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Julie Rovner
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Julie Rovner is chief Washington correspondent and host of KHN’s 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.

This week, the eyes of the nation are on Texas, where a federal judge who formerly worked for a conservative Christian advocacy group is set to decide whether the abortion pill mifepristone can stay on the market. Mifepristone is half of a two-pill regimen that now accounts for more than half of the abortions in the United States.

Meanwhile, Novo Nordisk, another of the three large drug companies that dominate the market for diabetes treatments, has announced it will cut the price of many of its insulin products. Eli Lilly announced its cuts early this month. But the push for more affordable insulin from activists and members of Congress is not the only reason for the change: Because of quirks in the way the drug market works, cutting prices could actually save the companies money in the long run.

This week’s panelists are Julie Rovner of KHN, Jessie Hellmann of CQ Roll Call, Sarah Karlin-Smith of the Pink Sheet, and Alice Miranda Ollstein of Politico.

Panelists

Jessie Hellmann
CQ Roll Call

@jessiehellmann

Read Jessie's stories

Sarah Karlin-Smith
Pink Sheet

@SarahKarlin

Read Sarah's stories

Alice Miranda Ollstein
Politico

@AliceOllstein

Read Alice's stories

Among the takeaways from this week’s episode:

• The federal judge examining the decades-old approval of mifepristone could issue a decision at any time after a hearing largely behind closed doors, during which he appeared open to restricting access to the drug.
• Democratic governors seek to counter the chill of Republican states’ warnings to pharmacies about distributing mifepristone, and a separate lawsuit in Texas seeks to set a precedent for punishing people who aren’t medical providers for assisting someone in obtaining an abortion.
• In pandemic news, Congress is moving forward with legislation that would force the Biden administration to declassify intelligence related to the origins of covid-19, while the editor of Cochrane Reviews posted a clarification of its recently published masking study, noting it is “inaccurate” to say it found that masks are not effective.
• Top federal health officials sent an unusual letter to Florida’s surgeon general, warning that his embrace of vaccination misinformation is harmful, even deadly, to Americans. While covid vaccines come with some risk of negative health effects, contracting covid carries a higher risk of poor outcomes.
• Novo Nordisk’s announcement that it will cut insulin prices puts pressure on Sanofi, the remaining insulin maker that has yet to adjust its prices.
• The Veterans Health Administration will cover Leqembi, a new Alzheimer’s drug. The decision comes as Medicare considers whether it will also cover the drug. Experts caution that new drugs shaking up the weight-loss market could prove costly for Medicare.
• Washington is eyeing changes to federal rules that would affect the practice of medicine. One change would force health plans to speed up “prior authorization” decisions by health insurers and increase transparency around denials, which supporters say would help patients better access needed care. Another proposal would ban noncompete clauses in contracts, including in health care. Arguments for and against the change both cite the issue of physician burnout — though they disagree on whether the ban would make the problem better or worse.

Plus, for “extra credit,” the panelists suggest health policy stories they read this week that they think you should read, too:

Julie Rovner: “Tradeoffs” podcast’s “The Conservative Clash Over Abortion Bans,” by Alice Miranda Ollstein and Dan Gorenstein

Alice Miranda Ollstein: Politico’s “Sharpton Dodges the Spotlight on Latest Push to Ban Menthol Cigarettes,” by Julia Marsh

Sarah Karlin-Smith: Allure’s “With New Legislation, You Can Expect More Recalls to Hit the Beauty Industry,” by Elizabeth Siegel and Deanna Pai

Jessie Hellmann: The New York Times’ “Opioid Settlement Hinders Patients’ Access to a Wide Array of Drugs,” by Christina Jewett and Ellen Gabler

Also mentioned in this week’s podcast:

• CQ Roll Call’s “Noncompete Rule Puts Doctors, Hospitals at Odds,” by Jessie Hellmann
• Cochrane’s “Statement on ‘Physical Interventions to Interrupt or Reduce the Spread of Respiratory Viruses’ Review,” by Karla Soares-Weiser, editor-in-chief
• The “Osterholm Update” podcast’s “Truth in the Midst of Political Theater,” by Michael Osterholm and Chris Dall
• Stat’s “Denied by AI: How Medicare Advantage Plans Use Algorithms to Cut Off Care for Seniors in Need,” by Casey Ross and Bob Herman

click to open the transcript

Transcript: Judging the Abortion Pill

KHN’s ‘What the Health?’Episode Title: Judging the Abortion PillEpisode Number: 289Published: March 16, 2023

[Editor’s note: This transcript, generated using transcription software, has been edited for style and clarity.]

Julie Rovner: Hello and welcome back to KHN’s “What the Health?” I’m Julie Rovner, chief Washington correspondent at Kaiser 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 16, at 10 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 Alice Miranda Ollstein of Politico.

Alice Miranda Ollstein: Good morning.

Rovner: Jessie Hellmann of CQ Roll Call.

Jessie Hellmann: Hello.

Rovner: And Sarah Karlin-Smith the Pink Sheet.

Sarah Karlin-Smith: Hi, Julie.

Rovner: So, we have more than enough news. Let us get right to it. We will start this week with abortion. And, of course, that means we will start in Texas. On Wednesday, federal District Judge Matthew Kacsmaryk held a four-hour hearing in Amarillo on a lawsuit charging that the FDA wrongly approved the abortion pill mifepristone back in the year 2000 and that he, Judge Kacsmaryk, should substitute his legal judgment for the FDA’s medical judgment and order the FDA to take it off the market. What was said at the hearing? Well, we don’t really know because only 18 reporters were allowed in. They weren’t allowed to take any electronic devices in with them. And there’s no audio and no transcript. But, Alice, I know you’ve been trying to follow this from afar, like I have. What do we know about what happened and when might we expect a ruling?

Ollstein: So we can expect a ruling literally at any time. Hopefully not while we are taping right now. The judge did say that he would rule as soon as possible, although with four hours of oral arguments to sift through, that could take a bit of time. I always bank on a Friday evening news dump, because that’s when it tends to happen.

Rovner: I keep reminding people that’s when the ACA [Affordable Care Act] ruling came down.

Ollstein: Exactly.

Rovner: Came down on the Friday before Christmas at 7:30 at night.

Ollstein: Exactly. Thankfully, some great reporters were able to make it and provided us with some updates about this. It was really fascinating. The judge definitely, as we anticipated from his record of working for conservative, explicitly anti-abortion organizations before he was confirmed to this judgeship, he did seem open to taking the steps that the challengers were asking for in restricting access to this medication. I think the question really is whether he is going to go for a full ban or — what a lot of the questions during oral arguments centered around — was around rolling back more recent FDA rules that allowed people to get the pills by telemedicine, by mail delivery. And so there is some question as to … if going all the way back to a 20-year-old FDA approval and overturning it is a bridge too far. Maybe these more recent agency rules are sort of more justifiable in having the court go after them. So, we’re all just on high, high alert, refreshing pages over here.

Rovner: Yeah. Once again, remind us of why this could have national impact, this one judge in Amarillo, Texas?

Ollstein: Yeah. So these anti-abortion medical groups incorporated in Amarillo specifically so that they could get in front of this judge who has a record of being an abortion opponent. And so this is an example of “judge shopping,” which is an increasingly common practice. So this could have national implications because it’s going after the federal regulations around these pills. Really, this will mainly impact blue and purple states, where the pills are still legal and still used today. A bunch of states have already banned them and put restrictions on all forms of abortion or just the pills. And so this really will squeeze states where their use is protected.

Rovner: And I think abortion rights organizations are freaked out because everybody thinks, well, it’s just one judge. You’ll go up to the next level and you’ll get it, you know, you’ll get it stayed. Except in this case, the next level is the 5th Circuit Court of Appeals, which is just as conservative. And we seem to do a lot of anti-abortion rulings. And then if you go above the 5th Circuit Court of Appeals, you’re at the Supreme Court, which just overturned Roe v. Wade. So if this judge rules for the plaintiffs in this case, there’s not a lot of hope, I guess, from the abortion rights side that anything could be overturned, right?

Ollstein: It also gets into really interesting stuff about what is on the labels of these different drugs. Pro-abortion rights and other medical groups have been pushing the FDA to officially add miscarriage management to the label of mifepristone, so that if it is banned in this case, people can still access it for that. That has not happened. It is used for miscarriage management off-label. That is the real risk of people losing access; they’re not just for abortion. Again, there are two pills that have been used for abortions together for the past 20 years, and the other one, misoprostol, there could be restrictions put on it through this case, but because it officially is labeled and marketed for non-abortion purposes, it’s harder to ban.

Rovner: It’s a stomach ulcer drug.

Ollstein: Exactly.

Rovner: All right. Well, assuming that the pill is not pulled from the market, the squabble over whether pharmacies will stock it continues. As we discussed at some length last week, Walgreens caved to threats of prosecution from Republican attorneys general and waffled on whether they’ll sell the pills, even in some states where abortion remains legal. Now, a group of Democratic governors are not so subtly urging seven other national pharmacy chains to pay no attention to those Republican attorneys general threats. Have we heard from any of the other pharmacy chains about whether they will or won’t sell mifepristone in the wake of Walgreens getting raked over the coals by both sides?

Ollstein: Total radio silence. And I think that the backlash to Walgreens is the reason for that. I think they saw what happened. They saw Walgreens getting really slammed from both sides. You know, you have anti-abortion folks slamming Walgreens for saying they’ll sell the pills anywhere in the country. And you have pro-abortion rights people mad at Walgreens for saying that they won’t sell them in some places. So it’s kind of a no-win situation. And the other pharmacies, I’m sure, are looking at that and saying, why would we stick our necks out getting certification from the drugmakers to sell the pills in the first place? It’s going to still take a while and who knows what could happen by the? And so why would we prematurely come out and say what we’re doing when we have no idea?

Rovner: Yeah, and I remind people for the millionth time that it’s not that Walgreens was going to stop selling them. None of the pharmacies have started selling them yet because it was only in January that FDA said for the first time that they could, which, as Alice points out, may be one of the things that this judge in Texas rolls back, if he doesn’t try to roll back the entire approval of the pill. One more on abortion: Also in Texas, the ex-husband of a woman who got an abortion last summer is suing three of her friends for, quote, “wrongful death” for allegedly helping her obtain abortion medication. His evidence largely comes from screenshots from a group chat, raising more calls for better privacy protections for electronic information. Meanwhile, it’s not even totally clear that the abortion was illegal last July, because there was some legal back and forth about whether Texas’ trigger law abortion ban was actually triggered when Roe was overturned the month before. If the ex-husband wins this suit, though, I’m wondering how much of a reaction there is going to be to nonmedical providers being found liable for damages. He’s suing them for $1,000,000. We keep hearing about this, but to my knowledge, it hasn’t actually happened yet, that nobody’s been convicted, I don’t think anywhere of, you know, abetting someone having an abortion, particularly a nonmedical provider.

Karlin-Smith: And then I mean, it seems like, again, it’s designed to have these chilling effects on people and get people to think twice before they do things they otherwise would. And I know this story raises the issue of whether there’ll be more pressure on tech companies to encrypt all data and messages, which would be interesting to see, you know, how companies react going forward. But we already know that …

Rovner: How the tech companies react.

Karlin-Smith: Right. I think we already have seen that doctors who take oaths and hold certain ethical standards to protect people’s health and life have felt like they’ve been put in very challenging situations between the law and what the best care they normally provide for their patients with abortion. So if doctors feel this way, if regular people feel like they’re also going to be on the hook for something, I would be more concerned, in the sense that regular people would feel even less protected. The medical providers, which tend to work for companies that have, you know, lawyers to help them guide them through their decision-making. And, you know, they have various types of insurance as well to help them through this stuff. So it does seem like it could have a big chilling effect if this ex-husband wins in any way.

Rovner: Yes. I mean, the point here is to just further isolate women who are pregnant and don’t want to be, for whatever reason, from reaching out, not just to medical providers, but to their friends, or at least, I guess, reaching out in some way other than in person. We will see how this one plays out. All right. Well, let’s talk about covid, which we haven’t done for a while. First, the reignited fight over the lab leak versus wet-market-origin theory. I have studiously tried to steer away from this because the one thing just about every expert agrees on is that we will probably never know for sure where covid-19 came from. And to quote Michael Osterholm, the esteemed epidemiologist at the University of Minnesota, we have to be prepared for the future for both events: another spillover event and for the lab leak. Still, the House moved forward with a bill this week, already passed by the Senate the week before, to require the declassification of some intelligence related to covid’s origins. Jessie, you covered it. What would the bill do? And is … do we think the president is going to sign this?

Hellmann: So the president hasn’t said yet if he will veto it, but if he does, it would be his first time vetoing something, if I’m not mistaken. So it could be a bad look if he does decide to make that decision. It passed the House 419 to 0. There were 16 non-voting members. It passed the Senate unanimously a few weeks ago, so I can’t imagine that he would veto it. And, basically, what the bill does, it would require the director of national intelligence to declassify information on covid-19 origins within 90 days and send the declassified report to Congress. It’s not clear how much that will illuminate. There’s so many questions about this. The intelligence community is still pretty divided on this issue, despite the Department of Energy, intelligence community saying a few weeks ago that they think it could have arose from a lab leak, though they said that with low confidence. So, it’s not really clear what information we’ll get from this.

Rovner: And this is just basically Congress saying, well, we don’t know, but we want to know what you know.

Hellmann: Yeah.

Rovner: Is that basically where we are?

Hellmann: Exactly. And there’s also, like, a lot of hearings going on right now in Congress where they’re starting to bring people and talk about this. And I think last week, or was it this week, a select committee had a closed meeting with the Department of Energy about their report. So there’s definitely a lot of interest in this.

Rovner: We will definitely see how this plays out. Well, another thing, we are still fighting about, three years in, the efficacy of masks. A couple of weeks ago, the gold-standard scientific organization, the Cochrane Review[s], put out a meta-analysis of mask studies conducted over the years that concluded there was not sufficient evidence to demonstrate that masks help stop the spread of respiratory illnesses. Well, as so often happens with conditional findings like those, mask opponents immediately trumpeted that the study shows that masks don’t work, which is not what the study showed. Now, in a fairly rare step, the editor of the Cochrane Review herself has posted a clarification of the summary of the study, which we will post in the show notes, but I will quote from it: “Commentators have claimed that a recently updated Cochrane Review shows that, quote, ‘Masks don’t work,’ quote, which is an inaccurate and misleading interpretation.” So what’s that line again? A lie travels around the world before the truth can even get out of bed. Is that where we are with masks now? We’ve gotten to the point where there’s this huge belief that masks don’t work. And the fact is, like the origin of covid, we don’t actually know.

Karlin-Smith: I think that the “don’t actually know” is maybe not the best way to put it. There are things we do know, and that’s some of what, you know, has tried to be clarified in the past week or so from this, although there is that ultimate question of: Is it too little, too late, and are people already sort of set in their views? And that’s the sort of thing for different types of researchers to figure out in terms of how you convince people of various evidence and stuff. But, you know, I think one line that stuck out to me is, in The New York Times piece, trying to dissect the nuance of this review. And it is really nuanced and you really have to appreciate those nuances. You know, they say is what we learn from the Cochrane Review is that particularly before the pandemic, distributing masks didn’t lead people to wear them. And thus, if a mask is going to work, but you don’t wear it, it’s not going to work. And you know, people who have been sort of anti-mask to some degree have said, well, but that does show masks don’t work, because if we can’t get people to wear masks, what does it matter? Of course, for people that want to wear a mask or, you know, are comfortable wearing a mask, there’s also plenty of evidence that shows well-fitting, quality masks will block covid. So you shouldn’t think on an individual level, “Let me throw away my N95. It’s not doing me any good.” It certainly is doing you good. And we have, you know, laboratory research and other research to prove that. So, you know, The New York Times did a really good job of dissecting what was really studied, how much was studied, pre-covid, post-covid, what they looked at, and to try and help people understand where we’re at, which is definitely, again, that there can be benefits to wearing masks. There are differences in population benefits versus individual benefits. And when you think about the population benefits, too, sometimes I think you also have to think about even small, subtle benefits on a population level can make a big difference. So even if mask-wearing isn’t the be-all and end-all some people maybe want you to think about, but it helps lower transmission and lowers cases on a population level, you know, that can translate to hundreds of thousands or even millions less cases, which can then lead, you know, to whatever corresponding number of deaths. So I think it’s also thinking about that, you know, something doesn’t have to be 100% effective in stopping transmission to be really valuable on a societal level.

Rovner: They could have summarized it as “Masks don’t work if people don’t wear them, and it’s hard to get people to wear them.” That would have been accurate. Right?

Karlin-Smith: But the other question is: How do we figure out how to get people to wear them if they do work?

Rovner: Well, but that’s not what this study was about.

Karlin-Smith: Right.

Ollstein: I found this whole reaction really depressing. And it’s been huge on Capitol Hill. It’s been coming up at all of these hearings with Republican members citing this and flatly declaring that it shows that masks don’t work, using it to go after officials like CDC Director [Rochelle] Walensky and excoriate her for recommending masks. And it just feels like we’ve learned nothing. Like Sarah was saying, we have not learned the difference between individual and population-level benefits. Everything is so black and white. Either something is completely effective or completely ineffective. There’s no nuance around reducing risk, and everyone keeps talking about how the next pandemic is inevitable. And it just feels like we absolutely have not learned anything from this one.

Rovner: Yeah, if you’d asked me three years ago where we would be in three years, this is not the place I would have predicted. Speaking of covid misinformation, this week the directors of the Food and Drug Administration and the Centers for Disease Control and Prevention took the rare step of writing a joint letter to Florida Surgeon General Joseph Ladapo — I assume that’s how he pronounces his name — warning that his claims that the covid vaccine is causing an upswing in adverse events are, quote, “incorrect, misleading and could be harmful to the American public.” Sarah, I’ve never seen a joint letter from the FDA and the CDC, certainly not to a state official. I mean, they must have been very unhappy about this.

Karlin-Smith: Yeah, I think it was a unique step. But also, Robert Califf at the FDA has made going after what he calls, you know, scientific misinformation, a key part of his commissionership. He often makes the claim that he feels like misinformation is what is killing so many Americans. So it wasn’t surprising in the sense that he felt the need to publicly respond in this way, particularly when you have an individual of such high stature in the state making claims that he feels are potentially dangerous to people. And a lot of what the Florida surgeon general said, again, has a little nugget of truth, but has largely been debunked in the way he’s framing it. So, yes, we do know there is some risk of these myocarditis, these negative heart effects from these covid mRNA vaccines. But we also know that getting covid actually poses a higher risk of these heart events. So it’s a trade-off that most people argue you would prefer to go with the vaccine than that. And so, the fact that, you know, you have such a high-level health official in a state perpetuating anti-vaccine sentiments, I think is why you see Califf and Walensky really feeling like they had to respond, though I’m a little bit perplexed as to why they decided to do it at this particular moment. But I think it’s because he actually addressed them first with a letter. But, you know, this surgeon general has been doing this for a while now.

Rovner: He’s been the surgeon general for a while, and he’s been saying things outside the mainstream, shall we say, for a while. Well, I want to turn to drug prices because there’s a lot of news there, too. Another one of the big three diabetes drugmakers, Novo Nordisk, has followed Eli Lilly’s lead in announcing it will slash the cost of many of its insulin products by up to 75%. First question, how much pressure will this put on Sanofi, the last of the drug companies that dominate the diabetes drug market? Are they almost inevitably going to follow?

Karlin-Smith: I think most people think it is inevitable, although maybe not for the reasons we’re all thinking. Some of it is just that peer pressure. But a big thing that sort of comes out in this: Sean Dickson, to give him credit, at West Health was sort of the first person I saw point this out. There’s changes in the law related to Medicaid rebates and what these companies will essentially, you know, the discounts they have to give Medicaid coming up, that when you raise your prices faster than inflation, because these insulin products have had their prices raised so much over the years, they were going to have to start owing the government money soon for their drugs instead of the government reimbursing them. So that’s seen as really probably one of the key reasons why these changes are happening when they’re happening, which is not to, like, take any credit away from all the advocates who have pushed for lower insulin prices over the years. Certainly, this law and regulation that was passed was designed, in fact, to motivate companies to do this. So, you know, there’s a cynical way of looking at it, and there’s another way of working at it. But, you know, I do think most people expect Sanofi to follow through, particularly if they think it’s going to impact their formulary placement, in terms of how they compete with these products. But then also just, you know, from a PR perspective, it’s not going to look good for them to be that last holdout.

Rovner: But this sort of leads to my next question. I haven’t seen anybody mention this yet, but I can’t help but think that particularly Lilly and Novo Nordisk are happy to cut the prices on insulin and get lots of good press, as you point out, because both of them are sitting on giant blockbuster drugs to treat obesity. Novo already has FDA approval for Wegovy, which is the same drug as its diabetes drug Ozempic, just in a larger dose. While Lilly already has the diabetes drug Mounjaro, whose clinical trials for obesity have shown it may be even more effective than Wegovy in helping people lose weight. Am I missing something here, or are these companies about to make a killing on other drugs?

Karlin-Smith: No, I mean, that’s one point. And I think, you know, Novo Nordisk is more reliant on insulin and diabetes products in general than Eli Lilly and Sanofi, which have broader profiles. But one thing to note is most of the insulin drugs that are getting list price cuts are older insulin. So, you know, Novo Nordisk notably did not cut the price of one of their newer insulins … in their announcement this week. So again, you have to look at which particular products they’re cutting and why. But there’s big concern about how the use of some of these diabetes medicines to treat obesity will impact budgets because such a large percentage of the U.S. population is overweight.

Rovner: You’re just getting to my next question.

Karlin-Smith: That’s what … I assumed you were thinking of this Medicare issue. Right now Medicare does not cover drugs for weight loss, but the thought process is, if they change that, because these drugs are much more effective than prior weight loss drugs have been, you know how will Medicare pay for these? So that’s another big drug pricing debate coming down the pike.

Rovner: I was just going to say, I mean, this is the thing that I’ve been thinking about, you know, and I guess the complication with Medicare … there’s a piece in the New England Journal of Medicine this week by a bunch of drug price researchers that said, well, maybe the cost-benefit for Medicare wouldn’t be quite as good as it would be for the younger population, because obesity is not such a factor for shortening your life if you’re over 65 than if you’re under 65. But as others point out, it’s unlikely that private insurers are going to start covering this medication if Medicare doesn’t. So you’ve got this sort of place where you’ve got these very promising drugs that are currently very expensive, many in the neighborhood of $1,300 a month, which is not what most people can afford, if insurance isn’t covering it. But the promise of working … and you’ve got all these rich people buying it from heaven-knows-what doctor. So there is actually a shortage. But this is expensive enough that if they can’t push the price down, it has the potential to really impact the entire cost of the health care system. Right?

