hospitals are supposed to, as part of their nonprofit status, be providing certain sorts of commitments to how they serve patients and our greater society. And over the years, they have morphed from looking not much like nonprofits in many ways. And her lead sort of talks about the various for-profit businesses that they have acquired and lumped under their umbrella, and how that affects what they’re doing. And some of them do not even necessarily seem completely connected to health care.
And just, again, it raises this issue of if you’re going to have this nonprofit status you should be fulfilling that other end of the commitment for not paying taxes. And if you don’t, perhaps we need to rethink that, if we are not getting the charity care and the other commitments to society, is health that we should get. And I wanted to flag, it was a Hollywood Reporter article [“New York’s Largest Hospital System Is Setting Its Sights on the Entertainment Business,”] that I had seen last week about Northwell [Health] Hospital getting into the movie and filmmaking business. And that just gives you a crazy example of what some of these nonprofit systems are doing. And I think it’s why it’s become so egregious and people have been making marks about it.
Rovner: Congress has been talking about the “nonprofit” health entities, particularly hospitals, since the 1990s. It goes along with drug prices, this sort of evergreen issue on Capitol Hill. Lauren, why don’t you go next?
Weber: Yeah. I have something from The Tributary called “Testimony: Florida Wrongly Cut People From Medicaid Due to ‘Computer Error,’ Bad Data.” It’s a story we’ve heard over and over again, but I will just note that highlighted in this story is the company Deloitte, who my former colleagues, who I love dearly at KFF News, Rachana Pradhan and Samantha Liss, had a great investigation on just, I think, a month ago? So, I think that you see these stories about people being removed from Medicaid rolls. And to be clear, this was in Florida, and I believe it was a bunch of moms who were removed the year after they gave birth. So, these are serious consequences for “computer errors.” And I mean, we have no idea the catastrophic impact these could have had. But I think it’s important to keep an eye on this, and I know Racha and Sam certainly have. And pretty wild stuff to see continued reporting on that.
Rovner: We’ve seen a continuing software programs that went in and thought that they would sort of efficiently look at household income, and to determine whether people were still eligible. And forgot that when they were programming it, that eligibility varies by income, depending on whether you’re a kid, or a pregnant woman, or a mom who’s just given birth. That those eligibility amounts are not the same, and that you can’t just go in and say, “You’re over a certain cutoff, you’re off.” So we’re continuing to see this in the continuing unwinding. Alice.
Ollstein: So, I have a really interesting piece from ProPublica about something I had never heard about. It’s called “A Lab Test That Experts Liken to a Witch Trial Is Helping Send Women to Prison for Murder.” So this is about a forensic practice that some states and counties use for determining whether a baby was stillborn, or that the mother ended the baby’s life after it was born alive. Sorry if this is graphic, folks, but it involves removing the lungs and seeing if they float or not. The reasoning being that that will help you determine if the baby was born alive and took a breath before it died, or if it was stillborn. But we’ve been learning about a lot of forensic “tests.” This is pseudoscience. It is really inaccurate. There are many ways that this could inaccurately convict someone of murder when, in fact, they suffered a stillbirth. So I think people think it’s scientific, it’s unbiased, but science is more complicated than that. So this was a really fascinating story.
Rovner: Yeah, this is something that’s been around for a good while. I became aware of it in, I think, the 2010s, when it was used to convict someone who, I believe her conviction was eventually overturned.
Well, my extra credit this week is from The Washington Post by Fenit Nirappil, and it’s called “Online Portals Deliver Scary Health News Before Doctors Can Weigh In.” It’s about a likely unintended impact of the transparency provisions of the 2016 [21st Century] Cures Act, requiring that patients be given access to test results as soon as they’re available, even before their doctors in many cases. Doctors are lobbying for a change in the regulations so they can at least have time to review the results first, so patients don’t open up a portal and find out that they have cancer. But the Biden administration, at least so far, says it’s the patient’s own information and that the patients have a right to it.
The story’s a really very nuanced look at how the solution to just about every problem in health policy inevitably creates problems of its own.
OK, that is our show. As always, if you enjoy the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left us a review; that helps other people find us, too. Special thanks as always to our technical guru, Francis Ying, and our editor, Emmarie Huetteman. As always, you can email us your comments or questions. We’re at whatthehealth@kff.org, or you can still find me at X, @jrovner. Sarah?
Karlin-Smith: I’m @SarahKarlin.
Rovner: Lauren?
Weber: @LaurenWeberHP on X. “HP” is for health policy.
Rovner: Alice.
Weber: @AliceOllstein on X.
Rovner: We will be back in your feed next week. Until then, be healthy.
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KFF Health News' 'What the Health?': At GOP Convention, Health Policy Is Mostly MIA
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Julie Rovner
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Julie Rovner is chief Washington correspondent and host of KFF Health News’ weekly health policy news podcast, “What the Health?” A noted expert on health policy issues, Julie is the author of the critically praised reference book “Health Care Politics and Policy A to Z,” now in its third edition.
The Republican National Convention highlighted a number of policy issues this week, but health care was not among them. That was not much of a surprise, as it is not a top priority for former President Donald Trump or most GOP voters. The nomination of Sen. J.D. Vance of Ohio adds an outspoken abortion opponent to the Republican ticket, though he brings no particular background or expertise in health care.
Meanwhile, abortion opponents are busy trying to block state ballot questions from reaching voters in November. Legal battles over potential proposals continue in several states, including Florida, Arkansas, and Arizona.
This week’s panelists are Julie Rovner of KFF Health News, Alice Miranda Ollstein of Politico, Sarah Karlin-Smith of the Pink Sheet, and Joanne Kenen of the Johns Hopkins schools of public health and nursing and Politico Magazine.
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Alice Miranda Ollstein
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Joanne Kenen
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Sarah Karlin-Smith
Pink Sheet
Among the takeaways from this week’s episode:
- Sen. J.D. Vance of Ohio has cast few votes on health policy since joining Congress last year. He has taken a doctrinaire approach to abortion restrictions, though, including expressing support for prohibiting abortion-related interstate travel and invoking the Comstock Act to block use of the mail for abortion medications. He also speaks openly about his mother’s struggles with addiction, framing it as a health rather than criminal issue in a way that resonates with many Americans.
- Although Republicans have largely abandoned calls to repeal and replace the Affordable Care Act, it would be easy for former President Donald Trump to undermine the program in a second term; expanded subsidies for coverage are due to expire next year, and there’s always the option to cut spending on marketing the program, as Trump did during his first term.
- Trump’s recent comments to Robert F. Kennedy Jr. about childhood vaccinations echoed tropes linked to the anti-vaccination movement — particularly the false claim that while one vaccine may be safe, it is perhaps dangerous to receive several at once. The federal vaccination schedule has been rigorously evaluated and found to be safe and effective.
- Covid is surging once again, with President Joe Biden among those testing positive this week. The virus is proving a year-round concern and has peaked regularly in summertime; covid spreads best indoors, and lately millions of Americans have taken refuge inside from extremely high temperatures. Meanwhile, the virology community is concerned that the nation isn’t testing enough animals or humans to understand the risk posed by bird flu.
Also this week, Rovner interviews KFF Health News’ Renuka Rayasam, who wrote the June installment of KFF Health News-NPR’s “Bill of the Month,” about a patient who walked into what he thought was an urgent care center and walked out with an emergency room bill. If you have an exorbitant or baffling medical bill, you can send it to us here.
Plus, for “extra credit,” the panelists suggest health policy stories they read this week that they think you should read, too:
Julie Rovner: Time magazine’s “‘We’re Living in a Nightmare:’ Inside the Health Crisis of a Texas Bitcoin Town,” by Andrew R Chow.
Joanne Kenen: The Washington Post’s “A Mom Struggles To Feed Her Kids After GOP States Reject Federal Funds,” by Annie Gowen.
Alice Miranda Ollstein: ProPublica’s “Texas Sends Millions to Crisis Pregnancy Centers. It’s Meant To Help Needy Families, but No One Knows if It Works,” by Cassandra Jaramillo, Jeremy Kohler, and Sophie Chou, ProPublica, and Jessica Kegu, CBS News.
Sarah Karlin-Smith: The New York Times’ “Promised Cures, Tainted Cells: How Cord Blood Banks Mislead Patients,” by Sarah Kliff and Azeen Ghorayshi.
Also mentioned on this week’s podcast:
The Wall Street Journal’s “Mail-Order Drugs Were Supposed To Keep Costs Down. It’s Doing the Opposite,” by Jared S. Hopkins.
Click to open the transcript
Transcript: At GOP Convention, Health Policy Is Mostly MIA
KFF Health News’ ‘What the Health?’Episode Title: ‘At GOP Convention, Health Policy Is Mostly MIA’Episode Number: 356Published: July 18, 2024
[Editor’s note: This transcript was generated using both transcription software and a human’s light touch. It has been edited for style and clarity.]
Julie Rovner: Hello, and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF Health News, and I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, July 18, at 10 a.m. As always, news happens fast and things might’ve changed by the time you hear this. So, here we go.
We are joined today via video conference by Alice Miranda Ollstein, of Politico.
Alice Miranda Ollstein: Good morning.
Rovner: Sarah Karlin-Smith at the Pink Sheet.
Sarah Karlin-Smith: Hi, everybody.
Rovner: And Joanne Kenen of the Johns Hopkins Schools of public health and nursing, and Politico Magazine.
Joanne Kenen: Hi, everybody.
Rovner: Later in this episode, we’ll have my interview with KFF Health News’ Renuka Rayasam, about the latest “Bill of the Month.” This month’s patient went to a facility with urgent care in its name but then got charged emergency room prices. But first, this week’s news.
So as of this morning, we are most of the way through the Republican National Convention, which obviously has a somewhat different tone than was expected, following last weekend’s assassination attempt on former President Donald Trump. The big news of the week is Trump’s selection of Ohio Republican Sen. JD Vance as his running mate. Vance has only been in the Senate since 2023, had not served previously in public office, and he doesn’t have much of a record on much of anything in health care. So, what do we know about what he thinks?
Ollstein: Well, I have been most focused on his abortion record, which is somewhat more extensive than his record on other health policy. Obviously, Congress has not done very much on abortion, but he’s been loud and proud about his anti-abortion views, including calling for national restrictions. He calls it a national minimum standard, but the idea is that he does not want people in conservative states where abortion is banned to be able to travel to progressive states where it is allowed. He has given interviews to that effect. He has signed letters to that effect. He has called for enforcement of the Comstock Act, which, as we’ve talked about before, is this long dormant statute that prohibits the mailing of abortion drugs or medical instruments that could be used to terminate a pregnancy. And so this is a very interesting moment to pick Vance.
The Republican Party is attempting to reach out to more moderate voters and convince them that they are hoping to leave this issue to the states. Vance’s record somewhat says otherwise. He also opposed efforts in his own state of Ohio to hold a referendum that ended up striking down that state’s abortion ban. So, definitely a lot for Democrats to go after in his record and they are not wasting any time; they are already doing it.
Rovner: Yeah, I’m kind of surprised because Vance, very much like Trump, has been kind of everywhere, or at least he has said that he’s kind of everywhere on abortion. But as you mentioned, Alice, you don’t have to look very hard to see that he’s pretty doctrinaire on the issue. Do you think people are going to buy this newer, softer Republicanism on abortion?
Ollstein: Well, abortion rights groups that I’ve spoken to are worried that people are buying it. They’re worried as they campaign around the country that the Republican Party’s attempt to walk away from their past calls for national restrictions on abortion are breaking through to people. And so they are trying really hard to counter that message and to stress that Republicans can and would pursue national restrictions, if elected.
I think both Democratic candidates and abortion rights groups are working to say even the leave-it-to-states position is too extreme and is harming people. And so they’re lifting up the stories of people in Texas and other states with bans who have experienced severe medical harm as a result of being denied an abortion. And so they’re lifting up those stories to say, “Hey, even saying let’s leave it to the states, let’s not do a national ban — even that is unacceptable in the eyes of the left.”
Kenen: The other issue obviously with his life story is opioids. His mother was addicted. Originally it began with being prescribed a legal painkiller. It’s a familiar story: became addicted, he was raised by his grandmother. His mother, who he showed on TV last night and she was either in tears or really close to tears, she’s 10 years sober now. He had a tough life and opioids was part of the reason he had a tough life. And whatever you think of his politics, that particular element of his life story resonates with people because it may explain some of his political views. But that experience is not a partisan experience and he was a kid. So I think he clearly does see opioids as a medical problem, not just, oh, let’s throw them in jail. I mean, the country and the Republican Party, that has been a change. It’s not a change that’s completed, but that shift is across party lines as well. That’s part of him that — it’s something you listen to when he tells that story.
I mean also, he told a story about his grandmother late in life, the grandmother who raised him, having, when she died, they found 19 handguns in the house all over the place. And he told sort of a funny story that she was old and frail and she always wanted to have one within reach. And all I could think of is, all these unlocked handguns with kids in the house! I mean, which is not a regulatory issue, but there’s a gun safety issue there. I’m just thinking, oh my God, 19 guns in drawers all over the house. But he’s obviously a very, the Republican Party is … I mean, after the assassination attempt, you have not heard Donald Trump say, “Maybe I need to rethink my position on gun control.” I mean, that’s not part of the dialogue right now.
I think having someone with that experience, talking about it the way he does, is a positive thing, really. Saying, “Here’s what we went through. Here’s why. Here’s how awful it was. Here’s how difficult it was to get out of it. And this is what these families need.” I mean, that is …
Rovner: Although it’s a little bit ironic because he’s very anti-social programs, in general.
Karlin-Smith: And he’s had a bad track record of trying to address the opioid crisis. He had a charity he started that he ended I guess about when he was running for Senate that really was deemed nonsuccessful. It also had questionable ties to Purdue Pharma, that’s sort of responsible for the opioid crisis. And the other thing that you sometimes hear in both him and Trump’s rhetoric is the blaming of immigrants and the drug cartels and all of that stuff for the opioid crisis. So, there’s a little bit of use of the topic, I think, to drop anti-immigrant sentiment and not really think about how to address the actual health struggles.
Kenen: When he talks about his family, he’s not saying China sent my mother fentanyl. I think it is good for people to hear stories from the perspective of a family who had this, as it is a health problem, reminding people that this is not thugs on the street shooting heroin. It’s a substance abuse disorder, it’s a disease. And so I think the country has come a long way, but it isn’t where it needs to be in terms of understanding that it’s a behavioral health problem. So I think in that sense he will probably be a reminder of that. But he doesn’t have a health record. I mean, he wasn’t there during the Obamacare wars. We don’t really know what he thinks about. I’m not aware of anything he’s really said about entitlements and Medicare. He does come from the state … I mean, Trump is saying he won’t touch it. But I mean if he said Medicare stuff, I missed it. I mean, if one of you knows, correct …
Karlin-Smith: Well, he has actually said that he supports Medicare drug price negotiation at times, which is interesting and unique for a Republican. And I mean Trump, as well, has been a bit different from the traditional Republican, I think, when it comes to the pharma industry and stuff, but I think that maybe is even a bridge too far in some ways.
Rovner: Yeah, he’s generally pretty anti-social program, so it’ll be interesting to see how he walks that line.
Well, this is all good segue into my next question, which is, health in general has been mostly MIA during this convention, including any update on Trump’s ear injury from the attempted assassination. Are we finally post-repeal-and-replace in the Republican Party? Or is this just one of those things that they don’t want to talk about but might yet take up if they get into office?
Kenen: We don’t know what the balance of power is in the Senate and the House, right? I mean, that’s probably going to be part of it. I mean, if they have huge … if they capture both chambers with huge majorities, it’s a new ballgame. Whether they actually try to repeal it, versus there’s all sorts of ways they can undermine it. Trump did not succeed in repealing it. Trump and the House Republicans did not, the Republicans in general did not succeed in repealing it, despite a lot of effort. But they did undermine it in all sorts of ways and coverage actually fell during the Trump administration. ACA [Affordable Care Act] coverage did drop; it didn’t vanish completely, but it dropped. And under Biden it continued to grow. Now, the Republicans get their health care through the ACA, so it’s become much more normalized, but we don’t know what they will do. Trump is not a predictable politician, right? I mean, he often made a big deal about trying to lower drug prices early in his term, and then nothing. And then he even released huge, long list of things …
I remember one of our reporters — Sarah and I were both … Sarah, Alice, and I were all at Politico — and I think it was David who counted the number of question marks in that report. And at the end of the day, nothing much happened. I don’t think the ACA is untouchable; it may or may not be unrepealable in its entirety, but it’s certainly not untouchable.
Rovner: Well, he also changes positions on a whim, as we’ve seen. Most politicians you can at least count on to, when they take a position, to keep it at least for a matter of days or weeks, and Trump sometimes in the same interview can sort of contradict himself, as we know. But I mean, obviously a quick way to undermine the ACA, as you say, would just be to let the extended subsidies expire because they would need to be re-upped if that’s going to continue and there are many millions of people that are now …
Kenen: And they expire next year.
Rovner: … Yes, that are …
Kenen: And there are also two other things. You cut the navigating budget. You cut advertising. You don’t try to sell it. I don’t mean literally sell it, but you don’t try to go out and urge … I mean, that was their playbook last time, and that’s why — it’s one reason enrollment dropped. And that was, the subsidies were under Biden, the extended subsidies. So that’s one year away.
Ollstein: But it’s no surprise that this hasn’t been a big topic of discussion at the RNC [Republican National Convention]. I mean, polling shows that voters trust Democrats more on health care; it’s one of their best issues. It’s not a good issue for Republicans. And so it was fully expected that they would stick to things that are more favorable to them: crime, inflation, whatnot. So, I do expect to hear a lot about health care at the DNC [Democratic National Convention] in a few weeks. But beyond that, we do not know what’s going to happen at the DNC.
Rovner: Yeah.
Karlin-Smith: I was going to say, the one health issue we haven’t really touched on, which the Republicans have been hammering on, is transgender health care and pushing limits on it, especially for people transitioning, children, and adolescents. And I think that’s clearly been a strategic move, particularly as they’ve gotten into more political trouble with abortion and women in the party. They clearly seem to think that the transgender issue, in general, appeals more to their base and it’s less risky for them.
Rovner: Their culture warrior base, as you will. Yeah, and we have in fact seen a fair bit of that. Well, before we leave the convention, one more item: It seems that Trump and RFK Jr. [independent presidential candidate Robert F. Kennedy Jr.] had a phone conversation, which of course leaked to the public, during which they talked about vaccine resistance. Now we know that RFK Jr. is a longtime anti-vaxxer. What, if anything, does the recounting of this conversation suggest about former President Trump’s vaccine views? And we’ve talked about this a little bit before, he’s been very antimandate for the covid vaccine, but it’s been a little bit of a blank on basic childhood vaccines.
Karlin-Smith: And I mean, his remarks are, they’re almost a little bit difficult to parse, they don’t quite make sense, but they seem to be essentially repeating anti-vax tropes around, well, maybe one vaccine on their own isn’t dangerous, but we give kids too many vaccines at a time or too close together. And all of that stuff has been debunked over the years as incorrect. The vaccine schedule has been rigorously evaluated for safety and efficacy and so forth.
That said, Trump obviously was in office when we spearheaded the development of covid vaccines, which ended up being wildly successful, and he didn’t really undermine that process, I guess, for the most part when he was in office. So it’s hard to know. Again, there’s a lot of difficulty in predicting what Trump will actually do and it may depend a lot who he surrounds himself with and who he appoints to key positions in his health department and what their views are. Because he seems like he can be easily persuaded and right now he may just be in, again, campaign mode, very much trying to appeal to a certain population. And you could easily see him — because he doesn’t seem to care about switching positions — just pivoting and being slightly less anti-vax. But it’s certainly concerning to people who have been even more about the U.S. anti-vax sentiments since covid and decreases in vaccination rates.
Rovner: It did feel like he was trying to say what he thought RFK Jr. wanted to hear, so as to win his endorsement, which we know that Trump is very good at doing. He channels what he says depending on who he’s talking to, which is what a lot of politicians do. He just tends to do it more obviously than many others.
Kenen: Julie, we heard this at the tail end of the 2016 campaign. He made a few comments, exactly, very, very similar to this, the size of a horse vaccine and you see the changes — there’s too many, too many vaccines, too large doses. We heard this briefly in the late 2016, and we heard it at the very — I no longer remember whether it was during transition in 2016 or whether it was early in 2017 when he was in the White House — but we heard a little bit of this then, too. And he had a meeting with RFK then. And RFK said that Trump was talking about maybe setting up a commission and RFK at one point said that Trump had asked him to head the commission. We don’t think that was necessarily the case.
First of all, there was no commission. The White House never confirmed that they had asked RFK to lead it. Who knows who said what in a closed room, or who heard what or what they wanted to hear; we don’t know. But we heard this whole episode, including Trump and RFK, at approximately the beginning of 2017, and it did go away. Covid didn’t happen right away; covid was later. There was no anti-vax commission. There was no vax commission. There was no change in vaccination policy in those early years prepandemic. And as Sarah just pointed out, Trump was incredibly pro-vaccine during the pandemic. I mean, the Operation Warp Speed was hailed by even people who didn’t like anything else about Trump. When public health liked Operation Warp Speed, he got vaccines into arms fast, faster than many of us thought, right?
The difference — there were anti-vaxxers then; there have been since smallpox — but it is much more politicized and much more prominent, and in some ways it has almost replaced the ACA as your identifying health issue. If you talk to somebody about the ACA, you know what party they are, you even know where within the party they are, what wing. And that’s not 100% true of anti-vaxxers. There are anti-vaxxers on both sides, but the politicization has been on the Republican-medical-libertarian side, that you-can’t-tell-me-what-to-do-it’s-my-body side. It is much more part of his base and a more intense, visible, and vocal part of his base. So, it’s the same comments, or very similar comments, to the same person in a different political context.
Rovner: Well, I think it’s safe to say that abortion does remain the most potent political health issue of the year, and there was lots of state-based abortion election news this week. As we’ve been discussing all year, as many as a dozen states will have abortion questions on the ballot for voters this November, but not without a fight. Florida has just added an addendum to its ballot measures, suggesting that if passed, it could cost the state money. And in Arkansas and Montana, there are now legal fights over which signatures should or shouldn’t be counted in getting some of those questions to the ballot.
Alice, in every state that’s voted on abortion since Dobbs [v. Jackson Women’s Health Organization], the abortion-right side has prevailed. Is the strategy here to try to prevent people from voting in the first place?
