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Julie Rovner
KFF Health News

@jrovner

Read Julie's stories.

Julie Rovner is chief Washington correspondent and host of KFF Health News’ weekly health policy news podcast, “What the Health?” A noted expert on health policy issues, Julie is the author of the critically praised reference book “Health Care Politics and Policy A to Z,” now in its third edition.

The fate of the abortion pill mifepristone remains in jeopardy, as an appellate court panel during a hearing this week sounded sympathetic to a lower court’s ruling that the FDA should not have approved the drug more than two decades ago. No matter how the appeals court rules, the case seems headed for the Supreme Court.

Meanwhile, in the partisan standoff over raising the nation’s debt ceiling, a key sticking point has emerged: whether to add a work requirement to the state-federal Medicaid program. Republicans are adamant about adding one; Democrats point out that, in the few states that have tried them, red tape has resulted in eligible people wrongly losing their health coverage.

This week’s panelists are Julie Rovner of KFF Health News, Sandhya Raman of CQ Roll Call, Rachel Roubein of The Washington Post, and Victoria Knight of Axios.

Panelists

Sandhya Raman
CQ Roll Call

@SandhyaWrites

Read Sandhya's stories

Rachel Roubein
The Washington Post

@rachel_roubein

Read Rachel's stories

Victoria Knight
Axios

@victoriaregisk

Read Victoria's stories

Among the takeaways from this week’s episode:

• Hopes among abortion rights advocates for continued access to mifepristone dimmed as the three judges on the 5th Circuit Court of Appeals signaled they are skeptical of the FDA’s decades-old approval of the drug and of the Biden administration’s arguments defending it. Lawyers debated whether the Texas doctors challenging the drug had been harmed by it and thus had standing to sue. If the original ruling effectively revoking the drug’s approval is allowed to stand, the case could open the door to future legal challenges to the approval of controversial drugs.
• Two more states in the South are moving to restrict abortion, further cutting access to the procedure in the region. In North Carolina, a new Republican supermajority in the state legislature enabled the passage this week of a new, 12-week ban, as lawmakers in South Carolina consider a six-week ban.
• In Congress, the top Senate Republican said he will not back one senator’s months-long effort to hold up Pentagon nominations over a policy that supports troops and their dependents who must travel to other states to obtain an abortion.
• Envision Healthcare — which spent big in 2019 to fight legislation prohibiting some surprise medical bills — has filed for bankruptcy protection more than a year after the law took effect and cut into its bottom line. But a federal lawsuit from a group of emergency room physicians against Envision may move forward. The lawsuit claims the private equity-backed company is in violation of a California law banning corporate control of medical practices, and it could carry major consequences for the growing number of practices backed by private equity firms across the country.
• Monica Bertagnolli has been nominated to lead the National Institutes of Health. Currently the director of the National Cancer Institute, she will need to be confirmed by the Senate, which hasn’t confirmed an NIH chief since before the passage of the Affordable Care Act in 2010. Meanwhile, Sen. Bernie Sanders’ stewardship of a key health committee is causing delays on even bipartisan efforts.

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

Julie Rovner: The Washington Post’s “A 150-Year-Old Law Could Help Determine the Fate of U.S. Abortion Access,” by Dan Diamond and Ann E. Marimow.

Victoria Knight: The New York Times’ “World Health Organization Warns Against Using Artificial Sweeteners,” by April Rubin.

Rachel Roubein: CBS News’ “Thousands Face Medicaid Whiplash in South Dakota and North Carolina,” by Arielle Zionts of KFF Health News.

Sandhya Raman: CQ Roll Call’s “A Year After Dobbs Leak, Democrats Still See Abortion Driving 2024 Voters,” by Mary Ellen McIntire and Daniela Altimari.

Also mentioned in this week’s episode:

KFF Health News’ “ER Doctors Vow to Pursue Case Against Envision Despite Bankruptcy,” by Bernard J. Wolfson.

click to open the transcript

Transcript: The Abortion Pill Goes Back to Court

KFF Health News’ ‘What the Health?’

Episode Title: The Abortion Pill Goes Back to Court

Episode Number: 298

Published: May 18, 2023

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

Julie Rovner: Hello and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent at KFF Health News. And I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, May 18, 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 Rachel Roubein of The Washington Post.

Rachel Roubein: Hi. Thanks for having me.

Rovner: Victoria Knight of Axios.

Victoria Knight: Hi. Good morning.

Rovner: And Sandhya Raman of CQ Roll Call.

Sandhya Raman: Hi, and good morning, everyone.

Rovner: Lots and lots of health news this week, so we will dive right in. We’re going to start with abortion because there is so much breaking news on that front. On Wednesday, a three-judge panel of the 5th Circuit Court of Appeals in New Orleans held a hearing on the Biden administration’s appeal of a Texas ruling that the FDA was wrong when it approved the abortion pill mifepristone more than 22 years ago. The panel, which was randomly chosen from an already pretty conservative slate there in the 5th Circuit, appeared to be even more anti-abortion than most of the judges on that bench. So, Sandhya, you listened to this whole thing. What, if anything, did we glean from this hearing?

Raman: I think we gleaned a lot of things and a lot of things I think we have predicted from the start. I think going into this, looking at the various judges’ records, they have ruled on anti-abortion cases in the past in the favor of that. You take that in with a grain of salt. And from watching the arguments, it seemed like they were fairly skeptical of the challenge and FDA’s approval of mifepristone and the subsequent regulations. You could kind of see through the questioning the kinds of things that they were asking and just pretty skeptical of just a lot of the things that were being said by DOJ [the Department of Justice] and by Danco there yesterday. So —

Rovner: Yeah, we should say that the lawyer for the FDA had one sort of round of presentation and questions. And then the lawyer from Danco, the company that makes mifepristone, had another. And they were pretty tough on both of them.

Raman: Yeah, and I thought it was interesting because when we were listening to the arguments, the DOJ lawyer and the Danco lawyer were kind of arguing a lot of the time just that there shouldn’t be standing, that there isn’t necessarily proof in any of the filings that any of the doctors that that were suing have really had harm due to the FDA’s role. It was kind of down the road. I think one thing that Harrington, the judge for the DOJ, had said, that was the FDA approving a drug does not mean that anyone has to prescribe it, it does not mean anyone has to take it, that the fact that if you were treating someone after the fact, that’s a few steps down the line. And so that was kind of like a messaging thing that they were doing kind of over and over again. And then when we got to the Alliance Defending Freedom, which is representing the conservative doctors, Erin Hawley had said, you know, they are affected both physically and she said emotionally, which was interesting, kind of looking at that. And so it’ll depend on how the judges rule. I think that there were definitely some signs throughout the arguments about this not being as unprecedented and that the FDA is not untouchable in terms of the courts weighing in on regulation.

Rovner: If you were just listening to it, you didn’t sort of know all of this. And remember, these were two Trump-appointed judges and a George W. Bush-appointed judge who has a history of ruling in favor of anti-abortion efforts. But they were saying that, “Well, people sue the FDA all the time. You know, what’s the difference here?” Well, the difference here is nobody has ever sued the FDA saying that they were wrong to approve something 20 years ago. Nobody’s ever tried to get a drug taken off the market that way. There’s obviously lots of litigation against the FDA for the way it does some of its thing. I mean, it’s often little things and then people sue each other with the FDA caught in the middle — drugmakers and lots of patent suits. I was surprised that the appeals court judges took issue with what everybody I think acknowledges is a correct claim that this is unprecedented and this could open the door to other challenges to other drugs for any reason — you know, someone doesn’t like them. I mean, these doctors are not saying that they’ve prescribed this drug and women have taken it and had bad reactions. They’re saying that possibly, if someone takes it and has a bad reaction, that they would have to treat that person and that that would harm their conscience, even though, as the lawyers made it clear, no one has ever forced these doctors to take care of anyone against their conscience because there are already laws that protect against that. So it was very roundabout in a lot of ways.

Raman: I think one thing that they had mentioned was that, you know, some of the cases cited in the filings were, you know, someone had taken an imported version of a mifepristone, not the one that Danco made, and then someone else had been recommended not to take the drug but still took the drug and then had side effects related to that. But there is another thing that kind of stuck out to me, was when Judge [James] Ho had asked would the FDA adhere to whatever the final court decision was? And that was a little striking to me. And then the FDA had said, you know, we will. And they cited that they had signed an affidavit last year saying that they’re going to agree to whatever the final decision is. But there were a lot of parts of the case that were just very unusual compared to the other cases that I have watched on this or any other part of health care, I think.

Rovner: Although in fairness to the judges, I mean, there was — a lot of legal experts were saying that the FDA does have enforcement authority to determine what it’s going to enforce and what it isn’t. And Justice [Samuel] Alito, when he actually challenged the Supreme Court’s stay of the original ruling — Justice Alito questioned about whether FDA would even follow if this drug was deemed unapproved. So that’s at least been coming up as a discussion. Let’s move on because it could be weeks or even months before we hear back from this panel, and we will obviously keep watching it. There’s been plenty of action in the states, too, this week — not that surprising because it’s May and lots of state legislatures are wrapping up their sessions for the year. But we should point out that particularly North and South Carolina are acting on abortion because they’ve been two of the last states in the South where abortion had remained both legal and pretty much broadly available. That’s changing as of this week, though, isn’t it?

Roubein: That’s changing in North Carolina, for sure, after this week. The Republicans there have supermajorities as of April; a Democrat in the House switched to the Republican Party. And what they did there is they overrode a veto from Democratic Gov. Roy Cooper. And this new bill, which the main provisions go into effect July 1, will restrict abortions at 12 weeks in pregnancy. And now in South Carolina, it’s still a little bit to be determined. The House passed a bill last night which would restrict abortions after fetal cardiac activity’s detected — roughly six weeks. Now they’re sending that bill back to the Senate, which had already passed it. But they made some changes. And it’s not clear whether some of the Republican female senators who oppose a near-total ban will be in favor of these changes. So that one’s a bit up in the air.

Rovner: And obviously, the 12 weeks in North Carolina is going to be important because there are a lot of women coming from other states now to North Carolina and clinics are getting backed up. It is a time thing for women to sort of be able to get themselves together, often get child care, get time off from a job, have to find a hotel in most cases, and go to another state. So it’s going to turn out to be an issue.

Roubein: I think one of the provisions abortion rights groups are pointing to there is, because this is a 12-week ban, so roughly 90% of abortions are allowed to continue, but what Democrats really pointed out was that the bill requires an in-person visit 72 hours before obtaining an abortion. So that could kind of restrict people, as you mentioned, Julie, from being able to take that time and come in from out of state in North Carolina, which has become a destination for abortions.

Rovner: All right. Well, I want to circle back to something that’s been going on for a while in the U.S. Senate. We talked about it back in March. Alabama Republican Sen. Tommy Tuberville is single-handedly holding up many military promotions to protest a Biden administration policy that allows members of the military in states with abortion bans both time off and travel funds to obtain an abortion in another state. Defense Secretary Lloyd Austin says that this — the delayed promotions — is starting to impact the nation’s readiness. Is there any resolution to this in sight? It’s now been going on for, what, a month and a half.

Raman: I think that, you know, we’re getting somewhat closer to it, but it’s hard to tell. I mean, we’ve had Mitch McConnell say that he’s not supporting what Tuberville is doing with the blockade of military nominations, so that could be a little bit more pressure compared to anyone else in the caucus putting that pressure. But I think the other thing that had come up is that there had been a report this week that the administration was going to delay on deciding if Space Force Command was going to move from Colorado to Alabama because of Tuberville. And so I think that, if that is the case — two different pressure points — there might be movement. But it’s been happening for a long time. We’ve had hundreds of nominees delayed. And I think the pushback has not necessarily been fully partisan. Even before we had McConnell speak out, we’ve had other members of — Republican senators kind of say, you know, this is maybe not the best move to do this, so —

Rovner: I mean, given how important Republicans take the military, I get why he’s doing this. It’s a pressure point because it’s a DOD [Department of Defense] policy. But still, it looks funny for a Republican to be holding up something that’s really important to the military.

Raman: Earlier this year, I think it was last month, you know, the Senate had done their procedural vote on a Tuberville resolution on something that was kind of similar, when they had the VA [Department of Veterans Affairs] rule that allows them to provide abortions for, you know, the Hyde exceptions, so rape, incest, life of the mother. And, you know, that didn’t pass on a procedural vote. So maybe something like that could be, like, a bargaining point. But it would require Democrats to say, “Yes, we do want to vote on this.” And I think that the last comments that Tuberville had even said were that, you know, “Until this policy is gone, I don’t want to waiver.” So it might not be a solution, but it could be something.

Rovner: Well, speaking of things that are proving difficult to resolve, let’s talk about the debt ceiling talks. As of today, Thursday, there’s no agreement yet, although President Biden is going to cut his overseas trip short after Treasury Secretary Janet Yellen warned that the so-called x-date, when the Treasury can no longer pay its bills, could really happen as soon as June 1. One of the big sticking points appears to be work requirements for programs aimed at low-income Americans, which Republicans are demanding and Democrats are resisting. Welfare, now called Temporary Aid to Needy Families, already has work requirements, as does SNAP [Supplemental Nutrition Assistance Program], the current name for food stamps, which leaves Medicaid, which has been a particular sticking point over the last few years. I guess we were all right back in February when Biden and the Republicans seemed to take Medicare and Social Security off the table, and we all predicted the fight would come down to Medicaid. So here we are, yes?

Knight: Yep, we’re at Medicaid. But it does seem like we’re really going back and forth on it. I think the sentiment at first was kind of that this would be the first thing to fall out of a potential deal between Democrats and Republicans because Democrats are really opposed to this. But I don’t know. This week, President Biden made some comments that were a little confusing. It kind of made it sound like he was potentially open to the idea. And then the White House kind of walked that back this week and sent some press releases out that were like, We don’t want to touch Medicaid. And then I believe it was sometime yesterday, on Wednesday, the president said, “Maybe, but nothing of consequence,” when talking about work requirements. And Congress is leaving today. So I think it’s kind of still up in the air, but the door still seems to be open, I guess is kind of the takeaway.

Rovner: There seems to be some concern from Democrats on Capitol Hill that President Biden may give too much away in trying to avoid a debt default. I mean, he’s already sort of after, you know, “We will not negotiate on the debt ceiling, we will not negotiate on the debt ceiling” — I mean, the administration says they’re negotiating on the budget, but they’re negotiating on the debt ceiling, right?

Knight: Yeah. I mean, and it seems that President Biden, the administration, may be open to budget caps as well or cutting spending. And that was kind of something that it seemed like Democrats at first were not open to doing at all. I talked to some appropriators this week, and they’re pretty upset about — Democratic appropriators — they’re pretty upset because they want the debt ceiling and appropriations to be a separate process, and they’re being tied together right now. Yeah, I think they’re somewhat concerned with how the president is negotiating right now.

Rovner: Well, it’s May 18. There’s been no talk yet of a temporary — although I assume at some point we’re going to say, let’s just extend this out a few days, and let’s extend it out a few more days, and we’ll extend it out a few more days. So obviously, we will watch this space. So the mifepristone case is not the only judicial news this week. In that other case out of Texas, challenging the preventive health services part to the Affordable Care Act, the 5th Circuit Court of Appeals — lots of news out of New Orleans this week — temporarily stayed the ruling by Judge Reed O’Connor that the ACA unconstitutionally deputized the U.S. Preventive Health Services Task Force from deciding which preventive services should be provided without copays. Long sentence. I hope it makes sense. Reed O’Connor, of course, being the judge who tried unsuccessfully to declare the entire ACA unconstitutional in 2018. What happens now in this case? Nothing changes until it gets resolved, right?

Roubein: Right. Right now I think that just through that, this means that insurers will be required to continue covering services recommended by the U.S. Preventive Services Task Force without cost sharing in care.

Rovner: And that includes PrEP for HIV, which is what’s really at issue with these doctors who are suing the FDA — or actually I guess they’re suing HHS [the Department of Health and Human Services] in general — saying that they don’t want to be required to provide these drugs.

Roubein: Yeah, it does include PrEP.

Rovner: So that will continue. I imagine that will also find its way to the Supreme Court. Finally, in not really judicial but court-related news, Envision, the private equity-backed physician staffing firm, filed for Chapter 11 bankruptcy this week, presumably because the emergency room physician practices it owns can no longer send patients most surprise medical bills. ER bills were among the most common types of surprise bills, when patients would specifically take their emergency to an in-network hospital, only to find that the doctors in the emergency room were all out of network. Is this one small step towards taking some of the profit motive out of health care? I don’t see anybody, like, shedding a lot of tears for Envision declaring bankruptcy here.

Raman: I think the second part, that the lawsuit by the ER doctors against Envision, despite them filing for bankruptcy, is going forward is interesting, and it seems unusual to me, because they’re not asking for monetary damages, but they want, like, a legal finding that the way that the company’s business structure — ownership of the staffing groups — is illegal, and if, like, winning that would ban the practice in the state of California. And so I think if you’re looking at it in terms of, like, things that would happen over the course of time, policywise, that could be something interesting to kind of watch there.

Roubein: I just wanted to hearken back real quick to, like, 2019. In the middle of the surprise billing debate, Envision and another major doctor staffing firm spent significant sums of money to try and sway the surprise billing legislation that the House and the Senate were hashing out.

Rovner: Yeah, they made CNN and MSNBC very rich with their ads.

Roubein: Millions of them.

Rovner: In the ’90s, I covered, you know, this whole corporate practice of medicine thing because I think it’s every state has a law that says that corporations can’t practice medicine; only licensed health professionals can practice medicine. So I’ve always wondered about, you know, what this lawsuit is about anyway. How are these companies actually getting away with doing this? And the answer is maybe they’re not or maybe they won’t. It’s going to be interesting. There’s now so much profit motive and private equity in health care because there’s a lot of money to be made that it’s, I think somebody is actually starting to, you know, call on it. We will definitely see how this plays out. We may not have a “This Week in Private Equity” anymore. Well, let us go back to Capitol Hill, where we finally have a nominee to head the National Institutes of Health, current National Cancer Institute chief Monica Bertagnolli, who is also, ironically, a cancer patient at the moment, although her prognosis is very good, we are told. There hasn’t been a confirmed head of the NIH since Francis Collins stepped down at the end of 2021. Congress hasn’t had to confirm a new head of the NIH since before the passage of the Affordable Care Act. I imagine that Dr. Bertagnolli is going to have to navigate some pretty choppy confirmation waters, even in a Senate where Democrats are nominally in the majority, right?

Knight: Yeah, I spent some time talking to HELP [Health, Education, Labor and Pensions] Committee Republicans last week and this week, and they definitely have some things they want to see out of a new NIH director. They’re definitely concerned about gain-of-function research, potential funding of that type of research, which is supposed to, hypothetically, make viruses more virulent. So several of them said, you know, “We don’t want to see the agency funding that kind of research,” or, “We want restrictions around that kind of research.” They also are concerned with the agency giving a grant to an organization called EcoHealth, which was supposed to have done research in Wuhan that was around gain-of-function-type things. And I think they also, in general, are just concerned with how the NIH and the CDC [Centers for Disease Control and Prevention] responded to the covid pandemic, and they aren’t happy with some of the decisions they made, what they felt like were mandate — top-down mandates. And so I do think we will see, if we actually get a HELP confirmation hearing any time soon, we’ll see — I think it’s going to be pretty contentious possibly. And as you referenced, I kind of looked into this when I was writing my story, and there really has not been a contentious hearing in a long time. Francis Collins went through a unanimous voice vote when he was confirmed. And then the two previous NIH directors, they kind of sailed through their HELP confirmation hearings. And if you think about it, Francis Collins also has served under both Republican and Democratic presidents. And I wonder if we are coming to a point where that won’t happen anymore with NIH directors.

Rovner: Back when I first started covering the NIH, it was contentious because they were talking about fetal tissue research and stem cell research and stuff that was really controversial. But then Newt Gingrich, when he became speaker of the House, declared that, you know, he wanted the 21st century to be, you know, the century of biomedicine. And he vowed to double the funding for the NIH, which the Republicans did, you know, with the Democrats’ help. So NIH has been this sacred cow, if you will, bipartisanly for at least two decades. And now it’s sort of coming back to being a little bit controversial again. In talking about the debt ceiling and possible budget cuts, I mean, NIH has usually been spared from those. But I’m guessing that if there’s budget caps, NIH is going to be included in those places where we’re going to cut the budget, right?

Knight: Yeah, absolutely. I have been talking to a Republican House appropriator over the NIH. Robert Aderholt told me that, yes, they expect a cut in their budget because Defense and NIH, Labor, HHS are usually the biggest bills. And he told me Defense probably isn’t getting cut very much, so we’re expecting to get cut. So obviously, you know, it’s a messaging bill in the House, but I think the expectation is that they’re going to propose that. The Senate seemed pretty set on keeping NIH funding what it was. They had an NIH appropriations hearing recently. So, I mean, there’s going to be some difference between those two chambers. But I think it does seem likely, especially with all the debt ceiling stuff, that cuts are possible.

Rovner: So that’s NIH. In the meantime, now we have an opening at the CDC because Rochelle Walensky announced her resignation. Have we heard any inklings about who wants to step into that very hot seat?

Roubein: I can point to some reporting from my colleagues at the Post, Dan Diamond and Lena H. Sun. At the time, the day that Walensky announced that she’d be stepping down June 30, they had wrote that White House officials had, you know, been preparing for a little while for a potential departure and had begun gauging interest in the position. And some people that Dan and Lena named that the administration had approached is former New York City Health Commissioner Dave A. Chokshi, former North Carolina Health Secretary Mandy Cohen, and the California health state secretary. Now, we don’t know ultimately what the White House, President Biden, is going to do. I do think it’s worth pointing out that the new CDC director won’t have to be Senate-confirmed; that was passed in the big sweeping government funding bill, that a CDC director would need to be confirmed, but starting January 20, 2025. So, you know, sounds like something, you know, Democrats might have been interested in doing, kind of pushing that out. So, yeah.

Rovner: The CDC is, you know, sort of the one big Department of Health and Human Services job that does not come up for Senate confirmation. Obviously, that is being changed, but it’s not being changed yet. Well, both of these confirmations, mostly the NIH one at this point, comes up before the Senate HELP Committee, Victoria, as you pointed out. Chairman Bernie Sanders there is having — what shall we call them? — some growing pains as chairman of a committee with a heavy legislative workload. What’s the latest here? He’s still kind of working on getting some of these bipartisan bills through, isn’t he?

Knight: Yeah, there is a little bit of a snafu at a recent HELP Committee hearing where Ranking Member Bill Cassidy was not happy that Sen. Sanders was bringing up some amendments that he wasn’t aware of or that they had kind of agreed to table at some point and then he brought them back up during a hearing or during a markup, and so they ended up having to delay the markup itself and do it the next week. And these were bipartisan bills. So it was really just a process issue; it wasn’t so much the subject of the bills. And they kind of worked it out and were able to pass the bills out of the committee, or most of the bills out of the committee, the next week after that happened. So I think that Sen. Sanders is figuring out how to run the HELP Committee. What I’ve kind of heard is that he is somewhat more interested in labor issues than health, and so his focus is not maybe as much on health. And I think you can see that sometimes. Also, when you talk to Sen. Sanders, he’s very much a big-picture guy and isn’t so much in the process weeds often, whereas Sen. Cassidy loves the process.

Rovner: So we’re noticing.

Knight: Yeah, Sen. Cassidy loves the process. So they’re an interesting duo, I think.

Rovner: Yeah, I mean, I was interested that this week, you know, Sen. Sanders was among those there reintroducing the “Medicare for All” bill that obviously has no future in the immediate future. But at the same time, community health centers are up for reauthorization this year. And that has always been a pet issue, even when he was House member, you know, Rep. Sanders. This is one of the issues that I know he cares a lot about. And now he’s in charge of making sure that it gets reauthorized. So he’s got sort of these competing big-picture stuff and, not smaller, but smaller than the big-picture stuff that he really cares about. I’ll be curious to see what he’s able to do on that front. I assume there’s no word on that yet, even though the authorization ends Sept. 30, right?

Raman: The sense that I’ve gotten from talking to folks is that community health centers is higher up the totem pole than some of the other issues on the must-pass list. I mean, we still have to deal with the debt ceiling and everything related there. But I think that there has been a little bit more progress then. I mean, this week, at least in the House, Energy and Commerce had marked up their bill that had community health center funding in there. So I think there’s a little bit more push on that end because they’re, you know, fairly bipartisan, have seen interest across the board on that. So I think that they are making some progress there. It’s just that there’s so many other factors right now, and that makes it pretty tricky.

Rovner: The ironic thing about Congress — it’s summertime when everybody else sort of kicks back. — that’s when Congress kicks into gear. So a lot, I imagine, is going to happen in June and July. All right. That is this week’s news. Now it is time for our extra credit segment. That’s when we each recommend a story we read this week we think you should read too. As always, don’t worry if you miss it. We will post the links on the podcast page at kffhealthnews.org and in our show notes on your phone or other mobile device. Victoria, why don’t you go first this week?

Knight: Sure. My extra credit this week is called “World Health Organization Warns Against Using Artificial Sweeteners.” It was published in The New York Times. Basically, the WHO said this week that artificial sweeteners aren’t effective in reducing body fat and could actually increase the risk of Type 2 diabetes and cardiovascular diseases. They looked at the available evidence, and it’s just a set of guidelines that they’re issuing. It’s not binding to anything. You know, every country can kind of make their own decision based on this. But I think it was an interesting marker. If you look at the influx of all these artificial sweeteners over time that have kind of become a mainstream part of our diet, they’re available in a bunch of different things that you can get at the store, and people often turn to them when they’re trying to reduce sugar. And now this large body is saying they may actually worsen your health, not help you, and not even reduce fat. So I think that was just kind of interesting. The FDA did not respond to The New York Times’ request for the story, so I’m not sure their stance on this, but just something to note.

Rovner: I was interested that the WHO did that. It seemed sort of very not WHO-ish, but also interesting. Sandhya, why don’t you go next.