Karlin-Smith: Right. I’ve seen people writing about this the way we were talking about the Alzheimer’s drugs if Medicare was decided to cover it for all patients who qualify for Alzheimer’s, some of the drugs that came out, how they would essentially have to raise premiums and the implications there. They remind me also of, a number of years ago now, when some new cholesterol-lowering medicines came out that were really pricey. And what would happen to Medicare if they got prescribed and used widely? That, of course, didn’t happen. In part, perhaps, because payers curtail these to some degree. This is going to become a really interesting public discussion because the costs issue, but it’s also sort of about how we think about obesity and weight loss. And for a long time, there’s been sort of a stigma attached to weight loss and weight loss products and people not thinking about it as a medical condition, something where you really need to try other things before you get a medicine or get a medical procedure. It’s sort of a personal failure, a cosmetic issue, issues of self-control … and the fact that these drugs are much more successful than previous weight loss medicines, which tended to not help people lose very much weight and had a lot more side effects, some of them were fairly dangerous.

Rovner: And got pulled off the market.

Karlin-Smith: Right.

Ollstein: For killing people.

Karlin-Smith: You’re going to confront a lot of issues head-on in figuring out how to deal with this, because it’s not just about price. It’s sort of thinking about what we consider a disease and what we’re willing to treat as a medical condition.

Rovner: Yeah, I think this is going to be a really big debate going forward. Well, you mentioned Alzheimer’s. And speaking of Alzheimer’s, the Veterans [Health] Administration has announced that it will offer patients with Alzheimer’s disease, that newest Alzheimer’s drug, Leqembi, is that how you pronounce it? It received accelerated approval from the FDA in January. That means more evidence needs to be presented to assure its safety and efficacy. Sarah, is this drug really better/safer than Aduhelm, which it’s a chemical cousin of, right? And that’s the one that we had all the fighting over last year. So what do we think Medicare is going to do with this drug?

Karlin-Smith: So we do have some evidence that this drug does seem to be an improvement over Aduhelm, even though Leqembi only got an accelerated approval so far from the FDA. FDA is already evaluating the drug for full approval because in that interim between when they filed the accelerated approval, they actually pretty much wrapped up a Phase 3 clinical trial that looked at outcomes and did show some benefit on cognition and so forth. There’s certainly a debate out there as to how meaningful that benefit was, but they have shown a hard clinical benefit in trials, not just changed a laboratory marker that is predictive of Alzheimer’s. So that is significant for the company. But it’s just that FDA and then I think CMS hasn’t really considered that further data yet. And so I think there is a good chance that if FDA grants the drug full approval, which I think is pretty likely, will reconsider it, and they maybe were just sort of buying them some time because, again, it is going to be a bit of a challenge to figure out how to operationalize this. The VA, if you compare to Medicare, I was looking yesterday, you know, the VA probably has a few hundred thousand people that might qualify for this drug versus Medicare potentially has upwards of 6 million or so forth. So the different budget process and the VA also has more ability to negotiate drug prices with the company than Medicare does right now for this particular product.

Rovner: So very first-world problems. We finally have drugs to treat things that we’ve been trying to treat effectively for a long time, except that we can’t afford them. So we’re going to … I imagine this debate is going to also continue. Well, finally this week, I wanted to talk briefly about the practice of medicine and the role of the federal government, even though that’s sort of what we’ve been talking about this entire time. Jessie, you wrote about the Biden administration’s rules barring noncompete clauses in employment this week. Obviously, this is something that transcends health care. Apparently, even Starbucks doesn’t want its trained baristas going to work for local competitors. But how does this affect health care?

Hellmann: Yeah, so from what I’ve heard, noncompetes are really rampant in the health care. Especially between physicians and group practices in hospitals. So I’ve seen a lot of doctors submitting comments to the FTC telling them, and some of these is begging them to finalize this rule. There have been … the American Academy of Family Physicians has come out really strongly in favor of the rule. Basically, the argument is that it contributes to burnout, when doctors can’t leave jobs they’re unhappy in. And it also contributes to workforce shortages. If you’re in a noncompete agreement saying that you can’t work at a competitor within a 10- or 20-mile radius and you’re really unhappy in your job, but you might feel compelled to just go work somewhere else. On the other side, you have the American Hospital Association coming out really forcefully against this rule, which is not a good sign and, obviously, very powerful in Washington. And they’re kind of using the covid pandemic as the impetus to try to block this, arguing that providers are really burned out right now. People are leaving the workforce. We really can’t afford to lose people at this time to competitors, and this will make it harder for us to retain and recruit workers. Both sides are making the same arguments in different ways.

Rovner: We’ll wait on these rules. Well, the other big intra-health care dispute that federal officials are being asked to weigh in on is prior authorization. That’s when insurers make it cumbersome for patients to get care their doctors want them to have. The idea is to prevent doctors from providing unnecessary or unnecessarily expensive care. But doctors say it just throws up barriers that make it harder even to get fairly typical care and puts patients at risk by delaying their treatment. I honestly thought this got taken care of in the Affordable Care Act, which incorporated the provisions of the patients’ bill of rights that Congress had been arguing about for the entire decade leading up to the ACA. But now the Biden administration has proposed rules that would require insurers to at least respond faster to prior authorization requests, although that wouldn’t start until 2026. This is actually one of the American Medical Association’s top issues. Is this just another example of people who are not doctors trying to practice medicine, i.e., the insurance companies, and does the federal government really have a role in all of this?

Karlin-Smith: I think this is a tough issue because usually the insurance companies do have doctors that are trying to make these decisions. What you see are doctors actually in medical practice, not an insurance company, complaining about as they’re often not the peers that they say they are. So, you know, you might have a cardiologist making a decision regarding a prior authorization that relates to something in the orthopedic field. So there’s questions about whether the people that really have enough knowledge are making the calls.

Rovner: Or, God forbid, they have nurses making these calls, too.

Karlin-Smith: But it’s one of these issues that’s really tough because there is a sort of in some cases, I think, a need and a reason to have prior authorization. And it can be useful because not all doctors are willing to, you know, maybe try the cheapest alternative for patients when one does exist. There are some, you know, to use the term, sort of, “quacks” out there that sometimes recommend things that the medical establishment overall would agree you shouldn’t be using on patients. But it’s just that the way this is, like, in the real world, it’s sort of gotten out of control, I guess, in some ways. The best way … where legitimate medical care is being denied, patients are going through prior authorization for refills of prescription drugs they clearly have benefited from and have been on for years. So it’s a tricky situation because there is certainly, for the government, an economic reason to have some degree of prior authorization. It’s just figuring out how to get the good out of it, where it actually can benefit and help, even both protect patients financially and medically without hurting patients, and particularly patients that don’t understand how to navigate the system and push back against bad decisions on prior auth.

Hellmann: There is also a really interesting story in Stat this week about the role of artificial intelligence and algorithms in making some of these decisions. So I do have questions about that. It does seem like I have been hearing more and more from doctors lately about how burdensome prior auth has been. I did a story a few months ago about prior authorization requirements for opioid treatment programs, and providers are saying it takes a long time to get approval. Sometimes you get denials for seemingly no reason, like people who need opioid treatment. Some of these people are really vulnerable, and once you decide you need care, you kind of want to get them at that moment. And they might not want to go through an appeals process. And that’s something that the administration has acknowledged is an issue, too. They say that they’re going to look at it.

Rovner: I remember when most of the health beat was actually refereeing these disputes between pieces of the medical establishment, so … there are other things that the administration is busy with in the health care realm. Well, that is the news for this week. Now it is time for our extra-credit segment — that’s where 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 khn.org and in our show notes on your phone or other mobile device. Sarah, why don’t you go first this week?

Karlin-Smith: I took a look at a story in Allure magazine: “With New Legislation, You Can Expect More Recalls to Hit the Beauty Industry.” And it’s a good explainer on modernizations to FDA’s regulations of cosmetics that passed in the end of the year in Congress. It’s the first overhaul since World War II. They say it gives the FDA some pretty big new authorities, like they can mandate the recall of a beauty product if it’s contaminated. Before they basically just had to beg companies to voluntarily do that, which in many cases companies don’t want products that might harm people to be on the market. But sometimes for whatever reason, they might not move as you want. And so it’s important for FDA to have that authority. You know, it also will do things like disclose common allergens to protect people, gives FDA a lot of new funding to help implement this. You know, I think it’s a pretty big consumer bill and it was kind of like an interesting thing to look at a different part of health policy we don’t often talk about. One thing that the story brings up that’ll be interesting to see and I know has been sort of a tension with leading up to whether this law would ever get passed, was how small companies will be able to handle this, and will it put basically small beauty out of business over big companies that know how to handle FDA and its regulations? So we’ll look to see what happens to your smaller cosmetic brands moving forward.

Rovner: Indeed. Jessie.

Hellmann: My extra credit is a story from The New York Times called “Opioid Settlement Hinders Patients’ Access to a Wide Array of Drugs.” And this is an angle I hadn’t really thought about: That $21 billion opioid settlement came with an agreement that distributors place stricter limits on drug suppliers to individual pharmacies and scrutinized their dispensing activity. But it doesn’t just apply to opioids. It applies to all controlled substances. So we’re seeing medications like Xanax and Adderall get caught up in this. And pharmacies are saying, like, it’s making it hard for them to fill prescriptions for patients and some of whom have had them for a really long time. And I don’t know, like, if anyone else has heard about the Adderall shortage — I don’t know if you would classify this as a shortage — but it’s an angle that I hadn’t really thought of. Like, it might not just be supply-chain issues.

Rovner: Yeah, I’ve heard about the Adderall shortage. I mean, I think there’s been a lot of coverage of that. So, yeah, I thought that was a really interesting story, too. Alice.

Ollstein: Yes. I chose a story by my colleagues up in New York, my colleague Julia Marsh, which is about the debate in New York over a flavored-cigarette ban and how it is dividing the civil rights community. And so, you have some civil rights leaders saying that we should ban menthol cigarettes because they have caused a lot of health harms to the Black community. They have long been marketed in ways that target the Black community. They’re in some ways more addictive than non-flavored tobacco. So they’re in support of this ban. And then you have Al Sharpton and some other civil rights leaders on the other side warning that such a ban and the enforcement of such a ban will lead to more police interaction with the Black community, more targeting, and potentially more deaths, which is what we’ve seen in the past. And so a fascinating piece about some …

Rovner: Deaths from law enforcement. Not from cigarettes.

Ollstein: Exactly. Well, yes, it’s kind of “damned if you do, damned if you don’t” on this issue. But a fascinating look at this and what could be a preview as the debates around this at the national level ramp up. So we’ve already seen this happen in California and some other states. Now, the debate is really hot in New York, but it could indicate some of the arguments we might hear if it really moves forward at the national level.

Rovner: Well, my extra credit this week is the latest episode of our competitor podcast “Tradeoffs,” which you really should also listen to regularly, by the way. It’s called “The Conservative Clash Over Abortion Bans,” and it’s actually by Alice here. And it’s a really close look at those exceptions to abortion bans, like for life or health. That’s something that we’ve talked about quite a bit here, except this looks at it from the viewpoint of how it’s dividing the anti-abortion community, which is really interesting. So, super helpful. Everybody listen to it. Thank you, Alice. OK. That is our show for this week. 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 ever-patient producer, Francis Ying. As always, you can email us your comments or questions. We’re at whatthehealth — all one word — @kff.org. Or you can tweet me. I’m @jrovner. Alice?

Ollstein: @AliceOllstein

Rovner: Sarah?

Karlin-Smith: @SarahKarlin

Rovner: Jessie.

Hellmann: @jessiehellmann

Rovner: We will be back in your feed next week. Until then, be healthy.

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Julie Rovner is chief Washington correspondent and host of KHN’s 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.

Health care was a recurring theme throughout President Joe Biden’s 2023 State of the Union address on Capitol Hill this week. He took a victory lap on recent accomplishments like capping prescription drug costs for seniors on Medicare. He urged Congress to do more, including making permanent the boosted insurance premium subsidies added to the Affordable Care Act during the pandemic. And he sparred with Republicans in the audience — who jeered and called him a liar — over GOP proposals that would cut Medicare and Social Security.

Meanwhile, abortion rights advocates and opponents are anxiously awaiting a federal court decision out of Texas that could result in a nationwide ban on mifepristone, one of two drugs used in medication abortion.

This week’s panelists are Julie Rovner of KHN, Alice Miranda Ollstein of Politico, Rachel Cohrs of Stat, and Sarah Karlin-Smith of the Pink Sheet.

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Alice Miranda Ollstein
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Among the takeaways from this week’s episode:

• President Joe Biden’s State of the Union address emphasized recent victories against high health care costs, like Medicare coverage caps on insulin and out-of-pocket caps on prescription drug spending. Biden’s lively, informal exchange with lawmakers over potential cuts to Medicare and Social Security seemed to steal the show, though the political fight over cutting costs in those entitlement programs is rooted in a key question: What constitutes a “cut”?
• Biden’s calls for bipartisanship to extend health programs like pandemic-era subsidies for Affordable Care Act health plans are expected to clash with conservative demands to slash federal government spending. And last year’s Senate fights demonstrate that sometimes the opposition comes from within the Democratic Party.
• While some abortion advocates praised Biden for vowing to veto a federal abortion ban, others felt he did not talk enough about the looming challenges to abortion access in the courts. A decision is expected soon in a Texas court case challenging the future use of mifepristone. The Trump-appointed judge’s decision could ban the drug nationwide, meaning it would be barred even in states where abortion continues to be legal.
• The FDA is at the center of the abortion pill case, which challenges its approval of the drug decades ago and could set a precedent for legal challenges to the approval of other drugs. In other FDA news, the agency recently changed policy to allow gay men to donate blood; announced new food safety leadership in response to the baby formula crisis; and kicked back to Congress a question of how to regulate CBD, or cannabidiol, products.
• In drug pricing, the top-selling pharmaceutical, Humira, will soon reach the end of its patent, which will offer a telling look at how competition influences the price of biosimilars — and the problems that remain for lawmakers to resolve.

Also this week, Rovner interviews Kate Baicker of the University of Chicago about a new paper providing a possible middle ground in the effort to establish universal health insurance coverage in the U.S.

Plus, for “extra credit,” the panelists suggest health policy stories they read this week they think you should read, too:

Julie Rovner: The New York Times’ “Don’t Let Republican ‘Judge Shoppers’ Thwart the Will of Voters,” by Stephen I. Vladeck

Alice Miranda Ollstein: Politico’s “Mpox Is Simmering South of the Border, Threatening a Resurgence,” by Carmen Paun

Sarah Karlin-Smith: KHN’s “Decisions by CVS and Optum Panicked Thousands of Their Sickest Patients,” by Arthur Allen

Rachel Cohrs: ProPublica’s “UnitedHealthcare Tried to Deny Coverage to a Chronically Ill Patient. He Fought Back, Exposing the Insurer’s Inner Workings,” by David Armstrong, Patrick Rucker, and Maya Miller

Also mentioned in this week’s podcast:

• The Associated Press’ “20 Attorneys General Warn Walgreens, CVS Over Abortion Pills,” by Jim Salter
• NPR’s “A Trump-Appointed Texas Judge Could Force a Major Abortion Pill off the Market,” by Sarah McCammon
• Politico’s “Federal Judge Says Constitutional Right to Abortion May Still Exist, Despite Dobbs,” by Kyle Cheney and Josh Gerstein
• The Becker Friedman Institute’s “Achieving Universal Health Insurance Coverage in the United States: Addressing Market Failures or Providing a Social Floor?” by Katherine Baicker, Amitabh Chandra, and Mark Shepard

click to open the transcript

Transcript: A Health-Heavy State of the Union

KHN’s ‘What the Health?’Episode Title: A Health-Heavy State of the UnionEpisode Number: 284Published: Feb. 9, 2023

Julie Rovner: Hello and welcome back to KHN’s “What the Health?” I’m Julie Rovner, chief Washington correspondent at Kaiser Health News. And I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, Feb. 9, at 10 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 Alice Miranda Ollstein of Politico.

Alice Miranda Ollstein: Good morning.

Rovner: Rachel Cohrs of Stat News.

Rachel Cohrs: Hi, everybody.

Rovner: And Sarah Karlin-Smith of the Pink Sheet.

Sarah Karlin-Smith: Hi, Julie.

Rovner: Later in this episode, we’ll play my interview with Kate Baicker of the University of Chicago. She’s one of the authors of a new paper outlining a new proposal for the U.S. to achieve universal health insurance coverage, something every other developing nation already has, but we have not yet been able to achieve. But first, this week’s health news. We’re going to start, of course, with the State of the Union, which was livelier than usual, with way more back and forth than I’ve ever seen at one of these, and also more health-heavy than usual. I’m going to start with entitlements, notably the president threatening Republican proposals to hold the debt ceiling hostage for cuts in Social Security and Medicare. I’m still trying to decide whether this was intended or not, but Biden nevertheless ended up getting Republicans to vow not to demand cuts in Social Security and Medicare in exchange for raising the debt ceiling later this year. Here is the tape.

President Joe Biden: So, folks, as we all apparently agree, Social Security and Medicare is off the books now, right? And they’re not going to strike … [prolonged applause] All right. We got unanimity!

Rovner: So was this very clever or very lucky or both?

Ollstein: Well, it’s a little not quite what it seems. Republicans have been swearing up and down more recently that they never intended to cut Medicare and Social Security. But when they say “We want to reform it, we want to shore it up,” they’re talking about things that could limit benefits for beneficiaries. So it’s a semantics game, in part. I also want to point out that neither Republicans nor Biden have yet said that they consider Medicaid in that same untouchable category. So that really jumped out at me in the speech as well.

Rovner: Yeah, I mean, if you don’t touch Social Security or Medicare — and the Republicans are trying to say that because this has been used as a weapon for so many years — then basically that leaves Medicaid. And as we discovered in 2017, when they were trying to repeal the Affordable Care Act, Medicaid is actually pretty popular, too, because it takes care of a lot of people’s grandparents in nursing homes. I’m wondering when somebody is going to bring that up. Obviously, over the years, many, quote-unquote, “cuts” have been made to both Social Security and Medicare, mainly to slow the growth of the programs so that we can continue to afford them. Many more, quote-unquote, “cuts” will have to be made going forward. Every time you reduce payment to a drugmaker or a hospital or any other health care provider, that’s a cut, but it helps beneficiaries. So, you know, you say “cuts,” [and] beneficiaries say “they’re going to cut our benefits.” Not necessarily. They may just be making the program more affordable, including for the beneficiaries. I mean, this is just the continuous back and forth of each side, weaponizing Medicare in particular, right?

Ollstein: Well, and until we see actual proposals on paper, like you’re indicating, it is a semantics game — what some people consider a cut might not be what other people consider a cut. And there’s going to be all sorts of rhetorical games over the next several months along these lines. So, I’m waiting till we see an actual black-and-white proposal that we can all pick at and analyze together.

Rovner: Well, as we have seen, there’s danger in putting things on paper, as Rick Scott discovered this week. For those who don’t remember, it was his rather infamous proposal — was it last summer, I think? It was before the election — suggesting that all federal programs be sunsetted every five years and then have to be reauthorized, which would include Social Security and Medicare and Medicaid. And that’s not playing well at this point, as I think was predicted at the time, including by us. So moving on, I was also impressed at how the speechwriters managed to combine the, quote, “victory lap” stuff, record Affordable Care [Act] enrollment, Medicare drug price changes, limits on insulin, and surprise bills with the agenda ahead: expanding insulin price caps to the non-Medicare population, Medicaid expansion in the states that haven’t done it, making the Affordable Care Act subsidies expansions permanent. But none of these things — popular, though they may be — are likely to happen in this Congress, are they? … These are the things that fell out of the bill that passed last year.

Cohrs: Right. A lot of those cost money, which is going to cause even more problems this Congress than it did in the last one. And I thought it was pretty informative that the chair of the Energy and Commerce Committee in the House threw cold water on the insulin price-cap idea because it did gain some Republican support in the Senate when it came up for a vote. That was complicated. We won’t go into it. But yeah, it wasn’t a straight up-and-down vote on that policy, really. So I think there was some hope that maybe Republicans could get on board with it. But I think, because it applies to private market insurers, [it was called] a socialist policy, like, they just don’t want government in private plans, even though it’s a wildly popular policy. So, yeah, I think that doesn’t seem like a good signal for that policy in particular and for Medicaid expansion and a lot of these things. Democrats couldn’t even do it when they all agreed or had power in both the House and the Senate. So it’s definitely not a good indication for a lot of these things.

Ollstein: Let’s not forget that [Sen. Joe] Manchin [D-W.Va.] was the one who put the kibosh on the federal Medicaid expansion. He thought it wasn’t fair to states like his that expanded a long time ago and have been paying in a little bit. He thought it wasn’t right that states that were holdouts get a free ride. And the other Democrats argued back that it’s not fair for the residents in those states to be left out in the cold uninsured either. So this will continue. But like Rachel said, not going anywhere soon.

Rovner: So the things that in theory could happen, and these didn’t mostly come up in the speech or didn’t come up very much. But earlier in the day, Biden officials were floating a quote-unquote, “unity agenda” that included a long list of potentially bipartisan health issues, starting with the “cancer moonshot,” mental health and opioid treatment, strengthening the mental health parity rules. Some of these things actually could happen, right?

Cohrs: Yeah, I think especially on the mental health package, I think there was some unfinished business from last Congress, from the Senate Finance Committee. I think that all of these are issues that have been talked about this Congress already. And the leaders have signaled that they might be interested in. But I think there is some daylight here, and we’re still in very much the agenda-setting, throwing ideas out there that are a very vague part of this Congress. And I think actually getting things down on paper and going through hearings and that kind of thing will signal which areas there might actually be some agreement on. But again, spending is going to be a big challenge and there’s just not going to be time to get to everything.

Rovner: I think one of my frustrations is that normally the State of the Union comes right before the president’s budget comes out, usually within a week or two. And this year, the president’s budget isn’t coming out until March 9. So we have this, you know, talk about agenda-setting. We’re going to have a lot of time for people to just yap at each other without any specifics. But speaking of things that didn’t and aren’t likely to happen, the president didn’t talk very much about abortion. And what he did say — like threatening to veto any abortion ban Congress might pass, which won’t happen either with Democrats in charge of the Senate — that disappointed abortion rights supporters. They’re not happy, right, Alice?

Ollstein: Some were not. To be fair, some praised the speech, praised the president for saying the word “abortion.” This was a big thing over much of his career, including the beginning of his presidency. He would talk around it and not actually say the word “abortion,” which the groups felt contributed to stigma around it. And so the big mainstream groups, Planned Parenthood, NARAL, put out statements praising the speech, praising him for saying he would veto a ban, although, again, like you said, that’s a hypothetical. It’s not going to happen. But some other groups were critical that, one, he didn’t talk about some of the very looming direct threats to abortion access in the courts that we’re probably going to get to later.

Rovner: In a minute.

Ollstein: Just in a minute! But they were frustrated that he didn’t lay out more specifics that his administration will actually do to respond to the current loss of access in a lot of the country. They felt that we’re in a crisis moment and he spent less of the speech on abortion than he did on resort fees. That was a sore point for some advocates who I talked to.