Ollstein: Oh, yes. I wrote a story about this in January. It’s been true for a while, and it’s been true in the states that already had their votes, too. There were efforts in Ohio to make a vote harder or to block it entirely. There were efforts in Michigan to do so. And even the same tactics are being repeated. And so the fight over the cost estimate in Florida, which is usually just a very boring, bureaucratic, routine thing, has become this political fight. And that also happened in Missouri. So, we’re seeing these trends and patterns and basically any aspect of this process that can be mobilized to become a fight between conservative state officials and these groups that are attempting to get these measures on the ballot, it has been. And so Arizona is also having a fight over the language that is going to go in the voter guide that goes out to everybody. So there’s a fight going on there that’s going to go to court next week about whether it says fetus or unborn child. So, all of these little aspects of it, there’s going to be more lawsuits over signature, validation, and so it’s going to be a knockdown, drag-out fight to the end.
It’s been really interesting to see that conservative efforts to mount these so-called decline-to-sign campaigns, where they go out and try to just convince people not to sign the petition — those have completely failed, even in states that haven’t gotten the kind of national support and funding that Florida and Nevada and some of these states have. Even those places have met their signature goals and so they’re now moving to this next phase of the fight, which is these legal and bureaucratic challenges.
Rovner: This is going to play out, I suspect, right, almost until the last minute, in terms of getting some of these on the ballot.
Meanwhile, here on Capitol Hill, there’s an effort underway by some abortion rights backers to repeal the 1873 Comstock Act, which some anti-abortion activists say could be used to establish a national abortion ban. On the one hand, repealing the law would take away that possibility. On the other hand, suggesting that it needs to be repealed undercuts the Biden administration’s contention that the law is currently unenforceable. This seemed to be a pretty risky proposition for abortion rights forces no matter which way they go, right?
Ollstein: Well, for a while, the theory on the abortion rights side was, oh, we shouldn’t draw attention to Comstock because we don’t want to give the right the idea of using it to make a backdoor abortion ban. But that doesn’t really hold water anymore because they clearly know about it and they clearly have the idea already and are open about their desire to use it in documents like Project 2025, in letters from lawmakers urging enforcement of the Comstock Act. And so the whole …
Rovner: In concurring opinions in Supreme Court cases.
Ollstein: … Exactly, exactly. In legal filings in Supreme Court cases from the plaintiffs. So clearly, the whole “don’t give the right the idea thing” is not really the strategy anymore; the right already has the idea. And so now I think it’s more like you said, about undercutting the legal argument that it is not enforceable anyway. But those who do advocate for its repeal say, “Why wouldn’t we take this tool out of contention?” But this is sort of a philosophical fight because they don’t have the votes to repeal it anyway.
Rovner: Yeah, though I think the idea is if you bring it up you put Republicans on the record, as …
Ollstein: Sure, but they’ve been doing that on so many things. I mean, they’ve been doing that on IVF [in vitro fertilization], they’ve been doing that on contraception, they’ve been doing that on abortion, they’ve been doing it on the right to travel for an abortion. They’ve been doing it over and over and over and I don’t see a lot of evidence that it’s making a big impact in the election. I could be wrong, but I think that’s the current state of things.
Rovner: Yeah, I’m with you on that one.
All right, well, while we are all busy living our lives and talking about politics, covid is making its now annual summer comeback. President Biden is currently quarantining at his beach house in Rehoboth after testing positive. HHS [Department of Health and Human Services] Secretary Xavier Becerra was diagnosed earlier this week. And wastewater testing shows covid levels are “very high” in seven states, including big ones like Florida, Texas, and California. Sarah, do we just not care anymore? Is this just not news?
Karlin-Smith: Probably, it depends on who you ask, right? But I think obviously with Biden getting covid, it’s going to get more attention again. I think that a lot of health officials, including in the Biden administration, spent a lot of time trying to maybe optimistically hope that covid was going to become a seasonal struggle, much like flu, where we really sort of know a more defined risk period in the winter and that helps us manage it a bit. And always sort of seemed a little bit more optimistic than reality. And I think recently I’ve listened to some CDC [Centers for Disease Control and Prevention] meetings and stuff where — it’s not really, it’s a little bit subtle — but I think they’re finally kind of coming around to, oh wait, actually this is something where we probably are going to have these two peaks every year. They’re sort of year-round risk. But there hasn’t been a ton done to actually think through, OK, what does that mean for how we handle it?
In this country, every year they have been approving a second vaccine for the people most at risk, although uptake of that is incredibly low. So it does seem like it’s become a little bit of a neglected public health crisis. And certainly in the news sometimes when something kind of stays at this sort of constant level of problem, but nothing changes, it can sometimes, I think, be harder for news outlets to figure out how to draw attention to it.
Rovner: It does seem like, I mean, most of the prominent people who have been getting it have been getting mild cases. I imagine that that sort of has something to do … We’re not seeing … even Biden, who’s as we all know, 81, is quarantining at his beach house, so.
Karlin-Smith: Right, I mean, if you kind of stay up to date, as the terminology is, on your vaccinations, you don’t have a lot of high-risk conditions, if you are in certain at-risk groups you get Paxlovid. For the most part a lot of people are doing well. But that said, I think, I’m afraid to say the numbers, but if you look up the amount of deaths per week and so forth, it’s still quite high. We’re still losing — again, more people are still dying from covid every year, quite a few more than from the flu. I mean, one thing I think people have also pointed out is when new babies are born, you can’t get vaccinated until you’re 6 months. The under-6-month population has been impacted quite a bit again. So, it is that tension. And we saw it with the flu before covid, which is every year flu is actually a very big issue in the U.S. and the public health world for hospitals and stuff but the U.S. never quite put enough maybe attention or pressure to figure out how to actually change that dynamic and get better flu vaccine uptake and so forth.
Kenen: And the intense heat makes it, I mean — covid is much, much, much, much more transmissible inside than outside. And the intense heat — we’re not sitting around enjoying warm weather, we’re inside hiding from sweltering weather. We’re all in Washington or the Washington area, and it’s been hot with a capital H for weeks here, weeks. So people are inside. They can’t even be outside in the evening, it’s still hot. So we think of winter as being the indoors time in most of the country, and summer sort of the indoors time in only certain states. But right now we are in more transmissible environments for covid and …
Rovner: Meanwhile, while we’re all trying to ignore covid, we have bird flu that seems to be getting more and more serious, although people seem to just not want to think about it. We’re looking at obviously in many states bird flu spreading to dairy cows and therefore spreading to dairy workers. Sarah, we don’t really even know how big this problem is, right? Because we’re not really looking for it?
Karlin-Smith: That seems to be one of the biggest concerns of people in the public health-virology community who are criticizing the current response right now, is just we’re not testing enough, both in terms of animal populations that could be impacted and then the people that work or live closely by these animal populations, to figure out how this virus is spreading, how many people are actually impacted. Is the genetics of the virus changing? And the problem of course then is, if you don’t do this tracking, there’s a sense that we can get ourselves in a situation where it’s too late. By the time we realize something is wrong, it’s going to already be a very dangerous situation.
Rovner: Yeah, I mean, before covid, the big concern about a pandemic was bird flu. And was bird flu jumping from birds to other animals to humans, which is exactly what we’re seeing even though we’re not seeing a ton of it yet.
Kenen: We’re not seeing a ton of it, and in its current form, to the best of our knowledge, it’s not that dangerous. The fear is the more species it’s in and the more people it’s in, the more opportunities it has to become more dangerous. So, just because people have not become seriously ill, which is great, but it doesn’t mean it stays great, we just don’t — Sarah knows more about this than I do, but the flu virus mutates very easily. It combines with other flu viruses. That’s why you hear about Type A and Type B and all that. I mean, it’s not a stable virus and that is not, I’m not sure if stable is the right …
Rovner: It’s why we need a different flu shot every year.
Kenen: Right, and the flu shots we have, bird flu is different.
Rovner: Well, we will continue to watch that.
Kenen: Sarah can correct anything I just got wrong. But I think the gist was right, right?
Rovner: Sarah is nodding.
All right, well finally, one follow up from last week in the wake of the report from the Federal Trade Commission on self-dealing by pharmacy benefits managers: We get a piece from The Wall Street Journal this week [“Mail-Order Drugs Were Supposed To Keep Costs Down. It’s Doing the Opposite.”] documenting how much more mail-order pharmacies, particularly mail-order pharmacies owned by said PBMs [pharmacy benefit managers] are charging. Quoting from the story, “Branded drugs filled by mail were marked up on average three to six times higher than the cost of medicines dispensed by chain and grocery-store pharmacies, and roughly 35 times higher than those filled by independent pharmacies.” That’s according to the study commissioned by the Washington State Pharmacy Association. It’s not been a great month for the PBM industry. Sarah, I’m going to ask you what I asked the panel last week: Is Congress finally ready to do something?
Karlin-Smith: It seemed like Congress has finally been ready to do something for a while. Certainly, both sides have passed legislation and committees and so forth, and it’s been pretty bipartisan. So we’ll see. I think some of it costs — I forget if some of it costs a little money — but some of it does save. And that’s always an issue. And we know that Congress is just not very good at passing stand-alone bills on particular topics, so I think the key times will be to look at when we get to any big end-of-year funding deals and that sort of thing, depending on all the dynamics with the election and the lame duck, but …
Rovner: I mean, this has been so bipartisan. I mean, there’s bipartisan irritation in both houses, in both parties.
Karlin-Smith: Right, and I think the antitrust sort of element of this with PBMs kind of appeals to the Republican side of the aisle quite a bit. And that’s why there’s always been a bit of bipartisan interest. And the question becomes: PBMs sort of fill the role that in other countries government price negotiators fill. And that’s not particularly popular in the U.S., particularly on the Republican side of the aisle. And so most of the legislation that is pending, I think, will maybe hopefully get us to some transparency solutions, tweak some things around the edges, but it’s not really going to solve the crisis. It’s going to be, I mean, a very [Washington,] D.C. health policy move, which is kind of, take some incremental steps that might eventually move us down to later reforms, but it’s going to be slow-moving, whatever happens. So, PBMs are going to be in the spotlight for probably a while longer.
Rovner: Yes, which popular issue moves slower: drug prices or gun control?
All right, well finally this week the health policy community has lost another giant. Gail Wilensky, who ran Medicare and Medicaid under the first President Bush, and the advisory group MedPAC for many years after that, died of cancer last week at age 81. Gail managed to be both polite and outspoken at the same time. A Republican economist who worked with and disagreed with both Democrats and Republicans, and who, I think it’s fair to say, was respected by just about everyone who ever dealt with her. She taught me, and lots of others, a large chunk of what I know about health policy. She will be very much missed. Joanne, I guess you worked with her probably as long as I did.
Kenen: Yeah, I’m the one who told you she had died, right?
Rovner: That’s true.
Kenen: I think that when I heard her speak in a professional setting in the last few years, she talked to her about herself not as a Republican health economist, but as a free market health economist. She was very well respected and very well liked, but she also ended up being a person without a party. But she was a fixture and she was a nice person.
Rovner: And she wasn’t afraid to say when she was the head of MedPAC she made a lot of people angry. She made a lot of Republicans angry in some of those sort of positions that she took. She basically called it as she saw it and let the chips fall.
Kenen: And Julie, she went to Michigan, right?
Rovner: Yes, and she went to Michigan. That’s true. A fellow Michigan Wolverine. All right, well, that is the news for this week. Now we will play my interview with Renuka Rayasam, and then we will come back and do our extra credits.
I am pleased to welcome to the podcast my KFF Health News colleague Renuka Rayasam, who reported and wrote the latest KFF Health News-NPR “Bill of the Month.” It’s about what should have been a simple visit to an urgent care center but of course turned out to be anything but. Renu, thanks for joining us.
Renuka Rayasam: Thanks for having me.
Rovner: So, tell us about this month’s patient, who he is, and what kind of medical problem he had.
Rayasam: Sure, let me tell you about the patient in this month’s “Bill of the Month.” His name is Tim Chong. He’s a Dallas man, and last December he felt severe stomach pain and he didn’t know what it was from. And he thought at first maybe he’d had some food poisoning. But the pain didn’t subside and he thought, OK, I don’t want to have to pay an ER bill, so let me go to an urgent care. And he opted to visit Parkland Health’s Urgent Care Emergency Center, where he learned he had a kidney stone and was told to go home and that it would pass on its own.
Rovner: Now, we’re told all the time exactly what he was told, that if we have a health problem that needs immediate attention but probably not a hospital-level emergency, we should go to an urgent care center rather than a hospital emergency room. And most insurers encourage you to do this; they give you a big incentive by charging a far smaller copay for urgent care. So, that’s what he tried to do, right?
Rayasam: That’s what he tried to do, at least that’s what he thought he was doing. Like I said, this is a facility, it’s called Urgent Care Emergency Center. He told me that he walked in, he thought he was at an urgent care, he got checked out, was told it was a kidney stone. He actually went back five days later because his stomach pain worsened and didn’t get better. And it wasn’t until he got the bills the following month that he realized he was actually at an emergency center and not an urgent care center. His bill was $500 for each visit, not $50 for each visit as he had anticipated.
Rovner: And no one told him when he went there?
Rayasam: He said no one told him. And we reached out to Parkland Health and they said, “Well, we have notices all over the place. We label it very clearly: This is an emergency care center, you may be charged emergency care fees,” but they also sent me a picture of some of those notices and those are notices that are buried among a lot of different notices on walls. Plus, this is a person who is suffering from severe stomach pain. He was really not in a position to read those disclosures. He went by what the front desk staff did or didn’t tell him and what the name of the facility was.
Rovner: I was going to say, there was a sign that said “Urgent Care,” right?
Rayasam: Right, absolutely. Urgent Care Emergency Center, right? And so when we reached out to Parkland, they said, “Hey, we are clearly labeled as an emergency center. We’re an extension of the main emergency room.” And that’s the other thing you have to remember about this case, which is that this is the person who knew Parkland’s facility. He knew they had a separate emergency room center and he said, “I didn’t go into that building. I didn’t go into the building that’s labeled emergency room. I run into this building labeled Urgent Care Emergency Center.” Parkland says, hey, this is an extension of their main emergency room. This is where they send lower-level emergency cases, but obviously it’s a really confusing name and a really confusing setup.
Rovner: Yeah, absolutely. So, how did this all turn out? Medically, he was OK eventually, right?
Rayasam: Medically he was OK eventually. Eventually the stone did pass. And it wasn’t until he got these bills that he kind of knew what happened. When he first got the bills, he thought, well, obviously there’s some mistake. He talked to his insurer. His insurer, BlueCross and BlueShield of Texas, told him that Parkland had billed these visits using emergency room codes and he thought, wait a second, why are they using emergency room codes? I didn’t go into the emergency room. And that’s when Parkland told him, “Hey, you actually did go into an emergency room. Sorry for your confusion. You still owe us $1,000 total.” He paid part of the bills. He was trying to challenge the bills and he reached out to us at “Bill of the Month,” but eventually his bill got sent to collection and Parkland’s sort of standing by their decision to charge him $500 for each visit.
Rovner: So he basically still owes $1,000?
Rayasam: Yes, that’s right.
Rovner: So what’s the takeaway here? This feels like the ultimate bait and switch. How do you possibly make sure that a facility that says urgent care on the door isn’t actually a hospital emergency room?
Rayasam: That’s a great question. When it comes to the American medical system, unfortunately patients still have to do a lot of self-triage. One expert I’ve talked to said it’s still up to the patients to walk through the right door. Regulators have done a little bit, in Texas in particular, of making sure these facilities, these freestanding emergency room centers, as they’re called — and this one is hospital-owned, so the name is confusin, but it’s technically a freestanding emergency center, so it did have the name emergency in the name of the facility, and I think that that’s required in Texas — but I’ve talked to others who’ve said, you should ban the term urgent care from a facility that’s not urgent care. Because this is a concept that’s very familiar to most Americans. Urgent care has been around for decades; you have an idea of what an urgent care is.
And when you look at this place on its website, it’s called Urgent Care Emergency Center, it’s sort of advertised as a separate clinic within Parkland structure. It’s closed on nights, it’s closed on Sundays. The list of things they say they treat very much resembles an urgent care. So, this patient’s confusion I think is very, very understandable and he’s certainly not the only one that’s had that confusion at this facility. Regulators could ban the term urgent care for facilities that bill like emergency rooms. But until that happens it’s up to the patients to call, to check, and to ask about billing when they show up, which isn’t always easy to do when you’re suffering from severe stomach pain.
Rovner: Another thing for patients to watch out for.
Rayasam: Yes, absolutely, and worry about.
Rovner: Yes, Renuka Rayasam, thank you so much for joining.
Rayasam: Thank you, Julie.
Rovner: OK, we are back. It’s time for our extra credit segment. That’s when we each recommend a story we read this week we think you should read, too. As always, don’t worry if you miss it. We will post the links on the podcast page at kffhealthnews.org and in our show notes on your phone or other mobile device.
Sarah, why don’t you go first this week?
Karlin-Smith: Sure, I looked at a New York Times piece called “Promised Cures, Tainted Cells: How Cord Blood Banks Mislead Patients.” And it’s about the often very aggressive sort of tactics of these banks to convince women to save some of the cord blood after they give birth with the promise that it may be able to help treat your child’s illness down the road. And the investigation into this found that there’s a number of problems. One is that, for the most part, the science has progressed in a way that some of what people used to maybe use some of these cells for, they now use adult stem cells. The other is these banks are just not actually storing the products properly and much of it gets contaminated so it couldn’t even be used. Or sometimes you just don’t even collect enough, I guess, of the tissue to even be able to use it.
In one instance, they documented a family that — the bank knew that the cells were contaminated and were still charging them for quite a long time. And the other thing that I actually personally found fascinated by this — because my OB-GYN actually did kind of, I feel like, push one of these companies — was that they can pay the OB-GYNs quite a hefty fee for what seems like a very small amount of work. And it’s not subject to the same sort of kickback type of regulation that there may be for other pharmaceutical/medical device interactions between doctors and parts of the biotech industry. So I found that quite fascinating as well, what the economic incentives are to push this on people.
Rovner: Yeah. One more example of capitalism and health care being uncomfortable bedfellows, Chapter 1 Million. Joanne?
Kenen: There was a fantastic piece in The Washington Post by Annie Gowan: “A Mom Struggles To Feed Her Kids After GOP States Reject Federal Funds,” which was a long headline, but it was also a long story. But it was one of those wonderful narrative stories that really put a human face on a policy decision.
The federal government has created some extra funds for childhood nutrition, childhood food, and some of the Republican governors, including in this particular family’s case, the Republican Gov. Kevin Stitt in Oklahoma, have turned down these funds. And families … So this is a single, full-time working mom. She is employed. She’s got three teenagers. They’re all athletic and active and hungry and she doesn’t have enough food for them. And particularly in the summer when they don’t get meals in school, the struggle to get enough food, she goes without meals. Her kids — one of the kids actually works in the food pantry where they get their food from. The amount of time and energy this mom spends just making sure her children get fed when there is a source of revenue that her state chose not to us: It’s a really, really good story. It’s long, but I read it all even before Julie sent it to me. I said, “I already read that one.” It’s really very good and it’s very human. And, why?
Rovner: Policy affects real people.
Kenen: This is hungry teenagers.
Rovner: It’s one of things that journalism is for.
Kenen: Right, right, and they’re also not eating real healthy food because they’re not living on grapefruits and vegetables. They’re living on starchy stuff.
Rovner: Alice?
Ollstein: I chose a good piece from ProPublica called “Texas Sends Millions to Crisis Pregnancy Centers. It’s Meant To Help Needy Families, but No One Knows if It Works.” And it is about just how little oversight there is of the budgets of taxpayer dollars that are going to these anti-abortion centers that in many cases use the majority of funding not for providing services. A lot of it goes to overhead. And so there’s a lot of fascinating details in there. These centers can bill the state a lot of money just for handing out pamphlets, for handing out supplies that were donated that they got for free. They get to charge the state for handing those out. And there’s just not a lot of evaluation of, is this serving people? Is this improving health outcomes? And I think it’s a good critical look at this as other states are moving towards adopting similar programs to what’s going on in Texas.
Rovner: Yeah, we’re seeing a lot of states put a lot of money towards some of these centers.
Well, my extra credit this week is from Time magazine. It’s called, “‘We’re Living in a Nightmare:’ Inside the Health Crisis of a Texas Bitcoin Town,” by Andrew Chow. And in case we didn’t already have enough to worry about, it seems that the noise that comes from the giant server farms used to mine bitcoin can cause all manner of health problems for those in the surrounding areasm from headaches to nausea and vomiting to hypertension. At a local meeting, one resident reported that “her 8-year-old daughter was losing her hearing and fluids were leaking from her ears.”
The company that operates the bitcoin plant says it’s in the process of moving to a quieter cooling system. That’s what makes all the noise. But as cryptocurrency mining continues to grow and spread, it’s likely that other communities will be affected in the way the people of Granbury, Texas, have been.
All right. That is our show for this week. As always, if you enjoy the podcast, you can subscribe wherever you get your podcast. We’d appreciate it if you left us a review; that helps other people find us, too. Special thanks as always to our technical guru, Francis Ying, and our editor, Emmarie Huetteman. As always, you can email us your comments or questions. We’re at whatthehealth@kff.org, or you can still find me at X, I’m @jrovner. Sarah, where are you these days?
Karlin-Smith: I’m mostly on X @SarahKarlin or on some other platforms like Bluesky, at @sarahkarlin-smith.
Rovner: Alice?
Ollstein: I’m on X @AliceOllstein and on Bluesky @alicemiranda.
Rovner: Joanne?
Kenen: A little bit on X @JoanneKenen and a little bit on Threads @joannekenen1.
Rovner: We will be back in your feed next week. Until then, be healthy.
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KFF Health News' 'What the Health?': SCOTUS Ruling Strips Power From Federal Health Agencies
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Julie Rovner is chief Washington correspondent and host of KFF Health News’ weekly health policy news podcast, “What the Health?” A noted expert on health policy issues, Julie is the author of the critically praised reference book “Health Care Politics and Policy A to Z,” now in its third edition.
In what will certainly be remembered as a landmark decision, the Supreme Court’s conservative majority this week overruled a 40-year-old legal precedent that required judges in most cases to yield to the expertise of federal agencies. It is unclear how the elimination of what’s known as the “Chevron deference” will affect the day-to-day business of the federal government, but the decision is already sending shockwaves through the policymaking community. Administrative experts say it will dramatically change the way key health agencies, such as the FDA and the Centers for Medicare & Medicaid Services, do business.
The Supreme Court also this week decided not to decide a case out of Idaho that centered on whether a federal health law that requires hospitals to provide emergency care overrides the state’s near-total ban on abortion.
This week’s panelists are Julie Rovner of KFF Health News, Joanne Kenen of the Johns Hopkins schools of public health and nursing and Politico Magazine, Victoria Knight of Axios, and Alice Miranda Ollstein of Politico.