Raman: All right, so my extra credit this week is called “A Year After Dobbs Leak, Democrats Still See Abortion Driving 2024 Voters.” And it’s from my colleagues “What the Health?” alum Mary Ellen McIntire and Daniela Altimari. And they take a look at how Democrats are kind of seeing how abortion messaging isn’t fading a year after — almost — the Dobbs decision, are kind of doubling down on focusing on that. President Biden and Vice President Harris were both at the EMILYs List gala this week honoring Nancy Pelosi. And it also comes amid a lot of the state action we talked about earlier of a lot of abortion bans going into place. And so they have a good look at that that you can read.

Rovner: Rachel.

Roubein: My extra credit is called “Thousands Face Medicaid Whiplash in South Dakota and North Carolina,” by Arielle Zionts from KFF Health News. And she takes a look at the unwinding of keeping people on the Medicaid program, particularly in South Dakota and North Carolina, where the dynamic is really interesting, because both states have recently passed Medicaid expansion. So officials are kind of going through the Medicaid rolls beforehand. So some people who could be eligible soon may be getting kicked off, only to need to reapply, or officials need to tell them that they can reapply. So I thought it was a really interesting look on how this is playing out.

Rovner: Yeah, it is. I mean, talk about head-explodingly confusing for people; it’s like, “You’re not eligible now, but you will be in three weeks. So just kind of sit tight and don’t go to the doctor for the next couple of weeks,” basically where they are. Well, my story is from The Washington Post, and it’s called “A 150-Year-Old Law Could Help Determine the Fate of U.S. Abortion Access,” by Dan Diamond and Ann Marimow. And it’s about the Comstock Act, which we have talked about before. It’s a Reconstruction-era law pushed through Congress by an anti-vice crusader, Anthony Comstock, who I learned this week was not actually a member of Congress. He was just an interested party. The law purports to ban the mailing of all sorts of lewd and lascivious items, including those intended to be used for abortion. Abortion opponents are trying to resurrect the law, which has never been formally repealed. But it turns out that Comstock wasn’t actually all that anti-abortion. In a newly resurrected interview that Comstock did with Harper’s Weekly in 1915, he said he never intended for the law to interfere with the practice of medicine by licensed doctors, including for abortion. Quote, “A reputable doctor may tell his patient, in his office what is necessary, and a druggist may sell on a doctor’s written prescription drugs which he would not be allowed to sell otherwise.” That’s how Comstock is quoted as saying. Um, wow. It’s just another weird twist in an already very twisty story. But let’s keep track of the Comstock Law going forward. All right. 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. Also as always, you can email us your comments or questions. We’re at whatthehealth@kff.org. Or you can tweet me. I’m still there. I’m at @jrovner. Sandhya?

Raman: @SandhyaWrites.

Rovner: Rachel.

Roubein: @rachel_roubein.

Rovner: Victoria.

Knight: @victoriaregisk.

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

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When the first Humira biosimilar — essentially a generic version — finally hit the market in January, it came with an unpleasant surprise. The biosimilar’s maker, Amgen, launched two versions of the drug, which treats a host of conditions including rheumatoid arthritis. They were identical in every way but this: One was priced at about $1,600 for a two-week supply, 55% off Humira’s list price. But the other was priced at around $3,300, only about 5% off. And OptumRx, one of three powerhouse brokers that determine which drugs Americans get, recommended option No. 2: the more expensive version.

As Murdo Gordon, an Amgen executive vice president, explained in an earnings call, the higher price enabled his company to give bigger rebates, or post-sale discounts, to Optum and other intermediaries. Most of that money would be passed on to insurers, and patients, he said. Gordon did not mention that the higher-priced option would leave some patients paying much more out-of-pocket, undermining the whole rationale for generic drugs.

The Optum-Amgen announcements perfectly elucidated why, after years of thundering against drugmakers, Congress and the administration have now focused on regulating the deal-makers known as pharmacy benefit managers, or PBMs. Sen. Bernie Sanders’ health committee grilled a panel of PBM and pharmaceutical executives Wednesday in preparation for a vote on PBM legislation, expected Thursday.

The three biggest PBMs — OptumRx, CVS Caremark, and Express Scripts — control about 80% of prescription drug sales in America and are the most profitable parts of the health conglomerates in which they’re nestled. CVS Health, the fourth-largest U.S. corporation by revenue on Fortune’s list, owns CVS Caremark and the insurer Aetna; UnitedHealth Group, a close fifth, owns Optum; and Cigna, ranking 12th, owns Express Scripts. While serving as middlemen among drugmakers, insurers, and pharmacies, the three corporations also own the highest-grossing specialty drug and mail-order pharmacies.

“John D. Rockefeller would be happy to be alive today,” said David Balto, a former Federal Trade Commission attorney who represents clients suing PBMs. “He could own a PBM and monopolize economic power in ways he never imagined.”

Drug manufacturers claim that exorbitant PBM demands for rebates force them to set high list prices to earn a profit. Independent pharmacists say PBMs are driving them out of business. Physicians blame them for unpredictable, clinically invalid prescribing decisions. And patients complain that PBMs’ choices drain their pocketbooks.

With PBMs driving prices, competition has had the opposite effect from what economic theory predicted Medicare patients would spend out-of-pocket on drugs, one large study showed. Over a five-year period, patients were paying 50% more for branded drugs that had competitors than for those that didn’t.

All this makes the PBMs ripe targets for politicians of both parties. Yet the complexity and obscurity of their role in the drug marketplace have skeptics wondering whether legislation advancing in the House and Senate will actually help patients or lower prices at the pharmacy counter.

“We may try to make things better and actually make things worse,” Sen. Rand Paul (R-Ky.) said at Wednesday’s hearing.

The PBMs pass along most of their rebates to health plans, which will bear a larger share of patient drug costs in coming years under Medicare changes that are part of the 2022 Inflation Reduction Act. It’s likely that pressure on insurers will be passed along to PBMs and result in even more aggressive limits on physician prescription decisions, said Troyen Brennan, an adjunct Harvard University professor who was chief medical officer for CVS Health from 2008 to 2022.

Several congressional bills target drug company rebates to PBMs and what’s known as “spread pricing” — the extra money PBMs collect from insurers over what they pay pharmacies for drugs.

But those aren’t the big PBM revenue sources anymore, Brennan said. PBMs today mostly make money by owning mail-order and specialty pharmacies and from the government’s 340B program, created to help hospitals that treat a disproportionately elderly and poor population. Medicare requires drugmakers to provide big discounts to participating hospitals and the growing rosters of affiliated physician groups they own, and some of those discounts end up with PBMs.

Employers and the federal government decide where most of the rebate money goes, PBM leaders testified Wednesday — and health plans decide what out-of-pocket costs their covered members will pay.

In other words, drug companies blame PBMs for high drug counter prices, PBMs blame insurers, and insurers blame the drug companies, all part of a health care system that hinges on an unspoken bargain: Make life comfortable for some — mostly the upper and middle classes — at the expense of lower-income and poorly insured people who get what they get.

 PBMs’ extraction of money from patients in the name of “copayments” at the pharmacy counter “reintroduces medical underwriting” that was stripped away by the Affordable Care Act, Craig Garthwaite, a health care researcher at Northwestern’s Kellogg School of Management, told a Senate panel last year. Insurers can no longer pick and choose whom to insure, as they could before the landmark 2010 health law. But they are finding ways to make the sickest pay.

“People with expensive conditions are paying more for insurance so healthy people can pay less,” he said.

PBMs Evolve From Minnows to Whales

In 1967, a year before the first PBM was founded, spending on prescription drugs outside of a hospital in the U.S. totaled around $3.3 billion, compared with more than $600 billion in net payments last year. By 2005, when Medicare expanded to include coverage of outpatient drugs, government and private insurers depended on PBMs’ negotiating power to keep rising drug prices in check.

The Federal Trade Commission and Justice Department allowed the largest PBMs to gobble up competitors and merge with insurers during the Bush and Obama administrations on the grounds that bolstering their powers might rein in prices. The FTC fought state investigations of anti-competitive behavior, saying that pressure on PBMs would benefit consumers.

The FTC under President Joe Biden has switched course, at least partly because of the arrival of Chair Lina Khan, a vigorous proponent of antitrust policy who launched an investigation of the PBMs last June.

It came partly at the request of independent pharmacists, who rely on PBM reimbursements for the drugs they purchase and provide consumers. Thousands of pharmacists complained to the FTC that PBMs force them to accept unfairly low reimbursements — then slam them with opaque rules requiring them to pay back some of the money months later. Pharmacists returned $12.6 billion to PBMs in 2021, according to a recent Medicare Payment Advisory Commission report.

During a recent week, said Ashley Seyfarth, who owns Kare Drug in Aztec, New Mexico, a PBM reclaimed money from one prescription because the paperwork was faxed. It clawed back cash from another sale because Kare had kept the drug on the shelf an extra day, beyond the PBM’s time limit, to accommodate a patient delayed getting to the store.

And her reimbursements are “beyond low,” Seyfarth said. She laughed when asked whether contract terms with the PBMs were negotiable. “You aren’t negotiating anything,” she said. “It’s take it or leave it.”

PBMs “have the right to audit whether contract terms are agreed to,” Angela Banks, vice president of policy at the Pharmaceutical Care Management Association, the PBM trade group, said at a recent conference. “A lot of the complaints about PBMs come from two parties from whom we are extracting money: manufacturers and pharmacists.”

PBM pricing decisions are often murky. According to a recent study, in 2018 Medicare spent $2.6 billion more through PBMs for a year’s worth of 184 generic drugs than they would have cost at Costco. Doctors and hospitals find PBM formularies baffling, with dozens of variations depending on a patient’s health plan.

When Philadelphia-area internist Amy Davis writes a prescription, she has no idea what the pharmacy will bill her patients, she said, or whether a PBM has decided the drug needs prior authorization. Sometimes she doesn’t find out until a patient returns months later saying they skipped the drug because it was too expensive.

“We physicians are completely in the dark,” she said. “And it’s designed that way.”

The PBMs’ growing use of proprietary pharmacies, including mail-order operations, can interfere with the care of patients like Jasmine St. Clair, a 45-year-old restaurant manager and mother of six in Mount Juliet, Tennessee.

In October 2021, St. Clair’s treatment for a rare, non-smoking-related lung cancer was delayed three weeks after PBM giant Express Scripts insisted her prescription be filled by Accredo, the mail-order pharmacy it owns.

In the meantime, her fatigue and lower-back and neck pain became so bad “I couldn’t pick up my daughter, who was 2,” St. Clair said. “And I was really getting scared.”

After St. Clair started the four-pills-twice-a-day regimen, her tumor rapidly shrank. But in January, her husband’s insurance changed and the medications didn’t arrive on time. When she called Accredo to see what was wrong, “they said, ‘You owe $8,000. Would you like to pay by card?’”

The pharmacy attached to her oncology practice straightened out the payment issue and ensured her continued use of the drug, St. Clair said. Her oncologist, Johnetta Blakely, said these are daily occurrences in her practice.

“The problem with the PBMs and the specialty pharmacies they own is that they are so complicated and intertwined it’s hard to figure out what the heck they are doing,” Blakely said. “All this bureaucratic stuff is a distraction and takes away from things I could be doing, like asking Jasmine about her kids.”

What’s the Remedy?

Bipartisan House and Senate bills would require PBMs to reimburse pharmacies serving Medicaid patients based on an authorized price list, rather than using standards that allegedly allow PBMs to lowball pharmacies. The Congressional Budget Office has estimated the bills would save the federal government $1 billion over 10 years. Another Senate bill would require PBMs to report more of their earnings to the FTC, and would ban deceptive and unfair fees.

But PBMs have shown themselves adept at finding ways around regulation. A federal rule scheduled to take effect next year would curtail PBM “clawbacks” on independent pharmacies. But PBM contracts sent out to pharmacies in recent weeks get around that by lowering reimbursement fees and putting a percentage of their payments to pharmacies into a kind of escrow, said Douglas Hoey, CEO of the National Community Pharmacists Association.

When the Trump administration considered banning brand-name drug rebates in 2017, PBMs set up companies in Ireland and Switzerland to take over the negotiations and purchases. Doing so offered a tax advantage and allowed the PBMs to avoid scrutiny of the quantity and nature of those deals. Recently, Express Scripts set up another company to purchase generic drugs, in the Cayman Islands.

And PBMs appear adept at moving money from one pocket to another. “Yesterday’s rebates are today’s fees and potentially tomorrow’s something else,” said John O’Brien, CEO of the pharmaceutical industry-funded research group, the National Pharmaceutical Council.

Every arrangement that PBMs make with manufacturers, employers, and insurers is secret and proprietary, said Barak Richman, a Duke University Law School professor. This makes it nearly impossible to examine what kind of deals PBMs are making.

Antitrust law could be brought to bear on the PBMs, Richman said. And the Biden administration has shown an eagerness to possibly reverse mergers that have increased PBM clout. The Justice Department has taken similar steps.

But federal officials will have to move fast to slow the PBMs. Insurers that don’t have PBMs as part of their business have been shrinking in recent years because of the growing clout and buying power of the companies.

“I predict that any health insurer that doesn’t have a PBM is going to disappear in 10 years,” said Neeraj Sood, a professor at the University of Southern California Sol Price School of Public Policy. “Otherwise, there is no way to compete with the big three.”

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

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Julie Rovner is chief Washington correspondent and host of KFF Health News’ weekly health policy news podcast, “What the Health?” A noted expert on health policy issues, Julie is the author of the critically praised reference book “Health Care Politics and Policy A to Z,” now in its third edition.

If Congress fails to raise the nation’s debt ceiling in the next few months, the U.S. could default on its debt for the first time in history. Republicans in Congress, however, say they won’t agree to pay the nation’s bills unless Democrats and President Joe Biden agree to deep cuts to health and other programs. Among the proposals in a bill House Republicans passed April 26 is the imposition of new work requirements for adults who receive Medicaid.

Meanwhile, many of the states passing restrictions on abortion are also passing bills to restrict the ability of trans people to get health care. The two movements — both largely aimed at conservative evangelicals, a key GOP constituency — have much in common.

This week’s panelists are Julie Rovner of KFF Health News, Jessie Hellmann of CQ Roll Call, Shefali Luthra of The 19th, and Sarah Karlin-Smith of the Pink Sheet.

Panelists

Jessie Hellmann
CQ Roll Call

@jessiehellmann

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Shefali Luthra
The 19th

@Shefalil

Read Shefali's stories

Sarah Karlin-Smith
Pink Sheet

@SarahKarlin

Read Sarah's stories

Among the takeaways from this week’s episode:

• The Republican-controlled House’s proposal to raise the debt ceiling contains enough politically poisonous measures that the plan is a non-starter in the Senate. They include substantial funding cuts to major federal health programs, including the FDA and the National Institutes of Health — cuts that would force the federal government to cut back on grants and other funding.
• The proposal would also impose work requirements on adults enrolled in Medicaid — which covers low-income and disabled Americans, as well as pregnant women — and in the Supplemental Nutrition Assistance Program, which helps needy families buy food. Under the plan, the government would save money by cutting the number of people helped. But most beneficiaries cannot work or already do so. Experience shows the change would mostly affect people who struggle to report their work hours through what can be complicated online portals.
• Multiple congressional committees have released plans to fight high drug costs, promoting efforts to explore how pharmacy benefit managers make decisions about cost and access, as well as to encourage access to cheaper, generic drugs on the market. And during congressional testimony this week, the administrator of the Centers for Medicare & Medicaid Services, Chiquita Brooks-LaSure, said the agency would no longer issue warnings to hospitals that fail to comply with a law that requires them to post their prices, but instead would move directly to fining the holdouts.
• Also in news about cost-cutting legislation, a plan to address an expensive glitch in Medicare payments to hospital outpatient centers and physician offices is gaining steam on Capitol Hill. Hospital consolidation has helped increase costs in the health care system, and lawmakers are eager to keep health spending under control. But the hospital industry is ramping up advertising to make sure lawmakers think twice before legislating.
• In abortion news, it will likely be at least a year before the Supreme Court rules on whether the abortion pill mifepristone should remain accessible. Some justices suggested in last summer’s Dobbs decision, which overturned abortion rights, that they would leave further abortion questions to the states, yet the nation is finding that overturning a half-century of legal precedent is messy, to say the least. Meanwhile, reporting and polling are revealing just how difficult it is for doctors in states with abortion bans to determine what constitutes a “medical emergency” worthy of intervention, with a grim consensus emerging that apparently means “when a woman is near death.”

Also this week, Rovner interviews Renuka Rayasam, who wrote the latest KFF Health News-NPR “Bill of the Month” feature, about a pregnant woman experiencing a dangerous complication who was asked to pay $15,000 upfront to see one of the few specialists who could help her. If you have an outrageous or exorbitant medical bill you want to share with us, you can do that here.

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

Julie Rovner: The Nation’s “The Poison Pill in the Mifepristone Lawsuit That Could Trigger a National Abortion Ban,” by Amy Littlefield.

Shefali Luthra: The Washington Post’s “The Conservative Campaign to Rewrite Child Labor Laws,” by Jacob Bogage and María Luisa Paúl.

Jessie Hellmann: Politico’s “Gun Violence Is Actually Worse in Red States. It’s Not Even Close,” by Colin Woodard.

Sarah Karlin-Smith: The Wall Street Journal’s “Weight-Loss Drugmakers Lobby for Medicare Coverage,” by Liz Essley Whyte.

Also mentioned in this week’s episode:

• In Oklahoma, a Woman Was Told to Wait Until She’s ‘Crashing’ for Abortion Care,” by Selena Simmons-Duffin.
• Anti-Trans Bills Have Doubled Since 2022. Our Map Shows Where States Stand,” by Annys Shin, N. Kirkpatrick, and Anne Branigin.

click to open the transcript

Transcript: Dancing Under the Debt Ceiling

KFF Health News’ ‘What the Health?’

Episode Title: Dancing Under the Debt Ceiling

Episode Number: 295

Published: April 27, 2023

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

Julie Rovner: Hello and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent at KFF Health News. And I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, April 27, at 10 a.m. As always, news happens fast — really fast this week — and things might have changed by the time you hear this. So here we go. We are joined today via video conference by Jessie Hellmann of CQ Roll Call.

Jessie Hellmann: Good morning.

Rovner: Sarah Karlin-Smith, the Pink Sheet.

Sarah Karlin-Smith: Hi, everybody.

Rovner: And Shefali Luthra of The 19th.

Shefali Luthra: Hello.

Rovner: Later in this episode, we’ll have our KFF Health News-NPR “Bill of the Month” interview with Renuka Rayasam. This month’s patient had a happy ending medically, but a not-so-happy ending financially. But first, the news. We’re going to start this week with the budget and, to be specific, the nation’s debt ceiling, which will put the U.S. in default if it’s not raised sometime in the next several weeks, not to panic anyone. House Republicans, who have maintained all along that they won’t allow the debt ceiling to be raised unless they get spending cuts in return, managed to pass — barely — a bill that would raise the debt ceiling enough to get to roughly the middle of next year. It has no chance in the Senate, but it’s now the Republicans’ official negotiating position, so we should talk about what’s in it. It starts with a giant cut to discretionary spending programs. In health care that includes things like the National Institutes of Health, most public health programs, and the parts of the FDA that aren’t funded by user fees. I mean, these are big cuts, yes?

Hellmann: Yeah, it’s about a 14% cut to some of these programs. It’s kind of hard to know exactly what that would mean. But yeah, it’s a big cut and there would have to be, like, a lot of changes made, especially to a lot of health care programs, because that’s where a lot of spending happens.

Rovner: Yeah, I mean, sometimes they’ll agree on cuts and it’ll be like a 1% across the board, which itself can be a lot of money. But I mean, these are, these are sort of really deep cuts that would seriously hinder the ability of these programs to function, right?

Karlin-Smith: NIH for a number of years was operating on only getting budget increases that were not keeping up kind of with inflation and so forth. And they just finally, over the last few years, got back on track. Even though their budget seemed like it was going up, really, if you adjusted for inflation, it had been going down. And then when you have an agency like FDA, which, the line is always that they do an incredible amount of work on really a shoestring budget for the amount they regulate, so they never get — NIH sometimes gets, you know, that bipartisan popularity and does get those bigger increases back, and they never really get those big increases, so I think it would be harder for them also to get that back later on if they did get such big cuts.

Hellmann: There are like also a lot of health programs that just operate on flat funding from year to year, like Title X.

Rovner: Yeah, the family planning program.

Hellmann: And so obviously, like HHS said last year, We are only able to fund a certain number of providers, like, less than previously, because of inflation, and stuff like that. So obviously if you take a 14% cut to that, it would make it even harder.

Rovner: All right. Another major proposal in the package would institute or expand work requirements for people on food stamps and on Medicaid. Now, we’ve had work rules for people on welfare since the 1990s, but most people on Medicaid and food stamps, for that matter, either already work or can’t work for some reason. Why are the Republicans so excited about expanding or instituting work requirements?

Hellmann: I think there are a few reasons. No. 1, it’s a big money saver. The CBO [Congressional Budget Office] came out with their analysis this week showing that it would save the federal government about $109 billion. A lot of that would be shifted to the states because the way the bill is written, states would still be allowed to cover these individuals if they can’t prove that they’re working. But they’d have to pick up the costs themselves, which, I’ve seen experts questioning if that would really happen, even in states like, you know, New York and California, who probably wouldn’t want these people to lose coverage. But I think an argument that you hear a lot too, especially during the Trump administration when they were really pushing these, is they say that work is what provides fulfillment and dignity to people. Former CMS [Centers for Medicare & Medicaid Services] administrator Seema Verma talked about this a lot. The argument I heard a lot on the Hill this week is that Medicaid and other — SNAP [Supplemental Nutrition Assistance Program], TANF [Temporary Assistance for Needy Families], programs like that — trap people in poverty and that work requirements will kind of give them an incentive to get jobs. But as you said, like, it wouldn’t apply to most — you know, most people are already working. And most people who lost coverage under some of the previous iterations of this just didn’t know about it or they were unable to complete the reporting requirements.

Rovner: And to be clear, the CBO estimate is not so much because people would work and they wouldn’t need it anymore. It’s because people are likely to lose their coverage because they can’t meet the bureaucratic requirements to prove that they’re working. Shefali, you’re nodding. We’ve seen this before, right?

Luthra: I was just thinking, I mean, the savings, yes, they come from people losing their health insurance. That’s very obvious. Of course, you save money when you pay for fewer people’s coverage. And you’re absolutely right: “This will motivate people to work” argument has always been a little bit — complicated is a generous word. I think you could even say it’s a bit thin just because people do already work.

Rovner: And they — many of them work, they don’t earn enough money, really, to bring them out of poverty. And they don’t have jobs that offer health insurance. That’s the only way they’re going to get health insurance. All right. Well, where do we go from here with the debt ceiling? So now we’ve got this Republican plan that says work — everybody has to work and prove that they work and we’re going to cut all these programs — and the Democrats saying this is not a discussion for the debt ceiling, this is a separate discussion that should happen down the road on the budget. Is there any sign that either side is going to give here?

Hellmann: It doesn’t seem like it. Democrats have been saying, like, this is a non-starter. The president has been saying, like, we’re not going to negotiate on this; we want a clean increase in the debt ceiling, and we can talk about some of these other proposals that you want to pursue later. But right now, it seems like both sides are kind of at a standstill. And I think Republicans see, like, passing this bill yesterday as a way to kind of strengthen their hand and show that they can get all on the same page. But I just do not see the Senate entertaining a 14% cut or, like, Medicaid work requirements or any of this stuff that is just kind of extremely toxic, even to some, like, moderate Democrats over there.

Rovner: Yeah, I think this is going to go on for a while. Well, so at this high level, we’ve got this huge partisan fight going on. But interestingly, this week elsewhere on Capitol Hill things seem surprisingly almost bipartisan, dare I say. Starting in the Senate, the chairman and the ranking member of the Health, Education, Labor and Pensions Committee, Democrat Bernie Sanders and Republican Bill Cassidy, announced that they’ve reached agreement on a series of bills aimed at reining in prescription drug costs for consumers, including one to more closely regulate pharmacy benefit managers and others to further promote the availability of generic drugs. Sarah, we’ve talked about the target on the backs of PBMs this year. What would this bill do and what are the chances of it becoming law?

Karlin-Smith: So this bill does three things: One is transparency. They want to pull back the cover and get more data and information from PBMs so that they can better understand how they’re working. So I think the idea would then be to take future policy action, because one of the criticisms of this industry is it’s so opaque it’s hard to know if they’re really doing the right thing in terms of serving their customers and trying to save money and drug prices as they say they are. The other thing is it would basically require a lot of the fees and rebates PBMs get on drug prices to be given back directly to the health plan, which is sort of interesting because the drug industry has argued that money should be given more directly to patients who are paying for those drugs. And when that has scored by the CBO, that often costs money because that leads to PBMs using less money to lower people’s premiums, and premiums are subsidized from the government. So I’m curious if the reason why they designed the bill this way is to sort of get around that, although then I’m not sure exactly if you get the same individual … [unintelligible] … level benefit from it. And then the third thing they do is they want to eliminate spread pricing, which is where — this is really a pharmacy issue — where PBMs basically reimburse pharmacies less than they’re charging the health plans and, you know, their customers for the drug and kind of pocketing the difference. So I think, from what I’m seeing on the Hill, there’s a ton of momentum to tackle PBMs. And like you said, it’s bipartisan. Whether it’s this bill or which particular bills it’s hard to know, because Senate Finance Committee is sort of working on their own plan. A number of committees in the House are looking at it, other parts of the Senate. So to me, it seems like there’s reasonable odds that something gets done maybe this spring or summer on PBMs. But it’s hard to know, like, the exact shape of the final legislation. It’s pretty early at this point to figure out exactly how it all, you know, teases out.

Rovner: We have seen in the past things that are very bipartisan get stuck nonetheless. Well, across the Capitol, meanwhile, the House Energy and Commerce Committee is also looking at bipartisan issues in health care, including — as they are in the Senate — how to increase price transparency and competition, which also, I hasten to add, includes regulating PBMs. But, Jessie, there was some actual news out of the hearing at Energy and Commerce from Chiquita Brooks-LaSure, who runs the federal Medicare and Medicaid programs. What did she say?