Rovner: There was a lot of emphasis on junk fees. And I get why: These are the things that drive people crazy, and, particularly, in times of high inflation. But yes, abortion came very late in the speech — almost after a lot of people had tuned out and stopped paying attention, which I think also made some people unhappy. Well, speaking of abortion, here we are waiting for another make-or-break court decision out of Texas. Alice, this time it’s the future of the “abortion pill,” not just in Texas, but around the nation that’s at stake. How did we get here? And could we really see the abortion pill banned nationwide?

Ollstein: We really could. People have really been sleeping on this case, including some elected officials who were slow to realize the impact it could have. And mainly what people don’t understand is a bunch of states already ban all methods of abortion, including the pill, and then some additional states besides that have restrictions just on the pill. So this will mainly hit blue states and states where abortion access still exists. And so it could really have a huge impact because those states are now serving more than just their own populations. And in a lot of places, losing access to medication abortion means losing access to all abortion because there aren’t clinical services available. And so my colleague and I did some reporting on how the Biden administration is preparing or not for this ruling. They rebuffed calls from activists to declare a public health emergency for abortion. They said they don’t think that would help. While they do plan to appeal the ruling should the FDA lose, the upheaval that could happen in the meantime can’t really be overstated. And not to mention that an appeal would go to the 5th Circuit, which is very conservative, and then to the Supreme Court, which just overturned Roe v. Wade. And so while most experts we’ve talked to don’t think the legal arguments are that sound, you just can’t really …

Rovner: And remind us, this is the lawsuit that’s challenging the 22-year-old approval of the drug in the first place.

Ollstein: Exactly. And so health care legal experts also say that besides the absolute upheaval in the abortion space that this could cause, this would just completely destroy any certainty around drug approvals for the FDA. If anybody could come back decades later and challenge the approval of a drug, how can drugmakers feel comfortable developing and submitting things for approval and making their plans around that? It’s very chaotic.

Rovner: Sarah, is the FDA worried about this case? Has it not been on their radar either?

Karlin-Smith: I mean, they’re involved in the defense.

Rovner: They’re being sued.

Karlin-Smith: Right. I think it is a concern if this is used, right? If the folks who want this drug pulled would win, does it become precedent-setting in a way that you can get other products pulled? Perhaps. Again, the sentiments would not be there for a lot of other products in the way to use it. But it is a bit concerning when you think about judges having this power to overrule the scientific decisions we’ve left to civil servants, not politicians or judges, because they have expertise in science and medicine and clinical trial design and all these things we just would not expect judges to be able to rule on.

Rovner: Well, speaking of more politics, this week — actually, last week — a group of 20 state attorneys general from states with abortion restrictions wrote to CVS and Walgreens, which had already announced that they would apply to become providers of the abortion pill, warning them not to rely on the Justice Department’s interpretation of a 19th-century law that banned the use of the U.S. mail to send abortifacients. The letter doesn’t outright threaten the companies. It merely says that, quote, “We offer you these thoughts on the current legal landscape.” Has anybody sued over this yet? And what do we expect to happen here? I mean, are CVS and Walgreens going to back off their plans to become providers?

Ollstein: Well, the anti-abortion elected officials and advocacy groups are hoping that’s the case. But I think this could play out in so many ways. I mean, one, we have this national ruling that could come down, but we also have a few state rulings that could flip things the other way and force states that have put restrictions on the abortion pill to lift those restrictions and allow it. So now we have cases pending in North Carolina and West Virginia. One of them is by the manufacturer of the abortion pill, saying that states don’t have the right to put the FDA’s hat on their own heads and make those decisions. And the other is by an abortion provider, a doctor who says that these state restrictions hurt her ability to practice and hurt her patients. And so it’s just wild that we can swing anywhere from a national ban to forcing states with bans to lift those bans. I mean, it’s just all up in the air right now. I wanted to quickly point out two other things. A lot of activist groups say they are not counting on the Biden administration to adequately respond to this crisis. And so they’re doing a couple things. One, they’re encouraging people to do something known as “advance provision,” which is order abortion pills before they’re pregnant, before you need them, and just have them on hand just in case. And so they’re advising people do that in advance of the ruling. Interestingly, the FDA does not support that practice, but activist groups are encouraging it anyways. And then the other thing is the abortion pill regimen is actually two pills. And the big FDA lawsuit only goes after the first one. And so people are saying, you know, you can terminate a pregnancy just by taking a few of the second pill, even though that has a higher rate of not working and needing a follow-up procedure. And so …

Rovner: Although it’s still like, 95%, right?

Ollstein: It’s still very effective, but not quite as effective as using the two pills together.

Rovner: And I think it used to be when people would go to Mexico, that’s what they would get. They would get misoprostol, not mifepristone, which is what we think of as “the abortion pill” — and also methotrexate, which we talked about in the context of people with diseases for which methotrexate is indicated not being able to get it because it can cause abortions. But that’s another option there, right? And … it would be hard for FDA to pull those drugs because those drugs do have a lot of uses for other diseases.

Karlin-Smith: Or FDA could, I guess, be forced to take off the formal indication for use for abortion, but the drug would be out there and then could be subject to off-label prescribing, which then could potentially, I guess, impact insurance coverage if you’re using it for abortion. Pivot to if you had to go back to this one-drug regimen while, yes, it would still exist and be possible, I think a lot of providers are worried about the added burden that would create on folks that help people obtain abortion. And this system is just not set up to have enough workers to deal with that more complicated regimen. And it seems like it could end up leading to more need for surgical abortions, depending on how well it works and so forth. So I think logistically it creates a lot more challenges.

Rovner: Yeah, it’s a mess. Well, meanwhile, last issue here, we have a curious story out of a lawsuit in federal district court here in Washington, D.C., in which a judge proffered the notion that while the Supreme Court may have found no right to abortion in the 14th Amendment, that doesn’t mean there isn’t a federal right under the 13th Amendment. That’s the one barring slavery, specifically the restriction on the pregnant person’s personal liberty. As the judge correctly pointed out, the majority in last year’s Dobbs [v. Jackson Women’s Health Organization] ruling may well believe there’s no right to abortion anywhere in the Constitution. But that’s not the question that they litigated. Is this potentially an avenue that abortion rights advocates are going to explore?

Ollstein: I am not hearing a lot of hope being placed on this. If it goes anywhere, it would go back to the same Supreme Court that just ruled last year. And so abortion rights advocates are not optimistic about this strategy, but I think it’s a good indication of really both sides right now just trying to get as creative as possible and explore every legal avenue in the U.S. Constitution, in state constitutions, things where it never says the word abortion, but you could interpret it a certain way. I think that’s what we’re seeing right now. And so it’s really interesting to see where it goes.

Rovner: We are literally at the point where everybody is throwing whatever they can against the wall and seeing what sticks. All right. Well, let us turn to the federal research establishment. Late last month, a panel of advisers recommended a set of policies to strengthen oversight of so-called gain-of-function research that could inadvertently cause new pandemics. This was also one of the subjects of the first House hearing that called leading federal public health officials up on the carpet. What do we learn from the hearing? And has the federal government actually been funding gain-of-function research, or do we even know for sure?

Cohrs: So there has been a moratorium on this sort of research. And the interim director of the NIH [National Institutes of Health] quibbled over the term “gain-of-function research.” And he said we’re talking about a very select part of all of the research that could technically fall under that umbrella term. But he did say that there is a moratorium on funding that right now; there’s not current funding because they are reviewing their practices. And an advisory board did pass proposals and he laid out the process forward for that. So once those are finalized, he’ll write a memo to [Department of Health and Human Services] HHS Secretary Xavier Becerra, then it will get to the White House. So there is this bureaucratic progression that these new guidelines are going to go under, and it’s been pretty transparent and public so far. But we’ll see how things ultimately turn out. But I think they are very sensitive to this politically and they are trying to create guidelines that offer some lessons learned from some of the criticism they’ve gotten recently.

Rovner: And I think, I mean, this has become one of the major lines of argument about Republicans trying to figure out where covid came from. Perhaps it came from U.S.-funded gain-of-function research in China, which we don’t know, I don’t think. But there’s been a lot of “Yes, you did”-“No, you didn’t” going on. I mean, Sarah, does this go back to the, you know, politicians playing scientists?

Karlin-Smith: A little bit. And I think at the hearing, a lot of the Republicans who are pressuring NIH in particular on this are not super interested in listening to the subtleties and nuance of the argument. They just really want to make the point and bring up in people’s minds the possibility of, you know, covid being a lab leak, which I think … which hasn’t 100% been ruled out, but it’s kind of on the 98%, probably 99% ruled out by a lot of scientists. And so it was very hard for NIH and those lawmakers to have a reasonable discussion about the nuances and where this research might possibly benefit us in future pandemic prep. What type of precautions do need to be put in place? And I think NIH was trying to strive to communicate that actually a lot of what was recommended in this oversight report is things they’ve been working on and have put in place. But the hearing was designed by Republicans more to land those political punches and sound bites and not really delve into “Are there policy improvements that could be made here?”

Rovner: Well, speaking of civil servants trying to do their science policy jobs, the FDA’s been busy the last couple of weeks, including lifting a ban on men who have sex with other men donating blood. That’s a ban that’s been in effect in one way or another since the 1980s, when AIDS was first discovered. And in the wake of baby formula shortages, there’s now going to be a new deputy commissioner for food. And finally, the agency is asking Congress for new authority to regulate CBD [cannabidiol] products, particularly as more states legalize marijuana in all forms for recreational use. Sarah, this is an awful lot of stuff at once. Big policy changes where they try to hide some of them, or did they just all show up at once because that’s when they got finished?

Karlin-Smith: The food changes were sort of driven by events not quite within their control, and the blood policy, the CBD stuff were things in the works for some number of years now. So FDA is busy, and these are different divisions operating under it. I think the CBD stuff is drawing a lot of frustration because FDA had been working on considering how to regulate this aspect of hemp for a while now. And instead of coming up with a policy and taking action, they’ve rewound the circle; we’re back to square one and putting it on Congress’ issues. So that’s like one area where there’s a lot of frustration versus, I think, people are generally happier that the blood donation process was finally gone through and changed.

Rovner: Yes, the wheels of the federal regulatory process move slowly, as we know. All right. Finally this week, drug prices. Humira — which is a biological that treats rheumatoid arthritis and many other serious ailments, and for which you have undoubtedly seen TV commercials if you have ever turned on your television, because it’s the top-selling pharmaceutical in the world — is reaching the end of its patent life. That will soon provide the first real test of where the Affordable Care Act’s pathway to allow biosimilar competitors — effectively biologics version of generic drugs — whether that will actually bring down prices. Because there’s a chance here that there’s going to be a bunch of competitors to Humira and the price isn’t going to come down, right?

Karlin-Smith: Yeah, I mean, that’s a major concern for a number of reasons that get us back to the broader U.S. drug pricing debate and — including the role of pharmacy benefit managers in figuring out how people get coverage of their drugs. So Humira is one of the first biologics to lose patent protection, where patients actually fill the prescriptions themselves and give themselves the medicine, which is a very different payment system than if you’re getting a biologic medicine at a doctor’s office or a hospital. And so the way that most of the insurers are covering the drug for this year, they’re actually going to charge patients the same out-of-pocket cost in most instances, as if you’ve got the brand drug or the biosimilar. And because, unlike traditional generic medicines, a lot of these, at least initially, they’re not what is called auto-substitutable. So if your doctor writes you Humira, the pharmacist doesn’t automatically give you that generic. So you’d actually have to request a new prescription from your doctor, and they’d have to write it. And if you’re not going to pay less, why are you motivated to do that?

Rovner: When you’re not even positive how much whether the drug works the same way, whether the biosimilar works the same way.

Karlin-Smith: Right. And they think people are a little bit more hesitant. They don’t understand how biosimilars work compared to generic drugs, where it took — again, when the generic drug industry first started, it took people a while to get comfortable. So there are those issues. So, basically, what has happened is AbbVie has given insurance plans and payers’ discounts on their brand drug to keep it in a good place on their formularies. So there will be savings to the broader health system, for sure. The problem is if that doesn’t get passed on to the patients, and AbbVie can continue their market monopoly, my worry is, down the line, what happens to this biosimilar industry overall? Humira is not the only top-selling, big-selling biologic medicine where we want to bring down the cost. So if these biosimilar competitors don’t eventually gain market share and make money off of doing this, why are they going to go back and develop a biosimilar and try and lower the cost of the next big drug? And that’s what people are watching. I think there’s cautious optimism that, as more biosimilars for Humira launch, there will be some pressure for insurance companies to cut deals and lower prices and not just rely on making money off high rebates. But we don’t really know how it’s going to play out. And AbbVie was pretty creative over the years. In some ways that helped patients and others questionable — how much of … like, you know, there’s high concentration of the drug, low concentration. There is citrate-free, non-citrate-free. And that means that not all the competitors are going to be exactly the same in a way that creates as much competition as it seems at first. So yeah, it’s going to be messy.

Rovner: This is the famous evergreening that we saw with drugs. I mean, where they would change something small and get a whole new patent life.

Karlin-Smith: Right. So usually with generic research, you need three direct competitors to help bring the price down a lot. But in the case of Humira, while there’s going to be, probably at least six competitors this summer, maybe more, they’re not all direct competitors for the same version of Humira. So it sort of bifurcates the space a bit more and makes it harder to, you know, figure out the economics of all of that.

Rovner: Well, if you thought that drug pricing was confusing, now we’re adding a whole new level to it. So, I’m sure we will be talking about this more as we go forward. OK. That’s the news for this week. Now, we will play my interview with Kate Baicker of the University of Chicago. Then we will come back and do our extra credits.

I am excited to welcome to the podcast Katherine Baicker, currently the dean of the University of Chicago Harris School of Public Policy and soon to be provost of the university. Congratulations.

Katherine Baicker: Thank you so much.

Rovner: So, Kate is a health economist who is well known to health policy students for a lot of things, but most notably as the co-lead author of the Oregon Medicaid health experiment, which was able to follow a randomized population of people who got Medicaid coverage and a population that didn’t to help determine the actual impact of having Medicaid health insurance. Today, she’s here as lead author of a paper with a new way to possibly provide health coverage to all Americans. Kate, thank you so much for joining us.

Baicker: It’s a pleasure.

Rovner: So your new paper is called “Achieving Universal Health Insurance Coverage in the United States: Addressing Market Failures or Providing a Social Safety Net.” And in that single sentence, you’ve pretty much summed up the entire health insurance debate for, like, the last half-century. For those who don’t know, why is it that the U.S. doesn’t have universal insurance when literally all of our economic competitors do?

Baicker: Well, like so many things about our health care system, it goes back to the history of how it evolved, as well as some things that are different about the U.S. from other countries. If you look at how big the U.S. is geographically, how diverse our country is, how heterogeneous the health needs are. A lot of the solutions you see in other countries might not work so well in the U.S.

Rovner: So … and we’ve basically just not ever gotten over the hump here.

Baicker: Well, I also think we haven’t been asking the right questions necessarily. There is a real debate about whether health care is a “right” or not. And, of course, your listeners can’t see my “air quotes,” but I put that in air quotes because I think that’s the wrong question. Health care is not just one thing. Health care is a continuum of things. And if we just boil it down to should people have access to care or not, that doesn’t let us engage with the hard question of how much care we want to provide to everyone and how we’re going to pay for it.

Rovner: So I know a lot of people assume that the Affordable Care Act would — I’ll use my air quotes — “fix” the U.S. health insurance problem. And it has gone a long way to cover a lot of previously uninsured people. But who are the rest of the uninsured and why don’t they have coverage? It’s not necessarily who you think, right?

Baicker: That’s right. And, you know, the ACA, or Obamacare, actually made a lot of headway in covering big swaths of the uninsured population. There was a lot of discussion about health insurance exchanges, but actually more people were covered by Medicaid expansions than by health insurance exchanges. But both of those, as well as letting young people up to age 26 get on their parents’ policies. All of this chipped away at the ranks of the uninsured, but it left, for example, undocumented immigrants uninsured and also the vast majority of the uninsured people in the U.S. are already eligible for either a public program or heavily subsidized private insurance. And we have a problem of takeup and availability, not just affordability.

Rovner: So let’s get to your proposal. It’s not really that different from things that either we’ve tried in some parts of our health insurance ecosystem or what other countries do. What would it actually look like if we were to do it?

Baicker: Well, if you go back to what I think is the right question of how much health care do we want to make sure that everyone has access to and how are we going to get them enrolled in those programs? I think one key feature is having that coverage be as low-hassle as possible, automatic if possible, because we know that nonfinancial barriers to insurance are responsible for a lot of the uninsured population we still see today.

Rovner: We’ve seen that with pension plans, right? That automatically enrolling people get more people to actually put money away?

Baicker: That’s right. That’s one of the takeaways from behavioral economics is that defaults matter. Meaning what the baseline is and letting you opt in and out makes a big difference because people tend to stick with where they are. There’s a lot of inertia in saving for retirement, in enrolling in health insurance, in lots of different things. And being sophisticated in how we design the mechanics of those programs is important, as well as making sure that they’re financially affordable to people. So one step is making sure that whatever is available to people is as easy as possible for them to take advantage of. But the other is having a much harder discussion about what we want that basic package to be. And when you say “I want everybody to have all of the care that might possibly be available, no matter what price and no matter how much it impacts their health,” that’s more than 100% of GDP. We just can’t do that and still have any money for anything like food and housing and education and roads and all of the things that we also care about. So if we had that tough discussion as a nation, as a body politic, to say, here is the care that we think is really high-value that we think is a right for everyone and that we want to make sure is available to everyone, then people could be automatically enrolled in that default package and have the option to get more care that is more expensive and maybe a little less effective, but still worth it to them that they purchase on their own. And that opens up a whole host of other questions and ethical dilemmas that I’m sure you’re going to want to ask about.

Rovner: But it also — as a lot of people are concerned, that something like “Medicare for All” would eliminate the incentive to innovate new kinds of care. I mean, obviously, there’s this race to figure out, you know, a drug to treat Alzheimer’s and that if the federal government were to basically set prices for everything, that there would be no more innovation incentive. You actually address that here, right?

Baicker: Yes. And I’m so glad you raised that concern, because there are many challenges to having a monolithic one-size-fits-all Medicare for All type plan. One of them is, you know, affordability for the system and accessibility. But another is the dulled incentive for innovation and the dulled drive towards having new medicines and new treatments available. Medicare is very slow to innovate. It took 40-plus years for Medicare to include prescription drugs at all. And that was because when Medicare was formed in the Sixties, prescription medicine wasn’t a very important part of health care. It wasn’t a very expensive part of health care, there just weren’t that many drugs to treat people. Well, now those medicines are crucial to health and well-being. And Medicare finally added a prescription drug benefit in 2005. But that was a long lag, and that’s just one example. So I think having some fundamental access to care that we know is of high value for everyone could be coupled with having the option to purchase more generous insurance that covers more things. And that private insurance layered on top would really provide the financial incentives for continued innovation. It acknowledges the reality that in a world of scarce resources, higher-income people are going to have more health care than lower-income people. And that is an ugly reality and one that we ought to grapple with ethically, and as a matter of public policy priorities. I would argue we’re already rationing care. It is not possible for public programs to pay for all care for all people, no matter what the price, no matter what the health benefit, and being intentional about defining what it is we’re going to cover with public dollars and then letting people buy more care with private dollars is a way perhaps to make a financially sustainable system that also promotes innovation.

Rovner: And this isn’t really new. I mean, lots of other countries do this. I was in Switzerland a decade ago, and I remember that they … their extra-benefit package includes things like single rooms in hospitals and homeopathic medicine and things that I’m not sure we would end up putting into our top-up plans, but it’s something that’s important to them.

Baicker: Yes. And when people point to our European counterparts and say, look, they all have single-payer. In fact, a lot of them have a hybrid system like the one that we’re describing. And it’s important to differentiate: We’re talking about a basic plan that’s available for everyone. That doesn’t mean that it only covers cheap things. It should only cover high-value things. But some cheap things are incredibly ineffective and low-value, and some expensive things are really important for health and very high-value. So it’s about the value of the dollar spent in terms of producing health, not whether it’s expensive or cheap. And so when you think about having a top-up plan, it shouldn’t be about billing cost sharing that, you know, lower-income people are exposed to in the basic plan. It should be about adding services that are of less health importance but still valuable to the people purchasing them.

Rovner: Obviously, the biggest issue here is going to be who’s going to make that determination? I’m old enough to remember fights over the ACA, death panels, and the independent Medicare advisory board that never happened. In fact, there were a lot of these, you know, we’re going to appoint experts. And it never happened because none of the experts ever wanted to be on these panels. How do you overcome that hurdle of actually grappling with the decision of what should be covered?

Baicker: Yes, the devil is always in the details for these things, and you put your finger on a really important one where we haven’t provided a robust answer, and our analysis is meant to highlight the importance of making these hard decisions and the value of this framework. But we don’t have a magic bullet for this. I would argue that having Congress make this decision every year is a recipe for lobbying and decision-making that doesn’t actually line up with value. There’s an opportunity perhaps to have a panel of experts who, as you note, is just a hop, skip and a jump from being called a “death panel.” But I think we can rely on some clinical guidelines as guardrails on this. And we do have some examples of experimentation in this direction in the U.S. In fact, more than experimentation — if you look at Medicare Advantage, this used to be a small part of the Medicare program. These are private plans for Medicare beneficiaries that are now, I think, pretty soon going to be the majority of plans that people have. And it’s a mechanism for people to choose among plans that have some things that have to be covered, but can then add additional benefits for enrollees, and it can be a little more tailored to what people value in their plans. So I don’t think that’s the answer either. But it’s a proof of concept that we can do something like this in the U.S.

Rovner: So in some ways this would bridge the gap between Republican marketplace ideas and Democratic Medicare for All ideas. But it feels like, since the fight over the Affordable Care Act, Republicans have moved more to the right on health care and Democrats have moved more to the left on health care. You are no stranger to partisan politics nor the ways of Washington, D.C. How could everybody be brought back to what I daresay looks like a political compromise?

Baicker: Well, I’m an economist, as you noted, and that’s notoriously bad at understanding actual human beings. I don’t have any idea for the path forward through the political thicket that we’re in. In some ways, it is a little disheartening to see how difficult it is to do some basic commonsense things. In any complicated system like the U.S. health care system, there are always small technical fixes that need to be made that are just commonsense, that ought not to be political. And it’s hard to do those.

Rovner: We’re lacking in common sense right now in Washington.

Baicker: Yeah. So I can’t say that I’m hugely optimistic about a big change happening right away. On the other hand, I think covid really highlighted to people across the political spectrum how important it is to have continuity of coverage, how disparate our current system is in terms of access to care, how problematic it is to have your main avenue of health insurance be through your employer when a pandemic is coupled with a recession. So I think the challenges and the vast inequities of our health care system were laid bare during covid. So it is perhaps salient enough that people might be willing to consider alternative structures. But I can’t say I’m holding my breath.