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Joanne Kenen
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Victoria Knight
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Alice Miranda Ollstein
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Among the takeaways from this week’s episode:
- In 1984, the Supreme Court ruled broadly that courts should defer to the decision-making of federal agencies when an ambiguous law is challenged. On Friday, the Supreme Court ruled that the courts, not federal agencies, should have the final say. The ruling will make it more difficult to implement federal laws — and draws attention to the fact that Congress, frequently and pointedly, leaves federal agencies much of the job of turning written laws into reality.
- That was hardly the only Supreme Court decision with major health implications this week: On Thursday, the court temporarily restored access to emergency abortions in Idaho. But as with its abortion-pill decision, it ruled on a technicality, with other, similar cases in the wings — like one challenging Texas’ abortion ban.
- In separate rulings, the court struck down a major opioid settlement agreement, and it effectively allowed the federal government to petition social media companies to remove falsehoods. Plus, the court agreed to hear a case next term on transgender health care for minors.
- The first general-election debate of the 2024 presidential cycle left abortion activists frustrated with their standard-bearers — on both sides of the aisle. Opponents didn’t like that former President Donald Trump doubled down on his stance that abortion should be left to the states. And abortion rights supporters felt President Joe Biden failed to forcefully rebut Trump’s outlandish falsehoods about abortion — and also failed to take a strong enough position on abortion rights himself.
Plus, for “extra credit,” the panelists suggest health policy stories they read this week that they think you should read, too:
Julie Rovner: The Washington Post’s “Masks Are Going From Mandated to Criminalized in Some States,” by Fenit Nirappil.
Victoria Knight: The New York Times’ “The Opaque Industry Secretly Inflating Prices for Prescription Drugs,” by Rebecca Robbins and Reed Abelson.
Joanne Kenen: The Washington Post’s “Social Security To Drop Obsolete Jobs Used To Deny Disability Benefits,” by Lisa Rein.
Alice Miranda Ollstein: Politico’s “Opioid Deaths Rose 50 Percent During the Pandemic. in These Places, They Fell,” by Ruth Reader.
Also mentioned in this week’s podcast:
- Politico’s “Inside the $100 Million Plan To Restore Abortion Rights in America,” by Alice Miranda Ollstein.
- JAMA Network Open’s “Use of Oral and Emergency Contraceptives After the US Supreme Court’s Dobbs Decision,” by Dima M. Qato, Rebecca Myerson, Andrew Shooshtari, et al.
- JAMA Health Forum’s “Changes in Permanent Contraception Procedures Among Young Adults Following the Dobbs Decision,” by Jacqueline E. Ellison, Brittany L. Brown-Podgorski, and Jake R. Morgan.
- JAMA Pediatrics’ “Infant Deaths After Texas’ 2021 Ban on Abortion in Early Pregnancy,” by Alison Gemmill, Claire E. Margerison, Elizabeth A. Stuart, et al.
click to open the transcript
SCOTUS Ruling Strips Power From Federal Health Agencies
KFF Health News’ ‘What the Health?’Episode Title: ‘SCOTUS Ruling Strips Power From Federal Health Agencies’Episode Number: 353Published: June 28, 2024
[Editor’s note: This transcript was generated using both transcription software and a human’s light touch. It has been edited for style and clarity.]
Mila Atmos: The future of America is in your hands. This is not a movie trailer, and it’s not a political ad, but it is a call to action. I’m Mila Atmos and I’m passionate about unlocking the power of everyday citizens. On our podcast, “Future Hindsight,” we take big ideas about civic life and democracy and turn them into action items for you and me. Every Thursday, we talk to bold activists and civic innovators to help you understand your power and your power to change the status quo. Find us at futurehindsight.com or wherever you listen to podcasts.
Julie Rovner: Hello, and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF Health News, and I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Friday, June 28, at 10:30 a.m. As always, news happens fast and things might’ve changed by the time you hear this, so here we go.
We are joined today via video conference by Alice Miranda Ollstein of Politico.
Alice Miranda Ollstein: Hello.
Rovner: Victoria Knight of Axios News.
Victoria Knight: Hello, everyone.
Rovner: And Joanne Kenen of the Johns Hopkins Schools of Nursing and Public Health and Politico Magazine.
Joanne Kenen: Hi, everybody.
Rovner: I hope you enjoyed last week’s episode from Aspen Ideas: Health. This week we’re back in Washington with tons of breaking news, so let’s get right to it. We’re going to start at the Supreme Court, which is nearing, but not actually at, the end of its term, which we now know will stretch into next week. We have breaking news, literally breaking as in just the last few minutes: The court has indeed overruled the Chevron Doctrine. That’s a 1984 ruling that basically allowed experts at federal agencies to, you know, expert. Now it says that the court will get to decide what Congress meant when it wrote a law. We’re obviously going to hear a lot more about this ruling in the hours and days to come, but does somebody have a really quick impression of what this could mean?
Ollstein: So this could prevent or make it harder for health agencies, and all the federal agencies that touch on health care, to both create new policies based on laws that Congress pass and update old ones. Things need to be updated; new drugs are invented. There’s been all these updates to what Obamacare does and doesn’t have to cover. That could be a lot harder going forward based on this decision. It really takes away a lot of the leeway federal agencies had to interpret the laws that Congress passed and implement them.
I think kicking things back to courts and Congress could really slow things down a lot, and a lot of conservatives see that as a good thing. They think that federal agencies have been too untouchable and not have the same accountability mechanisms because they’re career civil servants who are not elected. But this has health policy experts … Honestly, we interviewed members of previous Republican administrations and Democratic administrations and they’re both worried about this.
Rovner: Yeah, going forward, if Donald Trump gets back into the presidency, this could also hinder the ability of his Department of Health and Human Services to make changes administratively.
Knight: These agencies are stacked with experts. This is what they work on. This is what they really are primed to do. And Congress does not have that same type of staffing. Congress is very different. It’s very young. There’s a lot of turnover. There are experienced staffers, but usually when they’re writing these laws, they leave so much up to interpretation of the agency because they are experts.
So I think pushing things back on Congress would really have to change how Congress works right now. When I talked to experts, we would need staffers who are way more experienced. We would need them to write laws that are way more specific. And Congress is already so slow doing anything. This would slow things down even more. So that’s a really important congressional aspect I think to note.
Rovner: I think when we look back at this term, this is probably going to be the biggest decision. Joanne, you want to add something before we move on?
Kenen: We’re recording. We don’t know if immunity just dropped, which is all still going to be, not a health care decision but an important decision of the country. I’ve got SCOTUSblog on my other screen. Here’s a quote from [Justice Elena] Kagan’s dissent. She says, because it’s very unfocused for what we do on this podcast, “Chevron has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds, to name a few, keeping air and water clean, food and drugs safe and financial markets honest.” So two of the three of us. Financial markets affect the health industry as well.
Rovner: Oh, yeah.
Kenen: But I think that what the public doesn’t always understand is how much regulatory stuff there is in Washington. Congress can write a 1,000-page law like the ACA [Affordable Care Act]. I’ve never counted how many pages of regulation because I don’t think I can count that high. It’s probably tens of thousands.
Rovner: At least hundreds of thousands.
Kenen: Right. And that every one of those, there’s a lobbying fight and often a legal fight. It’s like the coloring book when we were kids. Congress drew the outline and then we all tried to scribble within the lines. And when you go out of the lines, you have a legal case. So the amount of stuff, regulatory activity is something that the public doesn’t really see. None of us have read every reg pertaining to health care. You can’t possibly do it in a lifetime. Methuselah couldn’t have done it. And Congress cannot hire all the expert staff and all the federal agencies and put them in; they won’t fit in the Capitol. That’s not going to happen. So how do they come to grips with how specific are they going to have to be? What kind of legal language can they delegate some of this to agency experts. We’re in really uncharted territory.
Rovner: I think you can tell from the tones of all of our voices that this is a very big deal, with a whole lot of blanks to be filled in. But for the moment …
Kenen: Maybe they’ll just let AI do it.
Rovner: Yeah, for the moment, let’s move on because, until just now, the biggest story of the week for us was on Thursday. We finally got a decision in that case about whether Idaho’s near-total ban on abortion can override a federal law called EMTALA, the Emergency Medical Treatment and Active Labor Act, which requires doctors in emergency rooms to protect a pregnant woman’s health, not just her life. And much like the decision earlier this month to send the abortion pill case back to the lower courts because the plaintiffs lacked legal standing, the court once again didn’t reach the merits here. So Alice, what did they do?
Ollstein: So like you said, both on abortion pills and on EMTALA, the court punted on procedural issues. So it was standing on the one and it was ripeness on the other one. This one was a lot more surprising. I think based on the oral arguments in the mifepristone case, we could see the standing-based decision coming. That was a big focus of the arguments. This was more of a surprise. This was a majority of justices saying, “Whoops, we shouldn’t have taken this case in the first place. We shouldn’t have swooped in before the 9th Circuit even had a chance to hear it. And not only take the case, but allow Idaho to fully enforce its law even in ways that people feel violate EMTALA in the meantime.” And so what this does temporarily is restore emergency abortion access in Idaho. It restores a lower-court order that made that the case, but it’s not over.
Rovner: Right. It had stayed Idaho’s ban to the extent that it conflicted with EMTALA.
Ollstein: So this goes back to lower courts and it’s almost certain to come back to the Supreme Court as early as next year, if not at another time. Because this isn’t even the only major federal EMTALA case that’s in the works right now. There’s also a case on Texas’ abortion ban and its enforcement in emergency situations like this. And so I think the main reaction from the abortion rights movement was temporary relief, but a lot of fear for the future.
Rovner: And I saw a lot of people reminding everybody that this Texas ruling in Idaho, now the federal law is taking precedence, but there’s a stay of the federal law in the 5th Circuit. So in Texas, the Texas ban does overrule the federal law that requires abortions in emergency circumstances to protect a woman’s health. That’s what the dispute is basically about. And of course, you see a lot of legal experts saying, “This is a constitutional law 101 case that federal law overrides state law,” and yet we could tell by some of the add-on discussion in this case, as they’re sending it back to the lower court, that some of the conservatives are ready to say, “We don’t think so. Maybe the federal law will have to yield to some of these state bans.” So you can kind of see the writing on the wall here?
Ollstein: It’s really hard to say. I think that you have some justices who are clearly ready to say that states can fully enforce their abortion bans regardless of what the federal government’s federal protections are for patients. I think they put that out there. I think the case is almost certain to come back to them, and there was clearly not a majority ready to fully side with the Biden administration on this one.
Rovner: And clearly not a majority ready to fully side with Idaho on this one. I think everything that I saw suggested that they were split 3-3-3. And with no majority, the path of least resistance was to say, “Our bad. You take this back lower court. We’ll see when it comes back.”
Ollstein: It was a very unusual move, but some of the justification made sense to me in that they cited that Idaho state officials’ position on what their abortion ban did and didn’t do has wavered over time and changed. And what they initially said when they petitioned to the court is not necessarily exactly what they said in oral arguments, and it’s not exactly what they have said since. And so at the heart here is you have some people saying there’s a clear conflict between the patient protections under EMTALA — which says you have to stabilize anyone that comes to you at a hospital that takes Medicare — and these abortion bans, which only allow an abortion when there’s imminent life-threatening situation. And so you have people, including the attorney general of Idaho, saying, “There is no conflict. Our law does allow these emergency abortions and the doctors are just wrong and it’s just propaganda trying to smear us. And they just want to turn hospitals into free-for-all abortion facilities.” This is what they’re arguing. And then you have people say …
Rovner: [inaudible 00:11:12] … in the meanwhile, we know that women are being airlifted out of Idaho when they need emergency abortions because doctors are worried about actually performing abortions …
Ollstein: Correct.
Rovner: And possibly being charged with criminal charges for violating Idaho’s abortion ban.
Ollstein: Sure, but I’m saying even amongst conservatives, there are those who are saying, “There’s no conflict between these two policies. The doctors are just wrong either intentionally or unintentionally.” And then there’s those who say there is a conflict between EMTALA and state bans, and it should be fine for the state to violate EMTALA.
Rovner: No. Obviously this one will continue as the abortion pill case is likely to continue. Well, also in this end-of-term Supreme Court decision dump, an oddly split court with liberals and conservatives on both sides, struck down the bankruptcy deal reached with Purdue Pharma that would’ve paid states and families of opioid overdose victims around $6 billion, but would also have shielded the company’s owners, the Sackler family, from further legal liability. What are we to make of this? This was clearly a difficult issue. There were a lot of people even who were involved in this settlement who said the idea of letting the Sackler family, which has hidden billions of dollars from the bankruptcy settlement anyway, and clearly acted very badly, basically giving them immunity in exchange for actually getting money. This could not have been an easy… obviously was not an easy decision even for the Supreme Court.
Kenen: No, it wasn’t theoretical. The ones who opposed blowing up the agreement were very much, “This is going to add delay any kind of justice for the families and the plaintiffs.” It was not at all abstract. It was like there are a lot of people who aren’t going to get help. At least the help will be delayed if this money doesn’t start flowing. So I was struck by how practical, relating to the families who have lost people because of the actions of Purdue. But the other side was, also that was much more a clear-cut legal issue, that people didn’t give up their right to sue. It was cutting off the right to sue was imposed on potential plaintiffs by the settlement. So that was a much more legalistic argument versus, it was a little bit more real world, but they need the help now. And including some of the conservatives. This is an interesting thing to read. This was painstaking. This is a huge settlement. It took so long. It had many, many moving parts. And I don’t know how you go back and put it together again.
Rovner: But that’s where we are.
Kenen: Yes.
Rovner: They have to basically start from scratch?
Kenen: I don’t know if they have to start entirely from scratch. You’d have to be nuts to get the Sacklers to say, “OK, we’ll be sued,” which they’re obviously you’re not going to. Is somebody going to come up with a “Split the difference, let’s get this moving and we won’t sue anymore?” I don’t know. But I don’t know that you have to start 100% from scratch, but you’re surely not anywhere near a finish line anymore.
Rovner: That’s big Supreme Court case No. 3 for this week. Now let’s get to big Supreme Court case No. 4. Earlier this week, the court turned back a challenge that the government had wrongly interfered with free speech by urging social media organizations to take down covid misinformation. But again, as with the abortion pill case, the court did not get to the merits. But instead, they ruled that the states and individuals who sued did not have standing. So we still don’t know what the court thinks of the role of government in trying to ensure that health information is correct. Right?
Knight: Right. And I thought it was interesting. Basically the White House was like, “Well, we talked to the tech companies, but it was their decision to do this. So we weren’t really mandating them do this.” I think they’re just being like, “OK, we’ve left it up to the tech companies. We haven’t really interfered. We’re just trying to say these things are harmful.” So I guess we’ll have to see. Like you said, they didn’t take it up on standing, but overall, conservatives that were saying, “This was infringing on free speech.” It was particularly some scientists, I think, that promoted the herd immunity theory, things like that.
So I think they’re obviously going to be upset in some way because their posts were depromoted on social media. But I think it just leaves things the way they are, the same way. But it would be interesting, I guess, if Trump does go to the White House, how that might play out differently?
Rovner: This court has been a lot of the court deciding not to decide cases, or not to decide issues. Sorry, Alice, go ahead.
Ollstein: Yeah, so I think it is pretty similar to the abortion pill case in one key way, which is that it’s the court saying, “Look, the connection between the harm you think you suffered and the entity you are accusing of causing that suffering, that connection is way too tenuous. You can’t prove that the Biden administration voicing concerns to these social media companies directly led to you getting shadow-banned or actual banned,” or whatever it is. And the same in the abortion pill case, the connection between the FDA [Food and Drug Administration] approving the drug and regulating the drug and these individual doctors’ experiences is way too tenuous. And so that’s something to keep in mind for future cases that, we’re seeing a pattern here.
Rovner: Yes, and I’m not suggesting that the court is directly trying to duck these issues. These are legitimate standing cases and important legal precedents for who can sue in what circumstance. That is the requirement of constitutional review that first you have to make sure that there’s both standing in a live controversy and there’s all kinds of things that the court has to go through before they get to the merits. So more often than not, they don’t get there.
Well, meanwhile, we have our first hot-button, Supreme Court case slotted in for next term. On Monday, the court granted “certiorari” [writ by which a higher court reviews a decision of a lower court] to a case out of Tennessee where the Biden administration is challenging the state’s ban on transgender care for minors. It was inevitable that one of these cases was going to get to the high court sooner or later, right?
Kenen: Yeah, I think it’s not a surprise, the politics of it and the techniques or tools used by the forces that are against the treatment for minors. It’s very similar to the politics and patterns of the abortion case, of turning something into an argument that it’s to protect somebody. A lot of the abortion requirements and fights were about to protect the woman. Ostensibly, that was the political argument. And now we’re seeing we have to protect the children so that it’s the courts, as opposed to families and doctors, who are, “protecting the children.”
There’s a lot of misunderstanding about what these treatments do and who gets them and at what age; that they’re often described as mutilation and irreversible. For the younger kids, for preteen, middle school age-ish, early teens, nothing is irreversible. It’s drugs that if you stop them, the impact goes away. But it has become this enormous lightning rod for the intersection of health and politics. And I think we all have a pretty good guess as to where the Supreme Court’s going to end up on this. But you’re sometimes surprised. And also, there could be some …
Rovner: Maybe they don’t have standing.
Kenen: There could be some kind of moderation, too. It could be a certain … they don’t have to say all … it depends on how clinical they want to get. Maybe they’ll rule on certain treatments that are more less-reversible than a puberty blocker, which is very reversible, and some kind of safeguards. We don’t know the details. We’re not surprised that it ended up … and we know going in, you could have a gut feeling of where it’s likely to turn out without knowing the full parameters and caveats and details. They haven’t even argued it yet.
Rovner: This is a decision that we’ll be waiting for next June.
Kenen: Right. Well, could not. Maybe it’s so clear-cut, it’ll be May. Who knows, right?
Rovner: Yeah, exactly. All right, well, moving on. There was a presidential debate last night. I think it was fair to say that it didn’t go very well for either candidate, nor for anybody interested in what President Biden or former President Trump thinks about health issues. What did we learn, if anything?
Ollstein: Well, I was mainly listening for a discussion of abortion and, boy was it all over the place. What I thought was interesting was that both candidates pissed off their activist supporters with what they said. I was texting with a lot of folks on both sides and conservatives were upset that Trump doubled down on his position that this should be entirely left to states, and they disagree. They want him to push for federal restrictions if elected.
And on the left, there was a lot of consternation about Biden’s weird, meandering answer about Roe v. Wade. He was asked about abortions later in pregnancy. One, neither he nor the moderators pushed back on what Trump’s very inflammatory claims about babies being murdered and stuff. There was no fact-checking of that whatsoever. But then Biden gave a confusing answer, basically saying he supports going to the Roe standard but not further, which is what I took out of it. And that upset a lot of progressives who say Roe was never good enough. For a lot of people, when Roe v. Wade was still in place, abortion was a right in name only. It was not actually accessible. States could impose lots of restrictions that kept it out of reach for a lot of people. And in this moment, why should we go back to a standard that was never good enough? We should go further. So just a lot of anxiety on both sides of this.
Rovner: Yeah. Meanwhile, Trump seemed to say that he would leave the abortion pill alone, which jumped out at me.
Kenen: But that was a completely … CNN made a decision not to push back. They were going to have online fact-checking. Everybody else had online fact. … And they didn’t challenge. And I guess they assumed that the candidates would challenge each other, and Biden had a different kind of challenging night. Trump actually said that the previous Supreme Court had upheld the use of the abortion drug and that it’s over, it’s done. That was not a true statement. The Supreme Court rejected that case, as Alice just explained, on standing. It’s going to be back. It may be back in multiple forms, multiple times. It is not decided. It is not over, which is what Trump said, “Oh, don’t worry about the abortion drug. The Supreme Court OK’d it.” That’s not what the Supreme Court did, and Biden didn’t counter that in any way.
And then Biden, in addition to the political aspect that Alice just talked about, he also didn’t describe Roe, the framework of Roe, particularly accurately. And, as Alice just pointed out, the things that Trump said were over-the-top even for Trump, and that they went unchallenged by either the moderators or President Biden.
Rovner: I was a little bit surprised that there wasn’t anything else on health care or there wasn’t much else.
Knight: Biden tried to hit his health care talking points and did a very terrible job. Alice had a really good tweet getting the right. … He initially said wrong numbers for the insulin cap, for the cap on out-of-pocket for Medicare beneficiaries, how much they can spend on prescription drugs. He got both of those wrong. I think he got insulin right later in the night. And then the very notably, “We will beat Medicare.” That was just unclear what he even meant by that. Maybe it was about drug price negotiations, I’m sure. So he was trying, but just could not get the facts right and I don’t think it came across effective in any way. And health care does do really well for Democrats. Abortion does really well for Democrats. So he was not effective in putting those messages.
I also noticed the moderators asked a question about opioids, addressing the opioid epidemic. Trump did not answer at all, pivoted to I think border or something like that. I don’t think Biden really answered either, honestly. So that was an opportunity for them to also talk about addressing that, which I think is something they could both probably talk about in a winning way for both. But I thought it was mentioned more than I expected a little bit. I thought they may want to talk about it at all. So it was still not much substantive policy discussion on health care.
Kenen: Biden tried to get across some of the Democratic policies on drug prices and polls have shown that the public doesn’t really understand that is actually the law in going forward. So if any attempt to message that in front of a very large audience was completely muddled. Nobody listening to that debate would’ve come out — unless they knew going in — they would’ve not have come out knowing what was in the law about Medicare price negotiations. They would’ve gotten four different answers of what happened with insulin, although they probably figured something good, helpful happened. And a big opportunity to push a Democratic achievement that has some bipartisan popularity was completely evaporated.
Rovner: I think Biden did the classic over-prepare and stuff too many talking points into his head and then couldn’t sort them all out in the moment. That seemed pretty clear. He was trying to retrieve the talking point and they got a little bit jumbled in his attempt to bring them out. Well, back to abortion: Alice, you got a cool scoop this week about abortion rights groups banding together with a $100 million campaign to overturn the overturn of Roe. Tell us about that?
Ollstein: Yeah, so it’s notable because there’s been so much focus on the state level battles and fighting this out state by state, and the ballot initiatives that have passed at the state level and restored or protected access have been this glimmer of hope for the abortion rights movement. But I think there was a real crystallization of the understanding that that strategy alone would leave tens of millions of people out in the cold because a lot of states don’t have the ability to do a ballot initiative. And also, if there were to be some sort of federal restrictions imposed under a Trump presidency or whatever, those state level protections wouldn’t necessarily hold. So I think this effort of groups coming together to really spend big and say that they want to restore federal protections is really notable.
I also think it’s notable that they are not committing to a specific bill or plan or law they want to see. They are keeping on the, “This is our vision, this is our broad goal.” But they’re not saying, “We want to restore Roe specifically, we want to go further,” et cetera. And that’s creating some consternation within the movement. I’ve also, since publishing the story, heard a lot of anxiety about the level of spending going to this when people feel that that should be going to direct support for people who are suffering on the ground and struggling to access abortion. Right now you have abortion funds screaming that they’re being stretched to the breaking point and cannot help everyone who needs to travel out of state right now. So, of course, infighting on the left is a perennial, but I think it’s particularly interesting in this case.