Hellmann: So they’ve instituted two fines against hospitals that haven’t been complying with the price transparency requirements. So I think that brings the number of hospitals that they’ve fined to, like, less than five. Please fact-check that, but I’m pretty sure that I can count it on one hand.

Rovner: One hand. They have, they have actually fined a small number of hospitals under the requirement. Yeah. I mean, we’ve known — we’ve talked about this for a while, that these rules have been in effect since the beginning of 2022, right? And a lot of hospitals have just been not doing it or they’re supposed to be showing their prices in a consumer-understandable way. And a lot of them just haven’t been. And I assume CMS is not happy with this.

Hellmann: Yeah, so Brooks-LaSure said yesterday that CMS is no longer going to issue warnings for hospitals that aren’t making a good-faith effort to comply with these rules. Instead, they’ll move straight to what’s called the corrective action phase, where basically hospitals are supposed to, like, say what they’re going to do to comply with these. And after that, they could get penalized. So we’ll see if that actually encourages hospitals to comply. One of the fines that they issued is like $100,000. And so I think some hospitals are viewing this, you know, as a cost of doing business because they think it would cost them more to comply with the price transparency rules than it would to not comply with them.

Rovner: So transparency here is still a work in progress. There’s also a fight in the House over the very wonky-sounding site-neutral payment policy in Medicare, which, like the surprise bill legislation from a few years back, is not so much a partisan disagreement as a fight between various sectors in the health care system. Can you explain what this is and what the fight’s about?

Hellmann: So basically hospital outpatient departments or, like, physician offices owned by hospitals get paid more than, like, independent physician’s offices for providing things like X-rays or drug administration and stuff like that. And so this is —

Rovner: But the same care. I mean, if you get it in a hospital outpatient or a doctor’s office, the hospital outpatient clinic gets paid more.

Hellmann: Yeah. And there’s not much evidence that shows that the care is any different or the quality is better in a hospital. And so this has kind of been something that’s been getting a lot of attention this year as people are looking for ways to reduce Medicare spending. It would save billions of dollars over 10 years, I think one think tank estimated about 150 billion over 10 years. It’s getting a lot of bipartisan interest, especially as we talk more about consolidation in hospitals, you know, buying up these physician practices, kind of rebranding them and saying, OK, this is outpatient department now, we get paid more for this. There are fewer independent physician’s offices than there used to be, and members have taken a really big interest in how consolidation increases health care prices, especially from hospitals. So it does seem like something that could pass. I will say that there is a lot of heat coming from the hospital industry. They released an ad on Friday last week warning about Medicare cuts, so, they usually do whenever anyone talks about anything that could hurt their bottom lines. Very generalist ad and kind of those “Mediscare” ads that we’ve been talking about. So it’ll be interesting to see if members can withstand the heat from such a powerful lobbying force.

Rovner: As we like to say, there’s a hospital in every single district, and most of them give money to members of Congress, so anything that has the objection of the hospital industry has an uphill battle. So we’ll see how this one plays out. Let us turn to abortion. The fate of the abortion pill mifepristone is still unclear, although the Supreme Court did prevent even a temporary suspension of its approval, as a lower court would have done. Now the case is back at the 5th Circuit Court of Appeals, which has swiftly scheduled a hearing for May 17. But it still could be months or even years before we know how this is going to come out, right, Shefali?

Luthra: It absolutely could be. So the fastest that we could expect to see this case before the Supreme Court again, just — what from folks I’ve talked to is, I mean, we have this hearing May 17, depending on how quickly the 5th Circuit rules, depending on how they rule, there is a chance that we could see if we get, for instance, an unfriendly ruling toward mifepristone, the federal government could appeal to the Supreme Court this summer. We could see if the Supreme Court is willing to take the case. The earliest that means that they would hear it would be this fall, with a decision in the spring a year from now, but that would be quite fast. I think what’s striking about it is that we may all recall last year, when the Supreme Court issued its decision in the Dobbs case, they said this will put the issue of abortion back in the hands of the states, out of the judiciary, we will no longer be involved. And anyone at the time could have told you there’s no way that this would happen because it is too complicated of an issue, when you undo 50 years of precedent, to assume there will be no more legal questions. And here we are. Those critics have been proven right, because who could have seen that, once again, we’d have the courts being asked to step in and answer more questions about what it means when a 50-year right is suddenly gone?

Rovner: Indeed. And of course, we have the … [unintelligible] … This is going to be my next question, about whether this really is all going to be at the state level or it’s going to be at the state and the federal level. So as red states are rushing to pass as many restrictions as they can, some Republicans seem to be recognizing that their party is veering into dangerously unpopular territory, as others insist on pressing on. We saw a great example of this over the weekend. Former vice president and longtime anti-abortion activist Mike Pence formally split on the issue with former President Trump, with Pence calling for a federal ban and not just leaving the issue to the states. Nikki Haley, the former governor of South Carolina and the lone woman in the Republican field so far, managed to anger both sides with the speech she made at the headquarters of the hard-line anti-abortion group the Susan B. Anthony List. Haley’s staff had suggested ahead of time that she would try to lay out a middle ground, but she said almost nothing specific, which managed to irritate both full abortion abolitionists and those who support more restrained action. Is this going to be a full-fledged war in the Republican Party?

Luthra: I think it has to be. I mean, the anti-abortion group is still very powerful in the Republican Party. If you would like to win the nomination, you would like their support. That is why we know that Ron DeSantis pursued a six-week ban in Florida despite it being incredibly unpopular, despite it now alienating many people who would be his donors. This is just too important of a constituency to annoy. But unfortunately, you can’t really compromise on national abortion policy if you’re running for president. A national ban, no matter what week you pick, it’s not a good sound bite. We saw what happened last year when Sen. Lindsey Graham put forth his national 15-week ban: Virtually no other even Republicans wanted to endorse that, because it’s a toxic word to say, especially in this post-Dobbs environment, especially now that we have all of this polling, including NPR polling from yesterday, that showed us that abortion bans remain quite unpopular and that people don’t trust Republicans largely on this issue. I think this is going to be incredibly interesting because we are going to eventually have to see Nikki Haley take a stance. We will have to see Donald Trump, I think, frankly, be a bit more committal than he has been, because meanwhile, he has lately told people publicly that he would not issue any federal policy, would leave this up to the states, we also know that he has said different things in other conversations. And at some point those conflicts are going to come to a head. And what Republicans realize is that their party’s stance and the stance they need to take to maintain favor with this important group is just not a winning issue for most voters. People don’t want abortion banned.

Rovner: Yeah, it’s a real problem. And Republicans are seeing they have no idea how to sort of get out of this box canyon, if you will. Well, back in the states, things seem to be getting even more restrictive. In Oklahoma this week NPR has another of those wrenching stories about pregnant women unable to get emergency health care. This time, a woman, a mom of three kids already with a nonviable and cancerous pregnancy who was told literally to wait in the hospital parking lot until she was close enough to death to obtain needed care. And that case turned out not to be an outlier. A quote-unquote “secret shopper” survey of hospitals in Oklahoma found that a majority of the 34 hospitals contacted could not articulate what their policy was in case of pregnancy complications or how they would determine if the pregnant person’s life was actually in danger. I can’t imagine Oklahoma is the only state where this is the case. We have a lot of these bans and no idea where sort of the lines are, even if they have exceptions.

Luthra: We know that this is not isolated to Oklahoma. There is a lawsuit in Texas right now with a group of women suing the state because they could not access care that would save their lives. One of those plaintiffs testified in Congress about this yesterday. Doctors in virtually every state with an abortion ban have said that they do not know what the medical exceptions really are in practice other than that they have to wait until people are on death’s door because there isn’t — medical emergency isn’t really a technical term. These bills, now laws, were written without the expertise of actual physicians or clinicians because they were never really supposed to take effect. This really has been just another example of a way that the dog chased the car and now the dog has the car.

Rovner: And the dog has no idea what to do with the car. Well, meanwhile, in Iowa, the attorney general has paused the state’s policy of paying for abortions as well as emergency contraception for rape victims. This is where I get to rant briefly that emergency contraception and the abortion pill are totally different, that emergency contraception does not cause abortion — it only delays ovulation after unprotected sex and thus is endorsed for rape victims in Catholic health facilities across Europe. OK, end of rant. I expect we’re going to see more of this from officials in red states, though, right, with going — not just going after abortions, but going after things that are not abortion, like emergency contraception.

Luthra: And I mean, if we look at what many of the hard-line anti-abortion groups advocate, they don’t just want to get rid of abortion. They specifically name many forms of hormonal contraception, but specifically the emergency contraception Plan B, and they oppose IUDs [intrauterine devices]. It would just be so, so surprising if those were not next targets for Republican states.

Rovner: So abortion isn’t the only culture war issue being fought out in state legislatures. There’s also a parallel effort in lots of red states to curtail the ability of trans people, mostly but not solely teenagers, to get treatment or, in some cases, to merely live their lives. According to The Washington Post, as of the middle of this month, state legislators have introduced more than 400 anti-trans bills just since January. That’s more than the previous four years combined. Nearly 30 of them have become law. Now, I remember in the early aughts when anti-gay and particularly anti-gay marriage bills were the hot items in red states. Today, with some notable exceptions, gay marriage is as routine as any other marriage. Is it possible that all these attacks on trans people, by making them more visible, could have the same effect? In other words, could this have the opposite effect as the people who are pushing it intended? Or am I just looking for a silver lining here?

Luthra: I think it’s too soon to say. There isn’t incredible polling on this issue, but we do know that in general, like, this is not an issue that even Republicans pick their candidates for. It’s not like they are driven to the ballot box because they hate trans people this much. I wouldn’t at all be surprised if there is a backlash, just because what we are hearing is so, frankly, horrific. What I have been really struck by, in addition to the parallels to anti-gay marriage, have been the ways in which restrictions on access to health care for trans people really do parallel attacks to abortion in particular, thinking about, for instance, passing laws that restrict access to care for minors, passing laws that restrict Medicaid from paying for care, that restrict how insurance covers for care. It’s almost spooky how similar these are, because people often think minors are easier to access first. People often think health insurance is an easier, sort of almost niche issue to go for first. And what we don’t often see until afterward is that these state-by-state laws have made care largely inaccessible. The other thing that I think about all the time is that these are obviously, in both cases, forms of health care restriction that are largely opposed by the medical community, that are often crafted without the input of actual medical expertise, and that target health care that does feel incredibly difficult to extricate from the patient’s gender.

Rovner: Yeah. The other thing is that people are going from state to state, just like with abortion. In order to get health care, they’re having to cross state lines and in some cases move. I mean, we’re starting to see this.

Luthra: The high-profile example being Dwyane Wade, formerly of the Miami Heat, moving away from Florida because of his child.

Karlin-Smith: The other thing, Julie, you were saying in terms of how optimistic to be, in terms of maybe the other side of this issue sort of pushing back and overcoming it, is that Politico had this good story this week about doctors in states where this care is perfectly legal and permissible but they’re getting so many threats and essentially their health care facilities feel that they’re so much in danger that they are concerned about how to safely provide and help these people that they do want to help and give care, while also not putting their families and so forth in danger, which perhaps also has a parallel to some of how there’s tons of, like, constant protests outside abortion clinics. And people have volunteered for years just to kind of escort people so they can safely feel comfortable getting there, which of course is, you know, can be very traumatic to patients trying to get care.

Rovner: Yeah, the parallels are really striking. So we will watch that space too. All right. That is the news for this week. Now, we will play my “Bill of the Month” interview with Renuka Rayasam. Then we will come back and share our extra credit. We are pleased to welcome to the podcast Renuka Rayasam, who reported and wrote the latest KFF Health News-NPR “Bill of the Month” story. Renu, welcome to “What the Health?”

Renuka Rayasam: Thanks, Julie. Thanks for having me.

Rovner: So this month’s patient was pregnant with twins when she experienced a complication. Tell us who she is, where she’s from, and what happened.

Rayasam: Sure. Sara Walsh was 24 weeks pregnant with twins — it was Labor Day weekend in 2021 — and she started to feel something was off. She had spent a long time waiting to have a pregnancy that made it this far — eight years, she told me. But instead of feeling excited, she started to feel really nervous and she knew something was off. And so on Tuesday, she went to her regular doctor. And then on Wednesday, after that Labor Day, she went to her maternal fetal specialist, who diagnosed her with a pretty rare pregnancy complication that can occur when you have twins, when you have multiple fetuses that share blood unevenly through the same placenta. And it’s called twin-to-twin transfusion syndrome. And, you know — and this was Wednesday — she went into the office in the morning and she waited a long time for the doctor to kind of come back with the results, she and her husband, and just kind of spent the morning sort of back-and-forth between her maternal fetal specialist and her OB-GYN. And they told her she needed to get treatment immediately, that if she didn’t have treatment that she could lose one or both twins, she herself could even die. She needed to keep her fluid intake low. So they referred her to a specialist about four hours away from where she was. She was in Winter Haven, Florida, and they referred her to a specialist near Miami. And the specialist there apparently does not contract with any private insurance. And so that afternoon, hours after her diagnosis, she was packing her bags; she was getting ready to go, figuring out a place to stay, a hotel room and all that. And she gets a call from the billing office of this specialist in Coral Gables, Florida, near Miami. And they said, “Listen, we don’t contract with private insurance. You have to pay upfront for the pre surgical consultation for the surgery and then the post-surgical consult. And you need to have that money before you show up tomorrow in our office at 8 a.m.”

Rovner: And how much money was it?

Rayasam: About $15,000 in total for the consultations and the surgery itself. She told me she burst into tears. She didn’t want to lose these twins. She wasn’t given any option of shopping around for another provider. And she spent some time trying to figure out what to do. She couldn’t get a medical credit card because I guess there’s a 24-hour waiting period and she didn’t have that long. And so finally, her mother let her borrow her credit card. She checked into a hotel at midnight and at 8 a.m. the next morning she handed over her credit card and her mother’s credit card before she could have the procedure — before she could even see the doctor, I should say.

Rovner: And the outcome was medically good, right?

Rayasam: Yeah. The provider who did her surgery is a pioneer in this field. And that was why those doctors sent Sara to this provider, Dr. Ruben Quintero. He came up with this staging system that helps assess the symptom’s severity and even pioneered the treatment for it. But he sort of used all that to kind of say, OK, you have to pay me; I’m not even going to deal with insurance in this case. And so that afternoon, it was that Thursday, the day after she was diagnosed, she had a procedure, it went well, she had a couple of follow-ups in the following weeks. And then five weeks later, she delivered premature but otherwise healthy twin girls.

Rovner: So is that even legal for a doctor to say, “I’m not even going to look at you unless you pay me some five-figure amount”?

Rayasam: Generally, no. We have the federal No Surprises Act, as you know, and that’s meant to do away with surprise billing. But that was really designed for kind of inadvertent medical bills or surprises. Things get really complicated when there’s this appearance of choice where, you know, she had time to call the insurer, she had time to call the provider. It wasn’t as if she was unconscious and sort of rushed to the nearest doctor. Technically, she had a choice here. She could have chosen not to get the procedure. She could have gone to a different state. But obviously, those are not real choices in her situation when she needed the procedure so urgently. And so in those cases, you know, the billing experts I spoke with said this is a real loophole in federal billing legislation and state surprise billing legislation because the bill wasn’t a surprise. She knew how much to expect upfront. And that’s what makes this situation tricky.

Rovner: And she knew that the doctor wasn’t in network.

Rayasam: Absolutely. She knew the doctor wasn’t in network, and she knew how much she had to pay, and she willingly forked over the money, of course, as anyone would have in that situation or tried to in that situation.

Rovner: So after the fact, she went back to her insurance company to see if they could work something out, since it was pretty much the only place she could have gone at that point to get the treatment. But that didn’t go so well.

Rayasam: That didn’t go so well, and it’s one complication in this story that I myself don’t know what to make of, but the provider does not contract with any insurer, I should say. But he did take her insurance card and — or, the billing person did — and they say that they bill as a courtesy to the patient. So they file the paperwork for the patient. They say, “OK, your insurer will reimburse you. We’re going to provide all the paperwork.” In Sara’s case, it took a long time for this doctor and his practice to get Blue Cross Blue Shield the paperwork they needed to kind of pay for her claim. And in addition to that, they didn’t really send over the right paperwork right away. So it took a long time. And eventually she got only $1,200 back and she ended up paying far more than that out-of-pocket.

Rovner: And of course, the next obvious question is, doesn’t her insurance have an out-of-pocket maximum? How did she ever end up spending this much?

Rayasam: That’s a great question. We reached out to her insurer, and they didn’t really give us much of an explanation, but they, you know, on their billing statements and what they said to her was, “Hey, you went willingly out of network; this doesn’t qualify you for those out-of-pocket maximums.” They didn’t give us an explanation as to why. This seems to be a classic case of where those maximums should apply. But like I said, I think, you know, she had very little recourse. She tried to appeal the bills. She’s, you know, been on the phone with her insurer multiple times. The thing that makes this story more complicated is that it’s such a rare procedure and there aren’t that many providers in the country that even perform this procedure. So at first she was having to struggle with billing codes and all that with her insurance, so a lot of the people she was dealing with on the insurance side were really confused. It wasn’t something that they had a playbook for, knew what to do with, and that’s what made this a little bit more complicated.

Rovner: So what’s the takeaway here? I mean, obviously this was a rare complication, but if you multiply the number of rare complications of different things, you’re talking about a lot of people. Is there any way to get around this? I mean, it sounds like she did everything she could have in this case.

Rayasam: She did. In this case, it turns out there was another provider in Florida. There was no way for her to know that. Neither her OB-GYN nor the maternal fetal specialist told her about this other provider. I found out about it. I called around and did the reporter thing. And there are now four providers in Florida that will treat this. But of course, you know, if I was a patient, I wouldn’t shop around and risk my pregnancy either. So it’s unfortunate, in this case, there’s not much a person can do other than make sure that they’re keeping all the paperwork. And, you know, one thing that one of the billing experts I spoke with told me is that when you pay upfront, it makes things a lot harder. And in this case, like I said, she didn’t have a choice. But if there’s ever a way to get the bill on the back end, then there’s more of an incentive for the provider and the insurer to work together to get paid. But once the provider was paid, the insurer is not going to rush to reimburse the patient.

Rovner: And the provider is not going to rush to help the insurer figure out what to do. Ah well, another cautionary tale. Renu Rayasam, thank you so much.

Rayasam: Thank you.

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 kffhealthnews.org and in our show notes on your phone or other mobile device. Sarah, why don’t you go first this week?

Karlin-Smith: Sure. I took a look at a story in The Wall Street Journal, “Weight-Loss Drugmakers Lobby for Medicare Coverage. Adding Ozempic, Mounjaro to federal plans could stoke sales.” It really documents well sort of the range of lobbying organizations and groups and where they’re sort of putting money to try and get Medicare to shift its policies and cover treatments for obesity, which was something that in the early creations of Part D was banned. And I think largely at that time it was because weight loss was seen as more of a cosmetic treatment than something that impacted health in the same way we appreciate now.

Rovner: And also, there wasn’t anything that worked.

Karlin-Smith: Right. The things that prior to this, the things that were available at different times were not very effective and in some cases turned out to be fairly unsafe. And of course, now we have treatments that seem to work very well for a number of people, but there’s a fear of just how much money it would cost Medicare. So the other interesting thing in this story is they talk about some lawmakers in Congress thinking about ways to maybe narrowly start opening the floodgates to access by potentially maybe limiting it to people with certain BMIs [body mass indexes] or things like that to maybe not have the initial cost hit they might be concerned about with it.

Rovner: And of course, whether Medicare covers something is going to be a big factor in whether private insurance covers something. So it’s not just the Medicare population I think we’re talking about here.

Karlin-Smith: Right. There’s already I know lobbying going on around that. My colleague wrote a story a few weeks ago about Cigna sort of pushing back about having those drugs be included potentially in, like, the essential health benefits of the ACA [Affordable Care Act]. So it’s going to be, yeah, a broader issue than just Medicare.

Rovner: Yeah, it’s a lot. I mean, I remember when the hepatitis C drugs came out and we were all so, you know, “Oh my God, how much this is going to cost, but it cures hepatitis C.” But I mean, that’s not nearly as many people as we’re talking about here. Jessie, why don’t you go next?

Hellmann: My stories from Politico. It’s called “Gun Violence Is Actually Worse in Red States. It’s Not Even Close.” It takes a weird twist that I was not expecting. Basically, the premise is about how gun deaths are actually higher in areas like Texas and Florida. They have higher per capita firearm deaths, despite messaging from some Republican governors that it’s actually, like, you know, cities like Chicago and New York that are like war zones, I think it’s the former president said. The author kind of makes an interesting argument I didn’t see coming about how he thinks who colonized these areas plays into kind of like the culture. And he argues that Puritans like had more self-restraint for the common good. And so areas like that have less firearm deaths where, you know, the Deep South people were — had like a belief in defending their honor, the honor of their families. So they were kind of more likely to take up arms. Not sure how I feel about this argument, but I thought it was an interesting story and an interesting argument, so —

Rovner: It is. It’s a really good story. Shefali.

Luthra: My story is from The Washington Post. It is called “The Conservative Campaign to Rewrite Child Labor Laws.” It’s a really great look at this Florida-based group called the Foundation for Government Accountability, which, despite its innocuous-sounding name, is trying to help states make it easier to employ children. This is really striking because we have seen, in states like Arkansas, efforts to make it easier to employ people younger than 16 in some cases, which is just really interesting to watch in these states that talk about protecting children and protecting life to, to then make it easier to, to employ kids.

Rovner: And in dangerous profess — in dangerous jobs sometimes. I mean, we’re not talking about flipping burgers.

Luthra: No, no. We’re talking about working in, like, in meat plants, for instance. But I think what’s also interesting is that this same organization that has made it easier to employ children has also tried to fight things like anti-poverty and try to fight things like Medicaid expansion, which is just sort of, if you’re thinking about it from an access-to-health standpoint, like, anti-poverty programs and Medicaid are shown to make people healthier. It’s sort of a really interesting look into a worldview that in many ways uses one kind of language but then advance the policy agenda that takes us in a different direction.

Rovner: Maybe we should go back to to Jessie’s story and depend on who settled that part of the country. We shall see. Speaking of history, my story’s from The Nation, and it’s called “The Poison Pill in the Mifepristone Lawsuit That Could Trigger a National Abortion Ban,” by Amy Littlefield. And it’s about the Comstock Act, which is a law from the Victorian era — it was passed in 1873 — that banned the mailing of, quote, “lewd materials,” including articles about abortion or contraception. A lot has been written about the Comstock Act of late because it was used to justify part of the opinion in the original mifepristone case out of Amarillo. But what this article makes clear is that reviving the law is actually a carefully calculated strategy to make abortion illegal everywhere. So this is not something that just popped up in this case. It’s a really interesting read. OK, that is our show. 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. As always, you can email us your comments or questions. We’re at whatthehealth@kff.org. Or you can tweet me, at least for now. I’m @jrovner. Sarah?

Karlin-Smith: I’m @SarahKarlin.

Rovner: Jessie.

Hellmann: @jessiehellmann.

Rovner: Shefali.

Luthra: @Shefalil.

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

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Supreme Court justices could act at any moment on access to the abortion pill mifepristone. Beyond reproductive health, their ruling could carry significant implications for states’ rights and FDA independence and integrity. For now, though, observers are unsure what the court will do — or what exactly prompted justices to again delay their decision this week.

At the Capitol, lawmakers grumbled, scoffed, and bickered this week as House Speaker Kevin McCarthy revealed the Republican proposal to cut government spending. The package would be dead-on-arrival in the Democratic-controlled Senate. But of note is the pushback from within McCarthy’s own caucus, with some hard-right conservatives pressing to go further by demanding the repeal of the Inflation Reduction Act in exchange for raising the debt ceiling.

And President Joe Biden pursued new efforts to grant legal status to young immigrants living in the country illegally who were brought here as children, sometimes called “Dreamers,” as his administration announced a plan to grant them access to government-funded health coverage.

This week’s panelists are Mary Agnes Carey of KFF Health News, Rachel Cohrs of Stat, Sandhya Raman of CQ Roll Call, and Joanne Kenen of the Johns Hopkins Bloomberg School of Public Health and Politico.

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Rachel Cohrs
Stat News

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Joanne Kenen
Johns Hopkins Bloomberg School of Public Health and Politico

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Sandhya Raman
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Read Sandhya's stories

Among the takeaways from this week’s episode:

• The Supreme Court extended its stay on the use of mifepristone through Friday, giving justices longer to act on a major, complicated case with nationwide implications for reproductive health. It is unclear what the court will do, though there are several actions it could take — including sending the case back to the lower courts or again extending the stay and buying justices even more time to come to agreement or pen dissents.
• GenBioPro, which produces the generic version of mifepristone, sued the FDA on Wednesday, attempting to preserve access to the drug. About two-thirds of the mifepristone currently used in the United States is generic.
• In congressional news, House Speaker McCarthy released what is effectively Republicans’ opening offer in the fight over raising the debt ceiling. The package includes GOP health priorities that would not garner needed support in the Senate, like work requirements for Medicaid and the clawback of unspent covid-19 pandemic funds.
• While health costs are high across government programs, Medicaid takes the big hit in the Republican proposal to cut federal spending. Republicans have embraced work requirements for government assistance since at least the 1980s, yet in Arkansas — a state that implemented work rules for Medicaid — it has proved challenging to verify that enrollees are meeting those requirements.
• The Senate Finance Committee, which has jurisdiction over much of federal health spending, revealed a package this week to tackle drug pricing. While the proposal is in the early stages, it seeks to incorporate bipartisan measures touching pharmacy benefit managers, insulin users, and more.
• And on the coverage front, the Biden administration announced that immigrant kids brought to the United States who remain here under the Deferred Action for Childhood Arrivals program will be able to apply for Medicaid and Affordable Care Act coverage. This eligibility expansion comes as states prepare to disenroll those who no longer qualify for Medicaid as the public health emergency’s coverage protections expire. Expect a fight from some states as they resist being forced to cover insurance for individuals living in the U.S. without legal permission.