Rovner: Well, Kate Baicker, thank you very much for, if anything, a great thought experiment. It’s really wonderful to look your way through … it’s like, oh, we could get there, maybe in another half a century.

Baicker: I hope sooner than that.

Rovner: I do, too. Thank you so much.

Baicker: My pleasure.

Rovner: OK, we’re back. And 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 khn.org and in our show notes on your phone or other mobile device. Rachel, why don’t you go first this week?

Cohrs: My extra credit is headlined “UnitedHealthcare Tried to Deny Coverage to a Chronically Ill Patient. He Fought Back, Exposing the Insurer’s Inner Workings,” in ProPublica by David Armstrong, Patrick Rucker, and Maya Miller. And I thought this story was just such a good illustration of the jargon that we use in D.C., of, like, utilization management and prior authorization. And sometimes these terms just feel so impersonal. But I feel like this story did such a good job walking through one patient’s struggle to find something that worked and then just the arbitrary choices that insurers were making, looking at their bottom line to try to prevent him from getting a very expensive treatment that actually did increase his quality of life significantly. So I would definitely recommend, as we’re thinking about insurers’ role in this whole health care cost debate as well.

Rovner: Yeah, it does bring home how the patient is always in the middle of this. Alice.

Ollstein: I chose a piece by my colleague Carmen Paun called “Mpox Is Simmering South of the Border, Threatening a Resurgence,” and it’s about how the U.S. was extremely successful in vaccinating high-risk people against mpox, which for folks who still remember the artist formerly known as monkeypox, the name was changed to reduce stigma and be more accurate. The U.S. vaccination campaign and messaging campaign to the most high-risk populations was really successful and did the trick. But as we learned from covid and every other infectious disease, if you don’t take care of other parts of the world, it could eventually come back. We’re not an island, and even islands aren’t safe. But, you know, this is about a bunch of countries, including Mexico, that really have made no mass vaccination effort at all. You know, some civil society groups are trying on their own, but they just don’t have official government backing. And that’s really dangerous. And it meant that cases are surging in parts of Latin America and parts of Africa. And as we saw from covid, that leads to the development of new variants and things traveling back to the U.S. and other places around the world. So, certainly, something to pay attention to.

Rovner: Public health is important. World public health is important. Sarah.

Karlin-Smith: I looked at a piece called “Decisions by CVS and Optum Panicked Thousands of Their Sickest Patients,” by Arthur Allen for Kaiser Health News. It’s a deep dive into CVS and Optum moving out of, to some degree, business places where they provide home infusion services of perinatal nutrition to people that essentially cannot eat or drink in most cases. And they basically decided that it’s not a great business opportunity for them in many cases. But these are people that really depend on these services to live and survive, and they’re very complex medicines and essential nutrition to get and deliver. And at the same time, I think what really fascinated me about this story is it talks about this dynamic of while companies are getting out of the space where you’re providing this service to people that need these IV treatments to survive and live, there also has been development of these medical spas, as they’re called, where people that actually do not need IV hydration or IV nutrition are essentially being given it for nonmedical purposes. And there’s a lot of money being made there. And it just shows you how some of the profit incentives in our system don’t necessarily align with treating the people that actually need the health care first.

Rovner: Yeah, it’s like the people with diabetes not being able to get their drugs because people in Hollywood want to lose 10 pounds fast. But this obviously is, you know, another life-or-death issue. Well, I chose an op-ed this week in The New York Times by the University of Texas law professor Steven I. Vladeck called “Don’t Let Republican ‘Judge Shoppers’ Thwart the Will of Voters.” And it answered a lot of questions for me. First, how is it that so many suits end up in front of the same judges who the plaintiffs know are likely to rule in their favor, and all in Texas? So it turns out that Texas has distributed its federal judges in a way that in nine districts there is only one judge. And in 10 more, there are only two judges. Obviously, there’s no random draw in those districts where there’s only one judge. That’s what you’re going to get. So we keep seeing some of the same Texas judges, first Judge Reed O’Connor in Fort Worth, and now Matthew Kacsmaryk, a former advocate for a conservative think tank and the only federal judge in Amarillo. Judge O’Connor had the big ACA case, now has a big preventive care case. Judge Kacsmaryk has the abortion pill case that we’ve been talking about. It’s a really interesting piece about how that could really twist justice. But it also includes several ways to fix it. We’ll have to see if any of them actually get taken up.

OK. That is our show for this week. As always, if you enjoyed 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 ever-patient producer, Francis Ying. Also, as always, you can email us your comments or questions. We’re at whatthehealth — all one word — @kff.org. Or you can tweet me as long as Twitter is still up. I’m @jrovner. Alice?

Ollstein: @AliceOllstein

Rovner: Rachel

Cohrs: @rachelcohrs

Rovner: Sarah.

Karlin-Smith: @SarahKarlin

Rovner: We will be back in your feed next week. Until then, be healthy.

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Julie Rovner is chief Washington correspondent and host of KHN’s 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 abortion debate has changed dramatically in the seven months since the Supreme Court overturned Roe v. Wade and its nationwide right to abortion. Nearly half the states have banned or restricted the procedure, even though the public, at the ballot box, continues to show support for abortion rights.

In this special, two-part podcast, taped the week of the 50th anniversary of the decision in Roe v. Wade, an expert panel delves into the fight, the sometimes-unintended side effects, and what each side plans for 2023.

This week’s panelists are Julie Rovner of KHN, Alice Miranda Ollstein of Politico, Sandhya Raman of CQ Roll Call, and Sarah Varney of KHN.

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Alice Miranda Ollstein
Politico

@AliceOllstein

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Sandhya Raman
CQ Roll Call

@SandhyaWrites

Read Sandhya's stories

Sarah Varney
KHN

@sarahvarney4

Read Sarah's stories

Among the takeaways from this week’s episode:

• Exemptions to state abortion bans came into question shortly after the Supreme Court’s decision to overturn Roe, with national debate surrounding the case of a 10-year-old in Ohio who was forced to travel out of state to have an abortion — although, as a rape victim, she should have been able to obtain an abortion in her home state.
• The restrictions in many states have caused problems for women experiencing miscarriages, as medical providers fear repercussions of providing care — whether affecting their medical licenses or malpractice insurance coverage, or even drawing criminal charges. So far, there have been no reports of doctors being charged.
• A Christian father in Texas won a lawsuit against the federal government that bars the state’s Title X family-planning clinics from dispensing birth control to minors without parental consent. That change poses a particular problem for rural areas, where there may not be another place to obtain contraception, and other states could follow suit. The Title X program has long required clinics to serve minors without informing their parents.
• Top abortion opponents are leaning on misinformation to advance their causes, including to inaccurately claim that birth control is dangerous.
• Medication abortion is the next target for abortion opponents. In recent months, the FDA has substantially loosened restrictions on the “abortion pill,” though only in the states where abortion remains available. Some opponents are getting creative by citing environmental laws to argue, without evidence, that the abortion pill could contaminate the water supply.
• Restrictions are also creating problems for the maternal care workforce, with implications possibly rippling for decades to come. Some of the states with the worst maternal health outcomes also have abortion bans, leading providers to rethink how, and where, they train and practice.
• Looking ahead, a tug of war is occurring on state and local levels among abortion opponents about what to do next. Some lawmakers who voted for state bans are expressing interest in at least a partial rollback, while other opponents are pushing back to demand no changes to the bans. With Congress divided, decisions about federal government spending could draw the most attention for those looking for national policy changes.

And for extra credit, the panelists recommend their most memorable reproductive health stories from the last year:

Julie Rovner: NPR’s “Because of Texas’ Abortion Law, Her Wanted Pregnancy Became a Medical Nightmare,” by Carrie Feibel

Alice Miranda Ollstein: The New York Times Magazine’s “She Wasn’t Ready for Children. A Judge Wouldn’t Let Her Have an Abortion,” by Lizzie Presser

Sandhya Raman: ProPublica’s “’We Need to Defend This Law’: Inside an Anti-Abortion Meeting with Tennessee’s GOP Lawmakers,” by Kavitha Surana

Sarah Varney: Science Friday’s and KHN’s “Why Contraceptive Failure Rates Matter in a Post-Roe America,” by Sarah Varney

Also mentioned in this week’s podcast:

• NPR’s “Doctors Who Want to Defy Abortion Laws Say It’s Too Risky,” by Selena Simmons-Duffin
• The Columbus Dispatch’s “Suspect Indicted in Rape of 10-Year-Old Columbus Girl Who Got Indiana Abortion,” by Bethany Bruner
• Reveal’s “The Long Campaign to Turn Birth Control Into the New Abortion”
• Reuters’ “Alabama Case Over Mistaken Pregnancy Highlights Risks in a Post-Roe World,” by Hassan Kanu
• Politico’s “The Next Abortion Fight Could Be Over Wastewater Regulation,” by Alice Miranda Ollstein
• The Washington Post’s “Abortion Bans Complicate Access to Drugs for Cancer, Arthritis, Even Ulcers,” by Katie Shepherd and Frances Stead Sellers
• The Washington Post’s “A Triumphant Antiabortion Movement Begins to Deal With Its Divisions,” by Rachel Roubein and Brittany Shammas
• NBC News’ “Abortion Rights Groups Look to Build on Their Victories With New Ballot Measures,” by Adam Edelman

Click to open the transcript

Transcript: Part II: The State of the Abortion Debate 50 Years After ‘Roe’

KHN’s ‘What the Health?’Episode Title: Part II: The State of the Abortion Debate 50 Years After ‘Roe’Episode Number: 282Published: Jan. 26, 2023

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Julie Rovner: Hi, it’s Julie Rovner from KHN’s “What the Health?” What follows is Part II of a great panel discussion on the state of the abortion debate 50 years after Roe v. Wade, featuring Alice Miranda Ollstein of Politico, Sandhya Raman of CQ Roll Call, and Sarah Varney of KHN. If you missed Part I, you might want to go back and listen to that first. So, without further ado, here we go.

We already talked a little bit about the difficult legal situation that abortion providers or just OB-GYNs have been put into, worried about whether what they consider just medical care will be seen as an abortion and they’ll be dragged into court. But in Tennessee, doctors would actually have to prove in court that an abortion was medically necessary, which seems a bit backwards. So, basically, it’s do it, see if you get arrested, and then you’ll have to present an affirmative defense in court. But the other thing that we’re starting to see is doctors leaving states, women’s health clinics closing, medical students and residents choosing to train elsewhere. This could really lead to a doctor drain in significant parts of the country, right?

Sandhya Raman: Yeah, I was looking at before where some of the states that have some of the highest rates of maternal mortality, maternal morbidity, and just lower maternal health outcomes overall are some of the same ones that don’t have Medicaid expansion and also do not have access to abortion right now. And it’s one of the things where, looking ahead, there have been people sounding the alarm at how this is going to get amplified. And as folks that might be interested in this discipline that are in medical school, school or readying for residency, or another type of provider that works in this space, if they choose to not train in these states — and a lot of folks that train in states often end up staying in those states — even if there are changes in some of these laws in the near term, it could have a huge effect in the future in terms of who’s training and who’s staying there and who’s able to provide not just abortions, but other terms of pregnancy care and maternal care.

Sarah Varney: And the workaround has become much more difficult because it used to be that if you’re in a state where abortion was very difficult to access or even, say, Texas during S.B. 8, these medical students could go to other states for the training. But now that you have these huge swaths of the South and the Plains and the Midwest where they are not allowed to do abortions, there’s just not enough places for OB-GYN residents and medical students to go to train. I did a story about this last year as well and looked at these students who were in medical school, who were coming up to Match Day and at the end, at the very end before the deadline, actually changed their match altogether or changed their list of priorities altogether because they didn’t want to be in Texas. So instead of doing an OB-GYN residency in Texas, this one young woman changed to a family medicine practice in Maryland. And I think the thing that’s important for people to remember is that these are the future OB-GYNs that will help many of us with our pregnancies and births for many decades to come. And as we have seen, pregnancy is very complicated and it oftentimes doesn’t end well. You know, about 10% of all confirmed pregnancies end in miscarriage; a far higher number end in miscarriage that are not confirmed pregnancies. And these will be the doctors that are supposed to actually know how to do these procedures. So if you’re in a state like Texas and you have a daughter who’s 15 and you anticipate in 15 years she may want to have a baby, you have to think about what kind of medical care she can have access to then.

Rovner: I’ve talked to a lot of people, a lot of women, who want to get pregnant, who want to get pregnant and have kids, but they are worried about getting pregnant because if something goes wrong, they’re afraid they won’t be able to get appropriate medical care. They would like to get pregnant, but they would actually not like to risk their own lives in trying to have a baby. And that’s actually what we’re looking at in a number of these states. I guess this is the appropriate place to bring up the idea of “personhood,” the declaration, not medically based, that a separate person with separate rights is created at the moment of conception. That could have really sweeping ramifications, couldn’t it? They’re talking about that, I know, in several states.

Varney: Yes. You don’t have to probe far to find out that the pro-life movement is 100% behind a federal fetal rights … the Supreme Court last year didn’t take up a case about fetal rights yet, but many of the members of the court have expressed in previous writings, and even in the Dobbs [v. Jackson Women’s Health Organization] decision, you saw [Justice Samuel] Alito using the language of the state of Mississippi that essentially granted to the fetus all of the … even, like, personality of a full human being. So I think this is going to get really tricky because Kristan Hawkins and many of the leaders of the movement, Jeanne Mancini, they do believe that there is no distinction between a zygote and a fetus and a full human being. So now this is really a religious belief. And it was interesting. I really struggled last year. I had to … I was basically assigned to write a story about, you know, when does life begin? And I think it’s an interesting question we have to ask ourselves as journalists: Why should we do that story? Is that, in a sense, propaganda for the pro-life movement? When really what the question should be is, you have a full human being, the woman, at what point should her rights be impeded upon? Right? And that’s essentially what the Roe decision tried to do, was to strike that balance. But now we’re in a whole new world where fetal rights are really the … they almost have supremacy over women’s rights.

Rovner: Yeah, I did two stories on When Does Life Begin? And it turned into one of them is … really the question is when does pregnancy begin? One of the doctors I talked to said, rather, that pregnancy begins when we can detect it, which is in many ways true. A doctor can’t say that you’re pregnant unless they can detect it at that point. But that’s a really important distinction medically between, you know, when does life begin philosophically and when does a pregnancy actually begin. But, obviously, in places that are going to declare personhood, this is going to get really complicated really fast because it would mean that you mostly couldn’t do IVF, that you can’t create embryos and then not implant them. And of course, the way IVF works for most people who are infertile and would like to have children is that you take out the eggs, you fertilize them, you grow them to a certain cell size, and then you implant them back into the woman. But you don’t generally use all of the embryos. And that would be illegal if every one of those embryos was an actual person. Could you take tax deductions for children if the child hasn’t been born yet, but you’re pregnant? I think you can already do that in Georgia, right?

Varney: Correct. Yeah. The Department of Revenue did that there.

Rovner: Yeah. This could be really, really far-reaching.

Varney: I mean, that’s what’s been going on in Alabama for years. … When the Alabama state Supreme Court years ago agreed with this argument that a law that was put in place to try and go after parents who were bringing their children to meth labs, that the notion of the environment was no longer just the meth lab, but the womb itself. And a child also then meant a fetus in the womb. Now you’re in that territory already. So Alabama’s a very good way to look into the future, in a sense.

Rovner: So basically, if you’re pregnant and go into a bar, you could be threatening the fetus.

Varney: I mean, there’s kind of no limit, right? Like, did you drive recklessly? Did you slip or did you fall on purpose? I mean, that’s what I was saying earlier about it’s really going to be up to these local prosecutors to figure out how far they want to take this.

Rovner: And that’s not hypothetical. We’ve seen cases about a woman who fell down the stairs and had a miscarriage and was prosecuted for throwing herself down the stairs.

Varney: Or a woman who was pregnant and got into an altercation in a parking lot of a big-box store and got shot and the fetus died. And then she was arrested. I mean, eventually they dropped the charges, but. yeah.

Rovner: Well, moving on. So with narrow majorities in both houses of Congress for the party in charge, changing federal law in either direction seems pretty unlikely for the next two years, which leaves the Biden administration to try to reassure people who support abortion rights. But the Biden administration doesn’t have a long list of things that can be done by executive action either, beyond what they’ve done with the abortion pill, which we mentioned already — the FDA has loosened some of those restrictions. How has the Biden administration managed to protect abortion rights?

Alice Miranda Ollstein: First, along the lines of the FDA, the FDA has been called on by the pro-abortion rights side to drop the remaining restrictions on the abortion pill. So they’ve dropped some, but they still require a special certification for the doctors who prescribe it, a special certification for the pharmacies that are just newly allowed to dispense it. Patients have to sign something saying they understand the risks. These are called REMS. These are on drugs that are considered dangerous. And a lot of medical groups and advocates argue that there isn’t evidence that this is necessary, that the safety profile of these drugs is better than a lot of drugs that don’t have these kinds of restrictions. And so they said that it would improve access to drop these remaining rules around the pills. Some have even called for them to be available over the counter, although I don’t see that happening anytime soon. Along the lines of preventing unwanted pregnancies in the first place, the FDA also is sitting on a decision of whether or not to make just regular hormonal birth control available over the counter. So that’s one to watch as well. But the Biden administration have more things they could do. They have looked at providing abortions through the VA [ Department of Veterans Affairs]. That was a big one. Earlier this year, the president signed a memo just over the weekend directing the health secretary and others in the Cabinet to look at what they can do to improve access. We’ve seen similar statements and memos before. It’s not really clear what they’ll mean in practice. But I also want to go back to you saying that nothing is likely to happen in Congress. I agree on the legislative side, but I am watching closely on the appropriations side, because I think that’s where you could see some attempts to pull things in one direction or another in terms of where federal spending goes. And going back to the group’s wastewater strategy, one piece of that they want to do, the anti-abortion groups, is pressure Republican members of Congress to hold the FDA’s funding hostage until they do certain environmental studies on the impacts of the pills. That’s where I would watch.

Rovner: Yeah, and spending bills over the years have been the primary place to do legislating on abortion restrictions or take them off. It’s not just the Hyde Amendment that banned most federal spending for abortion. There are amendments tucked into lots of different spending bills restricting abortion and other types of reproductive health care. And when Democrats are in charge, they try to take them out. And when Republicans are in charge, they try to put them back in. So I agree with Alice. I think we’re going to see those fights, although it’s hard to imagine anything happening beyond the status quo. I don’t think either side has the ability to change it, but I suspect that they’re going to try. The administration has gone after some states on the federal EMTALA law, right? The Emergency Medical Treatment and Active Labor Act, which basically says that hospitals have to stabilize and take in women in active labor. And basically, if that conflicts with an abortion ban again, like with the FDA and drugs, federal law should supersede the state law. But we haven’t really seen any place where that’s come to a head, right?

Raman: Idaho has been the main one to watch with the lawsuit there. And the Justice Department did a briefing this week before their reproductive rights council met. And they had said that that was one of the cases they’re still doing — the Idaho, in addition to the lawsuit on the VA rule that Alice mentioned, and then also an FDA rule that we talked about earlier. But they’re monitoring different things going forward. But I think one of the interesting things is that they haven’t cast a very huge net in terms of the different things that they’ve been involved with in states. It’s mainly been these three situations. And even Idaho, they’ve already in that legislature introduced a bill that would amend their law as it is now, to deal with some of the nuances so that they would adhere to EMTALA. I don’t know how far that could go through or any of the logistics with that, but I mean, that sort of thing, the Idaho situation could be solved more quickly if they’re able to get that done. And DOJ [the Department of Justice] thinks that that aligns. But it is interesting that they haven’t dug into a lot of the other state efforts yet, but that they have that on their radar.

Varney: We have seen a sort of political battle being waged, of course. So on the anniversary of Roe v. Wade, Vice President Kamala Harris was in Florida, in Tallahassee, making the 50th-anniversary-of-Roe speech. Clearly, she wants [Gov. Ron] DeSantis to be on notice that should he become a candidate in the presidential election, that Florida is very much in play. And Florida is interesting because they still have a 15-week ban. So it would not have been allowed under Roe, but it’s not as draconian as what these other states have, which is essentially nothing.

Rovner: Most of the surrounding states, too.

Varney: Correct. Yeah, exactly. So Florida has really become a receiving state for abortions, particularly in the last six months. I’m going to be interested to see if somebody like a DeSantis can even run for president from a state with a 15-week ban. I mean, he’s going to be under a lot of pressure, not simply just to do a six-week ban, but to do an outright ban altogether. So I think if he tries to thread that needle and try and get anti-abortion groups on board to support him, he’s going to have to show them more.

Rovner: That’s just about what we’re going to get to. But before we leave, what the Biden administration has done, I need to mention, because it’s my own personal hobbyhorse — that the FDA has finally come out and changed the label on the “morning-after pill” to point out that it is not an abortion pill, that it does not cause abortion, that the way it works is by preventing ovulation. So there is no fertilized egg and that at least we can maybe put that aside, finally. That label change happened in Europe 10 years ago, and for some reason it took the FDA until now to make that clarification.

Varney: But as you said, Julie, it doesn’t matter because it’s just what you believe about the drug. You know, and just to remind listeners that that drug I did — I mean, we’ve all done stories on Plan B over the years — but the one I did recently was how Plan B is actually owned by a private equity company, actually two private equity companies. And they would not go to the mat to the FDA to get this thing changed. They could have done it years ago. So now that the FDA has made this … it’s just like anything, any kind of misinformation, that people who don’t support it can just simply say, well, the FDA is biased or that’s not actually how it works.

Rovner: True.

Varney: But I don’t think it will put it to bed.

Rovner: Well, quickly, let us turn to 2023 and what we might see for the rest of this year. We’ll start with the anti-abortion side. Obviously, overturning Roe was not the culmination of their efforts. They have some pretty ambitious goals for the coming year, right? Things like travel bans and limiting exceptions in some of these states. Sandhya, I see you nodding.

Raman: There are so many things, I think, on my radar that I’m hoping to watch this year just because we are in this whole new era where it might have been three years ago a lot easier for us to predict which things might be caught up in litigation, which things might be struck down. But I think now, after the Dobbs decision, even after the Texas S.B. 8 law that we mentioned earlier, it’s a lot more difficult to see what sort of things will go in effect that might not have been able to go into effect before. And one thing I think has been interesting is that the anti-abortion movement had been in unison before this on some of their traditional Hyde exceptions — that abortions to save the life of the mother, in cases of rape and incest were something that was broadly on board, that those would be allowed. And I think we’ve seen a lot increasingly in different states, things that have been brought up by different state lawmakers that would chip away at that, that vary by state, whether or not what defines is medically necessary to save a life. And even when we were talking about Idaho earlier with the EMTALA requirements or … there was a great piece in The New Yorker last year about the anti-abortion activist who really wants to lobby against rape exceptions because she was born as a product of rape and is using her own experience in that. And so I think that will be a very interesting thing to watch because there is not a uniform agreement on that. Whereas some of the things that have been taken out, there’s a lot more strong backing for across the board.