Rovner: Well, meanwhile, we have a trio this week of examples of what I think it’s safe to call unintended consequences of the Supreme Court’s overturn of Roe. First, a study in the medical journal JAMA Pediatrics this week, found that in the first year abortion was dramatically restricted in Texas — remember, that was before the overturn of Roe — infant deaths rose fairly dramatically. In particular, deaths from congenital problems rose, suggesting that women carrying doomed fetuses gave birth instead of having abortions. What’s the takeaway from seeing this big spike in infant mortality?
Ollstein: So I’ve seen a lot of anti-abortion groups trying to spin this and push back really hard on it. Specifically picking up on what you just said, which is that a lot of these are fatal fetal anomalies. And so they were saying, “Were abortion still legal, those pregnancies could have been terminated before birth.” And so they’re saying, “There’s no difference really, because we consider that an infant death already. So now it’s an infant death after birth. Nothing to see here.”
Rovner: When everybody has suffered more, basically.
Ollstein: Yeah, that is the response I’m seeing on the right. On the left, I am seeing arguments that anyone who labels themselves pro-life should think twice about the impact of these policies that are playing out. And like you said, we’re only just beginning to get glimmers of this data. In part because Texas was out in front of everybody else, and so I think there’s a lot more to come.
The other pushback I’ve seen from anti-abortion groups is that infant mortality also rose in states where abortion remains legal. So I think that’s worth exploring, too. Obviously, correlation is not always causation, but I think it’s hard when you’re getting the data in little dribs and drabs instead of a full complete picture that we can really analyze.
Rovner: Well, in another JAMA study, this one in JAMA Network Open, they found that the use of Plan B, the morning-after birth control pill, fell by 60% in states that implemented abortion bans after the Dobbs [v. Jackson Women’s Health Organization] decision. Now, for the millionth time, Plan B is not the same as the abortion pill. It’s a high-dose contraceptive. But apparently, a combination of the closure of family planning clinics in states that impose bans, which are an important source of pills for people with low incomes who can’t afford over-the-counter versions, and misinformation about the continuing legality of the morning-after pill, which continues to be legal, contributed to the decline. At least that’s what the authors theorize. This is one of many ironies in the wake of Dobbs; that states with abortion bans may well be ending up with more unintended pregnancies rather than fewer.
Ollstein: Well, one trends that could be feeding this is that some of the clinics where people used to go to to access contraception, also provided abortion and have not been able to keep their doors open in a post-Roe environment. We’ve seen clinics shutting down across the South. I went to Alabama last year to cover this, and there are clinics there that used to get most of their revenue from abortion, and they’re trying to hang on and provide nonabortion gynecological services, including contraception, and the math just ain’t mathing, and they’re really struggling to survive.
And so this goes back to the finger-pointing within the movement about where money should be going right now. And I know that red state clinics that are trying to survive feel very left behind and feel that this erosion of access is a result of that.
Kenen: Julie, and also to put in, even before Dobbs, it was not easy in many parts of the country for low-income women to get free contraception. There are states in which clinics were few and far between. Federal spending on Title X has not risen in many years.
Rovner: Title X is a federal [indecipherable].
Kenen: Right. Alice knows this, and maybe I’ve said on the podcast, I once just pretty randomly with me and my cursor plunked my cursor down on a map of Texas and said, “OK, if I live here, how far is the nearest clinic?” And I looked at the map of the clinics and it was far, it was something like 95 miles, the nearest one. So we had abortion deserts. We’ve also had family planning deserts, and that has only gotten worse, but it wasn’t good in the first place.
Rovner: Well, finally, and for those who really want to make sure they don’t have unintended pregnancies, according to a study in a third AMA journal, JAMA Health Forum, the number of young women aged 18 to 30 who were getting sterilized doubled in the 15 months after Roe was overturned. Men are part of this trend, too. Vasectomies tripled over that same period. Are we looking at a generation that’s so scared, they’re going to end up just not having kids at all?
Kenen: Well, there are a lot of kids in this generation who are saying they don’t want to have kids for a variety of reasons: economic, climate, all sorts of things. I think that I was a little surprised to see that study because there are safe long-acting contraceptives. You can get an IUD that lasts seven to nine years, I think it is. I was a little surprised that people were choosing something irreversible because.. I do know young people who… You’re young, you go through lots of changes in life, and there is an alternative that’s multiyear. So I was a little surprised by that. But that’s apparently what’s happening. And it’s for… This generation is not as… What are they, Gen[eration] Z? They’re not as baby-oriented as their older brothers and sisters even.
Knight: Well, that age range is millennial and Gen Z. But I don’t know. I’m a millennial. I think a lot of my friends were not baby-oriented. So I think that’s probably a fair statement to say. But it is interesting that they wouldn’t choose an IUD or something like that instead. But I do think people are scared. We’ve seen the stories of people moving out of states that have really strict abortion bans because they are so concerned on what kind of medical care they could have, even if they think they want to get pregnant. And sometimes you don’t have a healthy pregnancy and then need to get an abortion. So I’m sure it has something to do with that but…
Rovner: Yeah, it’s one of those trends to keep an eye out for. Well, moving on, U.S. Surgeon General Vivek Murthy has been busy these past couple of weeks. First, he published an op-ed in The New York Times calling for a warning label for social media that’s similar to the one that’s already on tobacco products, warning that social media has not been proven safe for children and teenagers. Of course, he doesn’t have his own authority to do that. Congress would have to pass a law. Any chance of that? I know Congress is definitely into the “What are we going to do about social media” realm.
Kenen: But talking about it and doing something or thinking, it’s a long way. Is this as, compared to his other topic of the week, which was gun safety? He’s got a lot more bipartisan …
Rovner: We’re getting to that.
Kenen: … He’s got a lot more bipartisan support for the concern about health of young people and what social media is. What is social media? Social media is mixed. There are good things and bad things, and what is that balance? There is a bipartisan concern. I don’t know that that means you get to the labeling point. But the labeling point is one thing. That the larger concept of concern about it, and recognition about it, and what do we do about it, is bipartisan up to a point. How do you even label? What do you label? Your phone? Your computer? I’m not sure where the label goes. Your eyelids? [inaudible 00:33:07]
Knight: Right. Well, tech bills in Congress in general are like… Even though TikTok was surprisingly able to get done in the House. But TikTok lobby was big. But there would be a big social media lobby, I’m sure, against that. I guess there is bipartisan support. I don’t know. It’s not something I’ve asked members about, but I think that would be pretty far off from a reality actually happening.
Rovner: Well, also this week, as Joanne mentioned, the surgeon general issued a Surgeon General’s Advisory, declaring gun violence a public health crisis, calling for more research funding on gun injuries and deaths, universal background checks for gun buyers, and bans on assault weapons and high-capacity ammunition magazines. I feel like the NRA [National Rifle Association] has lost some of its legendary clout on Capitol Hill over the past few years, thanks to a series of scandals, but maybe not enough for some of these things. I feel like I’ve heard these suggestions before, like over the last 25 or 30 years.
Kenen: I think one of the interesting things about Vivek Murthy is he came to public prominence on gun safety and guns in public health before people were really talking about guns in public health. I forgot what year it was — 2016, 2017, whenever Obama first nominated him. Because remember, this is his second run as surgeon general. It was an issue that he had spoken about and had made a signature issue, and as he became a more public figure before the nomination. And then he went silent on it. He had trouble getting confirmed. He didn’t do anything about it. We never really heard … as far as I can recollect, we never even heard him talk about it once. Maybe there was a phrase or two here or there. He certainly didn’t push it or make it a signature issue.
Right now, he’s at the end of the last year with the Biden administration. Some kind of arc is being completed. He’s a young man, there’ll be other arcs. But this arc is winding down and the president cares about gun violence. Congress actually did, not the full agenda, but they did something on it, which was unusual. And I think that this is his chance to use his bully pulpit while he still has it in this particular perch to remind people that we do have tools. We don’t have all the solutions to gun violence. We do not understand everything about it. We do not understand why some people go and shoot a movie theater or a school or a supermarket or whatever, and there are multiple reasons. There are different kinds of mass killers. But we do know that there are some public health tools that do work. That red flag laws do seem to help. That safe gun storage … There are things that are less controversial than a spectrum of things one can do.
Some of them have broader support, and I think he is using this time — not that he expects any of these things to become law in the final year of the Biden administration — but I think he’s using it. This is bully pulpit. This is saying, “Moving forward, let’s think about what we can come to agreement on and do what we can on certain evidence-based things.” Because there’s been a lot of work in the last decade or so on the public health, not just the criminal… Obviously, it’s a legal and criminal justice issue. It’s also a public health issue, and what are the public health tools? What can we do? How do we treat this as basically an epidemic? And how can we stop it?
Rovner: Finally this week, since we didn’t really do news last week, there have been a couple of notable stories we really ought to mention. One is a court case, Braidwood v. Becerra. This is the case where a group of Christian businesses are claiming that the Affordable Care Act’s preventive services provisions that require them to provide no cost-sharing access to products, including HIV preventive medication, violates their freedom of religion because it makes them complicit in homosexual behavior. Judge Reed O’Connor, district court judge — if that name is familiar, it’s because he’s the Texas judge who tried to strike down the entire ACA back in 2018. Judge O’Connor not only found for the plaintiffs, he tried to slap a nationwide injunction on all of the ACA’s preventive services, which even the very conservative 5th Circuit appeals court struck down. But meanwhile, the appeals court has come up with its ruling. Where does that leave us on the ACA preventive services?
Ollstein: It leaves us right where we were when the 5th Circuit took the case because they said that, “We’re going to allow the lower court ruling to be enforced just for the plaintiffs in the meantime, but we’re not going to allow the entire country’s preventive care coverage to be disrupted while this case moves forward.” And so that basically continues to be the case. Some of the arguments are getting sent back down to the lower court for further consideration. And we still don’t know whether either side will appeal the 5th Circuit’s ruling to the Supreme Court.
Rovner: But notably, the appeals court said that U.S. Preventive Services Task Force, which is appointed by the Department of Health and Human Services, is basically illegally constituted because it should be nominated by the president, approved by the Senate, which it is not. That could in the long run be kind of a big deal. This is a group of experts that supposedly shielded from politics.
Kenen: Yeah, I don’t think this story is over either. It is for now. Right now we’re at the status quo, except for this handful of people who brought recommendations on all sorts of health measures, including vaccination and cancer screenings and everything else. They stand. They’re not being contested at this moment. How that will evolve under the next administration and this court remains to be seen.
Rovner: Finally, finally, finally, to end on a bit of a frustrating note, the National Academies of Sciences, Engineering, and Medicine, has found that two decades after it first called out some of the most egregious inequities in U.S. health care, not that much has changed. Joanne, this has been a very high-profile issue. What went wrong?
Kenen: Well, I think this report got very little attention probably because it’s like, oh, reports aren’t necessarily news stories. And it was like nothing changed, so why do we report it? But I think when I read the report — and I did not get through all 375 pages yet, but I did read a significant amount of it and I listened to a webinar on it — I think what really struck me is how we’re not any better than we really were 20 years ago. And what really was jarring is the report said, “And we actually know how to fix this and we’re not doing it. And we have the scientific and public health and sociological knowledge. We know if we wanted to fix it, we could, and we haven’t. Some of that is needing money and some of it is needing will.” So I thought the bottom line of it was really quite grim. If we didn’t know how bad it was, if the general public didn’t know how bad it was, the pandemic really should have taught them that because of the enormous disparities, and we’re back on this glide path toward nothing.
Rovner: I do think at very least, it is more talked about. It’s a little higher profile than it was, but obviously you’re right.
Kenen: They didn’t say no gains in any… I mean, the ACA helped. There are people who have coverage, including minorities, who didn’t have it before. That was one of the bright spots. But there’s still 10 states where it hasn’t been fully implemented. It was a pretty discouraging report.
Rovner: All right, well, that is this week’s news. Now it is time for our extra-credit segment. That’s when we each recommend a story we read this week we think you should read, too. As always, don’t worry if you miss it. We will post the links on the podcast page at kffhealthnews.org and in our show notes on your phone or other mobile device. Victoria, why don’t you go first this week?
Knight: Sure. So I was reading a story in The New York Times about PBMs [pharmacy benefit managers]. It was called “The Opaque Industry Secretly Inflating Prices for Prescription Drugs.” It’s by Rebecca Robbins and Reed Abelson. And so it kind of is basically an investigation into PBM practices. It was interesting for me because I cover health care in Congress, and so it’s always the different industries are fighting each other. And right now, one of the biggest fights is about PBMs. And for those that don’t know, PBMs negotiate with drug companies, they’re supposed to pay pharmacies, they help patients get their medications. And so they’re this middleman in between everyone. And so people don’t really know they exist, but they’re a big monopoly. There’s only three of them, really big ones in the U.S. that make up 80% of the market. And so they have a lot of control over things.
Pharma blames them for high drug prices and the PBMs blame pharma. So that’s always a fun thing to watch. There actually is quite a bit of traction in Congress right now for cracking down on PBM practices. Basically, The Times reporters interviewed a bunch of people and they came away with saying that PBMs …
Rovner: They interviewed like 300 people, right?
Knight: Yes, it said 300.
Rovner: A large bunch.
Knight: Yeah, and they came away with a conclusion that PBMs are causing higher drug prices and they’re pushing patients towards higher drugs. They’re charging employers of government more money than they should be. But it was interesting for me to watch this play out on Twitter because the PBM lobby was, of course, very upset by the story. They were slamming it and they put out a whole press release saying that it’s anecdotal and they don’t have actual data. So it was interesting, but I think it’s another piece in the policy puzzle of how do we reduce drug prices? And Congress thinks at least cracking on PBMs is one way to do it, and it has bipartisan support.
Rovner: And apparently this story is the first in a series, so there’s more to come.
Knight: Yes, I saw that. Yeah, more to come, so it’ll be fun. I also just noticed as I was just pulling it up on my phone and they had closed the comment section. It was causing some robust debate.
Rovner: Yes, indeed. Joanne?
Kenen: I should just say that after I read that story in The Times that same day, I think I got a phone call from a relative, a copay that had been something like $60 for 30 days is now $1,000. And this relative walked away without getting the drug because that’s not OK. So anyway, my extra credit [“Social Security To Drop Obsolete Jobs Used To Deny Disability Benefits,”] is from The Washington Post. Lisa Rein posted an investigation a couple of years ago, and this was the coda of the Social Security Administration finally followed through on what that investigation revealed. And Lisa wrote about the move, how it’s being addressed. That to get disability benefits, you have to be unemployable basically. And the Social Security Administration had a list of … it’s called the Dictionary of Occupational Titles. It had not been updated in 47 years. So disabled people were being denied Social Security disability benefits because they were being told, well, they could do jobs like being a nut sorter or a pneumatic tube operator or a microfilm something or other. And these jobs stopped existing decades ago.
So the Social Security Administration got rid of these obsolete jobs. You’re no longer being told, literally, to go store nuts. If you are, in fact, legitimately disabled, you’ll now be able to get the Social Security disability benefits that you are, in fact, qualified for. So thousands of people will be affected.
Rovner: No one can see this, but I’m wearing my America Needs Journalists T-shirt today. Alice?
Ollstein: I chose a piece [“Opioid Deaths Rose 50 Percent During the Pandemic. in These Places, They Fell”] by my colleague Ruth Reader, about a county in Ohio that, with some federal funds, implemented all of these policies to reduce opioid overdoses and deaths, and they had a lot of success. Overdoses went down 20% there, even as they went up by a lot in most of the country. But bureaucracy and expiring funding means that those programs may not continue, even though they’re really successful. The federal funding has run out. It is not getting renewed, and the state may not pick up the slack.
So it’s just a really good example. We see this so often in public health where we invest in something, it works, it makes a difference, it helps people, and then we say, “Well, all right, we did it. We’re done.” And then the problems come roaring back. So hopefully that does not happen here.
Rovner: Alas. Well, my extra credit this week is from The Washington Post. It’s called “Masks Are Going From Mandated to Criminalized in Some States.” It’s by Fenit Nirappil. I hope I’m pronouncing that right. In some ways, it’s a response to criminals who have obviously long used masks, and also to protesters, particularly those protesting the war in Gaza. But it’s also a mark of just how intolerant we’ve become as a society that people who are immunocompromised or just worried about their own health can’t go out masked in public without getting harassed. The irony, of course, is that this is all coming just as covid is having what appears to be now its annual summer surge, and the big fight of the moment is in North Carolina where the Democratic governor has vetoed a mask ban bill, that’s likely to be overridden by the Republican legislature. Even after covid is no longer front and center in our everyday lives, apparently a lot of the nastiness remains.
All right, that is our show. As always, if you enjoy the podcast, you can subscribe wherever you get your podcast. We’d appreciate it if you left us a review. That helps other people find us, too. Special thanks as always to our technical guru, Francis Ying, and our editor, Emmarie Huetteman. As always, you can email us your comment or questions. We’re at whatthehealth@kff.org, or you can still find me at Twitter, which the Supreme Court has now decided it’s going to call Twitter. I’m @jrovner. Alice?
Ollstein: I’m @AliceOllstein on X.
Rovner: Victoria?
Knight: I’m @victoriaregisk.
Rovner: Joanne?
Kenen: I’m at Twitter, @JoanneKenen. And I’m on Threads @joannekenen1, and I occasionally decided I just have better things to do.
Rovner: It’s all good. We will be back in your feed next week. Until then, be healthy.
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KFF Health News' 'What the Health?': SCOTUS Rejects Abortion Pill Challenge — For Now
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Julie Rovner is chief Washington correspondent and host of KFF Health News’ weekly health policy news podcast, “What the Health?” A noted expert on health policy issues, Julie is the author of the critically praised reference book “Health Care Politics and Policy A to Z,” now in its third edition.
A unanimous Supreme Court turned back a challenge to the FDA’s approval and rules for the abortion pill mifepristone, finding that the anti-abortion doctor group that sued lacked standing to do so. But abortion foes have other ways they intend to curtail availability of the pill, which is commonly used in medication abortions, which now make up nearly two-thirds of abortions in the U.S.
Meanwhile, the Biden administration is proposing regulations that would bar credit agencies from including medical debt on individual credit reports. And former President Donald Trump, signaling that drug prices remain a potent campaign issue, attempts to take credit for the $35-a-month cap on insulin for Medicare beneficiaries — which was backed and signed into law by Biden.
This week’s panelists are Julie Rovner of KFF Health News, Anna Edney of Bloomberg News, Rachana Pradhan of KFF Health News, and Emmarie Huetteman of KFF Health News.
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Anna Edney
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Emmarie Huetteman
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Rachana Pradhan
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Among the takeaways from this week’s episode:
- All nine Supreme Court justices on June 13 rejected a challenge to the abortion pill mifepristone, ruling the plaintiffs did not have standing to sue. But that may not be the last word: The decision leaves open the possibility that different plaintiffs — including three states already part of the case — could raise a similar challenge in the future, and that the court could then vote to block access to the pill.
- As the presidential race heats up, President Joe Biden and former President Donald Trump are angling for health care voters. The Biden administration this week proposed eliminating all medical debt from Americans’ credit scores, which would expand on the previous, voluntary move by the major credit agencies to erase from credit reports medical bills under $500. Meanwhile, Trump continues to court vaccine skeptics and wrongly claimed credit for Medicare’s $35 monthly cap on insulin — enacted under a law backed and signed by Biden.
- Problems are compounding at the pharmacy counter. Pharmacists and drugmakers are reporting the highest numbers of drug shortages in more than 20 years. And independent pharmacists in particular say they are struggling to keep drugs on the shelves, pointing to a recent Biden administration policy change that reduces costs for seniors — but also cash flow for pharmacies.
- And the Southern Baptist Convention, the nation’s largest branch of Protestantism, voted this week to restrict the use of in vitro fertilization. As evidenced by recent flip-flopping stances on abortion, Republican candidates are feeling pressed to satisfy a wide range of perspectives within even their own party.
Also this week, Rovner interviews KFF president and CEO Drew Altman about KFF’s new “Health Policy 101” primer. You can learn more about it here.
Plus, for “extra credit,” the panelists suggest health policy stories they read this week that they think you should read, too:
Julie Rovner: HuffPost’s “How America’s Mental Health Crisis Became This Family’s Worst Nightmare,” by Jonathan Cohn.
Anna Edney: Stat News’ “Four Tops Singer’s Lawsuit Says He Visited ER for Chest Pain, Ended Up in Straitjacket,” by Tara Bannow.
Rachana Pradhan: The New York Times’ “Abortion Groups Say Tech Companies Suppress Posts and Accounts,” by Emily Schmall and Sapna Maheshwari.
Emmarie Huetteman: CBS News’ “As FDA Urges Crackdown on Bird Flu in Raw Milk, Some States Say Their Hands Are Tied,” by Alexander Tin.
Also mentioned on this week’s podcast:
- Bloomberg News’ “Dozens of CVS Generic Drug Recalls Expose Link to Tainted Factories,” by Anna Edney and Peter Robison.
- KFF Health News’ “Biden Plan To Save Medicare Patients Money on Drugs Risks Empty Shelves, Pharmacists Say,” by Susan Jaffe.
- KFF Health News’ “More States Legalize Sales of Unpasteurized Milk, Despite Public Health Warnings,” by Tony Leys.
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Transcript: SCOTUS Rejects Abortion Pill Challenge — For Now
KFF Health News’ ‘What the Health?’ Episode Title: ‘SCOTUS Rejects Abortion Pill Challenge — For Now’Episode Number: 351Published: June 13, 2024
[Editor’s note: This transcript was generated using both transcription software and a human’s light touch. It has been edited for style and clarity.]
Mila Atmos: The future of America is in your hands. This is not a movie trailer and it’s not a political ad, but it is a call to action. I’m Mila Atmos and I’m passionate about unlocking the power of everyday citizens. On our podcast “Future Hindsight,” we take big ideas about civic life and democracy and turn them into action items for you and me. Every Thursday we talk to bold activists and civic innovators to help you understand your power and your power to change the status quo. Find us at futurehindsight.com or wherever you listen to podcasts.
Julie Rovner: Hello, and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF Health News, and I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, June 13, at 10:30 a.m. As always, news happens fast and things might have changed by the time you hear this, so here we go.
We are joined today via video conference by Anna Edney of Bloomberg News.
Anna Edney: Hi there.
Rovner: Rachana Pradhan of KFF Health News.
Rachana Pradhan: Hello.
Rovner: And Emmarie Huetteman, also of KFF Health News.
Emmarie Huetteman: Good morning.