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

Mary Agnes Carey: The New York Times’ “A Beauty Treatment Promised to Zap Fat. For Some, It Brought Disfigurement,” by Anna Kodé

Joanne Kenen: The New York Times’ “My Transplanted Heart and I Will Die Soon,” by Amy Silverstein

Sandhya Raman: ABC News’ “Puerto Rico’s Water Supply Is Being Depleted, Contaminated by Manufacturing Industry on the Island, Experts Say,” by Jessie DiMartino, Lilia Geho, and Julia Jacobo

Rachel Cohrs: The Wall Street Journal’s “‘I Hate You, Kathie Lee Gifford!’ Ozempic Users Report Bizarre Dreams,” by Peter Loftus

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Transcript: Will They or Won’t They (Block the Abortion Pill)?

KFF Health News’ ‘What the Health?’Episode Title: Will They or Won’t They (Block the Abortion Pill)?Episode Number: 294Published: April 20, 2023

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

Mary Agnes Carey: Hello and welcome back to “What the Health?” I’m Mary Agnes Carey, partnerships editor for KFF Health News. I’m filling in this week for Julie Rovner, and I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, April 20, at 10 a.m. Eastern. As always, news happens fast and things might have changed by the time you hear this. So here we go. Joining us today by video conference are Joanne Kenen of the Johns Hopkins Bloomberg School of Public Health and Politico.

Joanne Kenen: Hi, everybody.

Carey: Rachel Cohrs of Stat.

Cohrs: Morning, everyone.

Carey: And Sandhya Raman of CQ Roll Call.

Raman: Good morning.

Carey: Let’s start with the current court action on mifepristone. The Supreme Court was scheduled to rule yesterday on a decision from the U.S. Court of Appeals for the 5th Circuit that rolled back FDA action since 2016, allowing patients to get mifepristone through the mail, authorizing prescriptions by medical professionals other than doctors, and approving the drug’s use up to 10 weeks into a pregnancy instead of seven. Supreme Court Justice Samuel Alito Jr, who’d previously set Wednesday as the deadline for the court to act, extended that stay until Friday, and the justices could certainly act before they choose to —hopefully not while we’re taping. But I wanted to get everyone’s thoughts on why do you think the court didn’t act yesterday? Joanne, can I start with you?

Kenen: I mean, presumably they’re still hashing it out. There’re probably two or three judges who are still thinking about it or discussing it with their colleagues, or colleagues who want to think they can persuade them to their side. I mean, there’s something internal. On the other hand, I mean, they didn’t originally give themselves a lot of time to consider a complicated and historic case. We know there’s an anti-abortion majority. We know they’re not crazy about medical abortions any more than they are about surgical abortions. But this has large implications about states’ rights and about the sort of integrity of the FDA. So they may just wanted to sleep on it. They’re human, but the two sides are battling for two or three in the middle.

Carey: So what does this signal about how they might rule? I mean, to your point about the split, the battle, what are the options? What do you — Sandhya, what do you think about what they might —

Kenen: Well, if it was slam dunk, we’d have had it.

Carey: That is true. That is true. It is not a slam dunk.

Raman: And everyone that I have talked to in the last few weeks on this is just that there are so many different options, different permutations, that it’s difficult even for people that are experts on FDA policy, like expert lawyers, experts on abortion policy, to just kind of like predict the nuances. You know, they could let the stay expire. They could send it back to the 5th Circuit. They could decide to hold arguments and let it expire or not expire. They could decide something different than the 5th Circuit. You know, there’s so many different ways that things could happen that I think it makes it difficult. And then yesterday, the other manufacturer of mifepristone, GenBioPro, also filed suit against the FDA. So now we have, since Dobbs, like five different lawsuits related to mifepristone and three of them, post-Dobbs, are related to the FDA in particular. And I think it just gets very, very complicated to make a decision, even if ideologically some people might align with one way versus the other, given all of these different permutations and that we still have that Washington case that is attacking another part of this. So it’s just complicated to get people to do something. And the fact that this case has been moving so, so quickly.

Carey: Could we be in the same place on Friday? Could we get another stay? Could the justices certainly ask for more time, and are there any thoughts about the probability of that actually happening? Rachel, what are your thoughts?

Cohrs: I think they can do what they want.

Carey: That’s true.

Cohrs: They gave themselves time once more, and I think obviously there’s a benefit to having some certainty and predictability for people, for providers, but certainly they could stay again.

Carey: So, Sandhya, you just mentioned the Washington state case. So while this Texas ruling is before the Supreme Court, a federal district judge in Washington state issued a ruling in a separate case that instructed the FDA to not alter the current availability of the drug in 17 states and the District of Columbia. And as you just mentioned, a manufacturer of the generic version of the drug — the company’s name is GenBioPro; they make the generic version of mifepristone — they’re arguing that if the FDA implements a court order suspending approval of the drug, the agency would deprive the company of its rights to market the drug without due process of law. And as I understand, this company is a major manufacturer of the generic version of the drug, right? So let’s talk a bit more about this confusion of these split rulings. I mean, what is the public to make of it? What’s the reaction with facilities that are providing this medication or doctors who want to prescribe it or just the general public? The person who might be interested in this situation is very confused. I mean, talk a little bit about how people sort through it and what this means for them.

Raman: So the suit that was filed yesterday about the generic, they make two-thirds of the mifepristone that is used in the U.S. So if they were unable to be manufacturing theirs based on a ruling that only allowed the name-brand version of the drug, that’s a huge percentage of the market that is gone, and more than half of abortions are done through medication abortion. So that’s one thorn in it. And I think that another is that we have all of these states that have been stockpiling the drugs — several that have been, you know, in case they don’t know what is happening with the ruling. Washington is one of them. And there’s still not clarity depending on what happens with these cases of, you know, will they be able to use what that they have stockpiled? And then we have other states like New York and I think California that have been stockpiling misoprostol as another way to — in case there’s a court ruling that doesn’t go in their favor — to just give patients in their states access to medication abortion. I think that there are so many different permutations that it’s very difficult for even folks that are confident that the rule may go a different way to know what to predict, just because we’re in such uncertain territory, from all of the different former FDA officials that have said, “You know, this is a very different situation. We don’t even know, after decades of experience at the FDA, like, how this would play out, what it would mean, whether we’d have to pull everything off the market.” How it would play out, it’s just a lot of unknown territory given all of the different things going on.

Kenen: Well, also, whatever they do now isn’t necessarily the end of the story, right? I mean, if the court issues a stay, it will still go through the courts and it presumably ends up at the Supreme Court again. If they issue a stay pending full hearing of the case, it’ll be going on for months more. But either they issue a stay saying the 5th Circuit ruling, which did not totally — the lower federal court banned the use of the pill; the appeals court limited it to seven weeks instead of the FDA has ruled it’s for 10 weeks. So if they uphold the 5th Circuit Court of Appeals, there would still be use, but it would be limited. If they put a stay saying, “Yes, it can stay legal in the states that allow it for now,” then it would still be legal in those states but we’d still be back discussing what is the Supreme Court going to do a couple of months from now.

Carey: And how — where is the drug industry on this? I mean, this would have sweeping ramifications.

Kenen: They’re horrified. One of you might know the number — was it like 250 companies signed the brief that you’re going to have a court decide what drug is safe and what drug is not safe, rather than the FDA? I mean, the pharmaceutical company fights with the FDA all the time, but they need the FDA and they know they need the FDA and they admit they need the FDA. You know, you have one voice in this country saying a drug is safe or a drug is not safe or a drug is safe under the following conditions.

Raman: There have been hundreds of the drug companies that have spoken out against it, and PhRMA [Pharmaceutical Research and Manufacturers of America] more recently also finally came out against it. It’s been pretty uniform in a way that I have not really seen in the past where there have been, you know, the drug companies, the various people that have been regulators, the folks that are in favor of abortion rights, then just advocates — and just very unified in this response.

Carey: Rachel, what is the impact of the drug industry’s weighing in in this manner? How could that shape the decision? Was there anything surprising in how they worked together on this? I know you’ve done some reporting on this area.

Cohrs: Yes. Yeah. So I think certainly them actually filing briefs with the court will kind of help drive home the ramifications of this, just on a much larger scale. I mean, we’re not just talking about abortion now. We’re talking about any medication that could be at all controversial. You know, we’re talking PrEP for HIV. You know, there are so many areas where companies genuinely are concerned about lawsuits and about judges who aren’t experts. So I think this uniform voice will drive home the larger impacts here beyond this one issue. And also, I think, the drug industry has significant resources to invest. And I think, it took a little while, but the trade groups PhRMA and BIO [Biotechnology Innovation Organization] have said that they are willing to invest, and they haven’t made any specific commitments, but certainly I think down the line there could be legal challenges. And now that they have put themselves out there, they certainly are a significant player in the space, with resources.

Raman: The drug industry is also a huge player in, you know, donating to various campaigns and lobbying on the Hill. And it’s definitely going to be — put increasingly different folks in a tight spot if they are receiving a lot of backing from the pharmaceutical industry and if they’ve spoken out in favor of restricting the drug. And it’ll be interesting to see kind of as it goes on what happens there with some of these folks.

Carey: Sure. Well that’s a perfect segue way because we have lawmakers on Capitol Hill are also weighing in on this. About 150 Republicans are urging the Supreme Court to uphold the 5th Circuit’s ruling, while more than 250 Democrats have urged the court to not prevent access to mifepristone. Are Republicans taking a political risk here speaking out? Because I know it’s been talked about on the podcast before, about the abortion rights opponents have some splits on how far to go on some of these restrictions on abortion. You know, Republicans didn’t really seem eager to engage when the decision came out, but now they are. What does that mean? What do you make of it?

Raman: We’ve had that delay first that, you know, a lot of Republicans did not even comment on the case, which was kind of interesting, given that, you know, after a lot of these decisions, we see a lot from both sides kind of weighing in. And I think when you look at some of these briefs, they say a lot of the similar talking points as before, which is something that you can kind of look to. But I mean, the conversation is still moving, even on the Hill. Yesterday, Robert Califf from the FDA was facing questions about mifepristone from different Republicans, from Cindy Hyde-Smith, who had agreed with the lower court decision, from Susan Collins, who was kind of against the decision as one of the Republicans who generally supports abortion rights. And I think it’ll be very interesting if this gets taken up by a committee that has jurisdiction over the FDA, which we have not really seen a commitment to. Energy and Commerce [Committee] Democrats have asked for something on this to come up. But, you know, under Republican leadership, I don’t know that that would necessarily happen. The only committee that is really committed to looking at this issue has been, like, Senate Judiciary, which with Democratic control is going to look a different way. And they don’t really have the jurisdiction over FDA in the same way as some of the other committees do. So I think that’ll be interesting to look at if that changes.

Kenen: There is a divide in the Republican Party about how far to go. I mean, some are for rape and incest exceptions, some are not. Some are for six weeks, some are for 15 weeks, some are for zero weeks. This is reflecting those divisions. It also depends on the individual lawmaker’s district. You know, if you come from an extremely conservative district and you are an anti-abortion absolutist, then you’re going to speak out on this. But we’ve noted they don’t really want to antagonize pharma either. So you’ve seen, I guess it’s 150ish — you haven’t seen all of them. It’s a complicated issue for some of them, given the competing interests, you know. Is abolishing all abortions in the United States of America your top goal? In which case you’re going to want to support the lower court. If you have a more nuanced view, where you’re worried about precedent for overriding the FDA, you have competing — I mean, there are very few abortion rights Republicans, but they don’t all want to draw the line in the same place.

Carey: So while we’re on the subject of Capitol Hill, let’s talk about the debt ceiling. We have a little bit of action there this week. Speaker of the House Kevin McCarthy unveiled his plan to raise the debt ceiling. McCarthy and many Republicans have said they don’t want to raise the debt ceiling without spending cuts. President Biden and many Democrats are pushing for a clean debt ceiling increase. So among its provisions, Speaker McCarthy’s plan would cut federal spending by roughly $130 billion, and that would take spending back to fiscal 2022 levels. Health-related provisions include new work requirements for Medicaid and food stamp recipients, and the package would also claw back unspent covid aid funds. And there’s a bit of a twist on the work requirement proposals of the past: States could opt to keep those that don’t comply with the work rules covered under Medicaid, keep them on the rolls. But if they do, the state would bear the full cost of that coverage and forgo the federal money for those enrollees, right? The proposal also requires states to make use of existing resources like payroll databases, state health and human service agencies, to verify compliance with a work rule when possible. There’s a lot to unpack here. It’s pretty clear that, I mean, House Democrats aren’t going to vote for this. Does the speaker even have enough votes in his own caucus to pass it? I think he can only lose like four.

Kenen: TBD. But I don’t think the conventional wisdom is that he has the votes. You know, it’s a starting offer, but they can change, you know, has to go Rules [Committee]. They’ll change — you know, they could change things.

Carey: It is a starting offer. But your vote is next week and it’s Thursday. OK. Rachel, what’s your take on this?

Cohrs: Yeah, I think it was a bit of a roller coaster this week, as some members of the Freedom Caucus were demanding wholesale repeal of the Inflation Reduction Act around midweek, and they certainly backed off from that, especially the health care portion. So I think that is worth noting, at least right now. Again, unclear if he has the votes, or if the speaker has the votes, and then obviously Senate Democrats aren’t going to go for it and President Biden isn’t going to go for this. So I think, like Joanne said, it is kind of an opening offer here. And again, there isn’t a lot on Medicare in here. So I think we just, you know, finally, after so much rhetoric and so much back-and-forth, have some sort of tangible starting point from Republicans here, which is significant.

Kenen: But, you know, as soon as they made that pledge that we’re not going to touch Medicare, meaning traditional Medicare actually, and we’re not going to touch Social Security, we all knew that, Oh, that means that it’s all going to go to Medicaid. So this is a big Medicaid hit. And work rules have been something the Republicans have embraced at least since the Reagan era, maybe even before, but certainly since the 1980s. A few states tried them or at least said they were going to impose them under the Obama administration. At that point, the administration didn’t approve them and the courts didn’t uphold them. But we have a different court now. So I think this court would uphold; that’s likely. But this is not acceptable for Democrats, nor is it meant to be.

Raman: And when we had the various states propose these and in some cases implement them during the Trump administration, every single one of them was struck down by the court once, sometimes twice. You know, we had Arkansas, we had New Hampshire, we had Kentucky, we had Michigan. Every single time the judge at hand was, you know, “This is going against the function of Medicaid,” which — historically we’ve had work requirements in some of the other programs, but the way the Medicaid statute is written, it has been difficult to find a way to keep those in place. So if they were able to get that past, I mean, even the House, which seems like is a, is a question mark, I mean — whatever could get through would absolutely face court battles from some of the same folks that challenged them during the Trump administration.

Kenen: But I think the only one that actually went into effect was Arkansas. And in addition to it being thrown out by a court, it also just didn’t work. The mechanism didn’t work. It became really hard for people. The verification that you’re working, which this proposal actually addresses, that Mary Agnes just alluded to that, the verification was extraordinarily cumbersome. I mean, you had like lots of poor people in Arkansas — and rural Arkansas don’t have access to Internet — and you only had a few hours a day where you could use the portal and you have to leave work to go to the local library to prove that you were working. I mean, it was just — forget the ideology of it — the mechanics didn’t work, and people were thrown off even though they were compliant. And but this [is] just like a deep philosophical divide between the two parties, and they have compromised, and back in the Clinton years they compromised on welfare, what’s now called TANF [Temporary Assistance for Needy Families]. There’s work requirements for SNAP, for what we used to call food stamps. But Medicaid has been a red line for Democrats, that this is an entitlement based on health; it’s not like you deserve — some people deserve it and some people don’t. It’s been a philosophical, ideological, you know, something that Democrats feel very strongly about.

Cohrs: Oh, I just want to jump in on the covid money as well — much smaller deal, fewer impacts on patients — but it has been kind of interesting and over the last couple of weeks that the Biden administration has rolled out some new programs that cost quite a bit of money, as there’s this horizon, this call for Congress to claw back unspent covid funds. I mean, they’re spending $5 billion now on developing vaccines and therapeutics, $1 billion on vaccine access, when they said they didn’t have any money. So it’s just kind of interesting that, you know, when these funds are committed to a program legally, then Congress can’t claw them back. So I’m curious to see what else we’ll see as these negotiations solidify.

Carey: All right. We’ll keep our eye on it. And I want to just check in briefly on the Senate side. I know we’ve discussed these issues on the podcast before. The Senate Health, Education, Labor and Pensions Committee has been working on legislation focused on drug prices and pharmacy benefit managers. This morning we have a framework introduced from the Senate Finance Committee. It’s with Sen. Wyden, the chair from Oregon, who’s a Democrat, and Sen. Mike Crapo, Republican from Idaho, that also seeks to address PBMs in the prescription drug supply chain. We also have the moving, or maybe not moving, but introduce legislation, anything new there on insulin prices with Sen. Warnock and Sen. Kennedy to cap the out-of-pocket price at $35. Any movements there in the Senate, any insight you could offer?

Cohrs: On the Senate Finance [Committee] side, that is a very significant development, that they’ve decided to get in on the fun this week of putting together a package, just because their committees do have jurisdiction over so much federal spending. And Sen. Wyden has been involved in this issue. He’s put out — I found a package of bills from 2019, and, you know, he’s been on this issue a long time. So I think his team has proven they can craft big-picture, very impactful policy with the Inflation Reduction Act. So I think that’s certainly something to watch with that much federal spending on the line. And on insulin, you know, Sen. Schumer this week has committed to have some sort of insulin pricing provision in whatever package might come together — it’s still pretty amorphous — but it’s unclear what that’s going to look like. There is another proposal from Sen. Collins and Sen. Shaheen, two much more senior members of the caucus, and that mechanism works differently. For patients, it would look pretty similar. But on the back end, for insurers, for drugmakers, both of those programs would work differently. So they haven’t sorted that out yet. HELP hasn’t even picked a date for their hearing and formally announced it yet. So we are in early stages, but there’s certainly a lot swirling around.

Carey: Absolutely. And we’ll keep our eye on all of that as well. So I’d like to also chat a little bit about some ACA developments that happened this week. President Biden recently announced that hundreds of thousands of immigrants brought to the United States illegally as children will be able to apply for Medicaid and the Affordable Care Act’s health insurance exchanges. This allows participants in the Obama-era Deferred Action for Childhood Arrivals program, also known as DACA, to access government-funded health insurance programs. You can expect pushback from conservative leaders of states that have been reluctant to expand Medicaid, possibly also pushback from Republican members of the Hill on this provision. And then, in other ACA news, the administration has finalized new rules that are aimed at making it easier for consumers to sign up for ACA plans, in particular those who are losing their coverage through Medicaid or the Children’s Health Insurance Program. The Centers for Medicare & Medicaid Services, also known as CMS, will also give state marketplaces the option to hold a special enrollment period for people who lose their Medicaid or CHIP coverage. What could this possibly mean for enrollment in the program, right, to making it easier for DACA participants to enroll in the ACA or people losing their coverage through CHIP or Medicaid? I think it’s about 16 million people now in the program. Does this build more support for it? Are Republicans going to engage against it? Do they think that’s simply a losing battle because they’ve never agreed on an alternative?

Raman: I mean, right now, we’ve had historic levels of people in Medicaid and CHIP just because states have been unable to unenroll them from coverage during the public health emergency for covid. And now that states are starting to recheck their rolls and see who’s still eligible, who’s not eligible, we’ve been expecting just, you know, a big drop in different people that would be either getting uninsured or maybe moving to a different type of plan with a private or the exchanges. And I think it’s been something that, you know, states and the federal government have been working on for the entire time of just, you know, different ways to make sure that that drop-off in the number of uninsured folks doesn’t skyrocket as states are going through this process. And so I think the timing is important in that, you know, you’re trying to counteract the drop. And HHS [the U.S. Department of Health and Human Services] has been touting, you know, the high levels of uptake in the ACA and just like the low uninsured rate and this has been something they’ve just kind of been pushing, you know, month after month. This has been something that has been like a big achievement for them. And so now really like push comes to shove to say that, you know, it doesn’t drop off dramatically if you want to continue touting some of these achievements and making sure that people don’t drop off just because the emergency is ending and that guaranteed coverage isn’t there.

Kenen: So there are multiple issues in the question that are exposed, the DACA, which —

Carey: Of course it can’t be just one question I have to ask four at once.

Kenen: The DACA, which is also known as the Dreamers, Biden is trying to cover them. Democrats have been trying to give them legal status and got nowhere. In fact, they’re probably further away from that than they were five or six years ago. But to get them health coverage is something the Democrats — it’s like the least they can do to this population. But I can’t imagine there’s not going to be a political and/or a legal fight from the states who are going to have to pay for their share of it, right? I mean, Medicaid is a state-federal joint expenditure, and the states that don’t want to cover these people will well resist or sue. Or, I mean, everything ends up in court; I would imagine this will, too, or baked into the debt ceiling — you know, one more thing to fight about with the debt ceiling. So that’s one issue. I mean, the other issue is this unwinding of this huge Medicaid population. Most of these people are going to be eligible for some kind of coverage. Some of them are still going to be eligible for Medicaid. Some of them are going to be eligible for very good deals for sort of low-income working people on the ACA. And some have jobs that they can get insured through — theirs or a partner or a family member. But really, the only ones who are ineligible for anything would be those in the remaining Medicaid gap states. But that’s like theoretically, if we did everything right, the only people that would be ineligible are the Medicaid gap population, which is now down to about 10 states, assuming North Carolina, you know, finalizes their approval or, you know, enacts their expansion. But like, that’s the perfect world, and we don’t live in a perfect world. I mean, some of these people are going to get lost in the shuffle. And in fact, maybe several million; their estimates are like maybe 6 million, you know, no one knows. But, you know, our health care system is complicated. You know, getting a letter in the mail saying, you know, “Sayonara, Medicaid,” is not all of them will know how to negotiate new coverage even when they’re eligible, and we’re going to have to do a really good job of helping them. And that has to be from the federal government, from the state governments, from the health system itself, from advocates, from Congress. You know, everyone’s going to have to pitch in to get these people what they’re eligible for. And I don’t see that as an overnight success story. I think that there are people who should be covered and can be covered who won’t be covered. Eventually we’ll probably catch up and most of them enrolled. But I think that some of them have periods of uninsurance.

Carey: It’s absolutely a major undertaking. I know we’ll all be watching closely. OK, that’s the news for this week. Now it’s time for our extra credit segment. That’s when we each recommend a story we read this week and think you should read it too. As always, don’t worry if you miss it. We’ll post the links on our podcast page at kffhealthnews.org and in our show notes on your phone or other mobile device.

Kenen: I actually want to read the first sentence of this piece. This is a guest essay in The New York Times by Amy Silverstein. She’s a heart transplant recipient. She’s, I guess, about 60 now, and she’s about to die, not because her heart, her transplanted heart is failing — she writes about how she kept that in pristine condition — but because she’s got cancer. And it’s called “My Transplanted Heart and I Will Die Soon,” and it begins, “Today, I will explain to my healthy transplanted heart why, in what may be a matter of days or weeks at best, she — well, we — will die.” And in addition to being just a heart-tugger, I did not know a lot of what she explores about transplant medicine, that we think of transplants as medical miracles — and they are; you know, she had like an extra 35 years of life — but they’re also, transplant medicine itself hasn’t really, according to what she writes, transplant medicine itself — the drugs, the care they get, these heavy-duty drugs haven’t improved in 40 years. While she has a healthy heart, she has metastatic lung cancer because of these drugs. The medical care around transplant can be quite dangerous. And I knew nothing about that, and I’ve covered health for a long time. So it’s a tragic story and it’s also a scientific failure or a medical system or a medical research failure story that I hope a lot of people who have the power to change it read.

Carey: Sandhya, what’s your extra credit?

Raman: So my extra credit is from ABC News. It’s called “Puerto Rico’s Water Supply Is Being Depleted, Contaminated by Manufacturing Industry on the Island, Experts Say.” It’s a triple byline from Jessie DiMartino, Lilia Geho, and Julia Jacobo. And I thought their story was really interesting because it looks at the effects of the manufacturing industry on the water supply in Puerto Rico. The manufacturing there is, in Puerto Rico, is really high because there used to be a tax incentive that’s now lapsed to create a huge boom in manufacturing in the ’60s and ’70s. And kind of looking at the impacts of that, and over time and to the environment, and pharma manufacturing in particular, is 65% of what has been the industrial groundwater withdrawals. So in areas that rely heavily on groundwater on an island, this is felt especially hard. And so they go through a lot of the implications of some of that and how the manufacturing affects it, especially in an island with a finite water supply.

Carey: Rachel.

Cohrs: Mine is, the headline is, “‘I Hate You, Kathie Lee Gifford!’ Ozempic Users Report Bizarre Dreams,” in The Wall Street Journal and by Peter Loftus. Our newsroom has been covering the weight loss drug explosion this year, and I think this story was just so colorful and just a great example of reporting on the side effects that emerge when so many people are interested or want to take a drug. And I think there is certainly a public service to people understanding what they’re getting into and just hearing from all sorts of people, because certainly there are agencies who are supposed to be doing that. But I think there’s also just a lot of buzz that’s fascinating. The writing was just so rich and bizarre. And yeah, it was a great read and a great illustration on it, too.

Carey: Well, speaking of weight loss and getting fat out of our bodies, my story is from The New York Times, called “A Beauty Treatment Promised to Zap Fat. For Some, It Brought Disfigurement,” by Anna Kodé, and I hope I’m pronouncing your name correctly. You might have heard or seen all these ads about the treatment called CoolSculpting. It uses a device on a targeted part of the body to freeze fat cells. Patients typically undergo multiple treatments in the same area, and in successful cases, the cells die and the body absorbs them. “But for some people,” Anna writes, “the procedure results in severe disfigurement. The fat can grow, harden and lodge in the body, sometimes even taking on the shape of the device’s applicator.” The manufacturer says this is a rare side effect, but a Times investigation that drew on internal documents, lawsuits, medical studies, and interviews indicates the risk to patients may be considerably higher. So that’s our show. As always, if you enjoyed the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left a review; that helps other people find us too. Special thanks, as always, to our ever-patient producer, Francis Ying. And as always, you can email us with your comments or questions. We’re at whatthehealth@kff.org. Or you can tweet me @maryagnescarey. Rachel?