Rovner: Yeah, that’s actually my next question, which is we’re starting to see not only a split within the anti-abortion community about what to pursue, but a little bit of distance between the Republicans and the anti-abortion forces. And I think there’s a lot of Republicans who are uncomfortable with going further or who are uncomfortable even in some of the states that don’t have exceptions. I mean, are we looking at a potential breakup of this Republican anti-abortion team that’s been so valuable to both sides over the last few decades?

Ollstein: I wouldn’t call it a breakup, but the tension is absolutely there. I mean, I wouldn’t call it a breakup just because, where else are they going to go? I mean, the Democratic Party is much more supportive of abortion rights as a whole than even just a few years ago. And so, really, they know Republicans are their best bet for getting these restrictions passed. But there is this interesting tension right now. I think a lot of it is competing interpretations of what happened in this most recent election. You have anti-abortion groups who insist that the takeaway should be candidates didn’t run hard enough on banning and restricting abortion and were too wishy-washy, and that’s why they lost. And then you have a lot of other Republicans and party officials, party leaders who feel that they were too aggressive on promoting abortion restrictions and that’s why they lost. Also, you know, I will say this isn’t purely, purely cynical politics. A lot of Republican state lawmakers have told us they’re genuinely concerned now that they’re actually seeing the laws they drafted and voted for take effect and have consequences that they maybe didn’t intend. And they’re hearing from these state medical groups who are pleading for changes to be made. And so some of them say, OK, we want to get this right. We want to go back and make fixes. And the anti-abortion groups are telling them, no, don’t create loopholes. Don’t water down these laws. And so you do have this really interesting tug of war playing out at the state level right now. And because of what you said about the federal level, the state level is really where it’s at.

Varney: And I was going to make two points. One is that the split is also really developing between the national groups and the state and local groups. So while the national groups may say, yes, we support a 15-week ban in Florida as a step to get to something else, the local groups are gung-ho. I mean, they’re in extremely gerrymandered districts. You look at Florida and Texas, they elected the most anti-abortion state legislature in history so far. And, you know, these are people coming from extremely safe seats. And then you’ll see that the city level — the city sanctuary of the unborn, I believe it’s called — that movement, they really see them going down to even the local-local level to try and get that in effect.

Rovner: Well, I think in a lot of places, states that are very affirmatively supportive of abortion rights or have it in their constitution, are trying to move that down to the local level, to the city level, to see if they can actually have success in limiting abortion locality by locality. All right. Well, meanwhile, what’s the other side doing? What’s the agenda for the abortion rights side? It’s going to be, as we pointed out, it’s gonna be kind of hard for them to advance very much.

Ollstein: Yes. I think that there is a lot of excitement around the results last year using state-level ballot initiatives in red and purple states, putting the question of abortion rights to the general public, because on all six ballots last year, the abortion rights side prevailed. Some of those were more offensive, some of those were more defensive. But in all six, they swept. And so they are really excited about trying to replicate that this year. Of course, it’s not possible in every state to put a constitutional amendment on the ballot for a popular vote. But in states where it is possible and where it could make a difference, including some states where abortion is already banned and they could try to unban it through the popular vote process, that’s really something they’re looking at. And then, of course, even though our federal judiciary has become a lot more conservative over time with the appointments, courts have still been convinced to block a lot of these state abortion restrictions. And so there are efforts to bring lots of different, interesting legal theories. You know, one that caught my attention is trying to make religious freedom arguments against abortion bans, saying these abortion bans infringe on the rights of religious people who believe in the right to abortion, which is sort of flipping that narrative there.

Rovner: There have been a bunch of Jewish groups who have filed cases saying that.

Ollstein: Exactly. Judaism, Islam, certain Christian denominations, all support abortion rights. And so there’s an interesting tactic there. Also pointing to language in state constitutions about privacy rights and arguing that should extend to abortion. And so a lot of interesting stuff there.

Raman: I would add to that, in terms of another tactic that’s kind of flipping what the other side has been doing, a long-term strategy of the anti-abortion movement has been prioritizing judicial elections and a long-term thing of … just in the Senate, we saw, you know, wanting to get a lot of judges confirmed that had pro-life beliefs. And you can even look to where the women’s march over the weekend, that the state … one that they were prioritizing was in Wisconsin, which was held there, to jump-start the fact that they have a state Supreme Court race coming up. They were 4-3 conservative majority right now. And the judge that is retiring is conservative. So getting a new judge that supports abortion rights could really open a path to overturn the ban there. Even though judicial elections are considered nonpartisan, there are often ways to tell clues about where someone might rule in the future. And so, I think, looking at things like that in different states as a way to dial back some of the things that the other side has been doing will be an interesting thing to watch, too.

Rovner: All right. Well, I think that’s it for our discussion. Thank you, for those of you who have hung with us this long. I hope we’ve given a good overview of the landscape. Now it’s time for our extra-credit segment. Usually that’s when we each recommend a story we read this week we think you should read, too. But this week I’ve asked each of the panelists to choose their favorite or most meaningful story about reproductive health from the last year. As always, don’t worry if you miss it; we will post the links on the podcast page at khn.org and in our show notes on your phone or other mobile device. Alice, why don’t you go first this week?

Ollstein: Yes, I think I’ve promoted this story before, but I just can’t say enough good things about it. It’s really stuck with me. It’s from the New York Times Magazine by Lizzie Presser, and it’s called “She Wasn’t Ready for Children. A Judge Wouldn’t Let Her Have an Abortion.” And it really digs into what happens to teenagers who need to get their parent’s consent and can’t in order to have an abortion. They have this judicial bypass process where their lives, the fate of their lives are in the hands of an individual judge, who, in many cases, as this article demonstrates, come with their own biases and preconceptions about abortion. And then it just follows this one teenager who was denied an abortion, ended up having twins, and just completely struggled financially, her mental health. And she in the end said, you know, I knew what was right for me. I knew I needed an abortion. And it’s a very moving, painful story that shines a light on a piece of the story that I think is overlooked.

Rovner: Yeah. Sandhya.

Raman: For my extra credit, I picked a story that also has stuck in my head for a long time, kind of like Alice. So it’s “‘We Need to Defend This Law’: Inside an Anti-Abortion Meeting with Tennessee’s GOP Lawmakers,” from Kavitha Surana from ProPublica. I really thought this was one of the most interesting pieces on this topic that I read last year. The author got audio from a webinar in Tennessee hosted by the Tennessee Right to Life on strategy on the movement going ahead in their state. They talk a lot about the Tennessee ban and how it has narrow life exceptions as a model for other states and how the burden of proof would be on the doctor. And then they have some quotes from a Tennessee lawmaker who suggests things that I think the other side has sounded the alarm about: mining data to investigate doctors, how to push back against rape and incest exceptions. And I think one of the things that really struck me was when they brought up IVF, some of the advocates during the meeting that they had said that two years from now, next year, or three years from now, IVF and contraception can be regulated on the table. But that’s like next steps.

Rovner: Absolutely. That was a great scoop, that story. Sarah.

Varney: So I actually picked a radio segment. It’s about a 12-minute-long radio segment that I did with Science Friday. On “Why Contraceptive Failure Rates Matter in a Post-Roe America.” So one of the things I kept hearing was, well, women are just going to have to really double up on contraception or make sure that they’re being responsible about taking their contraception. So it turns out that there’s a textbook on contraceptive technology and in that is a whole page on contraceptive failure rates, which show you what contraceptive failure rates should be in a laboratory and what they are actually out in the real world. So, for instance, the typical-use failure rate for birth control pills is 7%. So that means that seven out of 100 women on pills could experience pregnancy in the first year of use. So then I went and found the data that shows us the number of women ages 15 to 49 who are on specific methods of birth control, everything from the Depo-Provera to the contraceptive ring and patch to male condoms, to IUDs, to birth control pills. And you’ll see on both the Science Friday and the KHN website, we have these wonderful graphics where you can see that in one year of people using male condoms, because of their failure rate is about 13% in the real world, that could lead to up to 513,000 wanted pregnancies. Birth control pills, based on the number of women using birth control pills, up to 460,000 pregnancies a year in people who are actually using contraception to not get pregnant. So I think these data visualization is really important. And you can hear interviews that I did with the researcher and the physician who actually is the author of this textbook, as well as one of the world’s leading reproductive endocrinologists who talks about what’s next in contraceptive efficacy.

Rovner: Yes, I loved that story. Well, my story is also a radio story. It’s from NPR by Carrie Feibel. And it’s called “Because of Texas’ Abortion Law, Her Wanted Pregnancy Became a Medical Nightmare.” And it’s from July. And the events that it chronicles happened before the overturn of Roe v. Wade, because, as we’ve said, Texas’ abortion ban was already in effect. By now, we’ve heard this story many times. A woman with desired pregnancies, water breaks prematurely, which would normally result in a quote-unquote “medical termination.” Except the doctors and hospitals aren’t sure how sick the mom needs to be before the pregnancy actually threatens her life. And any other abortion is illegal, and they could get in legal trouble. So they put her through days of hell and sickness before she starts to show signs of sepsis and just before she and her husband were actually going to fly out of the state to get the pregnancy terminated. But this was the first of these stories that I read. And it hit me very hard. And I have such respect for the couple here who were willing to come forward and publicize all that the women called these gray areas of abortion, which lawmakers often think of as black-and-white. It was just one of those stories that sticks with you.

All right. That is our show for this week. As always, if you enjoyed 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 ever-patient producer, Francis Ying. Also, as always, you can email us your comments or questions. We’re at whatthehealth — all one word — @kff.org. Or you can tweet me. I’m @jrovner. Sandhya?

Raman: @SandhyaWrites

Rovner: Alice?

Ollstein: @AliceOllstein

Rovner: Sarah.

Varney: And @SarahVarney4

Rovner: Will be back in your feed with our regular news rundown next week. Until then, be healthy.

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Julie Rovner is chief Washington correspondent and host of KHN’s 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 abortion debate has changed dramatically in the seven months since the Supreme Court overturned Roe v. Wade and its nationwide right to abortion. Nearly half the states have banned or restricted the procedure, even though the public, at the ballot box, continues to show support for abortion rights.

In this special two-part podcast, taped the week of the 50th anniversary of the Roe decision, an expert panel delves into the fight, the sometimes-unintended side effects, and what each side plans for 2023.

This week’s panelists are Julie Rovner of KHN, Alice Miranda Ollstein of Politico, Sandhya Raman of CQ Roll Call, and Sarah Varney of KHN.

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Alice Miranda Ollstein
Politico

@AliceOllstein

Read Alice's stories

Sandhya Raman
CQ Roll Call

@SandhyaWrites

Read Sandhya's stories

Sarah Varney
KHN

@sarahvarney4

Read Sarah's stories

Among the takeaways from this week’s episode:

• Exemptions to state abortion bans came into question shortly after the Supreme Court’s decision to overturn Roe, with national debate surrounding the case of a 10-year-old in Ohio who was forced to travel out of state to have an abortion — although, as a rape victim, she should have been able to obtain an abortion in her home state.
• The restrictions in many states have caused problems for women experiencing miscarriages, as medical providers fear repercussions of providing care — whether affecting their medical licenses or malpractice insurance coverage, or even drawing criminal charges. So far, there have been no reports of doctors being charged.
• A Christian father in Texas won a lawsuit against the federal government that bars the state’s Title X family-planning clinics from dispensing birth control to minors without parental consent. That change poses a particular problem for rural areas, where there may not be another place to obtain contraception, and other states could follow suit. The Title X program has long required clinics to serve minors without informing their parents.
• Top abortion opponents are leaning on misinformation to advance their causes, including to inaccurately claim that birth control is dangerous.
• Medication abortion is the next target for abortion opponents. In recent months, the FDA has substantially loosened restrictions on the “abortion pill,” though only in the states where abortion remains available. Some opponents are getting creative by citing environmental laws to argue, without evidence, that the abortion pill could contaminate the water supply.
• Restrictions are also creating problems for the maternal care workforce, with implications possibly rippling for decades to come. Some of the states with the worst maternal health outcomes also have abortion bans, leading providers to rethink how, and where, they train and practice.
• Looking ahead, a tug of war is occurring on state and local levels among abortion opponents about what to do next. Some lawmakers who voted for state bans are expressing interest in at least a partial rollback, while other opponents are pushing back to demand no changes to the bans. With Congress divided, decisions about federal government spending could draw the most attention for those looking for national policy changes.

Also this week, Rovner interviews Elizabeth Nash, who tracks state reproductive health policies for the Guttmacher Institute, a reproductive rights research group.

Click to open the transcript

Transcript: Part I: The State of the Abortion Debate 50 Years After ‘Roe’

KHN’s ‘What the Health?’Episode Title: Part I: The State of the Abortion Debate 50 Years After ‘Roe’Episode Number: 281Published: Jan. 26, 2023

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Julie Rovner: Hi! This is Julie Rovner from KHN’s “What the Health?” We’re doing a special episode this week trying to summarize the state of the abortion debate in the wake of the Supreme Court’s overturn of Roe v. Wade. We have the very best group of experts and reporters I could think of. And the conversation was so good and so long that for the first time we’re breaking it into two parts. So here’s Part I. 

Today we are joined via video conference by Alice Miranda Ollstein of Politico.

Alice Miranda Ollstein: Good morning.

Rovner: Sandhya Raman of CQ Roll Call.

Sandhya Raman: Good morning.

Rovner: And my KHN colleague Sarah Varney.

Sarah Varney: Hey.

Rovner: We will actually get to our panel a little bit later. That’s because on this special episode of “What the Health?” we’re taking a deep dive into the state of abortion access on the 50th anniversary of Roe v. Wade. We’re going to get our bearings first by hearing from Elizabeth Nash of the Guttmacher Institute, a reproductive rights research group. As you’ll hear, Elizabeth is a walking encyclopedia of state abortion rules and regulations. So here’s the interview, and then we’ll be back for our group discussion. 

I am pleased to welcome to the podcast Elizabeth Nash, who tracks state legislative activity on reproductive health issues for the Guttmacher Institute. Elizabeth knows more than probably any other single person about the state of abortion laws and how they’ve changed over time and has been an invaluable resource for me over the many years I have covered this issue. I could think of no one better to kick off our special episode on the state of abortion rights in 2023. Elizabeth, welcome to “What the Health?”

Elizabeth Nash: Thank you. That is the most flattering introduction, and I am glad I have been able to help.

Rovner: Well, I can honestly say that I’ve given up on trying to keep track of where abortion is legal, illegal, or somehow restricted since Roe was overturned last June. Is it safe to say this is the most rapid change in state rules since you’ve been tracking this?

Nash: Yes, to put a point on that, I started tracking 1999. So I do have some sense of the longevity of what we’re talking about. And going back even further, the rules weren’t changing all that quickly in 1973 or ’5. I mean, they were changing somewhat quickly. But when we look at what is happening right now, it really is a sea change, right? We have a quarter of the states — so there are 14 states — where abortion is unavailable, right? In 12 of those states, that’s due to abortion bans. In two other states,it’s because of other things that have happened. And so you’re looking at, already, the South, the Plains, the Midwest … abortion access has been extremely difficult to come by. And then we’re seeing what’s happening in the progressive states, at the same time, to expand access. So it’s been on both ends of the spectrum, right? Expanding and restricting. And it literally is all over the map.

Rovner: Is there any way to divide them into categories that make it easier to track? I know in some states …  we all know about these six states where there were voter ballot measures. Some of them have been legislative issues and some of them are stuck in court on both sides, right?

Nash: Oh, yes, absolutely. So beyond these 14 states where abortion is unavailable … so you’re really thinking about the Texases, Louisianas, Mississippis, Arkansas, Oklahomas of the world. There’s another group of states where there are abortion bans that were enacted before the Dobbs [v. Jackson Women’s Health Organization] ruling and now are tied up in court. And we’re thinking about states like Utah, Wyoming, also Indiana, even though that one happened after the Dobbs ruling. They came into special session and passed an abortion ban and now it’s tied up in the courts. But we have a lot of pieces that are moving through the court system. And what is different now than before the Dobbs ruling in June is that most of these cases are in state court. And so we’re now having to rely on state constitutions to protect abortion rights. And in many of these states, the state constitutions haven’t been evaluated and tested in this way. So this is a whole brand-new batch, essentially, of court cases about what do we expect? What are the kinds of clauses that are being used to support abortion rights and to hopefully strike down these abortion bans?

Rovner: I know for years, even decades, anti-abortion groups were united in their desire to see Roe overturned. Now that it has been, are you surprised with how much farther some are trying to get states to go beyond just straight abortion bans?

Nash: You know, I think Dobbs came down and those … activists and advocates in the movement said they’re not going to stop here. And they haven’t, right? So the general public thought, oh, maybe this is settled. And those in the movement said, no, wait, this is one more step in the journey. Also, yes, we are seeing more efforts even in these states that have abortion bans that aren’t even implemented looking to pass more restrictions. And you’re like, what could they possibly do? Well, there’s been a real focus by abortion opponents on medication abortion. Because they know people are accessing medication abortion online, they want … abortion opponents want to try to hem that in and stop that from happening. So more restrictions on medication abortion, even potentially legislation that would prevent access to websites that have information about abortion on them. So looking at a range of types of policies around medication abortion, also seeing some more restrictions potentially that could prevent abortion funds and support organizations from doing their good work. ’Cause one of the conversations after the Dobbs ruling in June was, well, if people leave the state to access abortion, could we ban them from travel? Well, we probably won’t see a lot of legislation that specifically bans people from leaving the state for an abortion. But we will see some legislation around trying to give them fewer options, such as making it harder for abortion funds and practical support organizations to fulfill their mission or legislation that prevents businesses from supporting their employees to go to another state and access abortion.

Rovner: I was struck by a piece you wrote last month on exceptions to abortion bans, particularly for rape or incest or the life or health of the pregnant woman. I am old enough to remember the early 1990s when Congress spent several years debating whether to add back rape and incest exceptions to the federal “Hyde Amendment.” They had been there originally. They were dropped out in the 1980s and then there was a huge fight over getting them back. But you point out that for all the effort on the issue, these exceptions don’t actually mean very much. Why is that?

Nash: Well, to put it in a few words, abortion opponents see exceptions as loopholes, and they’re trying to narrow those so-called loopholes so that it’s impossible to access care. So I think the public generally had this sense that, oh, there must be exceptions if someone’s health is at risk, or their life is in danger and perhaps some other situations, right? So that just general understanding the public might have. Well, in fact, one, those kinds of health exceptions just really never existed at all. And the fight really was what you’re talking about, around rape and incest, maybe a genetic anomaly of the fetus. And on top of that, when they were added, they really are these incredibly narrowly worded exceptions that make it impossible for someone to get an abortion under them. A lot of times people would be required to report to the legal authorities. Well, that could be very traumatizing for a sexual assault survivor. They may not be there emotionally. They may be expecting additional blowback from the authorities. Unfortunately, that has been part of the history, right? And so, having to relive all of that is a problem. So really, these exceptions are basically meaningless. And yet we’re expecting to see fights over them in 2023. And particularly in some of these states where we’ve seen abortion bans. Tennessee is one example where there’s an abortion ban in effect and basically there is no access to abortion, in part because there’s a provision of that ban that says that the provider has to give out an affirmative defense if they provide an abortion. And, basically, that means that there will be no abortions provided in Tennessee.

Rovner: Because if you provide one, you’ll still end up in court, even if it’s legitimate.

Nash: Yes, you’ll end up in court. It’s a huge expense. And if you lose, you’ll have all of these penalties and, potentially, loss of license … there’s a lot at stake. And so in Tennessee, there is a potential of a debate around exceptions. And again, I think this is about abortion opponents trying to make their bans look less bad. Right? This is about, oh, well, we’ll add in some exceptions. People will think we’re doing something and, in effect, it means nothing. So really, where we need to start moving towards — and, of course, advocates are moving towards this — it’s more about how do you bring along the public and others who need to roll back abortion bans? They don’t serve any public health good.

Rovner: There seems to be this growing — I won’t even call it a rift yet, but a separation between a lot of Republicans who’ve traditionally voted for abortion bans because they knew they weren’t going to go into effect. So it looked good. And they have that section of their base that they make happy. Well, now that we’re shooting with real bullets, if you will, some of those Republicans seem to be getting a little antsy about some of the bans, particularly when they’re hearing about doctors who are afraid to provide not just abortion care, but sometimes routine or emergency care for women with problem pregnancies.

Nash: Yeah, it’s very true. And yes, Republicans in these states, particularly conservative states, are in a bit of a pickle. They’re trying to placate their base that has been arguing for abortion bans without any exceptions. And now they see their opportunity with the fall of Roe. And then you have the public, the much larger public that supports abortion access and, in fact, is getting more supportive of abortion access because the rubber has hit the road. We are seeing the impact of abortion bans, and it is around abortion access. It is also around what you’re seeing in maternal health care. And also in these conservative states, we’re seeing a conversation among providers that is, Do I stay in this state? Can I remain here knowing that I cannot provide all the care my patients need and deserve?

Rovner: That’s the big irony, is that banning abortion could end up having fewer rather than more pregnancies, because I know a lot of women who are afraid to get pregnant lest they have complications that they won’t be able to get treated.

Nash: Yeah, absolutely. And if patients are feeling supported and know that they can get the care that they need, then that can change the whole trajectory, at least for a few years of their life. Because people may decide, OK, I’m going to delay my childbearing until I feel comfortable and in a situation where I feel that my health will be taken care of.

Rovner: Well, I think there will be a lot more for you to follow this year and in the next couple of years. You’re going to have to make your spreadsheet bigger. I look forward to continuing to do this. Elizabeth Nash, thank you for your work, and thank you again for joining us.

Nash: Thank you so much for having me. It was a real treat to talk to you. I followed your work for forever.

Rovner: We will definitely have you back.

OK. We are back with Alice [Miranda] Ollstein, Sandhya Raman, and Sarah Varney. I’ve tried to order this discussion by topic, and while we won’t get to everything, I hope we’ll at least get a good idea of the landscape since the Supreme Court overturned Roe v. Wade last June. I want to start by talking about some of the immediate or almost immediate effects of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization on June 24. Abortion rights advocates had been arguing for years, in some cases decades, about some of the things that might happen if Roe was overturned. Mostly, they were told the equivalent of “Don’t worry your pretty little heads over those things; they won’t happen.” But in fact, a lot of them did, starting almost immediately with the case of a 10-year-old in Ohio who was raped and had to go to Indiana to end the resulting pregnancy. Abortion opponents first claimed it was made up. Then when it was proved true, the Indiana attorney general went after the doctor who treated the child. This whole fight is still actually going on, isn’t it? Alice, I see you nodding.