Rovner: Later in this episode we’ll have my interview with KFF President and CEO Drew Altman, who I honestly can’t believe hasn’t been on the podcast before. He is here to talk about “Health Policy 101,” which is KFF’s all-new, all-in-one introductory guide to health policy. But first, this week’s news.
So, as we tape, we have breaking news from the Supreme Court about that case challenging the abortion pill mifepristone. And you know how we always say you can’t predict what the court is going to do by listening to the oral arguments? Well, occasionally you can, and this was one of those times the court watchers were correct. The justices ruled unanimously that the anti-abortion doctors who brought the suit against the pill lack standing to sue. So the suit has been dismissed, wrote Justice [Brett] Kavanaugh, who wrote the unanimous opinion for the court: “A plaintiff’s desire to make a drug less available for others does not establish standing to sue.” So, might anybody have standing? Have we not maybe heard the end of this case?
Edney: Yeah, I think certainly there could be someone else who could decide to do that. I mean, just quickly looking around when this came out, it seems like maybe state AGs [attorneys general] could take this up, so it doesn’t seem like it’s the last of it. I also quickly saw a statement from Sen. [Bill] Cassidy, a Republican, who mentioned this wasn’t a ruling on the merits exactly of the case, but just that these doctors don’t have standing. So it does seem like there would be efforts to bring it back.
Rovner: This is not going to be the last challenge to the abortion pill.
Edney: Yeah.
Pradhan: Just looking in my inbox this morning after the decision, I mean it’s clear the anti-abortion groups are really not done yet. So I think there’s going to be a lot of pressure, of course, from them. It is an election year, so they’re trying to get, notch wins as far as races go, but also to get various AGs to keep going on this.
Rovner: And if you listen to last week’s podcast, there are three AGs who are already part of this case, so they may take it back with the district court judge in Texas. We shall see. Anyway, more Supreme Court decisions to come.
But moving on to campaign 2024 because, and this seems impossible, the first presidential debate is just two weeks away.President [Joe] Biden is still struggling to convince the public that he’s doing things that they support. Along those lines, this week the administration proposed rules that would ban medical debt from being included in calculating people’s credit scores. I thought that had happened already. What would this do that hasn’t already been done?
Huetteman: Well, last year the big credit agencies volunteered to cut medical debt that’s below $500 from people’s credit reports. Of course, there’s a lot of evidence that shows that that’s not really the way that people get hurt with their credit scores, they get hurt when they have big medical bills. So this addresses a major concern that a lot of Americans have with paying for health care in the United States.
I oversee our “Bill of the Month” project with NPR and I can say that a lot of Americans will pay their medical bills without question, even for fear of harm to their credit score, even if they think that their bill might be wrong. Also, it’s worth noting also that researchers have found that medical debt does not accurately predict whether an individual is credit-worthy, actually, which is unlike other kinds of debt that you’d find on credit scores.
Rovner: So yeah, not paying your car payment suggests what you might or might not be able to do with a mortgage or a credit card. But not paying your surprise medical bill, maybe not so much?
Huetteman: Yes, exactly. Really, we can all end up in the emergency room with a big bill. You don’t get a big bill just because you have trouble meeting your credit card bills or you have trouble meeting your car payments, for example.
Rovner: We’ll see if this one resonates with the public because a lot of the things that the administration has done have not. Meanwhile, President [Donald] Trump, who presided over one of the most rapid and successful vaccine development projects ever, for the covid vaccine, now seems to be moving more firmly into the anti-vax camp, and it’s not just apparently anti-covid vaccine. Trump said at a rally last month that he would strip federal funding from schools with vaccine mandates — any vaccines apparently, like measles and mumps and polio — and he says he would do it by executive order. No legislation required. This feels like it could have some pretty major consequences if he followed through on this. Anna, I see you nodding. You have a toddler.
Edney: Right, right. I was just thinking about that going into kindergarten, what that could mean, and there’s just so many … I mean, even kids don’t have to get chickenpox nowadays. That seems like a really great thing. I don’t know. I mean, I had chickenpox. I think that it could take us backwards, obviously, into a time that we’re seeing pockets of as measles crops up in certain places and things like that. I’d be curious. What I don’t know is how much federal funding supports a lot of these schools. I know there’s state funding, county funding, how much that’s actually taking away if it would change the minds of certain ones. But I guess if you’re in maybe a state that doesn’t like vaccines in the first place, it’s a free-for-all to go ahead and do that.
Pradhan: One of the questions I have, too, is through the CDC [Centers for Disease Control and Prevention] we have the Vaccines for Children Program, which provides free immunizations to children for a lot of these infectious diseases, for children who are either uninsured or underinsured or low-income. And so that’s been a really long-standing program and I’m very curious as to whether they would try to maybe reduce or eliminate a bunch of the vaccines that are provided through that, which obviously could affect a significant number of children nationwide.
Rovner: Yeah, it’s funny, the anti-vax movement has been around for, I don’t know, 20, 25 years; whenever that Lancet piece that later got rescinded came out that connected vaccines to autism. It seems it’s getting a boost and, yes, that’s an intended pun right now. I guess covid, and the doubts about covid, is pushing onto these other vaccines, too.
Edney: I think that we’ve certainly seen that. Before covid, at least my understanding of a lot of the concerns around the behavioral issues and autism linked to vaccines or things like that was more of the left-wing, maybe crunchier people who were seeing it as not wanting to put, in their words, poison in their bodies. But now we’re seeing this also right-wing opposition to it, and I think that’s certainly linked to covid. Any mandate at this point from the government is pushed back against more so than before.
Rovner: Well, we have lots of news this week on drugs and drug prices. Anna, you have quite the story about how trying to save money by buying generic might not always be the best move? As I describe it: the scary story of the week. Tell us about it.
Edney: Yes. Yeah, thank you. Yeah, I did this data dive looking into store-brand medication. So when you go into CVS or Walgreens, for example, you can see the Tylenol brand name there, but next to it you’ve got one that looks a lot like it, but it’s got CVS Health or Walgreens on the name and it costs usually a few dollars less. What I found is that of those store brands, CVS has a lot more recalls than the rest, even though they’re selling these same store-brand drugs. So they have two to three times more recalls than Walgreens and Walmart. And what’s happening is they are more often going to shady contract manufacturers to make their generic products that they’re selling over the counter. I found one that was making kids’ medication with contaminated water. And then the really disturbing one that was nasal sprays for babies on the same machines that this company was using to make pesticides. And just wrote about a whole litany of these kinds of companies that CVS is hiring at a higher rate than the other two — Walgreens and Walmart — that I was able to do the data dive on.
And interestingly, these store brands have a loophole, so they’re not responsible for the quality of those medications, even though their name’s on it. They can just walk away and say, “Well, we put it on the shelves. We agree with that, but it’s up to these companies that are making it to verify the quality.” And so, that’s usually not how this works. Even if there’s contract manufacturers, which a lot of drugmakers use, they usually have to also verify the quality. But store brands are considered just distributors, and so there’s this separation of who even owns the responsibility for this drug.
Pradhan: Yeah, I think a collective reaction reading this. I know, how many people did I text your story to Anna, saying, “Yikes! … FYI.”
Rovner: So on the one hand, you get what you pay for. On the other hand, price is not the only problem that we find with drugs. A new study from the University of Utah Drug Information Service just found that pharmacists are reporting the largest number of drugs in shortage since the turn of the century. And my colleague Susan Jaffe has a story on how some shortages are being exacerbated at the pharmacy level by a new Medicare rule that was intended to lower prices for patients at the counter.
Anna, how close are we to the point where the drug distribution system is just going to collapse in on itself? It does not seem to be working very well.
Edney: Yeah, it does feel that way because I always think of that example of the long balloon and when you squeeze it at one end the other end gets bigger. Because when you’re trying to help patients at the counter, somebody’s taking that hit, that money isn’t just appearing out of thin air in their pockets. So the pharmacists are saying — and particularly smaller pharmacies, but also some of the bigger ones — are saying the way that these drugs are now being reimbursed, how that’s working under this new effort, is they don’t have as much cash on hand, so they’re having trouble getting these big brand-name drugs. It was a really interesting story that Susan wrote. Just shows that you can’t fix one end of it, you need to fix the whole thing somehow. I don’t know how you do that.
And shortages are another issue just of other kinds, whether it’s quality issues or whether it’s the demand is growing for a lot of these drugs, and depending even on the time of year. So I think we’re all seeing it just appear to be disintegrating and hoping that there’s just no tragedy or big disaster where we really need to rely on it.
Rovner: Yeah, like, you know, another pandemic.
Edney: Exactly.
Rovner: There’s also some good news on the drug front. An FDA [Food and Drug Administration] advisory committee this week recommended approval for yet another potential Alzheimer’s drug, donanemab, I think I’m pronouncing that right. I guess we’ll learn more as we go on. The drug appears to have better evidence that it actually slows the progression of the disease without the risks of Aduhelm, the controversial drug approved by the FDA that’s been discontinued by its manufacturer. This would be the second promising drug to be approved following Leqembi last year. When we first started talking about Aduhelm — what was that, two years ago — we talked about how it could break Medicare financially because so many people would be eligible for such an expensive drug. So now we’re looking at maybe having two drugs like this and I don’t hear people talking about the potential costs anymore.
Is there a reason why or are we just worried about other things?
Edney: Well, I think there’s a benefit that they seem to have proven more than Aduhelm. But there’s also still a risk of brain swelling and bleeding, and that I’m sure would factor into someone’s decision of whether they want to try this. So maybe people aren’t exactly flocking in the same way to want to get these drugs. As they’re used more, maybe that changes and we see more of “Can you spot the swelling? Can you stop it?” And things like that. But I think that there just seems to be a lot of questions around them. Also, Aduhelm was the biggest one, which obviously Medicare didn’t cover, and then they’re not even trying to sell anymore. But I think that there’s just always questions about how they’re tested, how much benefit really there is. Is a few months worth that risk that you could have a major brain issue?
Rovner: While we are on the subject of drugs and drug prices, we have “This Week in Misinformation” from former President Trump, who as we all know, likes to take credit for things that are not his and deflect blame from things that are. Now in a post on his Truth Social platform, he says that he is the one who lowered insulin copayments to $35 a month, and that President Biden “had nothing to do with it.” Yes, the Trump administration did offer a voluntary $35 copayment program for Medicare Part D plans, but it was limited. It was time-limited and not all the plans adopted it. President Biden actually didn’t do the $35 copay either, but he did propose and sign the law that Congress passed that did it. It was part of the Inflation Reduction Act. Ironically, President Biden didn’t get all he wanted either. The intent was to limit insulin copayments for all patients, but so far, it’s only for those on Medicare. I would guess that Trump is saying this to try to neutralize one of the few issues that maybe is getting through to the public about something that President Biden did.
Pradhan: Well, I mean, I think even during President Trump’s first term, I mean lowering drug prices, he made it very clear that that was something that was important to him. He certainly wasn’t following the traditional or older Republican Party’s friendliness to the pharmaceutical industry. I mean, he was openly antagonizing them a lot, and so it’s certainly something that I think he understands resonates with people. And it’s a pocketbook issue similar to what’s going on on medical debt that we talked about earlier, right? These new regulations that are being proposed — they may not be finalized, we’ll have to see about that because of the timing — but these are things that are, I think at the end of the day, of course, are very relatable to people. Unlike, perhaps, abortion is a big campaign issue, but it’s not necessarily going to resonate with people in the same way and certainly not potentially men and women in the same way. But I think that there’s much more broad-based understanding of having to pay a lot for medications and potentially not being able to afford it. Obviously, insulin is probably the best poster child for a lot of reasons for that. So no surprise he wants to take credit for it, and also perhaps that it’s not really what happened, so …
Rovner: If nothing else, I think it signals that drug prices are still going to be a big issue in this campaign.
Pradhan: For sure. And I mean Joe Biden has made it very clear. I mean the Inflation Reduction Act of course included other measures to lower people’s out-of-pocket costs for drugs, which he’s very eagerly touting on the trail right now to shore up support.
Rovner: Let’s move on from drugs to abortion via the FDA spending bill on Capitol Hill this week. The annual appropriations bills are starting to move in House committees, which is notable itself because this is when they are supposed to start moving if they’re going to get done by Oct. 1, the start of the next fiscal year. We haven’t seen that in a long time. So last year Republicans got hung up because they wanted their leaders to attach all manner of policy riders to the spending bills, most of them aimed at abortion, which can’t get through the Senate. Well in a big shift, Republicans appear to be backing off of that, and the current version of the bill that funds the Department of Agriculture, as well as the FDA, does not include language trying to ban or further restrict the abortion pill mifepristone. Of course, that could still change, but my impression is that the new [House] Appropriations chairman, [Rep.] Tom Cole, who’s very much a pragmatist, wants to get his bills signed into law.
Pradhan: I do wonder, though, if because of the Supreme Court decision that just came out today, whether that will change the calculation, or at the very least, the pressure that he is under to include something in the FDA bill. But as you know, there’s plenty of time for abortion riders to make it in or out. I feel like this is, it’s like Groundhog Day. Usually something related to abortion policy will upend various pieces of legislation. So I’ll be curious to be on the lookout for that, whether it changes anything.
Rovner: Anna, were you surprised that they left it out, at least at the start?
Edney: Yeah, I think you’re just what we’ve seen with all of the rancor around abortion and abortion-related issues, I guess a little surprised. But also maybe it makes sense in just the sense that there are Republicans who are struggling with that issue and don’t want to have to keep talking about it or voting on it in the same way.
Rovner: Well, that leads right to my next subject, which is that the Senate is voting this afternoon, after we tape, on a bill that would guarantee access to IVF. Republicans are expected to block it as they did last week on the bill to guarantee access to contraception. But as of Wednesday, it’s going to be harder for Republicans to say they’re voting against the bill because no one is threatening to block IVF. That’s because the influential Southern Baptist Convention, one of the nation’s largest evangelical groups, voted, if not to ban IVF, at least to restrict the number of embryos that can be created and ban their destruction, which doctors say would make the treatments more expensive and less successful. It sounds like the rift among conservatives over contraception and IVF is a long way from getting settled here.
Huetteman: That certainly seems to be true. It’s also worth noting that there are a lot of influential members of Congress who are Baptist, of course, including House Speaker Mike Johnson. And I was refreshing my memory of the religious background of the current Congress with a Pew report: They say 67 members of this Congress are Baptist. Of course, Southern Baptist is the largest piece of that. And 148 are Catholic, which of course is another denomination that opposes IVF as well. So that’s a pretty big constituency that has their churches telling them that they oppose IVF and should, too.
Rovner: Yeah, everybody says they’re not coming for contraception, they’re not coming for IVF. I think we’re going to see a very spirited and continued debate over both of those things.
Well, speaking of the rift over reproductive health, former President Trump is struggling to please both sides and not really succeeding at it. He made a video address last week to the evangelical group, The Danbury Institute, which is a conservative subset of the aforementioned Southern Baptist Convention, in which former President Trump didn’t use the word abortion and skirted the issue. That prompted some grumbling from some of the attendees, reported Politico. Even as Democrats called him an anti-abortion radical for even speaking to the group, which has labeled abortion “child sacrifice.”
So far, Trump has gotten away with telling audiences what they want to hear, even if he contradicts himself regularly. But I feel like abortion is maybe the one issue where that’s not going to work.
Pradhan: Well, I think the struggle really is even if people are more forgiving of him saying different things, it puts a lot of down-ballot candidates in a really difficult position. And I know, Julie, you’d wanted to talk about this, but Republican candidates for U.S. Senate, I mean just how they have to thread the needle, and I don’t know that voters will be as forgiving about changes in their position. So I think they say it’s like, it’s not just about you. It’s like when two people get married, they’re like, “It’s not just about the two of you. It’s like your whole family.” This is like the family is your party and everyone down-ballot who has to now figure out what the best message is, and as we’ve seen, they’ve really struggled with “We’ve shifted now from being many candidates and Republican officeholders supporting basically near-total abortion bans, if not very early gestational limits, to the 15-week ban being a consensus position.” And now saying, well, Trump’s saying he’s not going to sign a national abortion ban, so let’s leave it to the states. I mean, it keeps changing, and I think obviously underscores the difficulty that they’re all having with this. So I don’t think it helps for him to be saying inconsistent things all the time because then these other candidates for office really struggle, I think, with explaining their positions also.
Rovner: So as I say every week, I’ve been covering abortion for a very long time, and before Roe [v. Wade] was overturned the general political rule is you could change positions on abortion once. If you were anti-abortion you could become pro-choice, and we’ve seen that among a lot of Democrats, Sen. [Bob] Casey in Pennsylvania, sort of a notable example. And if you supported abortion rights, you could become anti-abortion, which Trump kind of did when he was running the first time. Others have also as, there are … and again we’re seeing this more among Republicans, but not exclusively.
But people who try to change back usually get hammered. And as I say, Trump has violated every political rule about everything. So not counting him, I’m wondering about, as you say, Rachana, some of these Senate candidates, some of these down-ballot candidates who are struggling to really rationalize their current positions with maybe what they’d said before is something I think that bears watching over the next couple of months.
Huetteman: Absolutely. And we’re seeing candidates who will change their tone within weeks of saying something or practically days at this point. They’re really banking on our attention being pretty low as a public.
Rovner: Yeah. Although they may be right about that part.
Pradhan: Yeah, that’s true. And there’s a lot of time between now and November, but I think even the … just all the things, even this week of course, between now and November is an eternity. But we just talked about the Southern Baptist Convention stance on IVF. Of course, usually when these things happen, it prompts a lot of questions to lawmakers about whether they support that decision or not, whether they agree with it. And I think these court decisions … the Supreme Court, of course, will be out by the end of June, and so right now it might be fresh on people’s minds. But it’s hard to know whether September or October is the dominant or very prominent campaign issue in the same way.
Rovner: At the same time, we have a long way to go and a short way to go, so we will actually all be watching.
All right, well that is the news for this week. Now we will play my interview with Drew Altman and then we will come back and do our extra credits.
I am pleased to welcome to the podcast Drew Altman, president and CEO of KFF, and of course my boss. But lest you think that this is going to be a suck-up interview, you will see in a moment it’s also a shameless self-promotion interview. Drew, thank you so much for joining us.
Drew Altman: It’s great to be on “What the Health?” Thank you.
Rovner: I asked you here to talk about KFF’s new “Health Policy 101” project which launched last month, as a resource to help teach the basics of health policy. I know this is something you’ve been thinking about for a while. Tell us what the idea was and who’s the target audience here.
Altman: Well, since the Bronze Era, when I started KFF, faculty and students found their way to our stuff and they found it useful. It might’ve been a fact sheet about Medicaid or a policy brief about Medicare or a bunch of charts that we produced. But they’ve had to hunt and peck to find what they wanted and someone would find something on Medicaid or Medicare or the ACA [Affordable Care Act] or health care costs or women’s health policy or international comparisons or whatever it was. And for a very long time, I have wanted to organize our material about health policy for their world so that it was easy to find. It was one stop, and you could find all the basic materials that you wanted on the core stuff about health policy as a service to faculty and students interested in health policy because we don’t just analyze it and poll about it and report on it. We have a deep commitment. We really care about health policy and health policy education.
Rovner: You said those are the main topics covered. I assume that other topics could be added in the future? I mean, I could see a chapter on AI and health care.
Altman: Yes, and we’re starting with an introduction for me. There’s a chapter by Larry Levitt about challenges ahead. There’s a chapter by somebody named Julie Rovner on Congress and the agencies, who also wrote a book about all of that stuff, which is still available, folks.
Rovner: It desperately needs updating. So I’m pleased to be contributing to this.
Altman: But this is just the first year. And there were 13 chapters on the issues that I ticked off a moment ago and many more issues. And we’re starting the process of adding chapters. So the next chapter will probably be on LGBTQ issues, and then, though it’s not exactly the same thing as health policy, by popular demand, we will have a chapter on the basics of public health and what is the public health system, and spending on public health.
And I will admit, some of this also has origins in my own personal experience because before I was in government or in the nonprofit world or started and ran KFF, I was an academic at MIT [Massachusetts Institute of Technology] and I was fine when it came to big thoughts. And there I was and I’d written a book about health cost regulation. But what I didn’t know much about was how stuff really worked and the basics. And if I really needed to understand what was happening with regulation of private health insurance or the Medicaid program or the Medicare program, I didn’t really have any place to go to get basic information about the history of the program, or the details of the program, or a few charts that would give me the facts that I needed, or what are the current challenges. And when it really sunk in was when I left MIT and I went to work in what is now CMS [Centers for Medicare & Medicaid Services] and then was called the HCFA [Health Care Financing Administration], and boy on the first day did I realize what I did not know. It was only when I entered the real world of health policy that I understood how much I had to learn. So I wanted to bridge the two worlds a little bit by making available this basic “Health Policy 101.”
Rovner: I confess, I’m a little bit jealous that this hadn’t existed when I started to learn health policy because, like you, I had to ferret it all out, although thankfully KFF was there through most of it and I was able to find most of it along the way.
Altman: Exactly, and I think there’ll be other audiences for this because if you’re working on the Hill — but you don’t work full time on health — if you’re working in an association, if you’re working anywhere in the health care system, there’s lots of times when you really just need to understand. I just read about an 1115 waiver. What is that? Or what really is the difference between traditional Medicare and the Medicare Advantage plan? How is it that you get your drugs covered in the Medicare program? It seems to be lots of different ways. And just I’m confused. How does this actually work?
I’ll admit to you, also, I personally have an ulterior motive in all of this. And my ulterior motive is that it is my feeling now, and this has been a slowly creeping problem, that there isn’t enough what I would call health policy in health policy education. So that over time it has become more about what is fashionable now, which is delivery and quality and value.
And I won’t name names, but I spent a couple of days advising a health policy center at a renowned medical school about their curriculum in what they called health policy. And the draft of it had nothing in it that I recognized as health policy. Some of this is understandable. It’s because if you’re faculty with a disciplinary base — economics, political science, sociology, whatever — there’s no reason you would know a lot about what we recognize as the core of health policy. There has been a serious decline in faith in government, in young people taking jobs in certainly the federal government, but a little bit in state government as well. So the jobs now are all in the health care industry, they’re in tech, they’re in consulting firms. And so I think there’s just less of an incentive to learn a lot about Medicare, Medicaid, the ACA, the federal agencies, because you’re not going to go work in the federal agencies, at least as frequently as students did in my time. And so just to be blunt about it, I am, in my mind, trying to get more health policy back into health policy education.
Rovner: Well, as you know, I endorse that fully because that’s what we’re trying to do, too. One more question since I have you. I’ve been thinking about this a lot. When I started covering health policy shortly after you left HCFA, the big issue was people without insurance. And then throughout the early 2000s the big issue was spiraling costs. I feel like now the big issue is people who simply cannot navigate the system. The system has become so byzantine and complicated that, well, now there’s a “South Park” about it. I mean, it’s really to get even minor things dealt with is a major undertaking. I mean, what do you see as the biggest issue in policy for the next five or 10 years?