Cohrs: @rachelcohrs.

Carey: Joanne?

Kenen: @JoanneKenen.

Carey: Sandhya.

Raman: @SandhyaWrites.

Carey: We’ll be back in your feed next week. Until then, be healthy.

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Julie Rovner is chief Washington correspondent and host of KFF Health News’ weekly health policy news podcast, “What the Health?” A noted expert on health policy issues, Julie is the author of the critically praised reference book “Health Care Politics and Policy A to Z,” now in its third edition.

The abortion pill mifepristone is now ground zero in the abortion debate. Late Wednesday night, the 5th Circuit Court of Appeals said the drug should remain on the market but under restrictions on distribution that were in effect before 2016, which ban prescribing by mail or by telemedicine. The restrictions would make it even more difficult for patients in states where abortion is illegal or widely unavailable.

The decision comes in response to a ruling last week out of Texas, where a federal judge, as was widely expected, found that the FDA should not have approved the drug more than 22 years ago and ordered it, effectively, unapproved.

Complicating matters further still, in a separate case filed by 18 attorneys general in states where abortion is largely legal, last week a federal district judge in Washington state ordered the FDA not to reinstate any of the old restrictions.

This week’s panelists are Julie Rovner of KFF Health News, Victoria Knight of Axios, Shefali Luthra of The 19th, and Sarah Karlin-Smith of the Pink Sheet.

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Sarah Karlin-Smith
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Victoria Knight
Axios

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Shefali Luthra
The 19th

@Shefalil

Read Shefali's stories

Among the takeaways from this week’s episode:

• A late-night decision by the appeals court preserves access to mifepristone while the legal battle continues. But it also resurrects outdated limitations on the drug, meaning mifepristone can be used only up to seven weeks into a pregnancy, among other restrictions.
• While it is expected that the U.S. Supreme Court will ultimately decide the drug’s fate, some providers and state officials are rushing to stockpile it. Cutting off access to the abortion pill puts extra pressure on clinics in states where abortion remains legal, which are also serving women from so-called prohibition states and could see an influx of patients as mifepristone becomes difficult — or impossible — to get.
• Republicans largely have remained quiet about the ruling overturning mifepristone’s FDA approval. While many in the party support banning the drug, they likely recognize the political risks of broadcasting that stance. Meanwhile, the Biden administration moved to strengthen privacy protections for patients and providers related to abortion, offering some reassurance to those who fear they could be prosecuted under their home state laws for seeking abortions elsewhere.
• As Southern states have whittled away at abortion access, Florida, with its 15-week abortion ban, had emerged as a hub for patients across the region. This week the state moved to restrict the procedure to six weeks, a change that could send many patients scrambling north to states like Virginia and New York for care. And in Idaho, a new law makes “abortion trafficking” — or transporting a minor to have an abortion without parental consent — a crime.
• Congress is exploring new drug pricing measures, particularly aimed at increasing transparency around pharmacy benefit managers and capping insulin costs. Lawmakers are also watching the approach of the debt ceiling threshold; in the mix of budgetary pressure valves are Medicaid and, potentially, work requirements to receive Supplemental Nutrition Assistance Program benefits.
• Congress continues to show little appetite for addressing a different, intensifying public health crisis: gun violence. A new poll from KFF shows startlingly high numbers of Americans — especially people of color — have directly experienced gun violence and live with that threat every day.

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

Julie Rovner: The Washington Post’s “To Comply With a New Sesame Allergy Law, Some Businesses Add — Sesame,” by Karen Weese.

Shefali Luthra: KFF Health News’ “For Uninsured People With Cancer, Securing Care Can Be Like Spinning a Roulette Wheel,” by Charlotte Huff.

Victoria Knight: The Washington Post’s “Research With Exotic Viruses Risks a Deadly Outbreak, Scientists Warn,” by David Willman and Joby Warrick.

Sarah Karlin-Smith: NBC News’ “Conspiracy Theorists Made Tiffany Dover Into an Anti-Vaccine Icon. She’s Finally Ready to Talk About It,” by Brandy Zadrozny.

Click to open the transcript

Transcript: The Confusing Fate of the Abortion Pill

KFF Health News’ ‘What the Health?’Episode Title: The Confusing Fate of the Abortion PillEpisode Number: 293Published: April 13, 2023

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

Julie Rovner: Hello and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent at KFF Health News. And I’m joined by some of the best and smartest health reporters in Washington. We are taping this week on Thursday, April 13, at 10 a.m. As always, news happens fast —really fast this week — and things might have changed by the time you hear this. So here we go. We are joined today by video conference by Victoria Knight of Axios.

Victoria Knight: Good morning.

Rovner: Sarah Karlin-Smith of the Pink Sheet.

Sarah Karlin-Smith: Hi, Julie.

Rovner: And Shefali Luthra of The 19th.

Shefali Luthra: Hello.

Rovner: Well, no interview this week, but spring is busting out all over with health news, so we will get right to it. We will begin in Texas with that court case that we’ve been saying for the last few weeks we hadn’t gotten a decision in. Well, we got a decision last Friday night around dinnertime and then very early this morning — that’s Thursday — we got an appeals court decision, too. But let’s take them one at a time. Last Friday night, in an opinion that was shocking but not surprising, as many people put it, Trump-appointed federal District Judge Matthew Kacsmaryk effectively rolled back the Food and Drug Administration’s 22-plus-year-old approval of mifepristone; that’s the first of two pills used for medication abortion early in pregnancy. Literally within the hour, federal District Judge Thomas Rice in Spokane, Washington, ruled in a separate case — brought by a group of about a dozen and a half state attorneys general — basically the opposite, ordering the FDA not to alter the current availability of the drug. Judge Kacsmaryk in Texas very kindly stayed his stay until this Friday to allow the Biden administration to appeal to the also very conservative 5th Circuit Court of Appeals. And in the wee hours of today, Thursday, an appeals court panel ruled that, while this lawsuit proceeds, mifepristone can continue to be sold, but only under the extremely onerous restrictions that were in effect until 2016. Shefali, where does that leave us? It’s kind of a mess, isn’t it?

Luthra: It is a huge mess, and the implications will be really significant. In particular, the 2016 restrictions on mifepristone don’t allow telemedicine. You have to go in person to a doctor to get the medication, and you can only use it up to seven weeks of pregnancy, when all of the evidence we have, including from the World Health Organization, says 10 weeks, sometimes maybe even 11. And I mean, we know realistically that people are taking mifepristone far later in pregnancy now because they can’t access legal abortion. And what this is going to do if it takes effect is it’s going to put a real strain on abortion clinics in states that have become destinations, right? The ones that are seeing so many out-of-state patients that largely do medication abortions because it’s easier, it’s faster, it pays a little bit better — all of these reasons that you do it —and that have really come to rely on telemedicine: Either they will have to take much longer to do this process and only do it for a handful of the patients they’re seeing, or they’ll switch to what we’ve talked about before, the misoprostol-only regimen, which is more painful, which is less effective. Still very good at terminating a pregnancy, but has a higher failure rate. And what clinics have told me is very often they expect that patients, when they hear that these are their options, will opt for a procedural abortion instead because that they know will absolutely work and they have to go home. They don’t worry about coming back to the clinic and worrying that they need an abortion again.

Karlin-Smith: I just want to put in the caveat that, you know, off-label use, which is where doctors prescribe a drug for use not approved for FDA, is something they do have sort of the discretion to do in practice of medicine once the product’s available. So the rollback is significant, but practically a lot of doctors will have the flexibility to still treat patients up to the longer timeframe. And people have pointed out this morning that, actually, many doctors were doing that prior to FDA formally expanding the approval.

Luthra: And to your point, many states have been stocking up on mifepristone in particular, and so have many abortion clinics, and they plan to use it as long as they can. The real challenge, I think, will be if there are supply issues at some point or other sorts of decisions from the Supreme Court, etc., or enforcement actions that essentially don’t allow telemedicine anymore.

Rovner: What it looks like the 5th Circuit has done is made it much harder for people in states where there are abortion bans to go to other states or to not go to another state but get the abortion pill, because they’ve banned it by mail; they’ve basically stopped in its tracks what we’ve been talking about for weeks — the ability of pharmacies to start to distribute it — because until 2016 you had to go — the doctor had to physically hand you the pill, which is what we are back to, and there have to be three visits in order to complete a medication abortion. These were all sort of the pre-2016 requirements. And the big question, though, is in Washington state, the requirement was that the FDA not change any of the relaxed restrictions. And now the 5th Circuit has said, yes, you will. So this still is on a fast track to the Supreme Court, right?

Luthra: It feels very like this is going to be decided by the Supreme Court. I mean, I wouldn’t be surprised if we hear about an appeal today. I wouldn’t be surprised if we hear about it tomorrow. It feels like really this could have changed between us taping and the podcast releasing.

Rovner: I think that’s entirely possible. So one of the things we thought Judge Kacsmaryk might do was order the FDA to basically restart its approval process for mifepristone, since his reasoning for rescinding essentially the drug’s approval is that the FDA violated its own procedures. Ironically, this decision came in a week when the FDA did withdraw the approval of a drug, a medication to prevent preterm birth called Makena. Sarah, what’s this drug and why is the FDA pulling it off the market? And this is how it’s supposed to work, right?

Karlin-Smith: Yes — supposed to work maybe is a stretch, depending on how some people felt about Makena; they felt it took way too long for FDA to withdraw it. So two sides of a coin, I suppose. But after a very long process, FDA finally pulled a drug that is given to women with the idea that it might help them deliver later, once their baby was full term, and prevent complications that come from having a premature birth. Unfortunately, over the years, as more clinical research was done on the drug, it appeared that it was not actually doing that. And as like all drugs, there are some side effects. And FDA basically ended up deciding, you know, absent any benefit, all you have is risk and this drug should not be pulled off the market. So it was finally pulled off the market after quite a lengthy process this week, right? It was still this week, or was it — no, it was last week.

Rovner: I think it was last week.

Karlin-Smith: Time. Time —

Rovner: Time is a very flat circle right now.

Karlin-Smith: Yeah, and so unfortunately it was really the only approved product that could possibly prevent preterm birth. And FDA really tried to recognize that and understand that people would be frustrated without options. But they tried to really emphasize the point that having an ineffective option is not the answer to that problem. The answer there is sort of push for more research on other products or even on this product to figure out if there’s a population of women it might benefit.

Rovner: So I wanted to mention that, because obviously the mifepristone ruling has the impact to affect much, much more than just abortion drugs. Individual drug companies are, to use the vernacular, freaking out about the idea that they could spend millions of dollars to shepherd a drug through clinical trials and the FDA approval process, only to see it banned because some small group of people object to it for some non-medical reason. Sarah, you cover the FDA. Is this freakout warranted right now?

Karlin-Smith: I do think most people think it is. And, you know, even in my preliminary look at what the 5th Circuit did this morning, I think that freakout is still going to continue because they seem to still give like this wide breadth that would allow many people to have the ability to challenge FDA approval decisions for any drug and then let judges weigh in who may not have the expertise and based on the science and all that other stuff that FDA has. So I think as this case has proceeded there’s still this underlying threat to the FDA’s authority and how they make decisions. Again, in the Texas case, he wasn’t trying to push it back to FDA and say, “OK, FDA, you go review this drug and decide again whether it needs to do it,” and then, you know, set them up for a Makena-like process where they would have to go through it. You know, they were trying to fast-track and overrule FDA’s authority. And if you read some of the details of the brief, you can really understand why it freaks out pharma and the FDA so much, because you can just tell how little the judge gets about how drugs are approved, the science, the regulatory process, and so forth.

Rovner: And basically that you have judges who are making medical and scientific decisions for which they are observably not qualified.

Karlin-Smith: Right, and I mean if nothing else industries likes stability, they like predictability, so there’s just this element of incredible unpredictability when you would have all these judges and potential legal cases throughout the country that would make it hard for them to deal with — and figuring out how to defend their products.

Rovner: So the FDA is obviously in an impossible situation here. They cannot satisfy both the Washington decision and the Court of Appeals decision because one says you can’t roll it back and one says you have to roll it back. Do we have any idea what the FDA is going to do here?

Luthra: I don’t know that we do. I mean, the Biden administration has said that they will follow the court orders, but the court orders are in conflict. So it seems like there should be some more clarity, perhaps, that we get. We, as of taping, haven’t gotten any statement from the president or the vice president or HHS, so we’ll keep an eye out and see if they have even just words of wisdom to offer about what this means or how they feel about the decision. But at this point, a lot is still quite confusing.

Rovner: So the Biden administration did take other action on abortion this week, in some separate steps. It announced Wednesday a series of new privacy protections for women and providers seeking or giving reproductive health care. How big a deal are these new rules, which sort of expand the HIPAA privacy rules? And why did it take them almost a year to do this? Hadn’t they been talking about this like right after the Dobbs ruling?

Luthra: They had been talking about this for a while. And what they said was that they believed that the guidance they had given to providers was sufficient to protect patient privacy. That has clearly not been the case, because we have continued to hear from people seeking abortions and from the health care providers giving them that they do not feel safe, right? They constantly have this fear that if I put something in someone’s medical record about an abortion, someone else might see it and it could get reported. So this should make that very clear beyond the guidance that was given out last summer — should make very clear that if you get an abortion, your doctor does not have to and should not tell any law enforcement about what happened. I think this has the potential to be really significant because one thing that we hear constantly from the people who are traveling out of state is they are terrified that they are breaking the law and that someone is going to find them, even though —

Rovner: That they’re breaking the law of their home state.

Luthra: Mm-hmm. Even though, of course, the home state laws do not criminalize the people who are seeking abortion.

Rovner: Yes. Well, I want to turn to the politics before we leave all of this. Democrats at all level of government were quick to decry this decision as wrong, anti-democratic, small d, and various other things. Republicans were a lot slower to react. How big a problem is abortion becoming for the Republican Party? They seem to be getting even more split on, “Gee, we thought that maybe overturning Roe was what we wanted and we were going to leave it at that.” And apparently anti-abortion activists are not leaving it at that.

Luthra: I mean, I think a great example of how Republicans are trying to navigate this problem is Congresswoman Nancy Mace, who, we may all recall, the day that Roe was overturned, put out a statement, like so many Republicans, saying that this was a great decision, very good for the country, the right step forward — and has since then tried very deliberately to walk away from that and to recalibrate her image on abortion and was one of the ones to come out this week and denounce the opinion from the District Court in Texas. Republicans who are willing to praise the decision in particular to take medication abortion off the market or to further restrict it, which is so unpopular, are finding themselves in a really tough spot. This is a winning issue for them and all they can really hope, and what we saw in the midterms, is to not talk about and to try and change the subject to something else.

Knight: I think important to note also that there were a good number of Republicans in Congress — think it was 69 — that signed on to an amicus brief both supporting the original lawsuit, this Texas lawsuit, and then also this decision when it came out.

Rovner: Right. This is an amicus brief to the Court of Appeals urging them to uphold the original decision.

Knight: Yeah. There were two amicus briefs , and a good number of congressional Republicans. — yeah, first for the original court case and then for the Appeals. But it was very noticeable that most of the Republican offices did not issue any kind of statement when this decision came out last week. So they’re fine supporting, putting documentation forward, supporting it, but they’re not broadcasting it, if that makes sense. And so I think that was very telling. It really was only Sen. Cindy Hyde-Smith, who is the Senate lead of the Pro-Life Caucus, that put something out. But it was very quiet among the rest of the Republicans, yeah.

Rovner: I noticed with that amicus brief, it’s like, OK, they’re going to say on the down-low to the anti-abortion activists, “We’re with you, but we really don’t want to publicize this because it’s not terribly popular with a lot of people.”

Luthra: To build on that, one example of someone who is really trying to walk that line and seems like is maybe facing challenges is Ron DeSantis, right? The person who did this compromise ban last year, the 15-week abortion ban, and now has clearly realized that if you want to be a nationally prominent Republican with support from the very powerful anti-abortion movement, you can’t do that; you need to be more overt in your disapproval of abortion and willingness to restrict access. But at the same time —

Rovner: Well, you’re anticipating my next question, which is that there is other abortion news this week. And in Florida, the legislature seems like it’s on the cusp of approving a six-week abortion ban to supplant the 15-week abortion ban it passed last year. And the aforementioned governor DeSantis says he will sign that if it comes to him. But Shefali, you’ve written about this. This could impact a lot more than just the people of Florida, right?

Luthra: I think it’s really important to note that Florida is the third-biggest state in the country and currently the biggest state in the eastern south part of the country where abortion is legal, even if it is only available up to 15 weeks. I have been to the clinics in Florida. It is stunning how crowded they are. There are people coming from all over the South. People are working until midnight to try and see every patient they can. And without Florida, the options are North Carolina and South Carolina. South Carolina clinics, there are very few of them, and they don’t go very far, not because of current state laws, but just because of the providers in the state. North Carolina is also looking likely to have some kind of abortion ban passed this year and again has way fewer clinics than Florida. If Florida is banning abortion after six weeks, a very, very large chunk of the country is going to be almost entirely displaced. The math just doesn’t really work. And we don’t know where people will be able to get abortions other than traveling, frankly, to Virginia, to D.C., to New York, and to all the places that so far, data shows, haven’t been as affected by out-of-state travelers.

Rovner: And of course, with the Court of Appeals decision basically saying that you can’t mail the abortion pills and that you can’t do it by telemedicine, I mean — which is not to say that people aren’t going to continue to get them by mail. It’s just that it won’t be FDA-sanctioned the way it was going to be. So Idaho is also making abortion news. This this feels like an afterthought, even though last week it seemed like a big deal. They have enacted a bill there creating the crime of abortion trafficking, which is the act of any adult transporting a minor for an abortion without her parent’s consent. Now, in the late 1990s and the early aughts, Republicans in the U.S. Congress tried unsuccessfully to pass something called the Child Custody Protection Act, which would have criminalized taking a minor across state lines for an abortion. But Idaho can’t do that. Only the federal government can regulate interstate travel. So this Idaho law just applies to the in-state portion of the trip. But it could still be a big deterrent, right? Unless you live right on the border. If you’re trying to take somebody out of state, you’re going to have to do part of it in state.

Luthra: I mean, of course. And I mean, Julie, I wanted to ask you about this because this is not actually a new kind of restriction. There are a bunch of states that have passed these, quote-unquote, “child trafficking laws” that restrict minors traveling out of state for abortion. Idaho is the first one to do it post-Dobbs. But for some reason, the anti-abortion movement has always had far more success in restricting access to minors. I think we’re all paying more attention now because we realize that this could in fact be the first step toward that thing that Justice Kavanaugh said would not happen, right? The larger-scale restriction of travel out of state for abortions.

Rovner: Yes. Restricting abortion for minors has been sort of the soft spot for the anti-abortion movement, really from the very beginning, because even people who consider themselves in favor of abortion rights, as we’ve seen this year with books — you know, parents are really like, “We want to be in charge of our daughters, and if my daughter needs my permission to get her ears pierced, she should need my permission to get an abortion or, God forbid, travel out of state or get contraception.” This is actually — it’s the minor issue that’s the reason that the Title X, the Family Planning Program, has not been reauthorized by Congress since 1984, which was before I started covering it. Oh, it’s my favorite piece of reproductive health trivia, because every time Congress tried to do it they got hung up over this question of should minors be able to get contraception without their parents’ approval. It is a continuing thing, but I think Idaho probably got more attention because they call this “abortion trafficking,” so we have a new law. All right. Well, there actually is other news this week that does not have to do with abortion. Congress next week will return from its two-week Easter/Passover break. And apparently at the top of the agenda in the Senate is a bill focusing on drug prices and particularly on pharmacy benefit managers. Even the Republican-led House is looking at PBM legislation. Sarah, remind us, what are PBMs and why are they so very unpopular among both Democrats and Republicans?

Karlin-Smith: So PBMs are companies contracted by your health insurance company or now, at this point, often owned by your health insurance company, that administer your pharmacy benefits, and they create the formularies that decide what drugs are covered and how much you are going to pay for them. And then they negotiate deals with pharmaceutical companies to try and lower the prices of drugs. And they also have to work with the pharmacies. So they’re called middlemen, often in a not very nice way. The drug industry has definitely tried to paint them as the key reason prices are too high, saying they give them discounts but they’re not passing them on to patients. It’s a bit more complicated than that. PBMs essentially say they do pass on that money to patients in the U.S. system but it ends up lowering everybody’s premiums, so not necessarily the person who’s paying for the high-cost drug. Of course, it’s a lot more complicated, because this is an industry, I think, surrounded by a lack of transparency. So it’s been hard for people, I think, to verify who’s getting that money and is it all really going to patients? And then, like I mentioned, this consolidation with health insurance companies, with parts of the pharmacy system as well, has started to raise a lot of kind of antitrust concerns and, again, that they may not be working in patients’ best interests.

Rovner: And a lot of this legislation is about transparency, right? It’s about sort of opening the black box of how PBMs set drug prices and negotiate with drug companies and pass these things along to insurers. I see you nodding, Victoria.

Knight: Yeah, and there’s a lot of different bills floating out there. There’s some that have passed out of committee in previous Congress that passed out of committee again, most notably a Senate Commerce bill — Chuck Grassley and Maria Cantwell — and that just passed out of committee, and that would implement some transparency measures, also ban the practice of spread pricing. There is some talk that Schumer may put a health package on the floor sometime soon, and so PBMs are going to potentially be a big part of that. There’s also supposed to be a markup sometime this month out of the Health, Education, Labor, Pensions Committee, where they also are talking about PBMs. So it’s interesting that there is a real movement on both sides of the aisle, also in the House, on PBMs. So they want to put some blame on high drug prices on someone. And right now it seems to be PBMs.

Rovner: And it looks like they’re going to go after insulin again, too, right? In the bill that passed last year they managed to cap insulin costs at $35 a month, but only for people on Medicare. So I guess this is the attempt to come back and require lower insulin prices for others. We will point out that many of the companies have voluntarily lowered some insulin prices, but looks like Congress not done with this yet, right?

Knight: No, it’s not done with it yet. Bernie Sanders is apparently going to haul some insulin execs in to have to testify, even though some of them have committed to lowering prices. And it’s also mentioned in the potential Schumer package, that $35 cap for everyone is supposed to be a part of it. And there’s also a lot of insulin $35-cap bills floating around. There is some Republican support in the Senate for that. There were some Republicans last year that voted for that. But I think the House will be the bigger issue, because there doesn’t seem to be as much Republican support in the House for a cap that extends to everyone.

Rovner: Yeah, but I mean, when we said sort of back in January that there might be some things that they could do on a bipartisan basis, it sounds like we’re starting to see some of them — now that it’s spring — blooming. So anything else that you are looking for this next session between, you know, Easter and Memorial Day?

Knight: I think also, I don’t know how much people are paying attention to this, but there is going to be one of those select subcommittee covid hearings next week and they’re bringing in some intelligence officials to talk about covid origins. So I think this is the first hearing with actual, like, intelligence officials. So I think it’ll be interesting to see what comes out of that. And obviously, there’s a lot of talk around, like, that practical policy implications are that Congress could kind of restrict NIH [National Institutes of Health] funding or how NIH gives out research funding because of all this talk around gain-of-function research in regards to covid origins. So I think that’s what we’re watching for rather than just the rhetoric around it, like what are the actual — how could it play out in regards to NIH funding? And then of course, can’t forget debt ceiling negotiations and work requirements are still very much being talked about.

Rovner: For Medicaid.

Knight: For Medicaid and also SNAP [Supplemental Nutrition Assistance Program] potentially. So there was reporting this morning from Punchbowl saying that work requirements are very much still in the proposals that are being kicked around. So, another thing to watch.

Rovner: May is traditionally a very busy month on Capitol Hill, particularly May of the odd-numbered year, the first year of a Congress, so I imagine we’ll see a lot. One last thing I want to talk about this week, and we haven’t talked about it for a while, but the toll of gun injuries just continues to mount. In the past three weeks, we’ve had mass shootings with multiple fatalities in Tennessee, Kentucky, and Florida. In Louisville, in fact, the mayor, who himself survived a mass shooting last year, lost a close friend in the shooting this week. So it’s not all that surprising that a new poll from my colleagues over the editorial firewall at KFF found that gun violence is so common that more than one in five Americans say they have personally been threatened by a gun. Nearly as many say a family member has been killed by a gun; 17% say they have personally witnessed someone being shot. The numbers are even worse for people of color. Nearly a third of Black adults have witnessed someone being shot, and more than a third have lost a family member to gun violence. We seem to have acknowledged finally that gun violence is a public health problem. Yet that hasn’t brought us any closer as a society to solving it. I mean, we were just talking about the things that Congress might be looking at in terms of health care in the spring. But gun violence isn’t really one of them, is it?

Knight: Yeah. I think you’ve seen from the Biden administration and acknowledgment from both sides of the aisle in Congress that the bipartisan bill that passed last year, which gave a lot of money towards mental health funding and also allowed states the option to implement red flag laws and some other smaller gun safety things. They kind of acknowledged that’s as far as they’re going to be able to go in the current makeup of this Congress. So it seems like a stalemate and it’s kind of like now on a state level. And there was some talk from Tennessee’s governor about doing some small things, perhaps after the shooting in Nashville, but it doesn’t seem like there is much movement.

Rovner: And of course, in Tennessee, it was fighting about not doing anything about guns that erupted in that whole conflagration with people getting —

Knight: — expelled —

Rovner: —evicted from the Tennessee state legislature and then reappointed and yeah, I mean, that — people may not remember, that’s actually over a gun demonstration or a lack-of-gun-legislation demonstration. So who knows whether anyone will find something to do about it. All right. That is the news for this week. Now 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. Sarah, why don’t you go first this week?