Ollstein: Yes. So there are not criminal charges against this doctor or, that we know of, any doctor yet. You know, that was one feared thing that has not materialized, mainly because doctors have proven very cautious and unwilling to even do anything that could be seen as violating these state bans. So what’s at issue in the Indiana case is around the medical licensing — so not criminal charges. But still it’s very intimidating for the doctor. Her name was dragged all over the news and she got lots of threats, etc. And I think what really jumped out most for me from that case is, theoretically, the child should have been able to get an abortion in Ohio under these purported exemptions to the state’s ban. And yet both the child and her caretakers thought it was necessary to go out of state. And that really shows how these exemptions may exist on paper but are really difficult and, in some cases, impossible to use in practice. 

Varney: And the other thing that that case I think shows was that the response from those who oppose abortion was sort of immediate, that this did not happen. This was made up. We saw Jim Jordan come out with some tweets essentially saying this was just a hoax. And then when they actually found this 27-year-old man and they DNA-tested him and they arrested him, there’s been crickets actually from that side. And I think that also indicated to us what we’ve been seeing now over the last couple of months. What I heard on Friday at the March for Life in Washington and again at the National Pro-Life Summit as well in Washington, just this absolute denial, really, that all of these things are happening. I brought specific cases to people that I interviewed, both the soldiers on the ground to leaders of the movement, to say, “Here’s what’s happening in Louisiana, this particular case in Texas.” And 2-to-1, they said, “This is not happening. This is made up. These physicians are just doing this because they want to send a message.” And then when you interview obstetricians and gynecologists who are opposed to abortion rights, they too say that, “Oh, this is all just made up, that the exceptions are very clear. We know what to do to save a woman’s life.” So I think this is a whole other front … this sort of misinformation campaign about the actual impact on the ground of these abortion bans.

Rovner: Yeah. And to follow up on that, I mean, another thing that was predicted is that the lives and health of pregnant women who were not seeking abortions but who experienced pregnancy complications could be negatively affected. And that is definitely happening, right? These are among the things that the anti-abortion movement says are not happening. But we’ve now seen story after story of women, particularly, whose water breaks too early for even premature infants to survive and who end up basically being stuck in this limbo because their doctor is worried about violating the law, but also worried about keeping the woman alive.

Raman: There are a number of doctors who’ve spoken up about some of the risks that they felt firsthand of defying some of these state bans, even when it’s a serious health or emergency risk or having to go through hospital lawyers before they can act. And I think there’ve been a lot of cases, especially in Missouri and Texas, and I think the Texas Medical Association last year even appealed to the state medical board because of the difficulty they had in treating some of these serious health issues for pregnant individuals because of the risk … that it just kind of creates this layered effect where, on one hand, some of these state laws don’t even exactly lay out what is an emergency, what isn’t an emergency, how do you define imminent death, how mental health fits in? Even though that can be, as we know, a serious health risk as well. And it just — a number of layers to figuring out an already tricky situation when dealing with an emergency health situation should be pretty straightforward.

Rovner: And yet … 

Varney: And it’s interesting, too, I also posed this exact question to marchers on Friday. And 2-to-1 they said, “Well, first of all, we don’t really understand pregnancy. We don’t understand fetal development. We certainly don’t understand fetal demise. We’re … none of us are doctors.” None of the people out there, most of them at least, were not doctors. But, you know, saying very specifically, that case in Louisiana that KHN and NPR reported about a woman who was … she had a 4-year-old. She wanted to be pregnant. She started hemorrhaging, was obviously miscarrying. She went to a hospital. She was turned away. She was bleeding profusely, in intense pain, went back to a second hospital, also turned away because they could still detect a faint fetal activity, fetal cardiac activity. And so when I posed this really specific question to some of the people at the march, they said, “Well, this is what God wants. God wants her to return to her home and let this baby die, or she should birth this baby and then bury it.” This sort of disconnect between what’s happening to a person who’s miscarrying and their religious beliefs about what should happen are completely far apart.

Ollstein: Yeah, what’s really come to the fore is that the treatment for a miscarriage or a pregnancy complication and an abortion medically are the same in so many cases. It’s the same drugs you take. It’s the same procedure to empty the uterus. And so restrictions on one will inevitably impact the other. And that’s what we’re really hearing from doctors who, again, because of the chilling effect created by these laws, are afraid to do things that would risk them getting charged, risk them losing their licenses, you know, issues with malpractice insurance. And so they are really erring on the side of not providing this care in a lot of circumstances.

Rovner: And sometimes there are women who are not even pregnant getting caught up in this. In Alabama, a woman was jailed for using illegal drugs that threatened her unborn child, except she’s now suing for false imprisonment because she was not pregnant. Some states are basically criminalizing every stage of pregnancy, right?

Ollstein: This has been an issue since before Dobbs, for sure. I mean, and it’s not just red states. In California, two women were incarcerated for taking drugs and having pregnancy loss. And so I think this has been exacerbated by the fall of Roe v. Wade and this new aggressive era with the anti-abortion officials becoming emboldened. But it’s certainly not the first time we’ve seen this happen.

Rovner: And Sarah, you were talking about Alabama, in particular?

Varney: Alabama has sort of perfected this. Steve Marshall, who’s their current attorney general, was a local prosecutor in a county that essentially came up with this notion that you could extend these chemical endangerment laws to pregnant women. There was a woman who was in prison for 10 years after she used drugs during her pregnancy and had a stillbirth. And it’s hard to say that these kinds of laws are helping these women or helping them with their addiction issues. And I think the thing that I’m really on the lookout for — and we’re all national reporters, but I’m sure, like many of you, I travel to these states — I think what’s difficult is that in a place like Alabama, this is really now up to local prosecutors. So, as we saw, that was a case where a family member called the police and reported this woman saying that she was using drugs and that she was pregnant. Now, did this family member actually know she was pregnant or not, or was she just trying to seek some sort of revenge? I have no idea. But you’re right. She was then jailed and then kept saying, “Give me a pregnancy test, I’ll take it!” And then, sure enough, she, of course, wasn’t pregnant. But, you know, it’s up to individual prosecutors in Idaho, in Alabama, in Texas. They can sort of do what they want now, and especially in these states that have fetal rights written into their constitutions. This is really the next front.

Rovner: Well, and of course, the biggest thing of all that we were told — insisted it was not going to happen — anti-abortion activists said they never intended nor wanted to limit birth control. But that really is starting to happen, isn’t it?

Raman: I mean, we could even see this last year. The House did their vote on a bill to codify contraception, and it did not get much bipartisan support. And of the eight Republicans then that voted for it, five of them are no longer in office. One of them, in particular, that is there of the three, Nancy Mace of South Carolina, spoke a lot when we had the recent abortion votes in the House about how she wanted there to be votes on things like birth control first, before they went to look at abortion. But it seems like there’s not as much an appetite among Republican lawmakers federally to do that right now.

Rovner: Yeah, I think Nancy Mace is trying to be the Lisa Murkowski of the House, trying to have it all ways.

Varney: I’m actually about to go to Texas to do a story for the NewsHour about this Title X lawsuit. So this was a father, you guys probably heard about this, but this is a Christian father of three daughters who sued to say — his lawyer is Jonathan Mitchell, who was the lawyer for the S.B. 8 case and is involved in a lot of anti-abortion conservative causes. And …

Rovner: S.B. 8, for those who don’t remember, it’s the Texas law that was in effect before Roe was overturned, that basically — the bounty to turn in somebody you think has something to do with abortion, and you can win money!

Varney: Correct. And was clearly in violation of Roe but was allowed to stand. Well, so, this lawyer, on behalf of this father and his children, has sued the federal government to the same federal judge that S.B. 8 went through. And they won. So now in Texas, if you are a minor, you cannot go into Title X clinics for the first time since the Nixon administration and get birth control. And if you live in a rural area like Amarillo, you really don’t have any other options. And of course, there’s lots of evidence that shows why parental consent actually is harmful when it comes to reproductive health, particularly for girls. So now we’re going to be shooting that story. But I think there’s a lot of concern among the Title X administrators in the different states where abortion is banned, and there are these very active anti-abortion groups, that they will essentially extend this Title X ruling to their other states without even having to go to the courts. They’ll just say, well, they did it in Texas, so we can now do it in Alabama.

Rovner: And funny, there was a giant fight about exactly this in the Reagan administration, which was before I started covering this. But I read about it. It was called the “Squeal Rule.” It was an effort to actually require parental involvement in girls getting birth control from Title X clinics. And it was struck down by a federal judge. Basically, it has been doctrine ever since, and law, that teens are allowed to go seek care from Title X clinics and they don’t have to tell their parents. Obviously, Title X clinics don’t provide abortions. They’re not allowed to by federal law. But teens are definitely, have been allowed to seek birth control without parental involvement. And if this lawsuit ends up getting upheld, that’s going to change, too.

Varney: I’ll be interested, though, if I can ask, because I’m curious about your opinions on all this, is that, again, when I was at the march and that summit, you know, I asked every single person I interviewed, well, OK, so you want to stop abortion? What about birth control? Knowing full well that for many of these people, most of them are deeply religious and they do not believe in birth control. But Kristan Hawkins, from the Students for Life, her line, which I have heard from others as well, is, quote, “Chemical birth control is dangerous to women.” So I will be curious to see how we as journalists confront the misinformation that has always been percolating in pro-life circles for many, many years. But how will we confront that misinformation in our stories? You know, I actually chose, in my reporting for the NewsHour over the weekend, not to use that clip, because I would then have to go into several paragraphs of, actually, that’s not the case. So I’m curious what we’re going to do about that, because they will make that claim. And then are we going to treat it in the same way that we treated, you know, Donald Trump when he would sort of make things up? 

Rovner: Well, there’s also the further complication — if you go back to the Hobby Lobby Supreme Court case in 2014 — is that some people and organizations oppose some types of birth control because they say — this is sort of famously with the IUD, the intrauterine device — that it can prevent the implantation of a fertilized egg, and therefore that’s a very early abortion, or some types of progesterone, [that] only birth control can prevent the implantation of a fertilized egg. It turns out in most cases that is not the case scientifically, but that is still their belief. And the Hobby Lobby case basically said, if you believe it, that’s your religion and you can have it that way. So it’s already a complicated case, and I’m sure we will see more of this going forward. But I want to drill a little bit deeper on the future of the abortion pill, mifepristone, which actually does end a pregnancy. It’s the first of a two-drug combination used for medication abortion. Both sides in the abortion debate seem to be zeroing in on medication abortion as the next big target: abortion rights forces, because the ability to end an early pregnancy without going to a physical abortion clinic or having surgery, it’s preferable for now a majority of people seeking abortions; anti-abortion forces are against it for pretty much the same reason. It’s a way for abortions to continue mostly out of public sight. So let’s start with the abortion rights side. What’s being done to make the pill more easily available? We’ve had a lot of activity on that front just in the last couple of weeks, right?

Ollstein: Yeah. So there’s been efforts for years now to petition the FDA to loosen the restrictions around who can get the pill, where they can get it, when they can get it. And that has slowly led to those rules being loosened over time. So a couple of years ago, the FDA moved to allow telemedicine prescriptions and patients being able to receive the pills by mail. At first, they said, OK, just during the pandemic because it’s too dangerous to go into a clinic. And then they said, OK, we looked at the data, and actually this is safe to do permanently. And then just very recently, they said that those prescriptions can also be sent to retail pharmacies. So you can pick them up at your local CVS or Walgreens. And that is broadening where and when and how patients can get these pills. But again, only in states where their use is not already banned or severely restricted, which is, you know, a lot of states right now. Some of those laws are blocked in court, so the exact count is always fluctuating. But it’s around 18 states where that is not … those options for obtaining the pills are not there for patients right now.

Rovner: There’s also lawsuits challenging these bans, right? Sandhya, I see you nodding.

Raman: We have three main lawsuits that I think that we’re all watching right now. We have one from last year from anti-abortion groups that is challenging the 2000 approval of mifepristone, on the grounds of it should rescind the approval by the FDA. And so the next step is, as early as next month, the judge there in that case could issue a preliminary injunction that would mean that there wouldn’t be mifepristone nationwide, not just in that district. And the thing about that case that’s interesting is, I think, regardless of what we see happen there, it will get appealed and that would go to the 5th Court of Appeals, which is notorious for doing a lot of the Obamacare cases that we’ve seen in the health space over the past few years.

Rovner: And a lot of abortion cases over the years, too.

Raman: Yes, yes.

Rovner: Because it’s what Texas and the 5th Circuit in Texas and Louisiana and a couple of other Southern states. 

Raman: Yeah. And then the second two … came yesterday. And they’re interesting in that they’re on the state level in that one of the main manufacturers of mifepristone GenBioPro is suing in West Virginia over the fact that the state abortion laws that they say are at odds with mifepristone in the state due to the near-total ban. And then, in North Carolina, a physician is also suing saying that the state laws essentially are also at war with the federal jurisdiction over this.

Rovner: Yeah, basically, they’re saying that states can’t individually, basically, make unavailable a drug that’s been approved by the FDA because think of how that would be if every state could decide whether every drug was going to be legal in that state, we would have basically chaos with a lot more than just the abortion pill.

Ollstein: Arguably, we do, basically, have chaos right now.

Rovner: That is a fair point. There were cases in Massachusetts several years ago about a new opiate that eventually there’s a federal court that said, no, no, no, Massachusetts, we get what you’re trying to do, but you can’t overrule the FDA. Basically, if the FDA says this is safe and effective and it’s going to be available, then you have to abide by that. So we will see if that’s going to happen with the abortion pill.

Varney: Can I just add something? 

Rovner: Yes.

Varney: That I was just reading about abortion pill bans in different states, including South Dakota. And the targeted advertisement I got from Google was for a company called hims, which is for Viagra. So I’m reading here about how abortion pills are not allowed, abortion is illegal, and I hope this is a family podcast, but this is an advertisement that anybody can see. It says: Get hard, stay hard, and last longer. So this is the advertisement you get when you go to the AP and you read a story about abortion.

Rovner: Great. So the other side is also having some creative ways to go after the abortion pill. I don’t think it’s them who’s planting the advertisements for men. But Alice, you uncovered this story about some groups charging that the pill can cause environmental damage in wastewater, right?

Ollstein: Yes. So, look, anti-abortion groups know people are still obtaining these pills in states where they’re not allowed to do so. And so they are looking to, you know, whatever they can look at in order to block that from happening. And they’re trying to get really creative. And so one of the several new things they’re trying is they’re trying to cite environmental laws in order to get state lawmakers to pass new restrictions, in order to get state AGs to move in and do more enforcement actions to stop the use of these pills. So they are alleging that because people take the pills at home and have an abortion at home, that goes into the wastewater, that that is a risk to wildlife, livestock, humans. There is not evidence for this right now. I talked to people who study the effect of other pharmaceuticals in wastewater, and they say that this is just infinitesimal, but this is something they’re trying. Again, it’s not the only thing they’re trying. But, you know, it could have some legs. They’ve already convinced one state to introduce legislation specifically along these lines — West Virginia — saying that any doctor that prescribes the pill also has to give the patient a medical waste bag in order to bag the abortion and not have it go into the wastewater. They are trying to do this in other states. You know, the goal is, again, to stop the use of the pills altogether.

Varney: And when I was at the summit on Saturday, they had an hour-and-a-half-long session on this. And it was in this ballroom, and it was just packed with high school and college students primarily. And they plan on doing a taste-the-water challenge at different campuses; they’re starting in Texas. And they said very specifically, we are not going to have any signs that say anything about how we’re pro-life or opposed to abortion. We’re not going to have anything that says “fetus.” We’re just going to have glasses of water up on the table at these campuses and we’re going to invite students to step up and taste the water. And then we’re going to tell them that there is likely traces of the abortion pill in this water. And so they’re going to use high school students and college students to sort of run these taste-the-water challenges, to bring in this new idea and spread it around.

Rovner: Super. Can’t wait. All right. Well, moving on. One of the interesting outcomes of this decision is that it’s also affecting people who aren’t pregnant, don’t have anything to do with being pregnant. There have been a bunch of stories about women of childbearing age being unable to get medications for lupus and other conditions. How is that happening?

Ollstein: Well, again, you know, these things are not just used for one purpose. This actually came up pretty recently because some medical groups were petitioning the FDA to add more things to the abortion pill label so that they can be more legally protected in obtaining these medications for non-abortion purposes. Right now, the pill is only technically supposed to be prescribed for an abortion, but it’s used off-label for all of these other medical treatments. And so you have instances where pharmacists who are also newly empowered right now to deny prescriptions to people based on what they assume it’s being used for. And that’s leading to a lot of patients not being able to obtain prescriptions for other conditions.

Rovner: And for other drugs, right? I mean, drugs that can cause abortion, but aren’t the abortion pill. I’m thinking mostly of methotrexate, which is used for a lot of different conditions, but is also in some countries used as an abortion pill. And we’ve seen lots of cases where people are unable to get their methotrexate prescriptions refilled. People who have been using it for years. So that’s been complicated.

That’s it for Part I of our special, two-part podcast on the state of the abortion debate 50 years after Roe v. Wade. Don’t forget to download Part II, which will be right after this in your feed. It’s got the rest of our discussion, plus some very special extra credit. Thanks for listening.

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Sin embargo, tras unas horas en el hospital, un médico dio de alta a Thompson para que volviera a la cárcel. Así pasó de ser un paciente de salud mental a un recluso de la prisión del condado de Dauphin. A partir de ese momento, se esperaba que cumpliera las órdenes, o que se le obligara a hacerlo.

A las pocas horas de regresar a la cárcel, Thompson se enzarzó en una pelea con los guardias. Su historia es uno de los más de 5,000 incidentes de “uso de fuerza” que se registraron en 2021 en las cárceles de los condados de Pennsylvania.

El caso de Thompson figura en una investigación, efectuada por WITF, que revisó 456 incidentes de “uso de fuerza” en 25 cárceles de condados en Pennsylvania, durante el último trimestre de 2021. Entre los casos revisados, casi 1 de cada 3 involucraba a una persona que sufría una crisis psiquiátrica o que padecía una enfermedad mental.

En muchos casos, los guardias utilizaron armas, como pistolas paralizantes y aerosoles de pimienta, para controlar y doblegar a presos con condiciones psiquiátricas graves que podrían haberles impedido seguir órdenes, o entender lo que estaba sucediendo.

Los registros muestran que cuando Thompson intentó huir del personal de la cárcel durante un intento de palparlo en busca de armas, un agente le roció con gas pimienta en la cara y luego intentó tirarlo al suelo.

Según la documentación, Thompson se defendió por lo que llegaron otros agentes para esposarlo y ponerle grilletes. Un oficial cubrió la cabeza de Thompson con una capucha y lo sentó en una silla, atándolo de brazos y piernas, y unos 20 minutos después, otro policía notó que Thompson no respiraba bien. Lo llevaron de urgencia al hospital.

Días después, Thompson murió. El fiscal del distrito no presentó cargos. El fiscal del distrito, el alcaide de la prisión y los funcionarios del condado que supervisan la cárcel no respondieron a las solicitudes de entrevistas sobre el tratamiento de Thompson, o se negaron a hacer comentarios.

La mayoría de los casos de uso de fuerza en las cárceles no conducen a la muerte. En el caso de Thompson, la causa de la muerte fue “complicaciones derivadas de una arritmia cardíaca”, pero la forma en que se produjo fue “indeterminada”, según el forense del condado.

En otras palabras, no pudo determinar si la muerte de Thompson se debió a que le rociaron gas pimienta y lo sujetaron, pero tampoco dijo que Thompson muriera por causas naturales.

El vocero del condado de Dauphin, Brett Hambright, también declinó hacer comentarios sobre el caso de Thompson, pero señaló que casi la mitad de las personas en la cárcel padecen una enfermedad mental, “junto con un número significativo de individuos encarcelados con tendencias violentas”.

“Siempre va a haber incidentes de uso de fuerza en la cárcel”, indicó Hambright. “Algunos de ellos involucrarán a reclusos con enfermedades mentales”.

Durante la investigación, expertos legales y en salud mental declararon que las prácticas empleadas en las cárceles del condado pueden poner a los presos y al personal en riesgo de sufrir lesiones, y pueden dañar a personas vulnerables listas para regresar a la sociedad en cuestión de meses.

“Algunos presos con enfermedades mentales quedan tan traumatizados por los malos tratos que nunca se recuperan; otros se suicidan, y a otros se les disuade de llamar la atención sobre sus problemas de salud mental porque denunciar estos problemas suele dar lugar a un trato más duro”, afirmó Craig Haney, profesor de psicología de la Universidad de California-Santa Cruz, especializado en las condiciones de los centros penitenciarios.

Los expertos afirman que el uso de la fuerza es una opción para prevenir la violencia entre los encarcelados, o la violencia contra los guardias.

Sin embargo, los informes de los funcionarios de las 25 cárceles de condados de Pennsylvania muestran que solo el 10% de los incidentes de “uso de fuerza” se produjeron en respuesta a la agresión de un preso a otra persona. Otro 10% informa de un preso amenazando a miembros del personal.

WITF descubrió que uno de cada cinco casos de uso de fuerza (88 incidentes) tuvo que ver con un preso que intentó suicidarse, autolesionarse o que amenazó con autolesionarse. Entre las respuestas más comunes del personal penitenciario figuró el uso de las mismas herramientas utilizadas con Thompson: una silla de inmovilización y gas pimienta. En algunos casos, los funcionarios utilizaron dispositivos de electroshock, como pistolas paralizantes.

Además, la investigación descubrió 42 incidentes en los que el personal penitenciario observó que un recluso mostraba problemas de salud mental, pero los guardias igual utilizaron la fuerza cuando no obedeció las órdenes.

Los defensores de estas técnicas afirman que salvan vidas al prevenir la violencia o las autolesiones; pero algunas cárceles de Estados Unidos han abandonado estas prácticas, y los administradores han afirmado que las técnicas son inhumanas y no funcionan.

El costo humano puede extenderse más allá de la cárcel, alcanzando a las familias de las personas encarceladas que mueren o quedan traumatizadas, así como a los funcionarios implicados, apuntó Liz Schultz, abogada de derechos civiles y defensa penal en la zona de Philadelphia.

“E incluso si el costo humano no fuera suficiente, los contribuyentes deberían preocuparse, ya que las demandas resultantes pueden ser costosas”, agregó Schultz. “Pone de relieve que debemos garantizar unas condiciones seguras en las cárceles, y que deberíamos ser un poco más juiciosos sobre a quién encerramos y por qué”.

“Solo necesitaba a una persona a mi lado”

La experiencia de Adam Caprioli comenzó cuando llamó al 911 durante un ataque de pánico.

Caprioli, de 30 años, vive en Long Pond, Pennsylvania, y ha sido diagnosticado con trastorno bipolar y trastorno de ansiedad. También lucha contra el alcoholismo y la drogadicción, según declaró.

Cuando la policía respondió a la llamada al 911, en otoño de 2021, llevaron a Caprioli al correccional del condado de Monroe.

Dentro de la cárcel, la ansiedad y la paranoia de Caprioli aumentaron. Dijo que el personal ignoró sus pedidos de hacer una llamada telefónica o hablar con un profesional de salud mental.