Altman: Well, I think the big issue for health care people used to be access to care. Now only about 8% of the population is uninsured. The big issue now is affordability, in my mind, and the struggles Americans are having paying their health care bills. It is an especially acute problem, virtually a crisis, for people with severe illnesses or people who are chronically ill. Fifty[%], 60% of those people really struggle to pay their medical bills. The crisis or the problem that isn’t discussed enough — because it isn’t a single problem it rears its head in so many ways — is the one you’re talking about: that is the complexity of the health care system. Just the sheer complexity of it; how difficult it is to navigate and to use for people who have insurance or don’t have insurance. Larry Levitt and I wrote a piece in JAMA about this, and we, all of us at KFF, are trying to focus more attention on that problem. Need to do more work on that problem and the many parts of it. It’s partly why we set up an entire program a couple of years ago on consumer and patient protection, where we intend to focus more on just this issue of the complexity of the system makes it hard to make it work for people. But especially for patients who are people who encounter the system because they need it.
Rovner: Well, we will both continue to try to keep explaining it as it keeps getting more byzantine. Drew Altman, thank you so much for joining us.
Altman: Thank you, Julie, very much.
Rovner: OK, we are back. It’s time for our extra-credit segment. That’s when we each recommend a story we read this week we think you should read, too. As always, don’t worry if you miss it. We will post the links on the podcast page at kffhealthnews.org and in our show notes on your phone or other mobile device. Emmarie, why don’t you go first this week?
Huetteman: Sure. My story comes from CBS [News]. The headline is “As FDA Urges Crackdown on Bird Flu in Raw Milk, Some States Say Their Hands Are Tied.” So the story says that there are three more states that have had their first reported cases of bird flu in the last month. And two of them don’t really have a way to conduct increased oversight of dairy cows and the industry that seems to be particularly having problems here. Wyoming and Iowa are those two states. Basically, these are states where raw milk is unregulated, so there’s no way for them to implement surveillance and restrictions on raw milk that might protect people from the fact that pasteurization appears to kill bird flu. But you don’t have pasteurization with raw milk, of course, that’s the definition.
Actually, this leads me to an extra, extra credit. KFF Health News’ Tony Leys wrote about the raw milk change in Iowa last year, and he was reporting on how Iowa only just changed their law, allowing legal sales of raw milk. And his story, among other things, pointed out that pasteurization helped rein in many serious illnesses in the past, including tuberculosis, typhoid, and scarlet fever. So unfortunately, this is a public health issue that’s been going on for a century or more, and we’ve got a method to deal with this, but not if you’re drinking raw milk. So that’s my story this week.
Rovner: Now people are going to drink raw milk and not get childhood vaccines. We’ll see how that goes. Sorry. Anna, you go next.
Edney: Yeah, mine is from Stat and it’s “Four Tops Singer’s Lawsuit Says He Visited ER for Chest Pain, Ended Up in Straitjacket.” It’s really scary, and maybe not totally surprising, unfortunately, that this is how an older Black man was treated when he went to the hospital. But this is Alexander Morris, a member of the Motown group The Four Tops. These are in the Rock & Roll Hall of Fame, The Four Tops, and he had chest pain and problems breathing and went to the hospital in Detroit and was immediately just assumed he was mentally ill, and he ended up quickly in a straitjacket. So he is suing this hospital. And I think he brought up in this article he’d seen people talk about driving while Black or walking while Black, and he essentially had become sick while Black. And he was able to prove he was a famous person and they took him out of the straitjacket. But how many other people haven’t had that ability, and just been assumed, because of the color of their skin, to not be having a serious health issue? So I think it’s worth a read.
Rovner: Yeah, it was quite a story. Rachana.
Pradhan: This week, I will take a story from The New York Times that is headlined “Abortion Groups Say Tech Companies Suppress Posts and Accounts.” It is basically an examination of how TikTok, Instagram, and others, how they moderate/remove content about abortion. What’s interesting about this is, so this is being told from the perspective of individuals who support access to abortion services. And it recounts some examples of Instagram suspending one group, it was called Mayday Health, which provides information about abortion pill access. There’s a telemedicine abortion service called Hey Jane, where TikTok briefly suspended them. What I thought was really interesting about this is anti-abortion groups have said for longer, actually, that technology companies have suppressed or censored information about crisis pregnancy centers, for example, that designed to dissuade women from having abortions. But I think it’s concerns about, broadly speaking, just what the policies are of some of these social media companies and how they decide what information is acceptable or not. And it details these examples of, again, women who support abortion access or posting TikToks that maybe spell abortion phonetically. Like “tion” is, instead of T-I-O-N, it’s S-H-U-N. Or they’ll put a zero instead of an O, and so it doesn’t get flagged in the same way. So yeah, definitely an interesting read.
Rovner: The fraughtness of social media moderation on this issue and many others. Well, my extra credit this week is from my fellow Michigan fan and sometime podcast guest Jonathan Cohn of HuffPost, and it’s called “How America’s Mental Health Crisis Became This Family’s Worst Nightmare.” And it’s basically the story of the entire mental health system in the United States over the last century, as told through the eyes of one middle-class American family, about one patient whose trip through the system came to a tragic end. Even if you think you know about this country’s failure to adequately treat people with mental illness, even if you do know about this country’s failures on mental health, you really do need to read this story. It is that good.
All right, that is our show. As always, if you enjoy the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left us a review; that helps other people find us, too. Special thanks as always to our technical guru, Francis Ying, and our doing-double-duty editor this week, Emmarie Huetteman. As always, you can email us your comments or questions. We’re whatthehealth, all one word, @kff.org. Or you can still find me at X, I’m @jrovner. Anna?
Edney: @annaedney.
Rovner: Rachana?
Pradhan: I’m @rachanadpradhan on X.
Rovner: Emmarie?
Huetteman: I’m lurking on X @EmmarieDC.
Rovner: We will be back in your feed next week. Actually, we’ll be coming to you from Aspen next week. But until then, be healthy.
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1 year 1 month ago
Courts, Elections, Medicaid, Medicare, Multimedia, Pharmaceuticals, States, Abortion, Biden Administration, FDA, KFF Health News' 'What The Health?', Podcasts, Prescription Drugs, reproductive health, Trump Administration
Wins at the Ballot Box for Abortion Rights Still Mean Court Battles for Access
Before Ohio voters amended their constitution last year to protect abortion rights, the state’s attorney general, an anti-abortion Republican, said that doing so would upend at least 10 state la
Before Ohio voters amended their constitution last year to protect abortion rights, the state’s attorney general, an anti-abortion Republican, said that doing so would upend at least 10 state laws limiting abortions.
But those laws remain a hurdle and straightforward access to abortions has yet to resume, said Bethany Lewis, executive director of the Preterm abortion clinic in Cleveland. “Legally, what actually happened in practice was not much,” she said.
Today, most of those laws limiting abortions — including a 24-hour waiting period and a 20-week abortion ban — continue to govern Ohio health providers, despite the constitutional amendment’s passage with nearly 57% of the vote. For abortion rights advocates, it’s going to take time and money to challenge the laws in the courts.
Voters in as many as 13 states could also weigh in this year on abortion ballot initiatives. But the seven states that have voted on abortion-related ballot measures since the Supreme Court overturned federal abortion protections two years ago in Dobbs v. Jackson Women’s Health Organization show that an election can be just the beginning.
The state-by-state patchwork of constitutional amendments, laws, and regulations that determine where and how abortions are available across the country could take years to crystallize as old rules are reconciled with new ones in legislatures and courtrooms. And even though a ballot measure result may seem clear-cut, the residual web of older laws often still needs to be untangled. Left untouched, the statutes could pop up decades later, like an Arizona law from 1864 did this year.
Michigan was one of the first states where voters weighed in on abortion rights following the Dobbs decision in June 2022. In November of that year, Michigan voters approved by 13 percentage points an amendment to add abortion rights to the state constitution. It would be an additional 15 months, however, before the first lawsuit was filed to unwind the state’s existing abortion restrictions, sometimes called “targeted regulation of abortion providers,” or TRAP, laws. Michigan’s include a 24-hour waiting period.
The delay had a purpose, according to Elisabeth Smith, state policy and advocacy director at the Center for Reproductive Rights, which filed the lawsuit: It’s preferable to change laws through the legislature than through litigation because the courts can only strike down a law, not replace one.
“It felt really important to allow the legislative process to go forward, and then to consider litigation if there were still statutes that were on the books the legislature hadn’t repealed,” Smith said.
Michigan’s Democratic-led legislature did pass an abortion rights package last year that was signed into law by the state’s Democratic governor in December. But the package left some regulations intact, including the mandatory waiting period, mandatory counseling, and a ban on abortions by non-doctor clinicians, such as nurse practitioners and midwives.
Smith’s group filed the lawsuit in February on behalf of Northland Family Planning Centers and Medical Students for Choice. Smith said it’s unclear how long the litigation will take, but she hopes for a decision this year.
Abortion opponents such as Katie Daniel, state policy director for Susan B. Anthony Pro-Life America, are critical of the lawsuit and such policy unwinding efforts. She said abortion rights advocates used “deceptive campaigns” that claimed they wanted to restore the status quo in place before the Dobbs decision left abortion regulation up to the states.
“The litigation proves these amendments go farther than they will ever admit in a 30-second commercial,” Daniel said. “Removing the waiting period, counseling, and the requirement that abortions be done by doctors endangers women and limits their ability to know about resources and support available to them.”
A lawsuit to unwind most of the abortion restrictions in Ohio came from Preterm and other abortion providers four months after that state’s ballot measure passed. A legislative fix was unlikely because Republicans control the legislature and governor’s office. Preterm’s Lewis said she anticipated the litigation would take “quite some time.”
Dave Yost, the Ohio attorney general, is one of the defendants named in the suit. In a motion to dismiss the case, Yost argued that the abortion providers — which include several clinics as well as a physician, Catherine Romanos — lacked standing to sue.
He argued that Romanos failed to show she was harmed by the laws, explaining that “under any standard, Dr. Romanos, having always complied with these laws as a licensed physician in Ohio, is not harmed by them.”
Jessie Hill, an attorney representing Romanos and three of the clinics in the case, called the argument “just very wrong.” If Romanos can’t challenge the constitutionality of the old laws because she is complying with them, Hill said, then she would have to violate those laws and risk felonies to honor the new amendment.
“So, then she’s got to go get arrested and show up in court and then defend herself based on this new constitutional amendment?” Hill said. “For obvious reasons, that is not a system that we want to have.”
This year, Missouri is among the states poised to vote on a ballot measure to write protections for abortion into the state constitution. Abortions in Missouri have been banned in nearly every circumstance since 2022, but they were largely halted years earlier by a series of laws seeking to make abortions scarce.
Over the course of more than three decades, Missouri lawmakers instituted a 72-hour waiting period, imposed minimum dimensions for procedure rooms and hallways in abortion clinics, and mandated that abortion providers have admitting privileges at nearby hospitals, among other regulations.
Emily Wales, president and chief executive of Planned Parenthood Great Plains, said trying to comply with those laws visibly changed her organization’s facility in Columbia, Missouri: widened doorways, additional staff lockers, and even the distance between recovery chairs and door frames.
Even so, by 2018 the organization had to halt abortion services at that Columbia location, she said, with recovery chairs left in position for a final inspection that never happened. That left just one abortion clinic operating in the state, a separate Planned Parenthood affiliate in St. Louis. In 2019, that organization opened a large facility about 20 miles away in Illinois, where lawmakers were preserving abortion access rather than restricting it.
By 2021, the last full year before the Dobbs decision opened the door for Missouri’s ban, the number of recorded abortions in the state had dwindled to 150, down from 5,772 in 2011.
“At that point, Missourians were generally better served by leaving the state,” Wales said.
Both of Missouri’s Planned Parenthood affiliates have vowed to restore abortion services in the state as swiftly as possible if voters approve the proposed ballot measure. But the laws that diminished abortion access in the state would still be on the books and likely wouldn’t be overturned legislatively under a Republican-controlled legislature and governor’s office. The laws would surely face challenges in court, yet that could take a while.
“They will be unconstitutional under the language that’s in the amendment,” Wales said. “But it’s a process.”
KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.
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1 year 1 month ago
Courts, Elections, States, Abortion, Legislation, Michigan, Missouri, Ohio, Women's Health
KFF Health News' 'What the Health?': Waiting for SCOTUS
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Julie Rovner
KFF Health News
Julie Rovner is chief Washington correspondent and host of KFF Health News’ weekly health policy news podcast, “What the Health?” A noted expert on health policy issues, Julie is the author of the critically praised reference book “Health Care Politics and Policy A to Z,” now in its third edition.
June means it’s time for the Supreme Court to render rulings on the biggest and most controversial cases of the term. This year, the court has two significant abortion-related cases: one involving the abortion pill mifepristone and the other regarding the conflict between a federal emergency care law and Idaho’s near-total abortion ban.
Also awaiting resolution is a case that could dramatically change how the federal government makes health care (and all other types of) policies by potentially limiting agencies’ authority in interpreting the details of laws through regulations. Rules stemming from the Affordable Care Act and other legislation could be affected.
In this special episode of “What the Health?”, Laurie Sobel, an associate director for women’s health policy at KFF, joins host Julie Rovner for a refresher on the cases, and a preview of how the justices might rule on them.
The cases highlighted in this episode:
- Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce, about how much discretion federal agencies should have in interpreting laws passed by Congress.
- U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine, about whether the FDA exceeded its authority in relaxing restrictions on the abortion pill mifepristone.
- Moyle v. United States and Idaho v. United States, about whether the federal Emergency Medical Treatment and Labor Act requirement for hospitals participating in Medicare to provide needed medical care overrides Idaho’s near-total abortion ban in emergency cases.
Previous “What the Health?” coverage of these cases:
-
KFF Health News' 'What the Health?': Abortion — Again — At the Supreme Court
Apr 24, 2024
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KFF Health News' 'What the Health?': The Supreme Court and the Abortion Pill
Mar 28, 2024
-
KFF Health News' 'What the Health?': Health Enters the Presidential Race
Jan 25, 2024
-
KFF Health News' 'What the Health?': The Supreme Court vs. the Bureaucracy
Jan 18, 2024
Where to find Supreme Court opinions as they are announced:
- The Supreme Court’s official website
- The SCOTUSblog (not an official government website but run by lawyers and journalists)
Click to open the Transcript
Transcript: Waiting for SCOTUS
[Editor’s note: This transcript was generated using both transcription software and a human’s light touch. It has been edited for style and clarity.]
Mila Atmos: The future of America is in your hands. This is not a movie trailer, and it’s not a political ad, but it is a call to action. I’m Mila Atmos and I’m passionate about unlocking the power of everyday citizens. On our podcast “Future Hindsight,” we take big ideas about civic life and democracy and turn them into action items for you and me. Every Thursday we talk ato bold activists and civic innovators to help you understand your power and your power to change the status quo. Find us at FutureHindsight.com or wherever you listen to podcasts.
Julie Rovner: Hello, and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF Health News. We’re taping this week on Wednesday, May 29, at 1 p.m. As always, news happens fast and things might’ve changed by the time you hear this. So here we go.
Because it’s a holiday week and health news is a little bit slow, we’re going to do something a little different. It’s about to be June, and that means the Supreme Court is going to issue opinions in some of the biggest cases argued this past term, including two abortion-related cases and one that could literally disrupt the way the entire federal government operates. I’m not sure I remember all the details of these cases, even though we have talked about them all on the podcast. So I’ve asked someone here to remind us what they’re about and give us a preview of how the court might rule in some of them. Laurie Sobel is associate director for women’s health policy here at KFF, and one of our top in-house legal experts. Laurie, welcome to “What the Health?” Thanks for joining us.
Laurie Sobel: Hi, Julie. It’s great to be here.
Rovner: So I thought we’d take the cases in the order they were argued before the court, although I know that’s not necessarily the order that we will see the opinions issued in. First up: In January, the justices heard arguments in two cases about, of all things, herring fishing. Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce. But these cases are about a lot more than herring and could affect a lot more than the Department of Commerce, right?
Sobel: Absolutely. These cases are about what’s called the Chevron doctrine [deference], which requires courts to defer to an agency’s interpretation of a law when the law is silent or ambiguous and the agency’s interpretation is reasonable.
Rovner: And what would an example of that be?
Sobel: Oh, there’s many, many examples. Essentially, Congress doesn’t fill in the details of many laws, and they rely on agencies to fill in those details, assuming that the agency has the expertise to figure out what those details might be. And also, many times the details change as new scientific evidence becomes available or there’s changed circumstances, or there’s a pandemic or something in which the agency needs to respond to.
Rovner: This is basically the entire federal regulatory process we’re talking about here, right?
Sobel: That’s correct.
Rovner: And in health care, there’s a lot of places that regulation affects.
Sobel: Absolutely. So Congress relies on the agencies to implement laws, the ACA [Affordable Care Act], Medicare, Medicaid, CHIP [Children’s Health Insurance Program]. So there’s a lot in health care. In addition, Title X is regulated by the Office of Population Affairs, and those also have regulations. So overturning Chevron would make it very difficult for Congress to continue to rely on agencies to fill in these gaps and to react to real-time situations.
Rovner: And there’s private entities that get regulated, are freaked out by the possibility that they won’t be able to rely on the agencies either.
Sobel: Absolutely. So everything from payment rates to providers and hospitals to negotiating prescription drug prices for the Medicare program. The ACA, I think, has probably more regulations than most laws. And relationship — we’ll talk about the FDA [Food and Drug Administration] in the next case, but the FDA also sets out regulations as does CDC [Centers for Disease Control and Prevention], and we really rely on those agencies to have the scientific expertise to react to the situation. So if Congress has to either fill in all the gaps, which is by most people’s assessment impossible, it might really stall how things get implemented and/or create a whole lot of new litigation.
Rovner: And I would say it would give courts a whole lot more authority than they have now, right?
Sobel: Certainly. So right now, the rule is that the agency’s interpretation stands as long as the law is ambiguous or silent and the agency’s interpretation is reasonable. This would give that power back to the courts to then guess what Congress meant or to interpret what Congress meant.
Rovner: Somebody I was talking to about this case suggested that, I hadn’t really thought about before, that if Chevron were to get struck down, that those who had sued over regulations and lost might be able to go back and reopen those cases. I mean, it could just be a flood of litigation.
Sobel: Absolutely. And that came up during oral argument about what would that mean for all the settled cases. And both sides offered different interpretations with the solicitor general arguing that it would really open up this can of worms to tons of litigation, and the plaintiffs essentially saying, “No, no, no, we could let those all stand and just going forward, the Chevron deference would be undone.” And there were some hints that maybe some compromises like that between the justices as they were talking.
Rovner: Exactly. You’re anticipating my next question, which is did we get any hints from the oral arguments about where they might be going with this case? It’s hard to imagine them just completely overturning Chevron.
Sobel: It is hard to imagine, but there are some justices that have been known to wanting to overturn Chevron for quite some time. So in that category I would put Justices [Clarence] Thomas and [Samuel] Alito, as well as [Neil] Gorsuch, as justices that have really been critical of the Chevron deference. Justice [Brett] Kavanaugh highlighted that the rules change when administrations change, and so he tried to counter the argument that there’s a reliance on Chevron for stability. He said, “Wait, wait, wait a minute. Every time there’s a new president, the rules change. So what kind of stability is that?”
Chief Justice [John] Roberts and [Justice Amy Coney] Barrett were really harder to read, and that might be where the decision relies on, where they come out and whether or not they’re able to forge a compromise with the three liberal justices who indicated support for keeping Chevron; both because of precedent, as well as they pointed out examples where they said, “We’re not subject matter experts here. We don’t want to be making these decisions.” Justice [Elena] Kagan was talking about AI and how that would change, and “we really don’t want to be in the position of Justice Kagan figuring out how that should be regulated.”
Rovner: Well, that seems to be an excellent segue to the next case, which is an abortion case concerning the availability of the abortion pill mifepristone. The case, which was argued in March, is called Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration. Let’s start, because it’s about to become important, with what is the Alliance for Hippocratic Medicine? And what did their members have against the abortion pill?
Sobel: Well, the Alliance for Hippocratic Medicine is a newly formed anti-abortion advocacy coalition. It was formed specifically for this litigation. And they contend that they have members, which are doctors and organizations and associations, in Texas and around the country, who have treated and will continue to treat people who have experienced a complication from medication abortion. So to be clear, none of their members prescribe mifepristone. They don’t believe in abortion. They don’t want to have anything to do with abortion. But their contention is that they are injured based upon having to divert their time and resources away from their regular patients when they have to treat somebody who has had a side effect from mifepristone. Similarly, the association and organizations contend that they’ve had to divert their time to educate people about the dangers of medication abortion.
Rovner: So those are the plaintiffs. And, as you mentioned, some of them are in Texas and they sued in Texas very specifically to get a certain judge, right?
Sobel: Yes, to get Judge [Matthew] Kacsmaryk, who is known for being friendly to these types of cases.
Rovner: So Judge Kacsmaryk, who as you say, is known to be friendly to these types of cases, originally ruled that mifepristone’s entire approval should be rescinded. It was approved in the year 2000, so it’s been on the market for quite a long time. But that’s actually not what’s on the table at the moment before the justices. Explain how we got there.
Sobel: So that decision was then appealed to the 5th Circuit, and the 5th Circuit said, “We’re not going to roll back the original approval of mifepristone to the year 2000, but instead we’ll roll back the requirements to 2011 and say that those are the rules that should be enforced, and that the FDA exceeded their authority in changing the rules since 2011.”
Rovner: And some of those changed rules basically made it easier to get, and you could use it a little bit later into pregnancy because it was found to be safe, right?
Sobel: Exactly. So what those new rules have done is said that you can use it up to 10 weeks instead of seven weeks, that you don’t have to be in person to receive it. So the newest rules have opened up the possibility of using it for telehealth abortion, and also for pharmacists prescribing it. And so if the Supreme Court were to affirm the 5th Circuit’s decision, that would eliminate these new protocols the FDA has established in removing the in-person dispensing requirement, permitting telehealth abortions, and establishing the process for pharmacies to become certified to dispense mifepristone. In addition, it would roll back the gestational ages you just said, from 10 weeks to seven weeks, which is significant because, according to the CDC data, more than 4 in 10 medication abortions occur at seven weeks or later.
Rovner: I was going to say, and yeah, this could be super disruptive. I mean medication abortion is now more than half of all abortions in this country.
Sobel: Oh, it’s two-thirds.
Rovner: So without banning it, making it harder to get could have a big impact.
Sobel: Oh, absolutely. Medication abortion now accounts for nearly two-thirds of all abortions, and telehealth abortions have become very common, from the latest data that we have from WeCount, 1 in 5 abortions was provided via telehealth in December of 2023. So that’s one in all abortions, not one in medication abortions. So that’s quite a big number.