Karlin-Smith: Sure. I looked at an NBC News story called “Conspiracy Theorists Made Tiffany Dover Into an Anti-Vaccine Icon. She’s Finally Ready to Talk About It.” This was a nurse who was one of the first people to receive a covid vaccine when it first became available. And apparently, I guess, this is something that’s been a problem for her, she says, throughout her whole life. Sometimes with certain pain reactions she faints. And the story also talks about how she hadn’t really eaten lunch that day. But basically it was filmed and shared quite widely, including all over social media, and anti-vaccine activists basically took it and were using it sort of as proof of the harm caused by the vaccines. And the reaction to that from the hospital, and herself to some degree, was basically to just kind of keep quiet and not respond. There was very little pushback, yet — the idea was kind of if we ignore it, it will go away. But that just kept fueling everything. And basically people thought she might have even been dead and no one was telling. They thought the hospital was using her co-worker as sort of a body double to show proof of life. And a couple of years later, she’s finally trying to talk about what that experience was like and make clear again: She was fine, she was healthy, you know, she was more than happy to get the vaccine, you know, would do it again and stuff. But it’s a really interesting story because I think the journalists sort of go through again how we’ve been sort of grappling as a society with how to respond to this type of misinformation and how some of the normal kind of PR playbook strategies are actually hurting, not helping, public health. So we need to kind of shift to figure out how to handle that.

Rovner: And there are lots and lots and lots of these stories about people who, you know, quote-unquote, “died” when they got the vaccine, who are perfectly fine and walking around. It was — it was a really well done story. It’s just — it’s really kind of scary. Victoria.

Knight: Victoria, my extra credit this week is a story in The Washington Post by David Willman and Joby Warrick. It’s called “Research With Exotic Viruses Risks a Deadly Outbreak, Scientists Warn.” And so it’s basically kind of an in-depth look at how, over the years, the U.S. has funded virus research where — in other countries — where people go out into like forests and wildlife areas and collect bat samples, collect samples from different animals to try to kind of predict the next pandemic. And it profiles this one team in Thailand who has said, “We’re not accepting U.S. funds anymore.” They told the U.S. in 2021 after covid, “This feels too risky for us.” And we — they have been doing this research funded by the U.S. for four years, and they really felt like they hadn’t found much tangible benefit out of it either. So they’re kind of like, “It’s not worth the risk to our employees and potentially creating another pandemic on our own.”

Rovner: And and just to be clear, this isn’t gain-of-function research.

Knight: This is not even gain-of-function research.

Rovner: This is a different kind of potentially dangerous research.

Knight: Yeah, this is really just going out in the wild and collecting samples from animals that are out there already. But yeah, it’s not doing research in a lab that’s like altering a virus necessarily. So yeah, and so the story is kind of reckoning — like what is the balance between wanting to do scientific research and needing that knowledge for the future and the safety of employees and the general public. So, and it talked about how there is like — the U.S. does fund quite a bit of this kind of research around the world, and the pace of that has not always kept up with regulation and oversight. And so just kind of probing questions, especially as I talked about earlier — Congress does look into this issue of gain-of-function research and just the NIH funding research around the world in general.

Rovner: I feel like this whole week has been, where do government and science cross? Shefali.

Luthra: My story is from the well-named KFF Health News. It is called “For Uninsured People With Cancer, Securing Care Can Be Like Spinning A Roulette Wheel.” It’s by Charlotte Huff. It’s a really, really great look at what happens when you get cancer and in particular live in a state that didn’t expand Medicaid. Charlotte just does a really great job looking at the experiences that this woman has when she develops skin cancer and is recommended all these treatments that she can’t afford. She lives in South Carolina. She’s not eligible for Medicaid because they didn’t expand eligibility. And what it really gets into is the idea that there are a couple of cancers where you will get treatment, but for most of them, you will not get coverage; you have to pay thousands, sometimes tens of thousands out-of-pocket. And it’s a really well done, devastating look at what health care costs mean in our system and how much access really is for so much of health care based on where you happen to live.

Rovner: Yeah, it really is — really wonderful story. Well, my story, it’s also from The Washington Post, and it’s called “To Comply With a New Sesame Allergy Law, Some Businesses Add — Sesame,” by Karen Weese. So back in 2004, I covered the deliberation and passage of the Food Allergen Labeling and Consumer Protection Act, which for the first time required companies to put on the label in plain English if their products contained any of the eight major food allergens, which are milk, eggs, fish, shellfish, tree nuts, peanuts, wheat, and soybeans. It was an enormous relief, particularly to parents of young children with allergies and to anyone with a food allergy that could be fatal. So, the law also required food companies to label whether there was a chance that the product could have been cross-contaminated with one of those allergens. That’s why you sometimes see on a label, you know, quote, “This product was produced in a facility that also makes milk products or that uses nuts” or some such thing. The law has worked pretty well, say those who fought for it, and in 2021 Congress added sesame to the list of allergens that had to be labeled. Except that this time something weird happened. Many food companies, rather than carefully cleaning and monitoring their plants to ensure there would be no cross-contamination with sesame, instead are basically evading the law’s intent by adding small amounts of sesame flour to their products and then putting on the label that “This product contains sesame.” It’s dangerous for a lot of reasons but mainly because for people with sesame allergies who have eaten certain products without problems for years, they may not realize that, to them at least, a poison has been added to their favorite bread or roll or whatever kind of product. So this is something that I imagine Congress is going to want to go back and take a look at. All right. Before we go this week, you may have noticed that the introduction to the podcast has been tweaked. That’s because we have a new name. Kaiser Health News has been retired as of this week. We are KFF Health News to reflect that we are an editorially independent program of KFF, also a new name, and that neither of us is connected in any way to that big HMO [health maintenance organization] Kaiser Permanente. I hope you will bear with us as we all get used to the change. OK, that is our show. 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@kff.org. Or you can tweet me, at least for the moment. I am still @jrovner. Victoria?

Knight: @victoriaregisk.

Rovner: Sarah?

Karlin-Smith: @SarahKarlin.

Rovner: Shefali.

Luthra: @shefalil.

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

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Rep. Lloyd Doggett (D-Texas) said he decided to introduce a bill in the House late last week after KHN’s reporting revealed what he called a “shocking loophole.”

“The ability of fraudsters to continue billing Medicare for services is outrageous,” Doggett said. “This is an obvious correction that is needed to safeguard our system. Wherever there are large amounts of government money available, someone tries to steal it.”

KHN found a laundry list of weaknesses that allows people accused or convicted of fraud to easily sidestep bans imposed by federal officials. Among those gaps is the Centers for Medicare & Medicaid Services’ lack of authority to deny or revoke National Provider Identifier, or NPI, numbers after federal regulators have prohibited a person or business from receiving payments from government programs.

Doctors, nurses, other practitioners, and health businesses use the unique, 10-digit NPI numbers to bill and file claims with insurers and others, including Medicare and Medicaid.

Taking away the NPI would “be equivalent of prohibiting a practitioner from practicing in total,” Dara Corrigan, director of CMS’ Center for Program Integrity, wrote in an email response to questions about KHN’s investigation. CMS declined to comment on Doggett’s proposed legislation.

The bill, HR 1745, would give CMS the authority to deactivate NPIs tied to anyone convicted of waste, fraud, or abuse and whose name appears on the exclusions list kept by the Office of Inspector General for the U.S. Department of Health and Human Services. The proposed law would also require CMS to implement recommendations that the inspector general has made to improve NPI reporting and provider transparency.

“This strikes me as what should be an easy bipartisan measure,” Doggett said, adding that he had presented the bill in a face-to-face meeting with Rep. Jason Smith (R-Mo.), who chairs the House Ways and Means Committee. Doggett also alerted that panel’s health subcommittee chair, Rep. Vern Buchanan (R-Fla.).

“They both talk about the need to eliminate fraud, and this is one modest but important way to do it,” Doggett said. Neither Smith’s nor Buchanan’s offices responded to requests for comment.

The OIG declined to comment.

Former Justice Department officials told KHN that repeat violators are savvy and find ways to circumvent the system. KHN examined a sample of 300 health care business owners and executives who are among more than 1,600 on the OIG’s exclusion list since January 2017. Journalists reviewed court and property records, social media, and other publicly available documents.

KHN found:

• Eight people appeared to be serving or served in roles that could violate their bans.
• Six transferred control of a business to family or household members.
• Nine had previous, unrelated felony or fraud convictions, and went on to defraud the health care system.
• And seven were repeat violators, some of whom raked in tens of millions of federal health care dollars before getting caught by officials after a prior exclusion.

Doggett’s bill is “a pretty smart step in the right direction in fixing this issue,” said John Kelly, a former assistant chief of health care fraud at the Department of Justice who is now a partner for the law firm Barnes & Thornburg. Kelly had previously recommended that NPIs should be “essentially wiped clean” when a person is on the exclusions list.

Kelly, who confirmed that Doggett’s office reached out to him after KHN’s investigation was published in December, said taking the NPI number away “certainly doesn’t eliminate all risk” but it’s a move “in the right direction.”

“If you want to bill Medicare, you have to have a valid NPI,” Kelly said.

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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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.

Both Republicans and Democrats in Congress reacted with compassion to the news that Sen. John Fetterman (D-Pa.) has checked himself into Walter Reed National Military Medical Center for treatment of clinical depression. The reaction is a far cry from what it would have been 20 or even 10 years ago, as more politicians from both parties are willing to admit they are humans with human frailties.

Meanwhile, former South Carolina governor and GOP presidential candidate Nikki Haley is pushing “competency” tests for politicians over age 75. She has not specified, however, who would determine what the test should include and who would decide if politicians pass or fail.

This week’s panelists are Julie Rovner of KHN, Sarah Karlin-Smith of the Pink Sheet, Joanne Kenen of the Johns Hopkins Bloomberg School of Public Health and Politico, and Rachel Roubein of The Washington Post.

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Sarah Karlin-Smith
Pink Sheet

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Joanne Kenen
Johns Hopkins Bloomberg School of Public Health and Politico

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Read Joanne's stories

Rachel Roubein
The Washington Post

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Read Rachel's stories

Among the takeaways from this week’s episode:

• Acknowledging a mental health disorder could spell doom for a politician’s career in the past, but rather than raising questions about his fitness to serve, Sen. John Fetterman’s decision to make his depression diagnosis and treatment public raises the possibility that personal experiences with the health system could make lawmakers better representatives.
• In Medicare news, Sen. Rick Scott (R-Fla.) dropped Medicare and Social Security from his proposal to require that every federal program be specifically renewed every five years. Scott’s plan has been hammered by Democrats after President Joe Biden criticized it this month in his State of the Union address.
• Medicare is not politically “untouchable,” though. Two Biden administration proposals seek to rein in the high cost of the popular Medicare Advantage program. Those are already proving controversial as well, particularly among Medicare beneficiaries who like the additional benefits that often come with the private-sector plans.
• New studies on the effectiveness of ivermectin and mask use are drawing attention to pandemic preparedness. The study of ivermectin revealed that the drug is not effective against the covid-19 virus even in higher doses, raising the question about how far researchers must go to convince skeptics fed misinformation about using the drug to treat covid. Also, a new analysis of studies on mask use leaned on pre-pandemic studies, potentially undermining mask recommendations for future health crises.
• On the abortion front, abortion rights supporters in Ohio are pushing for a ballot measure enshrining access to the procedure in its state constitution, while a lawyer in Florida is making an unusual “personhood” argument to advocate for a pregnant woman to be released from jail.

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

Julie Rovner: Stat’s “Current Treatments for Cramps Aren’t Cutting It. Why Aren’t There Better Options?” by Calli McMurray

Joanne Kenen: The Atlantic’s “Eagles Are Falling, Bears Are Going Blind,” by Katherine J. Wu

Rachel Roubein: The Washington Post’s “Her Baby Has a Deadly Diagnosis. Her Florida Doctors Refused an Abortion,” by Frances Stead Sellers

Sarah Karlin-Smith: DCist’s “Locals Who Don’t Speak English Need Medical Translators, but Some Say They Don’t Always Get the Service,” by Amanda Michelle Gomez and Hector Alejandro Arzate

Also mentioned in this week’s podcast:

• The Hill’s “Nikki Haley: Bernie Sanders Is ‘Exactly the Reason’ Mental Competency Tests Are Needed,” by Niall Stanage
• USA Today’s “Idaho Bill Would Criminalize Giving mRNA Vaccines — The Tech Used in Popular COVID Vaccines,” by Thao Nguyen
• The Washington Post’s “Twenty Governors Are Forming a New Coalition to Support Abortion Rights,” by Rachel Roubein with McKenzie Beard
• The Washington Post’s “Fla. Lawyer Argues Pregnant Inmate’s Fetus Is Being Illegally Detained,” by Kyle Melnick

click to open the transcript

Transcript: Senators Have Mental Health Crises, Too

KHN’s ‘What the Health?’Episode Title: Senators Have Mental Crises, TooEpisode Number: 286Published: Feb. 23, 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. 23, 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 Rachel Roubein of The Washington Post.

Rachel Roubein: Hi. Thanks for having me.

Rovner: Sarah Karlin-Smith of the Pink Sheet.

Sarah Karlin-Smith: Hi, Julie.

Rovner: And Joanne Kenen of the Johns Hopkins Bloomberg School of Public Health and Politico.

Joanne Kenen: Hi, everybody.

Rovner: So, no interview this week, but lots of interesting news, even with Congress in recess and the president out of the country. So we will get right to it. We’re going to start this week with mental health. No, not the mental health of the population, although that remains a very large problem, but specifically the mental health of politicians. I am old enough to remember when a politician admitting to having been treated for any mental health problem basically disqualified them from holding higher office. You young people go Google Tom Eagleton. Now we have Sen. John Fetterman [D-Pa.], who made headlines while campaigning during his stroke recovery, checking himself into Walter Reed for major depression treatment. And the reaction from his colleagues on both sides of the aisle has been unusually compassionate for political Washington. Have we turned a corner here on admitting to having problems not meaning incapable of serving or working?

Karlin-Smith: It’s obviously getting better, but I think as we saw with Fetterman’s coverage during the campaign, it was far from perfect. And I think there was some dissatisfaction that his coverage was in many … sometimes unfair in how his stroke and his stroke recovery and his needs for accommodations were presented in the media. But I do think we are shifting at least somewhat from thinking about, Does this situation make a person fit to serve? to thinking about, OK, what does this person’s experience navigating the health care system perhaps provide that might actually make them a better representative, or understand their constituents’ needs in navigating the health care system, which is a big part of our political agenda?

Kenen: There are very few times when Congress makes nice. I think on rare occasions mental health has done it. I can think of the fight for mental parity. It was a bipartisan pair: Sen. Pete Domenici [R-N.M.] had a daughter with schizophrenia, and Sen. Paul Wellstone [D-Minn.] had … what, was it … a brother?

Rovner: I think it was a sibling, yeah.

Kenen: … with a severe mental illness. I no longer remember whether it was schizophrenia or another severe mental illness. And they teamed up to get mental health parity, which they didn’t get all the way. And there are still gaps, but they got the first, and it took years.

Rovner: And they were a very unlike pair, Domenici was …

Kenen: They were a very unlikely couple.

Rovner: a very conservative Republican. Wellstone was a very liberal Democrat.

Kenen: And their personalities were completely like, you know, one was a kind but grumpy person and one was the teddy bear. And they were a very odd couple in every possible way. And it didn’t make lawmakers talk about themselves at that point, but they did get more open about their family. About 10 or 15 years later, there was a senator’s son died by suicide and he was very open about it. It was really one of the most remarkable moments I’ve ever seen on the Hill, because other people started getting up and talking about loved ones who had died by suicide, including [Sen.] Don Nickles [R-Okla.], who was very conservative, who had never spoken about it before. And it was Sen. Gordon Smith [R-Ore.] whose son had died at the time. And he tried to put it to use and got mental health legislation for college. So these were like, you know, 10 or 15 years apart. But Congress, they don’t treat each other very well. It’s not just politics. They’re often quite nasty across party lines. So this was sort of like the third moment I’ve seen where a little bit of compassion and identification came out. Is it a kumbaya turnaround? No, but it’s good to see kindness, not “he should resign this moment.” I mean, the response was pretty human and humane.

Rovner: And we also had the unique moment with Patrick Kennedy, who was then in the House, son of Sen. Ted Kennedy, who was still in the Senate. And Patrick Kennedy, of course, had had substance abuse issues in addition to his mental health issues. And he actually championed through what turned into the final realization of the mental health parity that Domenici and Wellstone had started. So, I mean, to Sarah’s point, I think, sometimes if the person experiences it themselves, they may be even more able to navigate through to help other people, so …

Kenen: You’re not immune from mental illness if you’re a lawmaker and neither is your family. And there are a number of very sad stories and there are other lawmakers who have lost relatives to suicide. So there’s this additional connection between stroke and depression that I think got a little bit of attention here, because that’s also a thing.

Rovner: Well, all right, then again, it is not all sunshine and roses on the political mental health front. Former South Carolina Republican Gov. Nikki Haley, who’s now running for president, is proposing a mental competency test for politicians over the age of 75. That would, of course, include both Donald Trump and Joe Biden. But this week, Haley extended her proposed mental competency test to the Senate, where there are dozens of members over the age of 75. She specifically called out 81-year-old Bernie Sanders after he called her proposal ageism. Now, it’s pretty clear that Haley is using this to keep herself in the news, and it’s working. But could we actually see mental competency tests rolled out at some point? And who would decide what constitutes competency in someone who’s getting older?

Kenen: Or younger.

Rovner: Or younger, yeah.

Karlin-Smith: Wait, has Joanne solved the aging [mystery]? I think … what Julie said, in terms of who would decide, I think that’s where it gets really dicey. I think, first of all, if you’re going to deal with this, there seems no way you can make it based on age, right? Because competency is not necessarily tied with age. But I think, ethically, I’m not sure our society has any fair way to really determine … and it would just become such a political football that I don’t think anybody wants to deal with figuring out how to do that. Obviously, you don’t want somebody, probably, in office who is not capable of doing the job to a point where they really can’t be productive. But again, as we’ve seen with these other health issues, you also don’t want to exclude people because they are not perfectly in some sort of heightened state of being that, you know, all people are not perfect in capacity at every single moment and deal with struggles. So there’s this fine line, I think, that would be too difficult to sort of figure out how to do that.

Kenen: And you could be fine one day and not fine the next. If you have a disease [of] cognitive decline that’s gradual, you know, when do you pick it up? When do you define it? And then you can have something very sudden like a car crash, a stroke and any number of things that can cause cognitive damage immediately.

Rovner: Now, we didn’t know then, but we know now that Ronald Reagan had the first stages of dementia towards the end of his second term. Sorry, Rachel, you wanted to say something?

Roubein: We’ve seen careful reporting around — I think, about like the San Francisco Chronicle story last year — about [Sen.] Dianne Feinstein [D-Calif.], which essentially looked at this. There were some questions around [Sen.] Thad Cochran [R-Miss.], as well. And it’s something journalists have looked at pretty carefully by talking to other senators and those who know the lawmakers well to see how they are essentially.

Kenen: And Strom Thurmond, who was, to a layperson, like all the reporters covering the Hill, it was clear that … he served until he was, what, 98 or something? You know, it was very clear that half the time he was having struggles.

Rovner: And I remember so many times that there would be the very old senators on the floor who would basically be napping on the floor of the Senate.

Kenen: That might be a sign of mental health.

Rovner: Yeah, that’s true. But napping because they couldn’t stay awake, not just curling up for a nap. But, I mean, it’s an interesting discussion. You know, as I say, I’m pretty sure that Nikki Haley is doing it to try and poke at both Biden and Trump and keep herself in the news. And, as I say, it’s working.

Kenen: But I think there’s a question of fitness that I think has come up over and over again. I mean, Paul Tsongas was running for president, what, the Nineties and said he was over his lymphoma or luekemia.

Rovner: I think he had lymphoma. Yeah.

Kenen: He said he was fine, and it turns out he wasn’t. And he actually died quite young, quite soon after not getting the nomination. So there are legitimate issues of fitness, mental and physical, for the presidency. I would think that there’s a different standard for senators just because you’re one out of 100 instead of one out of one. I think there is a tradition, which Trump didn’t really follow. There is a tradition of disclosure, but it’s not foolproof. And Trump certainly just had — remember, he had that letter from his doctor who also didn’t live much longer after that, saying he was the most fit president in history, Like, just don’t get me started, but basically said he was a greek god. So there are legitimate concerns about fitness, but it’s hard to figure out. I mean, it was really hard to figure out in Congress how to do that.

Rovner: Yeah, I think the “who decides” what will be the most difficult part of that, which is probably why they haven’t done it yet. All right. Well, turning to policy, two weeks ago, we talked about the coming Medicare wars with President Biden taking aim at Republicans in his State of the Union speech, and particularly, although he didn’t name him, with Florida Sen. Rick Scott, who last year as head of the Republican Senate Campaign Committee, released a plan that would have sunset every federal program, including Medicare and Social Security, every five years. And they would cease to be unless Congress re-approved them. We know how much trouble Congress has doing anything. This horrified a whole lot of Republicans, who not only have been on the wrong end politically of threatening Medicare — and paid a price for it at the ballot box — but who themselves have used it as a weapon on Democrats. See my column from last week, which I will put in the show notes. So now, kind of predictably, Sen. Scott has succumbed and proposed a new plan that would sunset every federal program except Medicare and Social Security. But I imagine that’s not going to end this particular political fight, right? The Democrats seem to have become a dog with a bone on this.

Roubein: Yeah. And it’s known as “Mediscare” for a reason, right? It’s something both political parties use and try and weaponize. I mean, I think one of the really big questions for me when I kept on hearing this, like what? Cuts to Medicare, what does that actually mean in practice? Some experts said that it might simply mean slowing the rate of growth in the program compared to what it would have been, which doesn’t necessarily impact people’s benefits. It can; it depends how it’s done. But I mean, we’ve seen this political fight before. It happened during the Affordable Care Act and afterwards, the effect of cutting Medicare Advantage plan payments, etc., didn’t really make plans less generous. They continued to be more generous. So it’s something that we’ll continue to see Biden talk about because the administration thinks that it plays well among seniors.

Rovner: But even as Bernie Sanders pointed out this week, we’re going to have to deal with Medicare and Social Security eventually. They can’t continue on their current path because they will both run out of money at some point unless something gets changed. But right now, it seems that both sides are much happier to use it as a cudgel than to actually sit down and figure out how to fix it.

Kenen: But one thing that’s interesting is that it wasn’t a big issue in the November elections. The Democrats late in the game tried to draw attention to the Rick Scott proposal. I almost wrote a piece how there was no discussion of Medicare for the first time in years. And just as I was starting to write it, they began talking about it a little bit. So I didn’t write it. But it never stuck. It wasn’t a major issue. And the one race where it really could have been would have been Wisconsin, because that was a tight Senate race — the Democrats really wanted to defeat Ron Johnson, who is to the right of Rick Scott on phasing out Medicare. He’s the only one who endorsed Scott and actually wanted to go further, and it didn’t even really stick there. So it’s sort of interesting that it’s now bubbling up. I mean, yes, we’re into 2024, but we’re not into 2024 the way we’re going to be into 2024. It’s sort of interesting to see that the Democrats are hitting this so far.

Rovner: No, I think that’s because of the debt ceiling.

Kenen: Right. But it’s supposedly off the table for the debt ceiling, which doesn’t mean, as Rachel just said, there are legitimate fiscal issues that Democrats and Republicans both acknowledge. They’re, crudely speaking, Democrats want to raise more money for them, and Republicans want to slow spending. That’s a that’s an oversimplification. But the rhetoric is always throwing Grandma off the cliff. Never Grandpa, always Grandma.

Rovner: Always Grandma.

Kenen: You know, actually, you can do things over a 20-year period. That’s what we did with Social Security. We did raise the age in a bipartisan fashion on Social Security 20 years … took like 20 years to phase it.

Rovner: And I would point out that the only person who really reacted to Rick Scott’s plan when it came out last February was, I think, a year ago this week, was Mitch McConnell.

Kenen: Yeah, he blew a gasket.

Rovner: But he immediately disavowed it. So Mitch McConnell knew what a problem it could turn into and kind of has now. So we have kind of the reverse sides in Medicare Advantage of the fight. That’s the private alternative to traditional Medicare. It’s the darling of Republicans, who touched off the current popularity of the program when they dramatically increased payments for it in 2003, which led to increased benefits and increased profits for insurance companies. They split those — that extra money between themselves and the beneficiaries. And, not surprisingly, increased popularity to the point where a majority of beneficiaries right now are in Medicare Advantage plans rather than traditional Medicare. On the other hand, these plans, which were originally supposed to cut overall Medicare costs, are instead proving more expensive than traditional Medicare. And Democrats would like to claw some of those profits back. But that looks about as likely as Republicans sunsetting Medicare, right? There’s just too many people who are too happy with their extra benefits.

Roubein: I guess we’ve seen two proposals from the administration this year which would change Medicare benefits. Then Republicans are trying to paint this as a cut but are saying it wouldn’t change benefits. But to change Medicare Advantage, one way …

Rovner: To change payments for Medicare Advantage.

Roubein: Yes, exactly. One which essentially would increase the government’s ability to audit plans and recover past overpayments and one which is the annual rate proposal. And there’s some aspects in there that Medicare Advantage plans are on a full-court lobbying press to say these are cuts which the administration is pushing back on really, really hard. So this is another microcosm of this Medicare scare tactics.

Rovner: And they’re all over TV already, commercials that probably don’t mean much to anybody if you’re not completely up on this fight of, like, “Congress is thinking about cutting Medicare Advantage.” No, really? I do laugh every time I see that ad.

Kenen: But, you know, Julie, you’re right that this began as a Republican cause, I mean, they had a similar program in the late ’90s that flopped and they revived it as Medicare Advantage. But it didn’t stay a Republican pet project for long. I mean, Democrats, starting with those in states with a lot of retirees — I’m thinking in Florida, who had Democratic senators at the time. I mean, they jumped on board, too, because people like … there are people who want to stay in traditional Medicare and there are people who jumped on to Medicare Advantage, which has certain advantages. It is less partisan than it began. It has always been more expensive than it was touted to be. And it’s now, we’re heading into 20 years since the legislation was passed, and nothing has really been done to change that trajectory, nothing significant. And I don’t think you’re going to see a major overhaul of it. There may be things that you can do [on] a bipartisan basis that nip. But if you’re nipping at that many billions of dollars, a nip as can be a lot of money.