Tras varias horas de angustia extrema, Caprioli se ató la camisa al cuello y se asfixió hasta perder el conocimiento. Cuando el personal penitenciario lo vio, agentes entraron en su celda, con chalecos antibalas y cascos. El equipo de cuatro hombres tiró al suelo a Caprioli, que pesaba 150 libras. Uno de ellos llevaba una pistola de aire comprimido que dispara proyectiles con sustancias químicas irritantes.

“El recluso Caprioli movía los brazos y pateaba”, escribió un sargento en el informe del incidente. “Presioné el lanzador de Pepperball contra la parte baja de la espalda del recluso Caprioli y le impacté tres (3) veces”. El abogado Alan Mills explicó que los funcionarios suelen justificar el uso de la fuerza física diciendo que intervienen para salvar la vida de la persona.

“La inmensa mayoría de las personas que se autolesionan no van a morir”, señaló Mills, que ha litigado casos de uso de fuerza y es director ejecutivo del Uptown People’s Law Center de Chicago. “Más bien se trata de algún tipo de enfermedad mental grave. Y, por lo tanto, lo que realmente necesitan es una intervención para desescalar la crisis, mientras que el uso de la fuerza provoca exactamente lo contrario y agrava la situación”.

En Pennsylvania, Caprioli contó que cuando los agentes entraron en su celda sintió el dolor de las ronchas en su carne y el escozor del polvo químico en el aire, y se dio cuenta de que nadie le ayudaría.

“Eso es lo peor de todo”, dijo Caprioli. “Ven que estoy angustiado. Ven que no puedo hacerle daño a nadie. No tengo nada con lo que pueda hacerte daño”.

Finalmente, lo llevaron al hospital, donde, según Caprioli, evaluaron sus lesiones físicas, pero no recibió ayuda de un profesional de salud mental. Horas después, estaba de nuevo en la cárcel, donde permaneció cinco días. Al final se declaró culpable de un cargo de “embriaguez pública y mala conducta” y tuvo que pagar una multa.

Caprioli reconoció que sus problemas empeoran cuando consume alcohol o drogas, pero dijo que eso no justifica el trato que recibió en la cárcel.

“Esto no debería ocurrir. Solo necesitaba a una persona a mi lado que me dijera: ‘Hola, ¿cómo estás? ¿Qué te pasa?’ Y nunca me lo dijeron, ni siquiera el último día”, añadió.

El alcaide del correccional del condado de Monroe, Garry Haidle, y el fiscal del distrito, E. David Christine Jr., no respondieron a las solicitudes de comentarios.

Algunas cárceles prueban nuevas estrategias

La cárcel no es un entorno adecuado para el tratamiento de enfermedades mentales graves, afirmó la doctora Pamela Rollings-Mazza. Trabaja con PrimeCare Medical, que presta servicios médicos y conductuales en unas 35 cárceles de condados en Pennsylvania.

El problema, según Rollings-Mazza, es que las personas con problemas psiquiátricos graves no reciben la ayuda que necesitan antes de entrar en crisis. En ese momento, puede intervenir la policía, y quienes necesitaban atención de salud mental acaban en la cárcel.

“Así que los pacientes que vemos están muchas veces muy, muy, muy enfermos”, explicó Rollings-Mazza. “Por lo que nuestro personal debe atender esa necesidad”.

Los psicólogos de PrimeCare califican la salud mental de los presos en una escala de la A a la D. Los que tienen una calificación D son los más gravemente enfermos.

Rollings-Mazza indicó que constituyen entre el 10% y el 15% de la población total de las cárceles atendidas por PrimeCare. Otro 40% de la población tiene una calificación C, también indicativa de enfermedad grave.

Añadió que ese sistema de clasificación ayuda a determinar la atención que prestan los psicólogos, pero tiene poco efecto en las políticas de las cárceles.

“Hay algunas cárceles en las que no entienden o no quieren apoyarnos”, dijo. “Algunos agentes no están formados en salud mental al nivel que deberían”.

Rollings-Mazza explicó que su equipo ve con frecuencia llegar a la cárcel a personas que “no se ajustan a la realidad” debido a una enfermedad psiquiátrica y no pueden entender o cumplir órdenes básicas. A menudo se les mantiene alejados de otras personas, entre rejas, por su propia seguridad, y pueden pasar hasta 23 horas al día solos.

Ese aislamiento prácticamente garantiza que las personas vulnerables entren en una espiral de crisis, afirmó la doctora Mariposa McCall, psiquiatra residente en California que ha publicado recientemente un artículo en el que analiza los efectos del aislamiento.

Su trabajo forma parte de un amplio conjunto de investigaciones que demuestran que mantener a una persona sola en una celda pequeña, todo el día, puede causar daños psicológicos duraderos.

McCall trabajó durante varios años en prisiones estatales de California y dijo que es importante comprender que la cultura de los funcionarios de prisiones prioriza la seguridad y la obediencia por encima de todo. Por lo que pueden llegar a creer que quienes se autolesionan, en realidad, tratan de manipularlos.

Muchos guardias también ven a los presos con problemas de salud mental como potencialmente peligrosos.

“Y así se crea un cierto nivel de desconexión con el sufrimiento o la humanidad de las personas, porque se alimenta esa desconfianza”, señaló McCall. En ese entorno, los agentes se sienten justificados para usar la fuerza, sin importarles que la persona encarcelada les entienda o no.

Jamelia Morgan, profesora de la Facultad de Derecho Pritzker de la Universidad Northwestern, afirmó que, para comprender el problema, es útil examinar las decisiones tomadas en las horas y días previos a un incidente de uso de fuerza.

Morgan investiga un número creciente de demandas por uso de fuerza en las que están implicados presos con problemas de salud mental. Los abogados han argumentado con éxito que exigir que una persona con una enfermedad mental cumpla órdenes, que puede no entender, es una violación de sus derechos civiles. Esas demandas sugieren que las cárceles deberían proporcionar “soluciones razonables”.

“En algunos casos, es tan sencillo como que responda el personal médico, en lugar del personal de seguridad”, apuntó Morgan.

Los casos individuales pueden ser difíciles de litigar debido a un complejo proceso de quejas que los presos deben seguir antes de presentar una demanda, indicó Morgan y apuntó que para resolver el problema, los alcaides tendrán que redefinir lo que significa estar en la cárcel.

Esta investigación incluyó solicitudes de “derecho a saber” presentadas en 61 condados de Pennsylvania, y el equipo de investigación realizó un seguimiento con los guardias de algunos de los condados que publicaron informes sobre el uso de la fuerza. Ninguno accedió a hablar sobre la formación de sus funcionarios o sobre si podrían cambiar su forma de responder a las personas en crisis.

Algunas cárceles prueban nuevas estrategias. En Chicago, el departamento penitenciario del condado de Cook no tiene alcaide. En su lugar, tiene un “director ejecutivo” que también es psicólogo.

Este cambio forma parte de una revisión del funcionamiento de las cárceles después de que un informe del Departamento de Justicia, de 2008, revelara violaciones generalizadas de los derechos civiles de los presos.

En los últimos años, el sistema penitenciario del condado de Cook ha eliminado el confinamiento solitario, optando en su lugar por poner a los presos problemáticos en zonas comunes, pero con medidas de seguridad adicionales siempre que sea posible, declaró el sheriff del condado, Tom Dart.

La cárcel incluye un centro de transición de salud mental que ofrece alojamiento alternativo, un “entorno universitario de cabañas Quonset y jardines”, como lo describió Dart. Allí, los presos tienen acceso a clases de arte, fotografía y jardinería. También hay formación laboral, y los gestores de casos trabajan con agencias comunitarias locales, planificando lo que ocurrirá una vez que alguien salga de la cárcel.

Igualmente importante, según Dart, es que la dirección de la cárcel ha trabajado para cambiar la formación y las normas sobre cuándo es apropiado utilizar herramientas como el gas pimienta.

“Nuestro papel es mantenerlos seguros, y si tienes a alguien con una enfermedad mental, no veo cómo las pistolas Taser y el espray [de pimienta] pueden hacer otra cosa que agravar los problemas, solo deberían utilizarse como la última opción”, dijo Dart.

Las reformas del condado de Cook demuestran que el cambio es posible, pero hay miles de cárceles locales en todo Estados Unidos, y dependen de los gobiernos locales y estatales que establecen las políticas penitenciarias y que financian, o no, los servicios de salud mental que podrían evitar que personas vulnerables fueran a la cárcel.

En el condado de Dauphin, en Pennsylvania, donde murió Ishmail Thompson, las autoridades afirmaron que el problema, y las soluciones, van más allá de los muros de la cárcel. Hambright, vocero del condado, señaló que la financiación se ha mantenido estancada mientras aumenta el número de personas que necesitan servicios de salud mental. Eso ha llevado a una dependencia excesiva de las cárceles, que “siempre están disponibles”.

“Ciertamente nos gustaría ver a algunos de estos individuos tratados y alojados en lugares mejor equipados para tratar la especificidad de sus condiciones”, añadió Hambright. “Pero debemos utilizar lo que nos ofrece el sistema lo mejor que podamos con los recursos que tenemos”.

Esta historia es parte de una aliuanza que incluye a WITF, NPR, y KHN.

Brett Sholtis recibió la Rosalynn Carter Fellowship for Mental Health Journalism 2021-22, y esta investigación recibió apoyo adicional de The Benjamin von Sternenfels Rosenthal Grant for Mental Health Investigative Journalism, en alianza el Carter Center and Reveal del the Center for Investigative Reporting.

KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism about health issues. Together with Policy Analysis and Polling, KHN is one of the three major operating programs at KFF (Kaiser Family Foundation). KFF is an endowed nonprofit organization providing information on health issues to the nation.

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Letters to the Editor is a periodic feature. We welcome all comments and will publish a selection. We edit for length and clarity and require full names.

Envy for-profit US healthcare? Check out this MD whose wife is a medical billing expert who spent over a year challenging an egregious billing error. After it all they still paid $1200. These are resourceful knowledgeable people who got taken for a ride. https://t.co/fnlUz3KTJb

— Raghu Venugopal MD (@raghu_venugopal) October 26, 2022

— Dr. Raghu Venugopal, Toronto

A Plea for Sane Prices

I just read your story about the emergency room billing for a procedure that was not done (“A Billing Expert Saved Big After Finding an Incorrect Charge in Her Husband’s ER Bill,” Oct. 25). We too had a similar experience with an emergency room and a broken arm that was coded at a Level 5, and it was a simple break. No surgery needed, and it took them only 10 minutes to set and wrap the broken arm but charged us over $9,000. I disputed the charges, and it took six months to get them to reduce the bill but they never admitted that they coded a simple break incorrectly to jack up the price of the bill. If it had been a Level 5 issue, we would not have sat in the waiting room for six hours before being seen. It was a horrible experience, and I think ERs all over the nation are doing this to make up for the non-payers they treat every day. It is robbery.

— Terrence Campbell, Pocatello, Idaho

It would be great if the vaulted @KHNews would clearly distinguish between the ED pro fee billing & hospital charges as it is not entirely clear here w/ in network svs.—Billing Expert Saved Big After Finding an Incorrect Charge in Her Husband’s ER Bill https://t.co/jRFAYb5F0P

— Ed Gaines (@EdGainesIII) October 25, 2022

— Ed Gaines, Greensboro, North Carolina

As you said, CPT codes should always be examined. This case is probably more than “just an error.” As a retired orthopedic surgeon, chief of surgery, and chief of staff at a North Carolina hospital, I have seen care such as this coded exactly like this with the rationale that, “Hey, this was a fractured humerus and it was manipulated and splinted.” 24505 is correct IF that is the definitive treatment, which it was not here. Even code 24500 would indicate definitive treatment without manipulation. This was just temporary care until definitive care could be done later. It should be billed as a visit and a splint. The visit for this, if it was an isolated problem (no other injury or problems), would qualify only as a Level 2 visit. That frequently gets upcoded as well by adding a lot of non-pertinent family, medical, and social history and a complete physical exam (seven systems at least) and a whole lot of non-pertinent “medical decision making.” All of that should be documented in the medical records even if the hospital stonewalls on the CPT codes.

Look closely at medical records and you will find frequent upcoding, if you are familiar with the requirements for different levels of treatment.

— Dr. Charles Beemer, Arvada, Colorado

Never attribute to Baumol's cost disease that which is adequately explained by malice. https://t.co/RbKOlBgCmp

— Shashank Bhat (@shashank_ps) October 26, 2022

— Shashank Bhat, San Francisco

A number of years ago, I was billed using a code that described a treatment that was not carried out. In similar fashion, I talked with my insurance company, which basically said it did not care whether the treatment took place or not as all it required was for a valid code to appear. I also contacted the Virginia Bureau of Insurance, which approves the various policies, and it said it had no jurisdiction over claims. I decided to let the hospital sue me for the disputed amount and defended myself in district court. Despite their attorney and four “witnesses,” the case was thrown out because the hospital was both unwilling and unable to justify the charges to the satisfaction of the judge. They did not want anybody in power to testify because of the questions they would have been asked, so they left it to people who were completely clueless. The takeaways from this were:

• Hospitals make up the numbers and leave them grossly inflated so they can claim that they are giving away care when they give discounts on the made-up numbers.
• Hospitals turn employees into separate billing entities so they can double-charge.
• Hospitals open facilities such as physical therapy in hospital locations because insurance companies will pay higher amounts when treatment is carried out in a hospital environment.
• Insurance companies and state insurance agencies do not act as gatekeepers to protect their clients/taxpayers.
• The insurance companies and the providers have a shared interest in the highest possible ticket prices and outrageous charges because the providers get to claim how generous they are with “unremunerated care,” and if the prices were affordable then they could not justify the high prices for insurance premiums and the allowed administration/profit share of 20% would be based on a far smaller amount.

In any other industry, this would have resulted in multiple antitrust suits. U.S. health care is a sad example of government, health care industry, and insurers all coming together against the interests of consumers. After this court case, I wanted to form a nonprofit to systematically challenge every outrageous charge against people who, unlike myself, did not believe or know how to defend themselves. If hospitals and other providers were forced to go to court to justify their charges on a systematic basis, pricing sanity would eventually prevail.

— Philip Solomon, Richmond, Virginia

The obvious solution to prosecute the hospital for fraud followed by a civil suit"A hospital charged nearly $7,000 for a procedure that was never performed" https://t.co/wPNNZ5cZey

— Barry Ritholtz (@ritholtz) October 31, 2022

— Barry Ritholtz, New York City

Patients as Watchdogs

Thank you for the article on Lupron Depot injections (Bill of the Month: “$38,398 for a Single Shot of a Very Old Cancer Drug,” Oct. 26). Last year, I was diagnosed with prostate cancer, though my case is not anywhere as severe as that experienced by Mr. Hinds.

Last month my urologist scheduled an MRI update for me at a facility owned by Northside Hospital Atlanta. At the suggestion of my beloved wife, I called my insurance company, UnitedHealthcare, to make sure the procedure was covered. Fortunately, it was. That being said, the agent from UnitedHealthcare mentioned that Northside Hospital’s fee was “quite a bit higher than the average for your area.” It was. Before insurance, the charge for an MRI at Northside was $6,291. I canceled the appointment at Northside and had the MRI done by a free-standing facility. Their charge, before insurance, was $1,234.

Every single encounter that I have with the health care system involves constant vigilance against price-gouging. When I have a procedure, I have to make sure that the facility is in-network,. that each physician is in-network, that any attending specialist such as an anesthesiologist or radiologist is in-network (and their base-facility as well). If I have a blood test, I have to double-check if the cost is included in a procedure or if it is separate. If it is a separate fee, I have to ensure that the analysis is also covered, and, if it is not, that it is not done through a hospital-owned facility but instead through a free-standing operation.

I have several ongoing conditions in addition to my prostate cancer — Dupuytren’s contracture, a rare bleeding disorder similar to thrombocytopenia, and arthritis. Needless to say, navigating our byzantine, inefficient, and profit-driven health care system is a total nightmare.

Health care in the United States has become so exceedingly outrageous. I cannot understand why it is not an issue that surfaces during election years or something that Congress is willing to address.

Again, thank you for your excellent reporting.

— Karl D. Lehman, Atlanta

Why capitalism without guardrails is a pipedream. Own the patent, control the pricing, and this is the result: $38,398 for a Single Shot of a Very Old Cancer Drug https://t.co/BLes77QN7F via @khnews

— Brian Murphy (@NorwoodCDI) October 26, 2022

— Brian Murphy, Austin, Texas

I was a medical stop-loss underwriter and marketer for over 30 years. Most larger (company plans for 100-plus employees) are self-funded, meaning the carrier — as in this case, UnitedHealthcare — is supplying the administrative functions and network access for a fee, while using the employer’s money to pay claims.

Every administrator out there charges a case management fee, either as a stand-alone charge or buried in their fees. Either way, they all tout how they are looking out for both the employer and the patient.

Even if this plan was fully insured, wouldn’t it have been in the best interest of all parties when they became aware of the patient’s treatment (maybe after the first payment) to reach out to the patient and let them know there are other alternatives?

The question in these cases is who is minding the store for both the patient and the employer. The employer, the insurer, and the patient could have all saved a lot of money and pain, if someone from case management had actually questioned the first set of charges.

— Fred Burkacki, Sarasota, Florida 

I did a few rounds of Lupron in my 20s for severe #endometriosis, and I had to fight my insurance company to get approved. Now, this is how much it costs for some people. https://t.co/UlB1TTtW40 #healthcare #prostatecancer

— Amanda Oglesby 🌊 (@OglesbyAPP) October 26, 2022

— Amanda Oglesby, Neptune, New Jersey

‘Bill of the Month’ Pays Off

I received a $1,075 refund on a colonoscopy bill I paid months earlier after listening to the KHN-NPR “Bill of the Month” segment “Her First Colonoscopy Cost Her $0. Her Second Cost $2,185. Why?” (May 31) and finding out the procedure should be covered under routine health care coverage. Thank you!

— Cynthia McBride, University Place, Washington

We have to close legal loopholes to make sure that cancer diagnostic procedures have the same insurance coverage as screening. Colonoscopies must be fully covered whether a polyp is found or not #ACA #colorectalcancer #CancerScreening https://t.co/slE6p3FvHe

— Erica Warner, ScD (@ewarner_12) May 31, 2022

— Erica Warner, Boston

Removing Barriers to Benefits

In the story “People With Long Covid Face Barriers to Government Disability Benefits” (Nov. 9), you stated: “Many people with long covid don’t have the financial resources to hire a lawyer.” This is incorrect. When applying for disability, you don’t need financial resources. There are law firms that specialize in disability claims and will not charge you until you win your claim. And, according to federal law, those law firms can charge only a certain percentage of the back pay you would get once the claim has been won. Also, if you lose the claim, and the law firm has appealed as many times as possible, you don’t owe anything. Please don’t make it more difficult for those who are disabled with misinformation.

— Lorrie Crabtree, Los Angeles

People unable to work due to Long Covid are facing barriers to obtaining government disability benefits.https://t.co/zWQfW5CkOS

— Ron Chusid (@RonChusid) November 10, 2022

— Ron Chusid, Muskegon, Michigan

Vaccine Injuries Deserve Attention, Too

I read your long-covid article with interest because many of the barriers and some of the symptoms faced by people with long covid are similar to those experienced by people with vaccine injuries. I’m really concerned about how there is even less attention and support for people who suffered adverse vaccine reactions.

Long covid and vaccine injuries are both issues of justice, mercy, and human rights as much as they are a range of complex medical conditions.

It’s nearly 20 months since someone I know sustained a serious adverse reaction, and it is heartbreaking how hard it has been for her to find doctors who will acknowledge what happened and try to help. There’s no medical or financial support from our government, and the Countermeasures Injury Compensation Program is truly a dead end, even as other countries such as Thailand, Australia, and the United Kingdom have begun to acknowledge and financially support people who sustained vaccine injuries.

I’ve contacted my congressional representatives dozens of times asking for help and sharing research papers about vaccine injuries, but they have declined to respond in meaningful ways. Similarly, my state-level representatives ignore questions about our vaccine mandate, which remains in place for state employees, despite at least one confirmed vaccine-caused fatality in a young mother who fell under the state mandate in order to volunteer at school.

There have been a few articles, such as …

• Why Is It So Hard to Compensate People for Serious Vaccine Side Effects?
• Feds Pay Zero Claims for Covid-19 Vaccine Injuries/Deaths
• Covid Vaccine Injury Plaintiffs Face Long Odds in U.S. Compensation Program
• Covid-19: Is the US Compensation Scheme for Vaccine Injuries Fit for Purpose?

… but no new ones have come to my attention recently, and it is concerning that the media and our political and public health leaders seem OK with leaving people behind as collateral damage.

Please consider writing a companion piece to highlight this need and the lack of a functional safety net or merciful response. My hope is that if long covid and vaccine injuries were both studied vigorously, new understanding would lead to therapeutics and treatments to help these people.

— Kathy Zelenka, Port Angeles, Washington

Given how long it took Congress to eventually approve "Agent Orange" and "Burn Pit" benefits for disabled veterans, it is at least a 15-20 year time frame and they don't have the backing or societal standing that veterans do. https://t.co/idt6tSioHc

— Matthew Guldin (@MRG_1977) November 11, 2022

— Matthew Guldin, West Chester, Pennsylvania

More on Mammograms

The article “Despite Katie Couric’s Advice, Doctors Say Ultrasound Breast Exams May Not Be Needed” (Oct. 28) does a disservice to women and can cause harm. An ultrasound is saving my life. I had two mammograms with ultrasounds this year. Although the first mammogram showed one cyst that was diagnosed as “maybe benign,” I knew it wasn’t. Why? Because I could feel the difference. I insisted on a second, and sure enough a large-enough cyst that’s definitely malignant was found. I had breast surgery on Oct. 31, followed by radiation treatment and, if needed, chemotherapy later. This article will deprive other, less aggressive and experienced women who do not have health care credentials or a radiologist for a husband to be harmed by being lulled into complacency.

— Digna Irizarry Cassens, Yucca Valley, California

Why do some women with dense breasts get additional screening while others do not? ⁦@CNN⁩ explains. ⁦@IronwoodCancer⁩ https://t.co/uFZZKo6RO4

— Patricia Clark (@patriciaclarkmd) October 27, 2022

— Patricia Clark, Scottsdale, Arizona

Your article on breast cancer screening neglected to present the supplemental option of Abbreviated Breast MRI (AB-MRI). The out-of-pocket cost at many clinics ranges from $250 to $500. For a national listing of clinics that offer this supplemental screening option, please go to https://timetobeseen.org/self-pay-ab-mri. For benefits, just Google “Abbreviated Breast MRI.”