Rovner: Now, this case, even though it could be very disruptive to abortion, is about a whole lot more than abortion. Drugmakers in general seem pretty concerned by the idea of judges making scientific decisions that overrule the FDA. This hearkens back to the last case we talked about, right?
Sobel: Oh, absolutely. So this is the first case to ask the Supreme Court to overrule an FDA decision that a drug is safe and effective. So the outcome of this case could really have very far-reaching implications for the FDA’s authority to continue to regulate not only mifepristone, but a wide range of other drugs. And most likely the other drugs that are perceived to be controversial — gender-affirming care or PrEP — those are the drugs that are most likely to be litigated if this door is opened.
Rovner: And I know that there’s nothing that makes drugmakers … I mean, patent issues and drugmakers and court issues are hard enough, the idea that they could be granted approval by the FDA and then somebody could just come in and sue and make that go away.
Sobel: Oh, absolutely. This got the attention of the entire industry. There were many, many amicus briefs that were filed.
Rovner: So normally you can’t really tell from the oral arguments, as we said, how the justices are leaning. But in this case, the justices seemed fairly transparent about where we think they’re going to go. What are we expecting here?
Sobel: Yes. I mean, as I said before, it’s always dangerous to read the tea leaves too much, but this did seem more transparent than most, and that most justices seemed not convinced that the plaintiffs in this case have legal standing, which requires that you have an injury and that injury can be addressed by what the court decides. So even assuming that the plaintiffs have an injury, the question is what would happen if we roll back the rules that the FDA has back to 2011? Does that make it more or less likely that these plaintiffs would see people with side effects of mifepristone? It’s not really clear. In addition, many of the justices, including Justice Barrett, really pushed back on the lawyer representing the Alliance for where in the doctors’ affidavits it said they were actually participating in something they objected to. Notably, not really about necessarily this case, but about what might come up in the future, both Justice Thomas and Alito did bring up the Comstock Act and signaled that they would uphold the enforcement of the Comstock Act, pretty much inviting a future case or a future administration to enforce the Comstock Act.
Rovner: As much as we’ve talked about it, remind us again what the Comstock Act is.
Sobel: Sure. So it’s a law from 1873, which was an anti-obscenity law, and as part of it, it banned the mailing of any drug or device or instrument that could be used for abortion.
Rovner: Well, I guess during the entirety of Roe [v. Wade], it was irrelevant, right? Because abortion was legal,
Sobel: Right. And it’s been dormant. I mean, we can’t find any enforcement in any modern era.
Rovner: Yes, so it goes back a long ways, but it’s top of mind for a lot of people.
All right, moving on to our last case. On April 24, the court heard Idaho v. United States and Moyle v. United States, both of which challenged the federal government’s interpretation of the Emergency Medical Treatment and Active Labor Act, EMTALA, to override Idaho’s near-complete abortion ban, at least in medical emergencies. Let’s start by explaining what EMTALA is and how it relates to abortion?
Sobel: Sure. So EMTALA requires hospitals that participate in Medicare, which is pretty much every acute hospital, to provide stabilizing treatment within the hospital’s capability when there’s an emergency medical condition, which includes when the absence of immediate medical attention could reasonably be expected to place the health of the individual in serious jeopardy or serious impairments of bodily functions. So it was really intended as an anti-dumping law initially so that people who were uninsured weren’t just transferred or sent away to another hospital because they didn’t have the capacity to pay.
Idaho’s abortion ban only has an exception for life. It doesn’t have an exception to preserve the health of the pregnant person. And so the Biden administration sued Idaho and said this law then, essentially, puts these hospitals that have this requirement, because they accept Medicare payments, to stabilize patients. And when that care includes abortion care, they’re required to provide that under federal law. So the question is, does the EMTALA preempt the Idaho abortion ban?
It’s clear from the oral argument that Idaho’s position is that there is no conflict because they read into the EMTALA law that “within the hospital’s capability” includes the laws of Idaho and that Idaho gets to set the standard of care, and that that’s up to states, not up to the federal government. Whereas the federal government, the Biden administration’s position, is that, no, EMTALA specifically was an antidumping law, and that includes stabilizing all patients regardless of the care. And we don’t have to say including abortion in order for it to include abortion, it includes all care that’s required to stabilize patients.
Rovner: Of course, a lot of anti-abortion activists will say that the only time abortion is medically necessary is when it threatens life and that would be covered. But we’re seeing that that’s not necessarily the case, right? I mean, we’re seeing individual instances of this these days.
Sobel: Yeah. I mean, we know from Idaho that many patients have been helicoptered out of the state into nearby states that also have some abortion restrictions but just aren’t as restrictive as Idaho is, because they’re going to become septic or they’re going to lose kidney function, or they’re going to lose their reproductive organs. So they’re not in danger of losing their life immediately, but they’re in danger of losing serious bodily functions.
The other question that came up during oral argument was about just how imminent the life needs to be. And this comes down to how this is putting doctors in a pretty uncomfortable place. So yes, the doctors are permitted to provide abortion care in Idaho when they can certify in good faith that without the abortion care, the person’s life is endangered. But they’re concerned that, after the fact, attorneys for the state could come back and say, “Oh, wait a minute, that wasn’t your really good-faith decision and we’re going to prosecute you and we’re going to bring in our own expert.” And the question is really, how much should doctors have on the line? It’s a criminal statute, so there’s jail time involved. Of course, there’s a loss of license. And so how far out should doctors be required to go? And this is, again, it’s making people really uncomfortable, and there are anecdotes of people leaving the state because of this and not feeling comfortable practicing there.
Rovner: More than anecdotes of people leaving the state, there are people who come forward and said they’re leaving the state. And as a result, some hospitals are having to shut down their OB services. I mean, because when the doctors, OB-GYNs who are leaving, so in the ironic position of people who are having babies not being able to find someone who can deliver their baby at the same time.
Sobel: Right, right.
Rovner: That’s obviously one ramification within Idaho, but there could be ramifications outside just on the idea: Isn’t federal law supposed to trump state law? Isn’t that sort of a basic foundation of how we work?
Sobel: Yes. The supremacy clause is pretty basic when you go to law school. So yes. And I think how they word this decision will be very interesting to see because it’s a question of, is there a conflict or is there not? And the attorneys for Idaho were basically suggesting that there’s no conflict. So you don’t even need to say that there’s a preemption. You just have to find that there’s no conflict between Idaho law and EMTALA.
However they rule, if they rule for Idaho and say that you’re allowed to continue having this abortion ban that only has a life exception with no health exception, immediately, there’s four additional states with abortion bans that do not make exceptions for health as well. And those states are Arkansas, Mississippi, Oklahoma, and South Dakota. So in those states, like Idaho, a hospital cannot legally provide an abortion as stabilizing treatment when a person presents with a health endangerment and not a life endangerment. And so again, those risks can include sepsis, kidney failure, loss of fertility, they’re serious risks, even though they may not be life-threatening at the moment.
And even in the states that do have exceptions for health, we have seen that those exceptions are often very narrow and vague and hard to be implemented in real time. So pregnant people can still be denied emergency abortion care that’s needed to preserve their health, even in states that have a health exception. And if EMTALA doesn’t act as a backstop to say, “But wait, hospital, you’re violating this federal law,” then people are stuck with the state law that is narrow and vague.
Rovner: So I mean, overturning Roe, the justices says, “Oh, great, we won’t have to deal with abortion anymore. It’s all about the states.” But as we can see, it’s not all about the states. The Supreme Court is going to have to continue to deal with this issue.
Sobel: Right. Definitely.
Rovner: All right, well, finally, just a couple of housekeeping issues. We don’t actually know when these decisions will come, right? People who don’t follow the court on a regular basis often think that opinions are scheduled the same way oral arguments are, but it’s always a surprise.
Sobel: Unfortunately, they are not. Right now, the court lists their decision days on their website, which is on their calendar. Right now Thursdays seem to be the popular day, they have Thursdays through June listed. They most likely will add more decision days. On decision days, they start posting decisions at 10 a.m. Eastern Time, and you can follow along either on the Supreme Court’s website or many people go to SCOTUSblog, which also has a live blog that interprets some of what’s happening for people who are new to the court.
Rovner: And I will put both of those links in the show notes. Laurie Sobel, this has been so helpful. Thank you so much for joining us.
Sobel: Thank you for having me, Julie.
Rovner: OK, that is our show. As always, if you enjoy the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left us a review; that helps other people find us, too. Special thanks as always to our technical guru, Francis Ying, and our fill-in editor this week, Rebecca Adams. As always, you can email us your comments or questions. We’re at whatthehealth@kff.org, or you can still find me at X @jrovner. We will be back in your feed next week with the news. Until then, be healthy.
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KFF Health News' 'What the Health?': Anti-Abortion Hard-Liners Speak Up
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Julie Rovner is chief Washington correspondent and host of KFF Health News’ weekly health policy news podcast, “What the Health?” A noted expert on health policy issues, Julie is the author of the critically praised reference book “Health Care Politics and Policy A to Z,” now in its third edition.
With abortion shaping up as a key issue for the November elections, the movement that united to overturn Roe v. Wade is divided over going further, faster — including by punishing those who have abortions and banning contraception or IVF. Politicians who oppose abortion are already experiencing backlash in some states.
Meanwhile, bad actors are bilking the health system in various new ways, from switching people’s insurance plans without their consent to pocket additional commissions, to hacking the records of major health systems and demanding millions of dollars in ransom.
This week’s panelists are Julie Rovner of KFF Health News, Alice Miranda Ollstein of Politico, Rachel Roubein of The Washington Post, and Joanne Kenen of the Johns Hopkins schools of public health and nursing and Politico Magazine.
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Alice Miranda Ollstein
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Rachel Roubein
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Among the takeaways from this week’s episode:
- It appears that abortion opponents are learning it’s a lot easier to agree on what you’re against than for. Now that the constitutional right to an abortion has been overturned, political leaders are contending with vocal groups that want to push further — such as by banning access to IVF or contraception.
- A Louisiana bill designating abortion pills as controlled substances targets people in the state, where abortion is banned, who are finding ways to get the drug. And abortion providers in Kansas are suing over a new law that requires patients to report their reasons for having an abortion. Such state laws have a cumulative chilling effect on abortion access.
- Some Republican lawmakers seem to be trying to dodge voter dissatisfaction with abortion restrictions in this election year. Sen. Ted Cruz of Texas and Sen. Katie Britt of Alabama introduced legislation to protect IVF by pulling Medicaid funding from states that ban the fertility procedure — but it has holes. And Gov. Larry Hogan of Maryland declared he is pro-choice, even though he mostly dodged the issue during his eight years as governor.
- Former President Donald Trump is in the news again for comments that seemed to leave the door open to restrictions on contraception — which may be the case, though he is known to make such vague policy suggestions. Trump’s policies as president did restrict access to contraception, and his allies have proposed going further.
Also this week, Rovner interviews Shefali Luthra of The 19th about her new book on abortion in post-Roe America, “Undue Burden.”
Plus, for “extra credit,” the panelists suggest health policy stories they read this week that they think you should read, too:
Julie Rovner: The 19th’s “What Happens to Clinics After a State Bans Abortion? They Fight To Survive,” by Shefali Luthra and Chabeli Carrazana.
Alice Miranda Ollstein: Stat’s “How Doctors Are Pressuring Sickle Cell Patients Into Unwanted Sterilizations,” by Eric Boodman.
Rachel Roubein: The Washington Post’s “What Science Tells Us About Biden, Trump and Evaluating an Aging Brain,” by Joel Achenbach and Mark Johnson.
Joanne Kenen: ProPublica’s “Toxic Gaslighting: How 3M Executives Convinced a Scientist the Forever Chemicals She Found in Human Blood Were Safe,” by Sharon Lerner; and The Guardian’s “Microplastics Found in Every Human Testicle in Study,” by Damian Carrington.
Also mentioned on this week’s podcast:
- NPR’s “Republicans Try To Soften Stance on Abortion as ‘Abolitionists’ Go Farther,” by Sarah McCammon.
- KFF Health News’ “Biden Leans Into Health Care, Asking Voters To Trust Him Over Trump,” by Phil Galewitz.
- KFF Health News’ “Exclusive: Senator Urges Biden Administration To Thwart Fraudulent Obamacare Enrollments,” by Julie Appleby.
- KFF Health News’ “KHN’s ‘What the Health?’: Un-Trumping the ACA,” featuring an interview with journalist Marshall Allen.
Click to open the Transcript
Transcript: Anti-Abortion Hard-Liners Speak Up
[Editor’s note: This transcript was generated using both transcription software and a human’s light touch. It has been edited for style and clarity.]
Mila Atmos: The future of America is in your hands. This is not a movie trailer, and it’s not a political ad, but it is a call to action. I’m Mila Atmos, and I’m passionate about unlocking the power of everyday citizens. On our podcast Future Hindsight, we take big ideas about civic life and democracy and turn them into action items for you and me. Every Thursday, we talk to bold activists and civic innovators to help you understand your power and your power to change the status quo. Find us at futurehindsight.com or wherever you listen to podcasts.
Julie Rovner: Hello, and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF Health News, and I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, May 23, at 10 a.m. As always, news happens fast and things might’ve changed by the time you hear this. So, here we go. We are joined today via a video conference by Alice Miranda Ollstein of Politico.
Alice Miranda Ollstein: Hello.
Rovner: Rachel Roubein of The Washington Post.
Rachel Roubein: Hi, thanks for having me.
Rovner: And Joanne Kenen of the Johns Hopkins schools of public health and nursing and Politico Magazine.
Joanne Kenen: Hi, everybody.
Rovner: Later in this episode, we’ll have my interview with podcast panelist Shefali Luthra of The 19th. Shefali’s new book about abortion in the post-Roe [v. Wade] world, called “Undue Burden,” is out this week. But first, this week’s news. We’re going to start with abortion this week with a topic I’m calling “Abolitionists in Ascendance,” and a shoutout here to NPR’s Sarah McCammon with a great piece on this that we will link to in the show notes. It seems that while Republican politicians, at least at the federal level, are kind of going to ground on this issue, and we’ll talk more about that in a bit, those who would take the ban to the furthest by prosecuting women, and/or banning IVF and contraception, are raising their voices. How much of a split does this portend for what, until the overturn of Roe, had been a pretty unified movement? I mean they were all unified in “Let’s overturn Roe,” and now that Roe has gone, boy are they dividing.
Ollstein: Yeah, it’s a lot easier to agree on what you’re against than on what you’re for. We wrote about the split on IVF specifically a bit ago, and it is really interesting. A lot of anti-abortion advocates are disappointed in the Republican response and the Republican rush to say, “No, let’s leave IVF totally alone” because these groups think, some think it some should be banned, some think that there should be a lot of restrictions on the way it’s currently practiced. So not a total ban, but things like you can only produce a certain number of embryos, you can only implant a certain number of embryos, you can only create the ones you intend to implant, and so that would completely upend the way IVF is currently practiced in the U.S.
So, we know the anti-abortion movement is good at playing the long game, and so some of them have told me that they see this kind of like the campaign to overturn Roe v. Wade. They understand that Republicans are reacting for political reasons right now, and they are confident in winning them over for restrictions in the long term.
Rovner: I’ve been fascinated by, I would say, by things like Kristan Hawkins of Students for Life [of America] who’s been sort of the far-right fringe of the anti-abortion movement looking like she’s the moderate now with some of these people, and their discussions of “We should charge women with murder and have the death penalty if necessary.” Sorry, Rachel, you want to say something?
Roubein: This is something that Republicans, they don’t want to be asked about this on the campaign. The more hard-line abolitionist movement is something more mainstream groups have been taking a lot of pains to distance themselves and say that we don’t prosecute women, and essentially nobody wants to talk about this ahead of 2024. GOP doesn’t want to be seen as that party that’s going after that.
Kenen: And the divisions existed when Roe was still the law of the land, and we would all write about the divisions and what they were pushing for, and it was partly strategic. How far do you push? Do you push for legislation? Do you push for the courts? Do you push for 20 weeks for fetal pain? But it was like rape exceptions and under what terms and things like that. So it was sort of much later in pregnancy, and with more restrictions, and the fight was about exactly where do you draw that line. This abolition of all abortion under all circumstances, or personhood, only a couple of years ago, were the fringe. Personhood was sort of like, “Oh, they’re out there, no one will go for that.” And now I don’t think it’s the dominant voice. I don’t think we yet know what their dominant voice is, but it’s a player in this conversation.
At the same time, on the other side, the pro-abortion rights people, there’s polls showing us this many Americans support abortion, but it’s subtler too. Even if people support abortion rights, it doesn’t mean that they’re not, some subset are in favor of some restrictions, or where that’s going to settle. Right now, a 15-week ban, which would’ve seemed draconian a year or two ago, now seems like the moderate position. It has not shaken out, and …
Rovner: Well, let’s talk …
Kenen: It’s not going to shake out for some time.
Rovner: Let’s talk about a few specifics. The Louisiana State Legislature on Tuesday approved a bill that would put the drugs used in medication abortion, mifepristone and misoprostol, on the state’s list of controlled substances. This has gotten a lot of publicity. I’m wondering what the actual effect might be here though since abortion is already banned in Louisiana. Obviously, these drugs are used for other things, but they wouldn’t be unavailable. They would just be put in this category of dangerous drugs.
Ollstein: So, officials know that people in banned states, including Louisiana, are obtaining abortion pills from out of state, whether through telehealth from states with shield laws or through these gray-area groups overseas that are mailing pills to anyone no matter what state they live in or what restrictions are in place. So I think because it would be very difficult to actually enforce this law, short of going through people’s homes and their mail, this is just one more layer of a chilling effect and making people afraid to seek out those mail order services.
Rovner: So it’s more, again, for the appearance of it than the actuality of it.
Ollstein: It also sets up another state versus federal law clash, potentially. We’ve seen this playing out in courts in West Virginia and in North Carolina, basically. Can states restrict or even completely ban a medication that the FDA says is safe and effective? And that question is percolating in a few different courts right now.
Rovner: Including sort of the Supreme Court. We’re still waiting for their abortion pill decision that we expect now next month. Meanwhile, in Kansas, where voters approved a big abortion rights referendum in 2022 — remember, it was the first one of those — abortion providers are suing to stop a new state law enacted over the governor’s veto that would require them to report to the state women’s reasons for having an abortion. Now it’s not that hard to see how that information could be misused by people with other kinds of intents, right?
Ollstein: Well, it also brings up right to free speech issues, compelled speech. I think I’ve seen this pop up in abortion lawsuits even before Dobbs [v. Jackson Women’s Health Organization], this very issue because there have been instances where either doctors are required to give information that they say that they believe is medically inaccurate. That’s an issue in several states right now. And then this demanding information from patients. A lot of clinics that I’ve spoken to are so afraid of subpoenas from officials in-state, from out of state, that they intentionally don’t ask patients for certain kinds of data even though it would really help medically or organizationally for them to have that data. But they’re so afraid of it being seized, they figure well, they can’t seize it if they’re … doesn’t exist in the first place. And so I think this kind of law is in direct conflict with that.
Roubein: It also gets at the question of medical privacy that we’ve been seeing in the Biden administration’s efforts over HIPAA and protecting patients’ records and making it harder for state officials to attempt to seize.
Rovner: Yeah, this is clearly going to be a struggle in a lot of states where voters versus Republican legislatures, and we will sort of see how that all plays out. So even while this is going on in a bunch of the states, a lot of Republicans, including some who have been and remain strongly anti-abortion, are doing what I’m calling ducking-and-covering on a lot of these issues. Case in point, Texas Republican Sen. Ted Cruz and Alabama Republican Sen. Katie Britt this week introduced a bill they say would protect IVF, which is kind of ironic given that both of them voted against a bill to protect IVF back in, checking notes, February. What’s the difference here? What are these guys trying to do?
Kenen: Theirs is narrower. They say that the original bill, which was a Democratic bill, was larded with abortion rights kinds of things. I have not read the entire bill, I just read the summary of it. And in this one, if a state restricts someone who had — someone feel free to correct me if I am missing something here because I don’t have deep knowledge of this bill — but if a state does not protect IVF, they would lose their Medicaid payment. And I was not clear whether that meant every penny of Medicaid, including nursing homes, or if it’s a subsection of Medicaid, because it seems like a big can of worms.
Ollstein: Yeah, so the key difference in these bills is the word ban. The Republican bill says that if states ban IVF, then these penalties kick in for Medicaid, but they say that there can be “health and safety regulations,” and so that is very open to interpretation. That can include the things we talked about before about you can only produce a certain number of embryos, you can only implant a certain number of embryos, and you can’t discard them. And so even what Alabama did was not an outright ban. So even something like that that cut off services for lots of people wouldn’t be considered a ban under this Republican bill. So I think there’s sort of a semantic game going on here where restrictions would still be allowed if they were short of a blanket ban, whereas the democratic bill would also prevent restrictions.
Rovner: Well, and along those exact same lines, in Maryland, former two-term Republican governor Larry Hogan, who’s managed to dodge the abortion issue in his primary run to become the Senate nominee, now that he is the Republican candidate for the open Senate seat, has declared himself, his words, “pro-choice,” and says he would vote to restore Roe in the Senate if given the opportunity. But as I recall, and I live in Maryland, he vetoed a couple of bills to expand abortion rights in very blue Maryland. Is he going to be able to have this both ways? He seems to be doing the [Sen.] Susan Collins script where he gets to say he’s pro-choice, but he doesn’t necessarily have to vote for abortion rights bills.
Kenen: Hogan is a very popular moderate Republican governor in a Democratic state. He is a strong Senate candidate. His opponent, a Democrat, Angela Alsobrooks, has a stronger abortion rights record. I don’t think that’s going to be the decisive issue in Maryland. I think it may help him a little bit, but I think in Maryland, if the Senate was 55-45, a lot of Democrats like Hogan and might want another moderate Republican in the Senate. But given that this is going to be about control of the Senate, abortion will be a factor, I don’t think abortion is going to be the dominant factor in this particular race.
If she were to win and there’s two black women, I mean that would be the first time that two black women ever served in the Senate at once, and I think they would only be number three and number four in history. So race and Affirmative Action will be factors, but I think that Democrats who might otherwise lean toward him, because he was considered a good governor. He was well-liked. This is a 50-50ish Senate, and that’s the deciding thing for anyone who pays attention, which of course is a whole other can of worms because nobody really pays attention. They just do things.
Roubein: I think it’s also worth noting this tact to the left comes as Maryland voters will be voting on an abortion rights ballot measure in 2024. So that all sort of in context, we’ve seen what’s happened with the other abortion measures, abortion rights have won, so.
Rovner: And Maryland is a really blue state, so one would expect it …
Kenen: There’s no question that the Maryland …
Rovner: Yeah.