Rovner: Yeah, that’s the thing about Medicare. Although I would point out also that the reason it flopped in the late 1990s is because Congress whacked the payments for it as part of the Balanced Budget Act. And as they gave the money back, it got more popular again because, lo and behold, extra money means extra benefits and people liked it. So its popularity has been definitely tied to how much the payments are that Congress has been willing to provide for it.

Kenen: And how they market and who they market to.

Rovner: Absolutely, which is a whole ’nother issue. But I want to do a covid check-in this week because it’s been a while. First, we have a study from Duke University published in this week’s Journal of the American Medical Association showing that using the deworming drug ivermectin, even at a higher dose and for a longer time, still doesn’t work against covid. This was a decent-sized, double-blind, randomized, controlled trial over nine months. Why is this such a persistent desire of so many people and even doctors to use this drug that clearly doesn’t work?

Karlin-Smith: You know, there’s been a lot of misinformation out there, particularly spread by the right and people that have not just, in general, trusted the government during covid and felt like this drug worked. And for whatever reason, they were being convinced that there was a government effort to kind of repress that. What’s interesting to point out, you know, you mentioned the trial being run at Duke. This was actually a part of a big NIH [National Institutes of Health] study to study various drugs for covid. So even NIH has been willing to actually do the research and to prove whether the drug does or doesn’t work. One of the issues this raises is this was one of many studies at this point that has shown the drug doesn’t work. In this one they even were willing to test, OK, a lower dose didn’t work. Let’s test a higher dose. Again, it fails. And the question becomes is, is there any amount of data or trials that can convince people who have, again, gone through this process where they’ve been convinced by this misinformation to believe it works and that the government is lying to them? Is there any way to convince them, with this type of evidence, it doesn’t work? And then what are the ethics of doing this research on people? Because you’re wasting government resources. You’re wasting resources in general. You’re wasting time, money. You’re giving people a drug in the trial when they could be getting another drug and that might actually work. So it’s really complicated because, again, I’m not sure you can convince the true ivermectin fans. I’m not sure there’s any amount of this type of scientific evidence that’s going to convince them that it doesn’t work for covid.

Rovner: But while we are talking about scientific studies about covid, a controversial meta-analysis from the esteemed Cochrane Review found basically no evidence that masks have done anything to prevent the spread of covid. But this is another study that seems to have been wildly misinterpreted. It didn’t find … what it looked like was not necessarily what we think. A lot of it turned out to be studies that were seeing whether flu, whether masks prevented against flu, rather than against covid. I mean, have we ended the whole idea of mask wearing and maybe not correctly?

Kenen: This was a meta-analysis for Cochrane, which is really basically … I mean, I think Sarah probably knows more about Cochrane than the rest of us, but their reviews are meaningful and taken seriously and they’re usually well done. The studies that they use in this meta-analysis didn’t ask the question that the headlines said it asked. And also, I mean, I don’t totally understand why they did it, because a) as Julie just pointed out, there was something like 78 studies, 76 of which were done before covid. So, you know, a) that’s a problem. And b), it didn’t actually measure who was wearing a mask. It was like, OK, you’re told to wear a mask or maybe you’re required to wear a mask if you’re working in a hospital while you’re in the hospital. But then you go out to a bar that night and you’re not wearing … I mean, it didn’t really look at the totality of whether people were actually wearing masks properly, consistently. And therefore, why use this flu data to answer questions about masking? And secondly, I also think it always is worth reminding people that, you know, no one ever said masks were the be-all and end-all. It was a component — you know, masking, handwashing, vaccination, distancing, testing, all the things that we didn’t do right. Ventilation … I mean, all that. There’s a long list of things we didn’t do right; masking was one of many. This is not going to help if we ever need masks for any disease again in the future. It did not advance this public health strategy — they call it, like, they like to talk about Swiss cheese, that any one step has holes in it. So you use a whole lot of steps and you don’t have any more holes in your Swiss cheese. It’s going to make it harder if we ever need them.

Rovner: Yeah. Well, notwithstanding scientific evidence now, we have two Republican state lawmakers in Idaho who have introduced a bill that would make any mRNA vaccines illegal to administer in the state, not just to people, but to, quote, “any mammal” with violators subject to jail time. And if I may read the subhead of the story about this … at the science website Ars Technica, quote, “It’s not clear if the two lawmakers know what messenger RNA is exactly.” In a normal world, I would say this is just silly and it couldn’t pass. But we’re not in a normal world anymore, right? I mean, we could actually see Idaho ban mRNA technology, which is used, going to be used for a lot more than covid.

Karlin-Smith: So I think the thing that really interests me about reading about this, and I’d be interested to hear what legal scholars think about this, but I was wondering if there’s a parallel here between this and what’s going on with the abortion pill in Republican states and what the courts may do with that, because it seems to me like there’s probably should be some kind of federal preemption that would kick in here, which is that vaccines are regulated, approved by this technology, by the federal government. Yes, there’s some practice of medicine where states have control from the federal government. But this seems like a case where, and in the past, when states have tried to get into banning FDA-approved products in this way, courts … have pushed back and said, you can’t do this. And I would say, I don’t think this Idaho law would hold up if it gets passed. But now we have this issue going on with the abortion pill, and it seems like there could be this major challenge by the courts to FDA’s authority. So you do sort of wonder, is this another example of what could happen if this authority gets challenged by the states? And, like you said, we are in this different world where maybe three years ago I would say, well, you know, even if Idaho can pass this, of course, this isn’t going to come to practice. But I do wonder, as we’re watching some of these other legal challenges to FDA-approved technologies, what it could mean down the line.

Kenen: I mean, remember, it also … with ivermectin, there are state legislatures that have actually protected patients’ rights to get ivermectin.

Rovner: And doctors’ rights to provide it.

Kenen: Right. And I know more than half the states had legislation. I don’t know how many actually passed it. I don’t remember. But I mean, it was a significant number of states. So these are … all these things that we’re talking about are related — you know, who gets to decide based on what evidence or lack thereof.

Rovner: So if there’s a reason that I brought these three things up, because after all this, a federal judge in California has temporarily blocked enforcement of a new state law that would allow the state medical board to sanction doctors who spread false or misleading information about covid vaccines and treatments. One of the plaintiffs told The New York Times that the law is too vague, quote “Today’s quote-unquote, ‘misinformation’ is tomorrow’s standard of care, he said.” Which is absolutely true. So how should we go about combating medical misinformation? I mean, you know, sometimes people who sound wacky end up having the answer. You know, you don’t want to stop them, but you also don’t want people peddling stuff that clearly doesn’t work.

Kenen: In addition to state boards, there are large medical societies that are — I don’t know how far they’ve gone, but they have said that they will take action. I’m sure that any action they take either will or has already ended up in court. So there are multiple ways of getting at misinformation. But, you know, like Sarah said it really well, there are people who’ve made up their mind and nothing you do is going to stop them from believing that. And some of them have died because they believe the wrong people. So I don’t think we’re going to solve the misinformation problem on this podcast. Or even off — I don’t think the four of us …

Rovner: If only we could.

Kenen: Even if we were off the podcast! But it’s very complicated. I — a lot of my work right now is centered on that. The idea that courts and states are coming down on the wrong side, in terms of where the science stands right now, understanding that science can change and does change. I mean, whether another version of that law could get through the California courts, I mean, there are apparently some broad drafting problems with that law.

Rovner: It hasn’t been struck down yet. It’s just been temporarily blocked while the court process continues. We’ll see. All right. Well, let’s move on to abortion since we’ve been kind of nibbling around the edges. Rachel, you wrote about a group of abortion rights-supporting Democratic governors organizing to coordinate state responses to anti-abortion efforts. What could that do?

Roubein: Yeah, so it’s news this week. It’s called the Reproductive Freedom Alliance. And essentially the idea is so governors can have a forum to more rapidly collaborate, compare notes on things like executive orders that are aimed at expanding and protecting abortion bills, moving through the legislature, budgetary techniques. And as we’re talking about lawsuits, I mean, talk to some governors and you know that the Texas lawsuit from conservative groups seeking to revoke the FDA’s approval of a key abortion pill is top of mind in this new alliance. Kind of the idea is to be able to rapidly come together and have some sort of response if the outcome of that case doesn’t go their way or other major looming decisions. I think it’s interesting. They are billing themselves as nonpartisan. But, you know, only Democratic governors have signed up here.

Rovner: Well, we could have had Larry Hogan and the few moderate Republicans that are left.

Roubein: Yes, Charlie Baker.

Rovner: If they were still … Charlie Baker.

Roubein: Sununu.

Rovner: If they were still there, which they’re not.

Roubein: I mean, I think the other interesting thing about this is if … you looked at 2024, and if a Republican’s in the White House in 2025, they might try and roll back actions Biden has done. So I could foresee a Democratic governors alliance trying to attempt to counteract that in a way that states can.

Rovner: Well, also, on the abortion rights front, supporters in Ohio are trying to get a measure on the ballot that would write abortion rights into the state constitution. This has worked in other red and purple states like Kansas and Michigan. But Ohio? A state that’s been trending redder and redder. It was the home of the first introduced six-week abortion ban five or six years ago. How big a message would that send if Ohio actually voted to protect abortion rights in its constitution? And does anybody think there’s any chance that they would?

Roubein: I think it’s interesting when you look at Kentucky and Kansas, which their ballot measures were different. It was for the state constitution to say that there was no right to an abortion, but abortion rights …

Rovner: There was a negative they defeated saying there was no right.

Roubein: Yeah. I mean, abortion groups really think the public is on their side here. And anti-abortion leaders do think that ballot measures aren’t … like, fighting ballot measures isn’t their best position either. So I think it’ll be interesting to see. Something that caught my eye with this is that the groups are trying to get it on the 2023 general election ballot. And right now what some Republican lawmakers are trying to do to counteract not just abortion ballot measures, but more progressive ballot measures, which is to try and increase the threshold of passage for a ballot measure. And there’s a bill in the Ohio legislature that would increase passage for enshrining anything into the state constitution to 60% support. But that would have to go to the people, too. So essentially, the timing here could counteract to that. So.

Rovner: Yeah, and as we saw in Kansas, if you have this question at a normally … off time for a big turnout, you can turn out your own people. So I assume they’re doing that very much on purpose. They don’t want it to be on the 2024 ballot with the president and Senate race in Ohio and everything else. All right. Well, one more on the abortion issue. Moving to the other side. A Florida lawyer is petitioning to have a pregnant woman who’s been accused, although not convicted, of second-degree murder released from jail because her fetus is being held illegally. Now, it’s not entirely clear if the lawyer is actually in favor of so-called personhood or it’s just trying to get his client, the pregnant woman, out of jail. But these kinds of cases can eventually have pretty significant ramifications, right? If a judge were to say, I’m going to release this woman because the fetus hasn’t done anything wrong.

Kenen: Well, there’s going to be an amendment to the personhood amendment saying, except when we don’t like the mother, right? I mean, she’s already almost at her due date. So it probably is going to be moot. There’s an underlying question in this case about whether she’s been getting good prenatal care, and that’s a separate issue than personhood. I mean, if the allegations are correct and she has not gotten the necessary prenatal care, then she certainly should be getting the necessary prenatal care. I don’t think this is going to be ruled on in time — I think she’s already in her final month of pregnancy. So I don’t think we’re going to see a ruling that’s going to create personhood for fetal inmates.

Rovner: She’ll have the baby before she gets let out of jail.

Kenen: I think other lawyers might try this. I mean, I think it’s legal chutzpah, I guess. If one lawyer came up with it, I don’t see why other lawyers won’t try it for other incarcerated pregnant women.

Rovner: Yeah. And you could see it feeding into the whole personhood issue of, you know, [does] the fetus have its own set of individual rights, you know, apart from the pregnant woman who’s carrying it? And it’s obviously something that’s that we’re going to continue to grapple with, I think, as this debate continues. All right. That is the news for this week. Now 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. Sarah, why don’t you go first this week?

Karlin-Smith: I took a look at a story in the DCist. It’s called “Locals Who Don’t Speak English Need Medical Translators, but Some Say They Don’t Always Get the Service.” It was by Amanda Michelle Gomez and Hector Alejandro Arzate, and it basically takes a look at a lack of medical translators who can help patients who don’t speak English in the D.C. area and the harm that can be caused when patients don’t have that support, whether they’re in the hospital or at medical appointment, focusing on a woman who basically said she wasn’t getting food for three days and actually left the hospital to provide her food and she was undergoing … cancer treatment and in there for an emergency situation. It also highlights a federally funded facility in D.C. that is trying to support patients in the area with translators, but some of the health policy challenges they face, such as, you know, there’s reimbursement for basically accompanying a patient to an appointment, but there’s out-of-appointment care that patients need. Like if you’re sent home with instructions in English and there’s difficulty funding that care. And I mean, I just think the issue is important and fascinating because people who cover health policy, I think, tend to realize sometimes, even if you have an M.D. and a Ph.D. in various aspects of this system, it can be very hard to navigate your care in the U.S., even if you are best positioned. So to add in not speaking a language and, in this case, having had experience trying to help somebody who spoke a language much less more commonly spoken in the U.S. You know, I was thinking, well, she spoke Spanish, you know, how bad could it be? A lot of people in the U.S. often are bilingual and Spanish is a common language that you might expect lots of people in a medical facility to know. So I think, you know, again, it just shows the complexities here of even when you’re best positioned to succeed, you often have trouble succeeding as a patient. And when you add in other factors, we really set people up for pretty difficult situations.

Rovner: Yeah, it was kind of eye-opening. Rachel.

Roubein: My extra credit is titled “Her Baby Has a Deadly Diagnosis. Her Florida Doctors Refused an Abortion,” and it’s by Frances Stead Sellers from The Washington Post. I chose the story because it gives this rare window into how an abortion ban can play on the ground when a fetus is diagnosed with a fatal abnormality. So Frances basically chronicles how one woman in Florida, Deborah Dorbert, and her husband, Lee, were told by a specialist when she was roughly 24 weeks pregnant that the fetus had a condition incompatible with life, and the couple decided to terminate the pregnancy. But they say they were ultimately told by doctors that they couldn’t due to a law passed last year in Florida that banned most abortions after 15 weeks. And so that new law does have exceptions, including allowing later termination if two physicians certify in writing that the fetus has a fatal fetal abnormality. So it’s not clear exactly how or why the Dorberts’ doctors said that they couldn’t or how they applied the law in this situation.

Rovner: Yeah, I feel like this is maybe the 10th one of these that I’ve read of women who have wanted pregnancies and wanted babies and something goes wrong with the pregnancy, and an abortion ban has prevented them from actually getting the care that they need. And I just wonder if the anti-abortion forces have really thought this through, because if they want to encourage women to get pregnant, I know a lot of women who want babies, who want to get pregnant, want to have a baby, but they’re worried that if something goes wrong, that they won’t be able to get care. You know, this question of how close to death does the pregnant woman have to be for the abortion to, quote-unquote, “save her life”? We keep seeing it now in different states and in different iterations. Sorry, it’s my little two cents. Joanne.

Kenen: My extra credit is from The Atlantic’s Katherine J. Wu. And the headline is “Eagles Are Falling, Bears Are Going Blind.” It’s about bird flu or avian flu. It does not say it couldn’t jump to humans. It does say it’s not likely to jump to humans, but that we have to be better prepared, and we have to watch it. But it really made the interesting point that it is much more pervasive among not just birds, but other animals than prior, what we and laypeople call “bird flu.” And it’s going to have — 60, something like 60 million U.S. birds have died. It is affecting Peruvian sea lions, grizzly bears, bald eagles, all sorts of other species, mostly birds, but some mammals. And it’s going to have a huge impact on wildlife for many years to come. And, you know, the ecological environment, our wildlife enviornments. And it’s a really interesting piece. I hadn’t seen that aspect of it described. And if you think — and eggs are going to stay expensive.

Karlin-Smith: I was going to say this morning, I actually saw that in Cambodia reported one of the first deaths in this recent wave, of a person with this bird flu. So the question, I guess, is in the past, it hasn’t easily spread from person to person. And so that would be like the big concern where you’d worry about really large outbreaks.

Rovner: Yeah, because we don’t have enough to worry about right now.

Kenen: We should be watching this one. I mean, this is a different manifestation of it. But we do know there have been isolated cases like the one Sarah just described where, you know, people have gotten it and a few people have died, but it has not easily adapted. And of course, if it does adapt, that’s a different story. And then … in what form does it adapt? Is it more like the flu we know, or, I mean, there are all sorts of unanswered questions. Yes, we need to watch it. But this story was actually just so interesting because it was about what it’s doing to animals.

Rovner: Yeah, it is. The ecosystem is more than just us. Well, my story is from Stat News by Calli McMurray, and it’s highly relevant for our podcast. It’s called “Current Treatments for Cramps Aren’t Cutting It. Why Aren’t There Better Options?” And yes, it’s about menstrual cramps, which affect as many as 91% of all women of reproductive age. Nearly a third of them severely. Yet there’s very little research on the actual cause of cramps and current treatments, mostly nonsteroidal anti-inflammatory drugs or birth control pills, don’t work for a lot of people. As someone who spent at least a day a month of her 20s and 30s in bed with a heating pad, I can’t tell you how angry it makes me that this is still a thing with all the other things that we have managed to cure in medicine.

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. 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. Joanne?

Kenen: @JoanneKenen

Rovner: Rachel.

Roubein: @rachel_roubein

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.

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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Having spent its entire first week choosing a speaker, the Republican-led U.S. House finally got down to legislative business, including passing two bills backed by anti-abortion groups. Neither is likely to become law, because they won’t pass the Senate nor be signed by President Joe Biden. But the move highlights how abortion is sure to remain a high-visibility issue in the nation’s capital.

Meanwhile, as open enrollment for the Affordable Care Act nears its Jan. 15 close, a record number of people have signed up, taking advantage of renewed subsidies and other help with medical costs.

This week’s panelists are Julie Rovner of KHN, Margot Sanger-Katz of The New York Times, Alice Miranda Ollstein of Politico, and Sarah Karlin-Smith of the Pink Sheet.

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Sarah Karlin-Smith
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Alice Miranda Ollstein
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Read Alice's stories

Margot Sanger-Katz
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https://www.nytimes.com/by/margot-sanger-katz

Among the takeaways from this week’s episode:

• The House now has a speaker after 15 rounds of full-chamber roll call votes. That paved the way for members to be sworn in, committee assignments to be made, and new committee chairs to be named. Cathy McMorris Rodgers (R-Wash.) and Jason Smith (R-Mo.) will be taking the helm of major health committees.
• McMorris Rodgers will lead the House Energy and Commerce Committee; Smith will be the chairman of Ways and Means. Unlike McMorris Rodgers, Smith has little background in health issues and has mostly focused on tax issues in his public talking points. But Medicare is likely to be on the agenda, which will require the input of the chairs of both committees.
• One thing is certain: The new GOP-controlled House will do a lot of investigations. Republicans have already reconstituted a committee to investigate covid-19, although, unlike the Democrats’ panel, this one is likely to spend time trying to find the origin of the virus and track where federal dollars may have been misspent.
• The House this week began considering a series of abortion-related bills — “statement” or “messaging” bills — that are unlikely to see the light of day in the Senate. However, some in the caucus question the wisdom of holding votes on issues like these that could make their more moderate members more vulnerable. So far, bills have had mostly unanimous support from the GOP. Divisions are more likely to emerge on topics like a national abortion ban. Meanwhile, the Title X program, which pays for things like contraception and testing for sexually transmitted infections, is becoming a hot topic at the state level and in some lawsuits. A case in Texas would restrict contraception availability for minors through this program.
• It’s increasingly clear that abortion pills are going to become an even bigger part of the abortion debate. On one hand, the FDA has relaxed some of the risk evaluation and mitigation strategies (REMS) from the prescribing rules surrounding abortion pills. The FDA puts these extra restrictions or safeguards in place for certain drugs to add additional protection. Some advocates say these pills simply do not bring that level or risk.
• Anti-abortion groups are planning protests in early February at large pharmacies such as CVS and Walgreens to try to get them to walk back plans to distribute abortion pills in states where they are legal.
• A growing number of states are pressuring the Department of Health and Human Services to allow them to import cheaper prescription drugs from Canada — or, more accurately, importing Canada’s price controls. While this has long been a bipartisan issue, it has also long been controversial. Officials at the FDA remain concerned about breaking the closed supply chain between drugs being manufactured and delivered to approved U.S. buyers. The policy is popular, however, because it promises lower prices on at least some drugs.
• Also in the news from the FDA: The agency granted accelerated approval for Leqembi for the treatment of Alzheimer’s disease. Leqembi is another expensive drug that appears to work, but also carries big risks. However, it is generally viewed as an improvement over the even more controversial Alzheimer’s drug Aduhelm. Still to be determined is whether Medicare — which provides insurance to most people with Alzheimer’s — will cover the drug.
• As the Affordable Care Act enrolls a record number of Americans, it is notable that repealing the law has not been mentioned as a priority for the new GOP majority in the House. Rather, the top health issue is likely to be how to reduce the price of Medicare and other health “entitlement” programs.

Plus, for extra credit, the panelists recommend their favorite health policy stories of the week that they think you should read, too:

Julie Rovner: The Washington Post’s “Social Security Denies Disability Benefits Based on List With Jobs From 1977,” by Lisa Rein

Margot Sanger-Katz: Roll Call’s “Providers Say Medicare Advantage Hinders New Methadone Benefit,” by Jessie Hellmann

Alice Miranda Ollstein: The New York Times’ “Grant Wahl Was a Loving Husband. I Will Always Protect His Legacy.” By Céline Gounder

Sarah Karlin-Smith: KHN’s “Hospitals’ Use of Volunteer Staff Runs Risk of Skirting Labor Laws, Experts Say,” by Lauren Sausser

Also mentioned in this week’s podcast:

• KHN’s “States Challenge Biden to Lower Drug Prices by Allowing Imports From Canada,” by Phil Galewitz
• Politico’s “Next Frontier in the Abortion Wars: Your Local CVS,” by Alice Miranda Ollstein and Lauren Gardner
• KFF’s “Millions of Uninsured People Can Get Free ACA Plans,” by Jared Ortaliza, Justin Lo, Gary Claxton, Krutika Amin, and Cynthia Cox

TRANSCRIPT

Click here for a transcript of the episode.

KHN’s ‘What the Health?’Episode Title: GOP House Opens With Abortion AgendaEpisode Number: 279Published: Dec. 12, 2023

Tamar Haspel: A lot of us want to eat better for the planet, but we’re not always sure how to do it. I’m Tamar Haspel.

Michael Grunwald: And I’m Michael Grunwald. And this is “Climavores,” a show about eating on a changing planet.

Haspel: We’re here to answer all kinds of questions. Questions like: Is fake meat really a good alternative to beef? Does local food actually matter?

Grunwald: You can follow us or subscribe on Stitcher, Apple Podcasts, Spotify, or wherever you listen.

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, Jan. 12, at 10 a.m. As always, news happens fast, and things might have changed by the time you hear this. So here we go. Today we are joined via video conference by Alice Miranda Ollstein of Politico.

Alice Miranda Ollstein: Good morning.

Rovner: Margot Sanger-Katz of The New York Times.

Margot Sanger-Katz: Hello.

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

Sarah Karlin-Smith: Hi, everybody.

Rovner: So no interview this week, but lots of news, so we will get right to it. We’re going to start with the new Congress, where the House finally has a speaker after 15 rounds of full-chamber roll calls. Settling the speaker meant that the rest of the House could be sworn in and things like committee chairs elected. Two key health committees, Energy and Commerce and Ways and Means, will both have new chairs, not just new because they’re Republican, but new because they have not chaired the committee previously. Energy and Commerce will be headed by a woman for the first time, Cathy McMorris Rodgers of Washington state, who’s had a longtime interest in health policy and was also in the Republican leadership. Over at Ways and Means, the new chairman is Jason Smith of Missouri, who I confess I had never heard of before this. Does anyone know anything about him? And does he have any interest in health care?

Ollstein: Most of what he said about chairing the committee has been about things other than health care. It’s been a lot on taxes, for instance. The new House majority is very “exorcised” about the IRS funding that the previous Congress approved and trying to get rid of that. But he has shown some interest in some telehealth provisions. And so I think also I’m sure we’re going to discuss some interest in, shall we say, revisiting Medicare’s benefits and funding …

Rovner: Yeah, we’re going to get to that next.

Ollstein: So there could be some things, but it doesn’t seem that he’s been a big health care guy or will be a big health care guy going forward.

Rovner: In the olden days, when I started covering this, the chairman of the Ways and Means Committee frequently did not have either an interest or an expertise in health care. But the chairman of the Ways and Means health subcommittee did. That’s where pretty much everything came from. Do we know yet who is going to chair the Ways and Means health subcommittee …? We do not. So we’ll wait to see that. But yes …. even though I read Chairman Smith’s little introduction about what he’s interested in — and I know he mentioned rural health — but he did not anywhere mention Medicare. And of course, the Ways and Means Committee has jurisdiction over most of Medicare in the House. It is going to come up, as far as we can tell, right?

Sanger-Katz: One imagines so because some of the promises that leadership has made to its members to think about how to balance the budget in the long term, to consider entitlement reform, whatever that may mean. And, you know, Medicare is where the money is. So you would think that the Ways and Means Committee would want to be looking seriously at how to reform the program, if that’s the interest of leadership on this policy area.

Rovner: And they’ve already said that they want to tie any debt ceiling vote, which [is] one of those things that Congress absolutely has to do to reforms, quote-unquote, of the Medicare and Social Security programs. Because, again, as Margot said, that’s where the money goes. So we expect to see Medicare as an issue, regardless of what the Ways and Means Committee does, right?

Ollstein: That’s right. There were a lot of calls for Democrats to address the debt ceiling issue during their final months in power. They did not do so. That means that it’s going to be a big, messy fight this year. One of the biggest things to watch. This is an instance where the Republican House majority will be able to flex its muscles even though they don’t have the Senate and White House, because they can trigger a budget standoff that puts the faith and credit of the country in jeopardy and demand concessions, including cuts to Medicare. So we’ll see how that goes.