— Elsie Spry, Wexford, Pennsylvania

Why didn’t more #SeniorCitizens leave for safer havens during Hurricane Ian as recommended? ⁦@judith_graham⁩ rightfully suggests that learning why is critical as the population of older people grows and #NaturalDisasters become more frequent. https://t.co/7k8bvNQxug

— Donald H. Polite (@DonaldPolite) November 2, 2022

— Donald H. Polite, Milwaukee

Preparation Plans for Seniors: All for One and One for All

At least 120 people died from Hurricane Ian, two-thirds of whom were 60 or older. This is a tragedy among our most vulnerable population that should have been prevented (“Hurricane Ian’s Deadly Impact on Florida Seniors Exposes Need for New Preparation Strategies,” Nov. 2).

Yes, coming together and developing preparedness plans is one way to protect seniors and avoid these kinds of tragedies in the future, but since this is not a one-size-fits-all situation, organizations that help seniors across the country must first look internally and be held accountable by making sure their teams always have a plan in place and are prepared to activate them at a moment’s notice.

During Hurricane Ian, I saw firsthand what can happen when teamwork and effective planning come together successfully to protect and prepare seniors with chronic health conditions like chronic obstructive pulmonary disease who require supplemental oxygen to breathe.

Home respiratory care providers and home oxygen suppliers worked tirelessly to ensure our patients received plenty of supplies to sustain them throughout the storm, and when some patients faced situations where their oxygen equipment wasn’t working properly inside their homes, staff members were readily available to calmly talk the patient through fixing the problem. After the winds receded, mobile vans were quickly stationed in safe spaces for patients or their family members to access the oxygen tanks and supplies they needed. If patients were unable to make it to these locations, staff members were dispatched to deliver tanks to their homes personally and check in on the patient.

Patients were also tracked down at shelters, and a team of volunteers was formed around the country to find patients who could not be reached by calling their emergency backup contacts, a friend, or family member. Through these established systems, we were able to remain in contact with all of our patients in Ian’s path to ensure their care was not impeded by the storm.

Organizations should always be ready and held accountable for the seniors they care for in times of disaster. I know my team will be ready. Will yours?

— Crispin Teufel, CEO of Lincare, Clearwater, Florida

Understanding the impact of #Climatechange on older people is critically important as the population expands and #naturaldisasters become more frequent and intense.https://t.co/RKB7pA28nr

— Ashley Moore, MS, BSN Health Policy (@MooreRNPolicy) November 2, 2022

— Ashley Moore, San Francisco

The Tall and the Short of BMI

I am amazed that in your article about BMI (“BMI: The Mismeasure of Weight and the Mistreatment of Obesity,” Oct. 12) you never mentioned anything about the loss of height. If a person goes from 5-foot-2 to 4-foot-10, the BMI changes significantly.

— Sue Robinson, Hanover, Pennsylvania

I've been against this since after gastric bypass surgery I got down to 164 pounds but at 5'7" BMI still considered me overweight. How an overreliance on BMI can stand between patients and treatment https://t.co/OawzhO0aOk

— Steve Clark (@blindbites) October 10, 2022

— Steve Clark, Lee’s Summit, Missouri

Caring for Nurses’ Mental Health

During the pandemic, when I read stories about how brave and selfless health care heroes were fighting covid-19, I wondered who was taking care of them and how they were processing those events. They put their own lives on the line treating patients and serving their communities, but how were these experiences affecting them? I am a mother of a nurse who was on the front lines. I constantly worried about her as well as her mental and physical well-being (“Employers Are Concerned About Covering Workers’ Mental Health Needs, Survey Finds,” Oct. 27). I was determined to find a way to honor and support her and her colleagues around the country.

I created a large collaborative art project called “The Together While Apart Project” that included the artwork of 18 other artists from around the United States. It originated during the lockdown phase of the pandemic, a time when we were all physically separated yet joined by a collective mission to create one amazing art installation to honor front-line workers, especially nurses. Upon its completion, this collaboration was recognized by the Smithsonian Institute, Channel Kindness (a nonprofit co-founded by Lady Gaga) and NOAH (National Organization of Arts in Medicine). After traveling around the Southeast to various hospitals for the past year on temporary exhibit, the artwork now hangs permanently in the main lobby at the University of Virginia Medical Center in Charlottesville, Virginia.

I wanted to do something philanthropic with this art project to honor and thank health care heroes for their dedication over the past two years. It was important to find a way to help support them and to ensure they are not being forgotten. Using art project as my platform, I partnered with the American Nurses Association and created a fundraiser. This campaign raises money for the ANA’s Well-Being Initiative programs, which support nurses struggling from burnout and post-traumatic stress disorder and who desperately need mental and physical wellness care. Fighting covid has taken a major toll on too many nurses. Some feel dehumanized and are not receiving the time off or the mental and physical resources needed to sustain them. Many are suffering in silence and have to choose between caring for themselves or their patients. They should not have to make this choice. Nurses are the lifeline in our communities and the backbone of the health care industry. When they suffer, we all suffer. Whether they work in hospitals, doctors’ offices, assisted living facilities, clinics or schools, every nurse has been negatively impacted in some way by the pandemic. They are being asked to do so much more than their jobs require in addition to experiencing greater health risks, less pay, and longer hours. Nurses under 35 and those of color are struggling in larger numbers.

The American Nurses Foundation offers many forms of wellness care at no charge. They rely heavily on donations to maintain the quality of their offerings as well as the ability to provide services to a growing number of nurses. I am an artist, not a professional fundraiser, and I have never raised money before. But I feel so strongly about ensuring that nurses receive the support and care they deserve, that I am willing to do whatever it takes to advocate and elevate these health care heroes.

The Together While Apart Project’s “Thank You Nurses Campaign” goal is $20,200, an amount chosen to reflect the numbers 2020, the year nurses became daily heroes. So far, I have raised over $15,500 through gifts in all amounts. For example, a $20 donation provides a nurse with a free one-hour call with a mental health specialist. That $20 alone makes a big difference and can change the life of one nurse for the better. The campaign has provided enough funding (year to date) to enable 940 nurses to receive free one-hour wellness calls with mental health specialists.

The online fundraiser can be found at https://givetonursing.networkforgood.com/projects/159204-together-while-apart-fundraiser.

— Deane Bowers, Seabrook Island, South Carolina

CEAPs, is it time to offer more #mentalhealth services? Nearly 1/2 of employers (w/ 200 workers) report a growing share of workers using mental health services. Yet 56% report they lack #behavioralhealth providers for employees to access to timely care. https://t.co/Vpkkwlq6C6

— EAPA (@EAPA) October 27, 2022

— Employee Assistance Professionals Association, Arlington, Virginia

KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism about health issues. Together with Policy Analysis and Polling, KHN is one of the three major operating programs at KFF (Kaiser Family Foundation). KFF is an endowed nonprofit organization providing information on health issues to the nation.

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His parents sued the Kool Smiles dental clinic in Yuma, Arizona, and its private equity investor, FFL Partners. They argued the procedures were done needlessly, in keeping with a corporate strategy to maximize profits by overtreating kids from lower-income families enrolled in Medicaid. Zion died after being diagnosed with “brain damage caused by a lack of oxygen,” according to the lawsuit.

Kool Smiles “overtreats, underperforms and overbills,” the family alleged in the suit, which was settled last year under confidential terms. FFL Partners and Kool Smiles had no comment but denied liability in court filings.

Private equity is rapidly moving to reshape health care in America, coming off a banner year in 2021, when the deep-pocketed firms plowed $206 billion into more than 1,400 health care acquisitions, according to industry tracker PitchBook.

Seeking quick returns, these investors are buying into eye care clinics, dental management chains, physician practices, hospices, pet care providers, and thousands of other companies that render medical care nearly from cradle to grave. Private equity-backed groups have even set up special “obstetric emergency departments” at some hospitals, which can charge expectant mothers hundreds of dollars extra for routine perinatal care.

As private equity extends its reach into health care, evidence is mounting that the penetration has led to higher prices and diminished quality of care, a KHN investigation has found. KHN found that companies owned or managed by private equity firms have agreed to pay fines of more than $500 million since 2014 to settle at least 34 lawsuits filed under the False Claims Act, a federal law that punishes false billing submissions to the federal government with fines. Most of the time, the private equity owners have avoided liability.

New research by the University of California-Berkeley has identified “hot spots” where private equity firms have quietly moved from having a small foothold to controlling more than two-thirds of the market for physician services such as anesthesiology and gastroenterology in 2021. And KHN found that in San Antonio, more than two dozen gastroenterology offices are controlled by a private equity-backed group that billed a patient $1,100 for her share of a colonoscopy charge — about three times what she paid in another state.

It’s not just prices that are drawing scrutiny.

Whistleblowers and injured patients are turning to the courts to press allegations of misconduct or other improper business dealings. The lawsuits allege that some private equity firms, or companies they invested in, have boosted the bottom line by violating federal false claims and anti-kickback laws or through other profit-boosting strategies that could harm patients.

“Their model is to deliver short-term financial goals and in order to do that you have to cut corners,” said Mary Inman, an attorney who represents whistleblowers.

Federal regulators, meanwhile, are almost blind to the incursion, since private equity typically acquires practices and hospitals below the regulatory radar. KHN found that more than 90% of private equity takeovers or investments fall below the $101 million threshold that triggers an antitrust review by the Federal Trade Commission and the U.S. Justice Department.

Spurring Growth

Private equity firms pool money from investors, ranging from wealthy people to college endowments and pension funds. They use that money to buy into businesses they hope to flip at a sizable profit, usually within three to seven years, by making them more efficient and lucrative.

Private equity has poured nearly $1 trillion into nearly 8,000 health care transactions during the past decade, according to PitchBook.

Fund managers who back the deals often say they have the expertise to reduce waste and turn around inefficient, or moribund, businesses, and they tout their role in helping to finance new drugs and technologies expected to benefit patients in years to come.

Critics see a far less rosy picture. They argue that private equity’s playbook, while it may work in some industries, is ill suited for health care, when people’s lives are on the line.

In the health care sphere, private equity has tended to find legal ways to bill more for medical services: trimming services that don’t turn a profit, cutting staff, or employing personnel with less training to perform skilled jobs — actions that may put patients at risk, critics say.

KHN, in a series of articles published this year, has examined a range of private equity forays into health care, from its marketing of America’s top-selling emergency contraception pill to buying up whole chains of ophthalmology and gastroenterology practices and investing in the booming hospice care industry and even funeral homes.

These deals happened on top of well-publicized takeovers of hospital emergency room staffing firms that led to outrageous “surprise” medical bills for some patients, as well as the buying up of entire rural hospital systems.

“Their only goal is to make outsize profits,” said Laura Olson, a political science professor at Lehigh University and a critic of the industry.

Hot Spots

When it comes to acquisitions, private equity firms have similar appetites, according to a KHN analysis of 600 deals by the 25 firms that PitchBook says have most frequently invested in health care.

Eighteen of the firms have dental companies listed in their portfolios, and 16 list centers that offer treatment of cataracts, eye surgery, or other vision care, KHN found.

Fourteen have bought stakes in animal hospitals or pet care clinics, a market in which rapid consolidation led to a recent antitrust action by the FTC. The agency reportedly also is investigating whether U.S. Anesthesia Partners, which operates anesthesia practices in nine states, has grown too dominant in some areas.

Private equity has flocked to companies that treat autism, drug addiction, and other behavioral health conditions. The firms have made inroads into ancillary services such as diagnostic and urine-testing and software for managing billing and other aspects of medical practice.

Private equity has done so much buying that it now dominates several specialized medical services, such as anesthesiology and gastroenterology, in a few metropolitan areas, according to new research made available to KHN by the Nicholas C. Petris Center at UC-Berkeley.

Although private equity plays a role in just 14% of gastroenterology practices nationwide, it controls nearly three-quarters of the market in at least five metropolitan areas across five states, including Texas and North Carolina, according to the Petris Center research.

Similarly, anesthesiology practices tied to private equity hold 12% of the market nationwide but have swallowed up more than two-thirds of it in parts of five states, including the Orlando, Florida, area, according to the data.

These expansions can lead to higher prices for patients, said Yashaswini Singh, a researcher at the Bloomberg School of Public Health at Johns Hopkins University.

In a study of 578 physician practices in dermatology, ophthalmology, and gastroenterology published in JAMA Health Forum in September, Singh and her team tied private equity takeovers to an average increase of $71 per medical claim filed and a 9% increase in lengthy, more costly, patient visits.

Singh said in an interview that private equity may develop protocols that bring patients back to see physicians more often than in the past, which can drive up costs, or order more lucrative medical services, whether needed or not, that boost profits.

“There are more questions than answers,” Singh said. “It really is a black hole.”

Jean Hemphill, a Philadelphia health care attorney, said that in some cases private equity has merely taken advantage of the realities of operating a modern medical practice amid growing administrative costs.

Physicians sometimes sell practices to private equity firms because they promise to take over things like billing, regulatory compliance, and scheduling — allowing doctors to focus on practicing medicine. (The physicians also might reap a big payout.)

“You can’t do it on a scale like Marcus Welby used to do it,” Hemphill said, referring to an early 1970s television drama about a kindly family doctor who made house calls. “That’s what leads to larger groups,” she said. “It is a more efficient way to do it.”

But Laura Alexander, a former vice president of policy at the nonprofit American Antitrust Institute, which collaborated on the Petris Center research, said she is concerned about private equity’s growing dominance in some markets.

“We’re still at the stage of understanding the scope of the problem,” Alexander said. “One thing is clear: Much more transparency and scrutiny of these deals is needed.”

‘Revenue Maximization’

Private equity firms often bring a “hands-on” approach to management, taking steps such as placing their representatives on a company’s board of directors and influencing the hiring and firing of key staffers.

“Private equity exercises immense control over the operations of health care companies it buys an interest in,” said Jeanne Markey, a Philadelphia whistleblower attorney.

Markey represented physician assistant Michelle O’Connor in a 2015 whistleblower lawsuit filed against National Spine and Pain Centers and its private equity owner, Sentinel Capital Partners.

In just a year under private equity guidance, National Spine’s patient load quadrupled as it grew into one of the nation’s largest pain management chains, treating more than 160,000 people in about 40 offices across five East Coast states, according to the suit.

O’Connor, who worked at two National Spine clinics in Virginia, said the mega-growth strategy sprang from a “corporate culture in which money trumps the provision of appropriate patient care,” according to the suit.

She cited a “revenue maximization” policy that mandated medical staffers see at least 25 patients a day, up from 16 to 18 before the takeover.

The pain clinics also overcharged Medicare by billing up to $1,100 for “unnecessary and often worthless” back braces and charging up to $1,800 each for urine drug tests that were “medically unnecessary and often worthless,” according to the suit.

In April 2019, National Spine paid the Justice Department $3.3 million to settle the whistleblower’s civil case without admitting wrongdoing.

Sentinel Capital Partners, which by that time had sold the pain management chain to another private equity firm, paid no part of National Spine’s settlement, court records show. Sentinel Capital Partners had no comment.

In another whistleblower case, a South Florida pharmacy owned by RLH Equity Partners raked in what the lawsuit called an “extraordinarily high” profit on more than $68 million in painkilling and scar creams billed to the military health insurance plan Tricare.

The suit alleges that the pharmacy paid illegal kickbacks to telemarketers who drove the business. One doctor admitted prescribing the creams to scores of patients he had never seen, examined, or even spoken to, according to the suit.

RLH, based in Los Angeles, disputed the Justice Department’s claims. In 2019, RLH and the pharmacy paid a total of $21 million to settle the case. Neither admitted liability. RLH managing director Michel Glouchevitch told KHN that his company cooperated with the investigation and that “the individuals responsible for any problems have been terminated.”

In many fraud cases, however, private equity investors walk away scot-free because the companies they own pay the fines. Eileen O’Grady, a researcher at the nonprofit Private Equity Stakeholder Project, said government should require “added scrutiny” of private equity companies whose holdings run afoul of the law.

“Nothing like that exists,” she said.

Questions About Quality

Whether private equity influences the quality of medical care is tough to discern.

Robert Homchick, a Seattle health care regulatory attorney, said private equity firms “vary tremendously” in how conscientiously they manage health care holdings, which makes generalizing about their performance difficult.

“Private equity has some bad actors, but so does the rest of the [health care] industry,” he said. “I think it’s wrong to paint them all with the same brush.”

But incipient research paints a disturbing picture, which took center stage earlier this year.

On the eve of President Joe Biden’s State of the Union speech in March, the White House released a statement that accused private equity of "buying up struggling nursing homes” and putting “profits before people.”

The covid-19 pandemic had highlighted the “tragic impact” of staffing cuts and other moneysaving tactics in nursing homes, the statement said.

More than 200,000 nursing home residents and staffers had died from covid in the previous two years, according to the White House, and research had linked private equity to inflated nursing costs and elevated patient death rates.

Some injured patients are turning to the courts in hopes of holding the firms accountable for what the patients view as lapses in care or policies that favor profits over patients.

Dozens of lawsuits link patient harm to the sale of Florida medical device maker Exactech to TPG Capital, a Texas private equity firm. TPG acquired the device company in February 2018 for about $737 million.

In August 2021, Exactech recalled its Optetrak knee replacement system, warning that a defect in packaging might cause the implant to loosen or fracture and cause “pain, bone loss or recurrent swelling.” In the lawsuits, more than three dozen patients accuse Exactech of covering up the defects for years, including, some suits say, when “full disclosure of the magnitude of the problem … might have negatively impacted” Exactech’s sale to TPG.

Linda White is suing Exactech and TPG, which she asserts is “directly involved” in the device company’s affairs.

White had Optetrak implants inserted into both her knees at a Galesburg, Illinois, hospital in June 2012. The right one failed and was replaced with a second Optetrak implant in July 2015, according to her lawsuit. That one also failed, and she had it removed and replaced with a different company’s device in January 2019.

The Exactech implant in White’s left knee had to be removed in May 2019, according to the suit, which is pending in Cook County Circuit Court in Illinois.

In a statement to KHN, Exactech said it conducted an “extensive investigation” when it received reports of “unexpected wear of our implants.”

Exactech said the problem dated to 2005 but was discovered only in July of last year. “Exactech disputes the allegations in these lawsuits and intends to vigorously defend itself,” the statement said. TPG declined to comment but has denied the allegations in court filings.

‘Invasive Procedures’

In the past, private equity business tactics have been linked to scandalously bad care at some dental clinics that treated children from low-income families.

In early 2008, a Washington, D.C., television station aired a shocking report about a local branch of the dental chain Small Smiles that included video of screaming children strapped to straightjacket-like “papoose boards” before being anesthetized to undergo needless operations like baby root canals.

Five years later, a U.S. Senate report cited the TV exposé in voicing alarm at the "corporate practice of dentistry in the Medicaid program.” The Senate report stressed that most dentists turned away kids enrolled in Medicaid because of low payments and posed the question: How could private equity make money providing that care when others could not?

“The answer is ‘volume,’” according to the report.

Small Smiles settled several whistleblower cases in 2010 by paying the government $24 million. At the time, it was providing “business management and administrative services” to 69 clinics nationwide, according to the Justice Department. It later declared bankruptcy.

But complaints that volume-driven dentistry mills have harmed disadvantaged children didn’t stop.

According to the 2018 lawsuit filed by his parents, Zion Gastelum was hooked up to an oxygen tank after questionable root canals and crowns “that was empty or not operating properly” and put under the watch of poorly trained staffers who didn’t recognize the blunder until it was too late.

Zion never regained consciousness and died four days later at Phoenix Children’s Hospital, the suit states. The cause of death was “undetermined,” according to the Maricopa County medical examiner’s office. An Arizona state dental board investigation later concluded that the toddler’s care fell below standards, according to the suit.

Less than a month after Zion’s death in December 2017, the dental management company Benevis LLC and its affiliated Kool Smiles clinics agreed to pay the Justice Department $24 million to settle False Claims Act lawsuits. The government alleged that the chain performed “medically unnecessary” dental services, including baby root canals, from January 2009 through December 2011.

In their lawsuit, Zion’s parents blamed his death on corporate billing policies that enforced “production quotas for invasive procedures such as root canals and crowns” and threatened to fire or discipline dental staff “for generating less than a set dollar amount per patient.”

Kool Smiles billed Medicaid $2,604 for Zion’s care, according to the suit. FFL Partners did not respond to requests for comment. In court filings, it denied liability, arguing it did not provide “any medical services that harmed the patient.”

Covering Tracks

Under a 1976 federal law called the Hart-Scott-Rodino Antitrust Improvements Act, deal-makers must report proposed mergers to the FTC and the Justice Department antitrust division for review. The intent is to block deals that stifle competition, which can lead to higher prices and lower-quality services.

But there’s a huge blind spot, which stymies government oversight of more than 90% of private equity investments in health care companies: The current threshold for reporting deals is $101 million.

KHN’s analysis of PitchBook data found that just 423 out of 7,839 private equity health care deals from 2012 through 2021 were known to have exceeded the current threshold.

In some deals, private equity takes a controlling interest in medical practices, and doctors work for the company. In other cases, notably in states whose laws prohibit corporate ownership of physician practices, the private equity firm handles a range of management duties.

Thomas Wollmann, a University of Chicago researcher, said antitrust authorities may not learn of consequential transactions “until long after they have been completed” and “it's very hard to break them up after the fact.”

In August, the FTC took aim at what it called “a growing trend toward consolidation” by veterinary medicine chains.

The FTC ordered JAB Consumer Partners, a private equity firm based in Luxembourg, to divest from some clinics in the San Francisco Bay and Austin, Texas, areas as part of a proposed $1.1 billion takeover of a rival.

The FTC said the deal would eliminate “head-to-head” competition, “increasing the likelihood that customers are forced to pay higher prices or experience a degradation in quality of the relevant services.”

Under the order, JAB must obtain FTC approval before buying veterinary clinics within 25 miles of the sites it owns in Texas and California.

The FTC would not say how much market consolidation is too much or whether it plans to step up scrutiny of health care mergers and acquisitions.

“Every case is fact-specific,” Betsy Lordan, an FTC spokesperson, told KHN.

Lordan, who has since left the agency, said regulators are considering updates to regulations governing mergers and are reviewing about 1,900 responses to the January 2022 request for public comment. At least 300 of the comments were from doctors or other health care workers.

Few industry observers expect the concerns to abate; they might even increase.

Investors are flush with “dry powder,” industry parlance for money waiting to stoke a deal.

The Healthcare Private Equity Association, which boasts about 100 investment companies as members, says the firms have $3 trillion in assets and are pursuing a vision for "building the future of healthcare.”

That kind of talk alarms Cornell University professor Rosemary Batt, a longtime critic of private equity. She predicts that investors chasing outsize profits will achieve their goals by “sucking the wealth” out of more and more health care providers.

“They are constantly looking for new financial tricks and strategies,” Batt said.

KHN’s Megan Kalata contributed to this article.

KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism about health issues. Together with Policy Analysis and Polling, KHN is one of the three major operating programs at KFF (Kaiser Family Foundation). KFF is an endowed nonprofit organization providing information on health issues to the nation.

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This story can be republished for free (details).