Kenen: I mean, and all of us would fall flat on our faces if the abortion measure fails in Maryland. But I believe this is the first one on the ballot alongside a presidential election, and some of them have been in special elections. It’s unclear the correlation between, you can vote for a Republican candidate and still vote for a pro-abortion rights initiative. We will learn a lot more about how that split happens in November. I mean, is Kansas going to go for Biden? Unlikely. But Kansas went really strong for abortion rights. If you’re not a single-issue voter, you can, in fact, have it both ways.
Rovner: Yes, and we are already seeing that in the polls. Well, of course then there is the king of trying to have it both ways: former President Trump. He is either considering restrictions on contraception, as he told an interviewer earlier this week, promising a proposal soon, or he will, all caps, as he put on Truth Social, never advocate imposing restrictions on birth control. So which is it?
Ollstein: So this came out of Trump’s verbal tick of saying “We’ll have a plan in a few weeks,” which he says about everything. But in this context it made it sound like he was leaving the door open to restrictions on contraception, which very well might be the case. So what my colleague and I wrote about is he says he would never restrict contraception. A lot of things he did in his first administration did restrict access to contraception. It was not a ban. Again, we’re getting back into the semantics of ban. It was not a ban, but his Title X rule led to a drop in hundreds of thousands of people accessing contraception. He allowed more kinds of employers to refuse to cover their employees’ contraception on their health plans, and the plans his allies are creating in this Project 2025 blueprint would reimpose those restrictions and go even further in different ways that would have the effect of restricting access to contraception. And so I think this is a good instance of look at what people do, not what they say.
Rovner: So now that we’re on the subject of campaign 2024, President Biden’s campaign launched a $14 million ad buy this week that includes the warning that if Trump becomes president again he’ll try to repeal the Affordable Care Act. Maybe health care will be an issue in this election after all? I don’t have a rooting interest one way or the other. I’m just curious to see how much of an issue health will be beyond reproductive rights.
Kenen: Well, as Alice just pointed out, Trump’s promised plans often do not materialize, and we are still waiting to see his replacement plan eight years later. I think he’s being told to sort of go slow on this. I mean, not that you can control what Trump says, but he didn’t run on health care until the end, in 2016. It was a close race, and he ran against Hillary Clinton, and it was the last 10 or so days that he really came down hard because it was right when ACA enrollment was about to begin and premiums came in and they were high. He pivoted. So is this going to be a health care election from day one? And I’m putting abortion aside for one second in terms of my definition of health care for this particular segment. Is it going to be a health care election in terms of ACA, Medicare, Medicaid? At this point, probably not. But is it going to emerge at various times by one or the other side in politically opportune ways? I would be surprised if Biden’s not raising it. The ACA is thriving under Biden.
Rovner: Well, he is. That’s the whole point. He just took out a $14 million ad buy.
Kenen: Right. But again, we don’t know. Is it a health care election or is it a couple ads? We don’t know. So yes, it’s going to be a health care election because all elections are health care elections. How much it’s defined by health care compared to immigration? No, at this point, that’s not what we’re expecting. Compared to the economy? No, at this point. But is it an issue for some voters? Yes. Is it going to be an issue more prominently depending on how other things play out? It’ll have its peaks. We just don’t know how consistent it’ll be.
Roubein: Biden would love to run on the Inflation Reduction Act and politically popular policies like allowing Medicare to negotiate drug prices. One of the problems of that is polls, including from KFF, has shown that the majority of voters don’t know about that. And some of these policies, the big ones, have not even gone into effect. CMS [Centers for Medicare & Medicaid Services] is going through the negotiation process, but that’s not going to hit people’s pocketbooks until after the election.
Kenen: The cliff for the ACA subsidies, which is in 2025, I mean I would imagine Democrats will be campaigning on, “We will extend the subsidies,” and again, in some places more than others, but that’s a time-sensitive big thing happening next year.
Rovner: But talk about an issue that people have no idea that’s coming. Well, meanwhile, for Trump, reproductive health isn’t the only issue where he’s doing a not-so-delicate dance. Apparently worried about Robert F. Kennedy Jr. stealing anti-vax [vaccine] votes from him, Trump is now calling RFK Jr. a fake anti-vaxxer. Except I’m old enough to remember when Trump bragged repeatedly about how fast his administration developed and brought the covid vaccine to market. That used to be one of his big selling points. Now he’s trying to be anti-vax, too?
Kenen: Not only did he brag about bringing it to the market. The way he used to talk about it, it was like he was there in his lab coat inventing it. Operation Warp Speed was a success. It got vaccines out in record time, way beyond what many people expected. Democrats gave him credit for that one policy in health care. He got a vaccine out and available in less than a year, and he got vaccinated and boasted about being vaccinated. He was open about it. Now we don’t know if he’s been boosted. He really backed off. As soon as somebody booed him, and it wasn’t a lot of boos, at one rally when he talked about vaccination and he got pushed back, that was the end.
Rovner: So, yeah, so I expect that to sort of continue on this election season, too.
Kenen: But we don’t expect RFK to flip.
Rovner: No, we do not. Right. Well, moving on to this weekend’s “Cyber Hacks,” a new feature, the fallout continues from the hack of Ascension [health care company]. That’s the Catholic hospital system with facilities in 19 states. In Michigan, patients have been unable to use hospital pharmacies and their doctors have been unable to send electronic prescriptions, so they’re having to write them out by hand. And in Indiana orders for tests and test results are being delayed by as much as a day for hospital patients. Not a great thing.
And just in time, or maybe a little late, the U.S. Department of Health and Human Services, through the newly created ARPA-H [Advanced Research Projects Agency for Health] that we have talked about, this week announced the launch of a new program to help hospitals make security patches and updates to their systems without taking them offline, which is obviously a major reason so many of these systems are so vulnerable to cyberhacking.
Of course, this announcement from HHS is just to solicit ideas for grants to help make that happen. So it’s going to be a while before we get any of these security changes. I’m wondering, how many systems are going to try to build a lot more redundancy into them? In the meantime, are we hearing anything about what they can do in the short term? It feels like the entire health care system is kind of a sitting duck for this group of cyberhackers who think they can get in easily and get ransom.
Kenen: There’s a reason they think that.
Rovner: They can.
Roubein: Thinking about hospitals and doctors using this manually, paper-based system and how that’s delaying getting your results and just there’s been these stories about patients. Like the anxiety that that’s understandably causing patients, and we’ll see sort of whether Congress can grapple with this, and there’s not really much legislation that’s going to move, so …
Kenen: But I was surprised that they were calling on ARPA-H. I mean, that’s supposed to be a biotech- curing-diseases thing, and none of the four of us are cybersecurity experts, and none of us really specialize in covering the electronic side of the digital side of health, but it just seems to me, I just thought that was an odd thing. First of all, some of these are just systems that haven’t been upgraded or individual clinicians who don’t upgrade or don’t do their double authorization. Some of it’s sort of cyberhygiene, and some of it’s obviously like the change thing. They’re really sophisticated criminals, but it’s not something that one would think you can’t get ahead of, right? They’re smart, good-guy technology people. It’s not like the bad guys are the only ones who understand technology. So why are the smart good guys not doing their job? And also, probably, health care systems have to have some kind of security checks on their own members to make sure they are following all the safety rules and some kind of consequences if you’re not, other than being embarrassed.
Rovner: I’ve just been sort of bemused by all of this, how both patients and providers complain loudly and frequently about the frustrations of some of these electronic record systems. And of course, in the places that they’re going down and they’ve had to go back to paper, people are like, “Please give us our electronic systems back.” So it doesn’t take long to get used to some of these things and be sorry when they’re gone, even if it’s only temporarily. It’s obviously been …
Kenen: But like what Rachel said, if you’re in the hospital, you’re sick, and do your clinicians need your lab results? Yes. I mean some of them are more important than others, and I would hope that hospitals are figuring out how to prioritize. But yeah, this is a crisis. If you’re in the hospital and they don’t know what’s wrong with you and they’re trying to figure out do you have X, Y, or Z, waiting until next week is not really a great idea.
Rovner: But it wasn’t that many years ago that their existence …
Kenen: Right, no, no, no.
Rovner: … did not involve …
Kenen: [inaudible 00:21:28].
Rovner: … electronic medical record.
Kenen: Right. Right.
Rovner: They knew how to get test results back and forth even if it was sending an intern to go fetch them. Finally, this week, we have some updates on some stories that we’ve talked about in earlier episodes. First, thanks in part to the excellent reporting of my colleague and sometime-pod-panelist Julie Appleby, the Senate Finance Committee Chairman Ron Wyden is demanding that HHS [U.S. Department of Health and Human Services] officials do more to rein in rogue insurance brokers who are reaping extra commissions by switching patients’ Affordable Care Act plans without their knowledge, often subjecting them to higher out-of-pocket costs and separating them from the providers that they’ve chosen. Sen. Wyden said he would introduce legislation to make such schemes a crime, but in the meantime he wants Biden officials to do more, given that they have received more than 90,000 complaints in the first quarter of 2024 alone about unauthorized switches and enrollments. Criminals go where the money is, right? You can either cyberhack or you can become a broker and switch people to ACA plans so you can get more commissions.
Kenen: I would think there could be a bipartisan, I mean it’s hard to get anything done in Congress. There’s no must-pass bills in the immediate future that are relevant. And the idea that a broker is secretly doing something that you don’t want them to do and that’s costing you money and making them money. I could see, those 90,000 people are from red and blue states and they vote, it’s going to affect constituents nationwide. Maybe they’ll do something. Maybe the industry can also… There is the National Association … I forgot the acronym, but there’s a broker’s organization, that there are probably things that they can also do to sanction. States can also do some things to brokers, but whether there’s a national solution or piecemeal, I don’t know, but it’s so outrageous that it’s not a right-left issue.
Rovner: Yes, one would think that there’ll be at least some kind of congressional action built into something …
Kenen: Something or other, right.
Rovner: … Congress that manages to do before the end of the year. Well, and in one of those seemingly rare cases where legislation actually does what it was intended to do, the White House this week announced that it has approved more than a million claims under the 2022 PACT Act, which made veterans injured as a result of exposure to burn pits and other toxic substances eligible for VA [Veterans Affairs] disability benefits. On the other hand, the VA is still working its way through another 3 million claims that have been submitted. I feel like even if it’s not very often, sometimes it’s worth noting that there are bipartisan things from Washington, D.C., that actually get passed and actually help the people that they’re supposed to help. It’s kind of sad that this is notable as an exception of something that happened and is working.
Roubein: In sort of the, I guess, Department of Unintended Side Effects here, my colleague Lisa Rein had a really interesting story out this morning that talked about the PACT Act, but basically that despite a federal law that prohibits charging veterans for help in applying for disability benefits, for-profit companies are making millions. She did a review of up to like a hundred unaccredited for-profit companies who have been charging veterans anywhere from like $5,000 to $20,000 for helping file disability claims because …
Rovner: That’s the theme of this week. Anyplace that there’s a lot of money in health care, there were people who will want to come in and take what’s not theirs. That’s where we will leave the news this week. Now we will play my interview with Shefali Luthra, then we’ll come back with our extra credits.
I am so pleased to welcome back to the podcast my former colleague and current “What The Health?” panelist Shefali Luthra. You haven’t heard from her in a while because she’s been working on her first book, called “Undue Burden,” that’s out this week. Shefali, great to see you.
Luthra: Thank you so much for having me Julie.
Rovner: So as the title suggests, “Undue Burden” is about the difficulties for both patients and providers in the wake of the overturn of Roe v. Wade. We talk so much about the politics of this issue, and so little about the real people who are affected. Why did you want to take this particular angle?
Luthra: To me, this is what makes this topic so important. Health care and abortion are really critical political issues. They sway elections. They are likely to be very consequential in this coming presidential election. But this matters to us as reporters and to us as people because of the life-or-death stakes and even beyond the life-or-death stakes, the stakes of how you choose to live your life and what it means to be pregnant and to be a parent. These are really difficult stories to tell because of the resources involved. And I wanted to write a book that just got at all of the different reasons why people pursue abortion and why they provide abortion and how that’s changed in the past two years. Because it felt to me like one of the few ways we could really understand just how seismic the implications of overturning Roe has been.
Rovner: And unlike those of us who talk to politicians all the time, you were really on the ground talking to patients and doctors, right?
Luthra: That was really, really important to the book. I spent a lot of time traveling the country, in clinics talking to people who were able to get abortions, who were unable to get abortions, and it was just really compelling for me to see how much access to care had the capacity to change their lives.
Rovner: So what kind of barriers then are we talking about that cropped up? And I guess it wasn’t even just the wake of the overturn of Roe. In Texas we had sort of a yearlong dry run.
Luthra: Exactly, and the book starts before Roe is overturned in Texas when the state enacted SB 8, the six-week abortion ban that effectively cut off access. And the first main character readers meet is this young girl named Tiffany, and she’s a teenager when she becomes pregnant, and she would love to get an abortion. But she is a minor. She lives very far from any abortion provider. She does not know how to self-manage an abortion. She does not know where to find pills. She has no connections into the health care system. She has no independent income. And she absolutely cannot travel anywhere for care. As a result, she has a child before she turns 18. And what this story highlights is that there are just so many barriers to getting an abortion. Many already existed: The incredible cost for procedure not covered by health insurance, the geographic distance, people already had to travel, the extra restrictions on minors.
But the overturning of Roe has amplified these, it is so expensive to get an abortion. It can be difficult to know you’re pregnant, especially if you are not trying to become pregnant. You have a very short time window. You may need to find childcare. You may need to find a car, get time off work, and bring all of these different forces together so that you are able to make a journey that can be days and pay for a trip that can cost thousands of dollars.
Rovner: One of the things that I think surprised me was that states that proclaimed themselves abortion “havens” actually did so little to help their clinics that predictably got swamped by out-of-state patients. Why do you think that was the case, and is it any better now?
Luthra: I think things have certainly changed. We have seen much more action in states, such as Illinois, where we see more people traveling there for care than anywhere else in the country. But it is worth going back to the summer that Roe was overturned. The governor promised to call a special session and put all these resources into making sure that Illinois could be a sanctuary. He never called that special session. And clinics felt like they were hanging out to dry, just waiting to get some support, and in the meanwhile, doing the absolute best they could.
One thing that I think this book really gets at is we are starting to see more efforts from these bluer states, the Illinois, the Californias, the New Yorks, and they talk a lot about wanting to be abortion havens, in part because it’s great politics if you’re a Democrat, but there’s only so much you can do. California has seen also quite a large increase in out-of-state patients. But I’ve spoken to so many people who just cannot conceivably go to California. They can barely go to Illinois. Making that journey when you are young, if you don’t have a lot of money, if you live in South Texas, if you live in Louisiana, it’s just not really feasible. And the places that are set up as these access points just can’t really fill in the gaps that they say they will.
Rovner: As you point out in the book, a lot of this was completely predictable. Was there something in your reporting that actually did surprise you?
Luthra: That’s a great question, and what did surprise me was in part something that we’ve begun to see borne out in the reporting, is there are very effective telemedicine strategies. We have begun to see physicians living in blue states, the New Yorks, Massachusetts, Californias, prescribing and mailing abortion pills to people in states with bans. This is pretty powerful. It has expanded access to a lot of people. What was really striking to me, though, even as I reported about the experiences of patients seeking care, is that while that has done so much to expand access in the face of abortion bans, it isn’t a solution that everyone can use. There were lots of people I met who did not want a medication abortion, who did not feel safe having pills mailed into their homes, or whose pregnancy complications and questions were just too complex to be solved by a virtual consult and then pills being mailed to them to take in the comfort of their house.
Rovner: Aren’t these difficulties exactly what the anti-abortion movement wanted? Didn’t they want clinics so swamped they couldn’t serve everybody who wanted to come, and abortion to be so difficult to get that women would end up carrying their pregnancies to term instead?
Luthra: Yes and no, I would argue. I think you are absolutely right that one of the primary goals of the anti-abortion movement was to make abortion unavailable, to make it harder to acquire, to have more people not get abortions and instead have children. But when I speak to folks in the anti-abortion movement, they are very troubled by how many people are traveling out of state to get care. They see those really long wait times in Kansas, in, until recently, Florida, in Illinois, in New Mexico, as a symptom of something that they need to address, which is that so many people are still finding a way to fight incredible odds to access abortion.
Rovner: Is there one thing that you hope people take away after they’re finished reading this?
Luthra: There are two things that I have spent a lot of time thinking about as I’ve reported this book. The first is just who gets abortions and under what circumstances. And so often in the national press, in national politics, we talk about these really extreme life-or-death cases. We talk about people who became septic and needed an abortion because their water broke early, or we talk about children who have been sexually assaulted and become pregnant. But we don’t talk about most people who get abortions; who are usually mothers, who are usually people of color, who are in their 20s and just know that they can’t be pregnant. I think those are really important stories to tell because they’re the true face of who is most affected by this, and it was important to me that this book include that.
The other thing that I have thought about so often in reporting this and writing this is abortion demands have an unequal impact. That is true if you are poor, if you are a person of color, if you live in a rural area, et cetera. You will in all likelihood see a greater effect. That said, the overturning of Roe v. Wade is so tremendous that it has affected people in every state. It affects you if you can get pregnant. It affects you if you want birth control. It affects you if you require reproductive health care in some form. This is just such a seismic change to our health care system that I really hope people who read this book understand that this is not a niche issue. This is something worthy of our collective attention and concern as journalists and as people.
Rovner: Shefali Luthra, thank you so much for this, and we will see you soon on the panel, right?
Luthra: Absolutely. Thank you, Julie. I’m so glad we got to do this.
Rovner: OK, we are back. It’s time for our extra-credit segment. That’s when we each recommend a story we read this week we think you should read, too. As always, don’t worry if you miss it. We will post the links on the podcast page at kffhealthnews.org and in our show notes on your phone or other mobile device. Joanne, why don’t you go first this week?
Kenen: This was a pair of articles, a long one and a shorter, related one. There’s an amazingly wonderful piece in ProPublica by Sharon Lerner, and it’s called “Toxic Gaslighting: How 3M Executives Convinced a Scientist the Forever Chemicals She Found in Human Blood Were Safe.” I’m going to come back and talk about it briefly in a second, but the related story was in The Guardian by Damian Carrington: “Microplastics Found in Every Human Testicle in Study.” Now, that was a small study, but there may be a link to the declining sperm count because of these forever chemicals.
The ProPublica story, it was a young woman scientist. She worked for 3M. They kept telling her her results was wrong, her machinery was dirty, over and over and over again until she questioned herself and her findings. She was supposed to be looking at the blood of 3M workers who were, it turned out, the company knew all this already and they were hiding it, and she compared the blood of the 3M workers to non-3M workers, and she found these plastic chemicals in everybody’s blood everywhere, and she was basically gaslit out of her job. She continued to work for 3M, but in a different capacity.
The article’s really scary about the impact for human health. It also has wonderfully interesting little nuggets throughout about how various 3M products were developed, some by accident. Something spilled on somebody’s sneaker and it didn’t stain it, and that’s how we got those sprays for our upholstery. Or somebody needed something to find the pages in their church hymnal, and that’s how we got Post-it notes. It’s a devastating but very readable, and it makes you angry.
Rovner: Yeah, I feel like there’s a lot more we’re going to have to say about forever chemicals going forward. Alice.
Ollstein: So I have a pretty depressing story from Stats. It’s called “How Doctors Are Pressuring Sickle Cell Patients Into Unwanted Sterilizations,” by Eric Boodman. And it is about people with sickle cell, and that is overwhelmingly black women, and they felt pressured to agree to be permanently sterilized when they were going to give birth because of the higher risks. And the doctors said, because we’re already doing a C-section and we’re already doing surgery on you, to not have to do an additional surgery with additional risks, they felt pressured to just sign that they could be sterilized right then and there and came to regret it later and really wanted more children. And so, this is an instance of people feeling coerced, and when people think about pro-choice or the choice debate about reproduction they mostly think about the right to an abortion. But I think that the right to have more children, if you want to, is the other side of that coin.
Rovner: It is. Rachel.
Roubein: My extra credit, it’s called “What Science Tells Us About Biden, Trump and Evaluating an Aging Brain,” by Joel Achenbach and Mark Johnson from The Washington Post. And basically, they kind of took a very science-based look at the 2024 election. They basically called it a crash course in gerontology because former President Donald Trump will be 78 years old. President Biden will be a couple weeks away from turning 82. And obviously that is getting a lot of attention on the campaign trail. They talked to medical and scientific experts who were essentially warning that news reports, political punditry about the candidates’ mental fitness, has essentially been marred by misinformation here about the aging process. One of the things they dived into was these gaffes or what the public sees as senior moments and what experts had told them is, that’s not necessarily a sign of dementia or predictive of cognitive decline. There need to be kind of further clinical evaluation for that. But there have been some calls for just how to kind of standardize and require a certain level of transparency for candidates in terms of disclosing their health information.
Rovner: Yes, which we’ve been talking about for a while, and will continue to. My extra credit this week is from our guest, Shefali Luthra, and her colleague at The 19th Chabeli Carrazana, and it’s called “What Happens to Clinics After a State Bans Abortion? They Fight To Survive.” And for all the talk about doctors and other staffers either moving out of or not moving into states with abortion bans, I think less has been written about entire enterprises that often provide far more than just abortion services having to shut down as well. We saw this in Texas in the mid-2010s, when a law that shut down many of the clinics there was struck down by the Supreme Court in 2016. But many of those clinics were unable to reopen. They just could not reassemble, basically, their leases and equipment and staff. The same could well happen in states that this November vote to reverse some of those bans. And it’s not just abortion, as we’ve discussed. When these clinics close, it often means less family planning, less STI [sexually transmitted infection] screening and other preventive services as well, so it’s definitely something to continue to watch.
Before we go this week, I want to note the passing of a health policy journalism giant with the death of Marshall Allen. Marshall, who worked tirelessly, first in Las Vegas and more recently at ProPublica, to expose some of the most unfair and infuriating parts of the U.S. health care system, was on the podcast in 2021 to talk about his book, “Never Pay the First Bill, and Other Ways to Fight the Health Care System and Win.” I will post a link to the interview in this week’s show notes. Condolences to Marshall’s friends and family.
OK, that is our show. As always, if you enjoy the podcast, you can subscribe wherever you get your podcast. We’d appreciate it if you left us a review. That helps other people find us too. Special thanks as always to our technical guru, Francis Ying, and our editor, Emmarie Huetteman. As always, you can email us your comments or questions. We’re at whatthehealth@kff.org, or you can still find me at X, @jrovner. Joanne, where are you?
Kenen: We’re at Threads @JoanneKenen.
Rovner: Alice.
Ollstein: Still on X @AliceOllstein.
Rovner: Rachel.
Roubein: On X, @rachel_roubein.
Rovner: We will be back in your feed next week. Until then, be healthy.
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