Rovner: Although I will say, Sen. Brian Schatz of Hawaii was on Twitter, and he didn’t ask me anything much to the horror of his communications staff. But one of the questions that somebody asked him was, “Why didn’t you do the debt ceiling?” And he just said: We didn’t have the votes. So that at least answers the question of why didn’t they take care of this before the Republicans took the majority back? Well, one thing we do know is going to happen is that the new Republican-controlled House is going to do a lot of investigations. Indeed, one of the first orders of business in the new Congress was the re-establishment of a committee on the covid pandemic with a new focus on investigating the origins of the virus and the government’s response to it. What are we expecting out of that?

Karlin-Smith: As you said, Julie, I think two of the things is, one, they’re going to do more investigation into the origin of the virus. Republicans have pushed the potential theory that this was borne out of a lab in China, not necessarily something more naturally occurring. And I think a lot of scientists have said this theory has been fairly close to disproven and find that the focus on it distracts from really dealing with the current pandemic. But I think we should expect a lot of that. And that will include, I think, a lot of relitigation of Anthony Fauci and his particular role in the NIH [National Institutes of Health] and funding different types of research on viruses, both in the U.S. and abroad. The second thing I think they’re going to look very closely at is how the U.S. has spent the covid funding that Congress has doled out and appropriated. That’s certainly a lot of money. And I think, again, oversight is always probably … it’s a good thing to see if Congress gives money, are we spending it? … Does it actually get to where it needs to go? Does it go to where it’s supposed to go? I think that … in general, I think most people think that’s a good thing. Sometimes what ends up happening is it gets taken a little bit to …  this disingenuous step forward in Washington, where everything gets questioned or they pick on jurisdictions for not spending the money fast enough when it’s just not realistic. So you have to read between the lines really carefully when you’re looking at some of the findings from that type of work. Because sometimes, again, when you give a state $1,000,000 to do something, they’re not often able to make that change in two months.

Rovner: And then if they do, they get criticized for spending it on the wrong thing, so …

Karlin-Smith: Right.

Sanger-Katz: But I will say, speaking as a journalist, not as a congressional investigator, I do think that the covid funding is really ripe for a lot of investigation. There’s already been very good reporting that a lot of the small-business programs were broadly defrauded. I think there was a real emphasis by Congress and — in a bipartisan way, Republicans obviously voted for these bills as well. But I think there was a real emphasis on just getting money out the door. People were so scared of a catastrophic economic collapse that, unlike a lot of programs that Congress designs that fund various things, there weren’t a lot of initial safeguards, there wasn’t a lot of process or administrative burden associated with getting money. And so that means it really is valuable to look and see where did it go, who may have defrauded the program, what are ways that in the next crisis it might be possible to do these kinds of programs in a way that is more efficient. You know, it occurs to me that in addition to the small-business money, hospitals got a whole lot of money as part of these programs. And again, there’s been some journalism about this, but I do think I’m all for more oversight, trying to learn some real lessons. I agree with Sarah that there is probably some of this that’s going to veer into the disingenuous and kind of “gotcha.” But there may be some useful and interesting findings as a result of this process as well.

Rovner: And as we saw with the Jan. 6 committee, Congress has powers that journalists don’t. As we know, the Justice Department has powers that Congress doesn’t. But Congress has pretty good investigatory powers. They can subpoena things when they need to. So, yes, I imagine we’re going to learn something about the fate of all of those dollars that went out the door.

Ollstein: Just to be fair, Republicans have sort of claimed that the Democrat-led effort to investigate covid didn’t have any financial accountability aspect. That’s not true. It did. They really scrutinized a lot of government contracts — like no-bid government contracts that funneled lots and lots of money to things that did not pan out or help anybody. There has been some of that already. But I agree that there’s definitely more to look at.

Rovner: And there … obviously, there was a Republican and a Democratic administration handling the covid pandemic. So one presumes there are things to investigate on both sides. Well, even while the House committees are gearing up, Republicans are bringing “statement” bills to the floor, bills that we know the Senate won’t take up and the president won’t sign. And despite the fact that abortion rights drove a lot of the midterm elections in the other direction, two of the first bills brought to the floor by the new Republican majority seek to do the bidding of anti-abortion groups. This, apparently, making Republican moderates, particularly those in swing districts, not so happy. Alice, are we looking at pretty much the same split in the Republicans in the House as in a lot of states — the people who think that the Republicans didn’t do well because they should have done more and people who think the Republicans didn’t do well because they should have done less?

Ollstein: Yeah, absolutely. And there’s a split on how to talk about it or whether to talk about it as well. It’s not just the actions, it’s the messaging in addition. And so, yes, there are some in the House who are, like, why are we doing this? Why are we taking these votes that have no chance of becoming law? It just puts our members from swing districts in a more vulnerable position. The things they voted on so far this week have pretty unanimous support on the Republican side, I would say. I think where you could start to see some bigger divides are when they get into votes on an actual national abortion restriction that would put a gestational limit on the procedure, or something like that, which absolutely some members want to do and want to take a vote on. I think that’s where you could start to see some Republicans being, like, wait, wait, wait, wait, why are we doing this? But the things so far are, like you said, they’re “messaging” bills, but they’re ones that have pretty broad support on the conservative side.

Rovner: And we should mention, I mean, one of them was just a sense of Congress that, you know, that bombing pregnancy crisis centers is bad. Or that violence against pregnancy centers …

Sanger-Katz: I’m not going to give credit for this correctly, but I saw a tweet on this topic last week when the list of demands and the list of these bills that we’re going to get a vote on was released where someone asked, Oh, did D-Triple-C [the Democratic Congressional Campaign Committee] co-author this list? Where I do think there is an interesting tension, as Alice said, where the particular message bills that the most conservative members of the House Republican caucus want to vote on are those issues where we see in public opinion polling, where we see in the last election that the majority of Americans are not really with those most conservative Republicans. And I think a lot of moderate Republicans would just prefer not to vote on those issues, particularly because they know that they can’t make them policy. And we were talking about changes to Medicare and Social Security, and I think that also falls very much in that category where there might be a situation in which if Republicans really thought that they could reform these programs, maybe they would want to take the political risk, because I do think it’s an important long-term goal of many Republicans. But I think there’s also a frustration, you know, why would we take all these votes on something that is generally unpopular? Everyone knows that both Social Security and Medicare are really, really popular programs and people are very wary of changes to them. There is a political risk in taking a bunch of votes saying that you want to pull money out of those programs or change them structurally when you can’t even achieve it.

Rovner: Yeah. Well, speaking of that, during Wednesday’s abortion debate on the House floor, Republican moderate Nancy Mace of South Carolina kept saying to any cable outlet that would put a microphone in front of her that Congress should be making birth control more widely available instead of voting on abortion. But we are also seeing the first shots fired in an effort to restrict birth control. Well, last month, a Trump-appointed judge ruled that the Title X family planning program is illegally providing contraception to minors. Now, this is a fight that dates back to even before I started covering it. It was called “the Squeal Rule” in the early 1980s, an effort by the Reagan administration to require parental involvement before teens could use Title X family planning services. It was eventually struck down in federal court, but now it’s back. Is this where we’re headed?

Ollstein: I think it’s really important to watch things in law and policy that are just directed at minors because inevitably it does not stop there. Like, that’s sort of the testing ground. It’s where people are more comfortable with more restrictions and more hoops to jump through. But as we’ve seen with gender-affirming care, it doesn’t stop there. What’s tested out as a policy for minors is inevitably proposed for adults as well, and so …

Sanger-Katz: What’s the adult version of this, Alice? Like who? Like spousal consent?

Rovner: Yes, there had been — I was just going to say — not so much in contraception, although originally it was, but also on abortion that, yeah, if there’s a partner that the partner would have to consent.

Ollstein: But there’s also been spousal consent stuff for more permanent … getting your tubes tied, those kinds of things. That’s been a debate as well. And, I mean, in the abortion space we’ve seen this for, in terms of like traveling across state lines for an abortion. That’s been a restriction for minors that’s also been proposed for adults. So it’s just this phase we should absolutely watch — as well as Title X program continues to be a space for proposed restrictions. It’s a lever that they’re able to hold because it does have federal funding and it does have constraints that other pots of money don’t have.

Rovner: My favorite piece of trivia is that the Title X program has not been reauthorized since 1984 because Congress has never been able to find the votes. You know, when the Democrats were in charge and wanted to do it, the Republicans would have all of these amendments that the Democrats probably couldn’t fight off. The Republicans wanted to do it and put all these stringent rules that the Democrats wouldn’t have. So, literally, this program has been … it gets funded every year, but it’s been marching along for now several decades without Congress having formally reauthorized it.

Ollstein: Yeah, that’s why you keep seeing different presidential administrations trying to put their stamp on it through rulemaking, which, of course, can be rolled back by the subsequent president, as we’ve seen with [Donald] Trump and [Joe] Biden. And so it just keeps going back and forth. And these clinics that are out there getting this funding, which, again, can’t be used for abortion, for contraception, STD testing, fertility stuff, all kinds of stuff, but not abortion. But they keep having to comply with these wildly different rules. It’s really difficult.

Rovner: Yeah, it is. All right. Well, last week we talked about the Biden administration’s effort to make abortion pills more available through both pharmacies and the mail. On the one hand, some abortion rights advocates say that the FDA is still overregulating the abortion pill by requiring extra hoops for both pharmacies and doctors to jump through in order to offer or write prescriptions for a medication that’s proved safe and effective over two decades. On the other hand, we now have the specter of abortion opponents protesting at CVSes or Walgreens near you. And Alice, they’re already planning to do that, right?

Ollstein: Yeah, that’s right. They would have done it sooner, but they didn’t want to step on the March for Life, which is coming up in a couple of weeks. And so they’re planning these protests at CVS and Walgreens around the country for early February, trying to pressure the company to walk back its announcement that they will participate in the distribution of abortion pills in states where they remain legal, which is, by our count, currently 18 can’t do this either because abortion is banned entirely or because there are laws specifically restricting how people get the pills.

Rovner: Sarah, I want you to talk about some of these extra hoops that have to be jumped through because a lot of people think it’s just for this pill and it’s not. This is something that the FDA has for any drug that’s potentially abusable, right?

Karlin-Smith: Yeah, I wouldn’t say abusable is the right word, but basically people call this a REMS. It stands for risk evaluation and mitigation strategy. And it’s actually an authority Congress gave the FDA to — we use this term “safe and effective,” but we know all drugs, even when we say that “safe” term, will come with risks. And the idea here is that when the benefit-risk balance would be … so that it would be … FDA might say, OK, this is actually too risky to approve. However, we think we could make it kind of safe enough if we put in a little extra safeguards instead of just letting it go out there. Here’s a drug, doctors, you can prescribe it, follow the normal pathway, which is that the federal government, or at least the FDA, doesn’t really have a lot of say in exactly how the practice of medicine works. That’s left up to states. And, you know, doctors individually. They implement other practices to help ensure that safety balance is there. So one famous example is Accutane, which is an acne drug. It’s incredibly harmful to a developing fetus and birth defects. So women of pregnancy, bearing age are usually required to take regular pregnancy tests and so forth and monitor the status of that. And you’re not supposed to use the drug while pregnant because of the incredible harm you do to a baby. So there’s everything from things like that to just simply more written literature might be provided for certain drugs. Sometimes in the cases of the abortion pill, you know, who could actually dispense it and when was restricted. Sometimes there are particular sorts of trainings doctors have to take to get that extra authority to prescribe the drug. And again, the idea is that just to provide a little extra safeguard. Again, the controversy over the years with this pill is that people feel like it doesn’t meet that standard to have a REMS, that it can be safe and effective through our normal prescribing systems. Actually, Stat this week had an interesting interview with Jane Henney, who was the FDA commissioner when they first approved this drug. And she …

Rovner: Yeah, in the year 2000.

Karlin-Smith: Right. Which is actually …

Rovner: Right at the end of the Clinton administration.

Karlin-Smith: Actually predates this formal REMS authority. But there were others, different authorities that then evolved into REMS. But she said she thought that a lot of these restrictions would be gone by now and that what, at the time, what they were waiting for was more U.S.-specific experience with the drug, because what they were basing the original approval on was a lot of use of the drug in France, which had such a different health system than the U.S., they were a little bit uncomfortable, I guess, opening the floodgates in a way. So I thought that was an interesting historical point that came out this week.

Rovner: But clearly, Alice, I mean, this is going to be the next big fight in abortion, right, is trying to restrict the abortion pill?

Ollstein: Absolutely. I’ve been writing about this since before Roe v. Wade was overturned. The pills were already becoming one of the most popular and now are the most popular way to terminate a pregnancy in the U.S., which makes sense. You can take them in the comfort of your home with the people that you want to be with you, not in a scary medical environment. It’s also a lot cheaper than having a surgical procedure. So but then, of course, with the pandemic, people started using them even more because it was more dangerous to go to a clinical setting. And so this has been a big focus of both sides of this fight for a long time: either how to increase access to the pills or restrict them. Also, now that Roe v. Wade has been overturned, the pills and the ability to order them online from overseas in this legal gray area, that’s been a major way people have been getting around state bans, and the anti-abortion groups know that. And so they want to look at any way they can to crack down on this. And so with the Biden administration opening up a new potential pathway with these local retail pharmacies, they’re of course going to try to crack down on that as well.

Karlin-Smith: I mean, we talked about this before in the podcast, but I think this issue of federal preemption, if it gets teed up, is going to be a big thing that’s beyond just abortion, in terms of when does FDA’s approval of a drug trump state regulations around how it’s going to be used? And, you know, I feel like some people have not been satisfied on the … who want more access to abortion drugs in terms of how FDA has handled the rollback of the REMS. But you also have to wonder if they’re operating in this setting where, again, if you push things too far and you get a legal challenge, given how our courts are, right? And how politically it can backfire. And so it’s a complicated balance there.

Rovner: Well, speaking of drugs that are in gray areas that people order online, my KHN colleague Phil Galewitz reports that four states — Florida, Colorado, New Hampshire, and New Mexico — are now pressuring the Biden administration to allow them to import prescription drugs from Canada in an effort to reduce the cost of drugs for their residents. Now, despite the fact that this has been and remains a very bipartisan ask, the FDA, under both Republican and Democratic commissioners, has strongly objected to it over the years. Somebody remind us why this is so controversial.

Karlin-Smith: I think the big thing FDA has objected to is that when you allow importation in the way states have often asked for it, you basically often give up the supply chain oversight that we have in the U.S. that ensures people are not getting drugs that are counterfeit and have somehow been tampered with as they’ve gotten through the supply chain. And so, actually, I was refreshing my memory, and I can’t believe how long ago it is. When the Trump administration first became the first administration to say, Oh, actually, OK, we are going to agree that we think this could be come safely. Then they put out regulations that tried to … basically like made it so that to do importation, you would almost have to mimic the same supply-chain safety measures we already have for the FDA. So it became this double-edged sword of, sure, you can do the importation, but you’re going to have to jump to this level of hurdles that then makes it unusable. And so I think that’s the key barrier here, is that can a state actually propose a program that would get sign-off? And I think it’s not really surprising to me that the Trump team tried to thread the needle in that way of giving people the win of saying, Oh, we’ll allow it without actually making it feasible.

Sanger-Katz: I think it also highlights what a weird ask this is in some ways because what the states are looking to do is they are not looking to import drugs from other countries because they think that other countries have better manufacturing, have better safety protocols, have different drugs. They just want to import the lower prices that other countries pay for the same drugs. And so this is, in some ways, a very cludgy workaround that the states are basically asking for price regulation of drugs. But that obviously is a very difficult political act. So instead they’re saying, well, can we just import the prices that some other country has negotiated. And then it raises all these other issues about, Well, you know, there is like a reason why, in general, the United States has regulatory control over the drug supply.

Rovner: Also, Canada doesn’t have enough drugs to serve all of these states. I mean, that’s the thing that I’ve never managed to get over. And, in fact, Canada has said that they’re not anxious to do this because they don’t have enough drugs to serve both Canada and the United States. I mean, it also seems just literally impractical.

Sanger-Katz: I mean, we are seeing, of course, like in the Inflation Reduction Act, there were new measures that would allow Medicare, in particular, to start negotiating for lower prices for certain drugs. Obviously, that policy has a fair number of limitations, including that it’s only for Medicare, it’s only for certain drugs, and it’s not going to be instant. But while we did get some new timeline from the Biden administration this week, and it looks like that policy is going to start rolling out. So I think states are asking for this now because they want to import prices from other countries. But also, for the first time, Medicare, or the federal government is starting to take on drug prices directly. And we’re going to see how that looks relatively soon.

Rovner: Yes, this ship turns very slowly, but it does seem to be turning a little bit. Well, as we previewed last week, the FDA has approved another controversial Alzheimer’s disease drug, Leqembi. I think that’s how you say it, which has a Q without a U. Sarah, you’ve been following this. Are we headed down potentially the same road we traveled with Aduhelm? It feels kind of familiar. It’s a drug that we think works, but we don’t really know, and it has some big risks and will be expensive.

Karlin-Smith: Yeah, I mean, similar, but slightly different. And perhaps the analogy that things slowly make their way in a different direction is also right here. This drug, I think most people see it as an improvement on Aduhelm because it has, in one major clinical trial, shown some benefit on people’s cognitive decline slowing a bit. However, the big debate there is that … how meaningful the change that was seen in the trial is. Is it really going to be meaningful in people’s lives and is that worth the price? The company is … actually a similar company is involved here, but they priced it quite a bit lower than the original Aduhelm price, even lower than the price of Aduhelm now. It’s still seen as on the very high end of what a lot of cost-effective watchdogs say is a fair price. And as of right now, CMS [the Centers for Medicare & Medicaid Services] or Medicare is not going to be covering it at all because right now the drug only has what’s known as an accelerated approval. So we’re going to, over the next probably less than a year, in about nine months or so, FDA will have to weigh in on whether it gives the drug a full formal approval. And at that point, we’ll see if Medicare also gives the sign-off that they think this drug might actually be effective for people and are willing to pay for it. I think my bottom line on this drug is, you know, it provides some hope and some improvement for people, but it looks like to be a small clinical benefit for a big trade-off in risks. So I think as more data comes out over time, we’ll see again if that benefit-risk trade-off for most people falls on the right side of the coin.

Rovner: And we’ll watch this whole process go forward again. All right. Finally this week, but not least, there’s also news on the health insurance coverage front. With the end of open enrollment for the Affordable Care Act coverage rapidly approaching in most states, by Jan. 15, officials at the Department of Health and Human Services this week reported that enrollment is already up 13% from last year to almost 16 million people, including about 3.1 million people who are new enrollees. In the meantime, though, my colleagues over the firewall at KFF report that some 5 million more uninsured Americans are actually eligible for free health care coverage under the ACA. It feels ironic because this is not the first year of expanded subsidies and there’s been relatively little media coverage of open enrollment. Is it just that it takes time for knowledge of these offers to trickle down to people? Or that the Biden administration put a lot more effort into outreach this year?

Sanger-Katz: I think it’s all of the above. I think for the first few years of the Obamacare program, there were a lot of complaints that this insurance really wasn’t affordable enough for people. And, obviously, that’s why Congress, first in part of the pandemic stimulus bill and now again in the Inflation Reduction Act, really jacked up the subsidies and made the plans cheaper and, in many cases, have more wraparound benefits so that low-income people could get insurance that was either free or relatively low-premium and also didn’t ask them to pay a lot out-of-pocket for their own care. And we can see also that the Biden administration did a lot of outreach. I mean, it’s definitely the case that they both, through Congress, made the plans cheaper and also, through various administrative actions, made the plans more widely publicized. And I just want to highlight, I think last year was the record year for Obamacare enrollment. And now we’re seeing this huge increase on top of a record year. So these things seem to matter. I think the affordability of plans, the availability of free plans for a lot of uninsured Americans is very appealing. And yet the people who are uninsured and poor, I think, are difficult to reach. There is a lot of long-standing opposition to Obamacare. There are a lot of places where there are a lot of uninsured Americans, where there’s not particularly effective and robust outreach. People don’t know how to find these things, how to sign up. And it is really administratively complex to sign up for these plans. I mean, I don’t know how many of our listeners have tried to do it. It’s not impossible. It is on the internet. You know, anyone can do it. And you don’t have to have someone holding your hand. But I think in many cases you probably do want someone holding your hand if it’s your first time doing it. There are, in many markets, lots of choices. It’s confusing. It’s hard to know what the best option is, sometimes it’s a little bit hard to figure out what it’s going to cost you until you enter in a lot of information about your income. And you might also be scared that if you’re not sure or you put something in wrong, you could get in trouble. So I think this is just an ongoing challenge of getting all these people who are now eligible for these really low-cost plans to actually interact with the system and get insurance.

Rovner: One thing I guess bears mentioning is that with the Republicans just, you know, plan to do all of these things like try to repeal the Inflation Reduction Act because they don’t like the drug price provisions … [but] they are not talking about repealing the Affordable Care Act anymore, right? Have we finally come to the end of that particular fight?

Sanger-Katz: It sure looks that way.

Ollstein: Yeah. The right the writing has been on the wall in terms of the lack of that talk on the campaign trail for a few years now. I was joking with some colleagues that, you know, the “repeal Obamacare” is tired; the “repeal the drug price negotiation provisions” is wired. That’s the new talking point, although that’s not going to happen either, obviously, because of the control of the Senate and because of how insanely expensive it would be to repeal that. But the Republicans definitely have moved on to other targets.

Sanger-Katz: Although I will say, you know, once again, the fact that House leadership has committed to proposing cuts to health entitlement programs, the fact that they have committed to proposing a budget that balances in 10 years means that, I think, it will be extremely difficult for them to avoid talking about particular cuts or changes to Affordable Care Act programs. You know, again, it’s just like this is where the dollars are. They can take a lot of dollars out of Medicare, that is very politically unpopular. They can take some dollars out of Medicaid, you know, the largest expansion of which is part of ACA. They can take money out of these subsidies, which, you know, have been supercharged in recent years beyond even what Congress initially passed in 2010. And I do think, as Alice said, you know, this is not a popular talking point. I don’t think Republicans, by and large, want to be talking about repealing Obamacare anymore. And yet I think they are backed into this corner where they’re going to have to make and propose specific modifications and cuts to these programs in order to achieve these high-level philosophical goals that they’ve signed up for. And so I think it will be interesting to see what does it look like, maybe they’re not going to call it Obamacare repeal anymore, but they might still be sucking $1,000,000,000,000 out of Medicaid, like some of the Trump administration budgets did.

Rovner: Yeah. And it’s important to mention, again, I mean, the Republicans talk about all these things they’re going to do and people are thinking, Oh, my God, if they vote for this balanced budget, in 10 years it’s going to happen. They can’t do most of these things without the Senate and/or the president unless they have two-thirds to override, which they don’t. The one place that we do think they could exercise some leverage, obviously, is this debt ceiling vote where the Congress has to vote to raise the debt ceiling or the U.S. will default on things that it has already bought but not paid for — basically paying the credit card bill. And that, certainly, they’re going to try to make some entitlement changes. But all of these other things that they say they’re, quote-unquote, “going to do,” they’re mostly just quote-unquote, “making political statements,” right?

Sanger-Katz: But they’re going to have to talk about them. They’re going to have to write things down. They’re going to have to have specific dollars attached to this. I do think that it will be politically salient and that it will create some visibility into, like, well, how do you balance the budget in 10 years? What does entitlement reform look like? And they’re not saying Obamacare repeal anymore and they don’t want to, they understand that they don’t want to. And yet I think they’re going to be in this position where they’re going to effectively have to lay out something that looks like Obamacare repeal, something that looks like Social Security reform, something that looks like big changes to Medicare. And we will have a political debate about that because Democrats are just salivating to have those conversations. I think they feel like that is very strong political ground on them. They think that voters trust them to protect those very popular programs if they’re under assault. And, you know, which is very similar to the political dynamic we saw when Republicans were really trying in earnest, when they had full control of government and wanted to repeal Obamacare.

Rovner: Yes. And I would say, as we absolutely saw in 2017, when they failed to repeal it, Republicans very much agree on their goals, but they very much disagree on how to get there. There is no unified Republican plan for either reforming, you know, the Affordable Care Act or Medicare or Medicaid, I mean, except for basically cutting money out of it. So I will be interested, as Margot says, to see what they actually put down on paper.

Sanger-Katz: And, sorry, just one more thing on this point, which is, again, I think that the kinds of show votes that the Republican House leadership is going to have to put on these issues are probably not going to be particularly politically productive and may be politically damaging to them. But I do think, setting that aside for the moment, I do think we are entering in an environment of much higher interest rates, of really more accelerating federal debt. You know, there are a lot of conditions right now that are potentially ripe for thinking about government spending and particularly thinking about these big categories of government spending that are our federal health care programs. I think the last few years there’s been this sense that, you know, debt is free and the deficit doesn’t matter. And I think inflation is high, interest rates are rising. I do think that we’re in a moment where there may be a greater sense of a need to confront this problem. And I’m interested in what that conversation looks like, which may be a little bit different than the kind of highly ideological conversation that we’re going to see in the very near term.

Rovner: I was going to say that that would require actually having substantive talks about what might work, which we don’t know is going to happen, but we can cross our fingers and hope. All right. That is the news for this week. Now it is time for our extra-credit segment where we each recommend a story we read this week we think you should read, too. 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: Sure. I took a look at a story by Kaiser Health News’ Lauren Sausser: “Hospitals’ Use of Volunteer Staff Runs Risk of Skirting Labor Laws, Experts Say.” I thought this was a fascinating story about hospitals’ reliance on volunteers, not for the types of activities I usually associate hospital volunteers with, which would be …

Rovner: Like candy stripers.

Karlin-Smith: Right. Like light … I don’t know, “light” is not the right word, but, you know, visiting people, comforting them in some way, providing added benefit of sorts. And this is really people that are being asked to do medical care and the basics, some of the basic care you need when you are in a hospital. And I think her story cites about $5 billion maybe in the U.S. of free labor through these types of volunteers. And the question becomes, you know, is this violating labor laws? And should these people be getting paid for the work, or should they … are they basically, because they’re using volunteers, taking money and job opportunities away from other people? And I thought it was a fascinating story just because I had no idea of all of this, you know, volunteer labor was being used and the impacts on these hospitals during the pandemic, when they couldn’t have volunteers. And just, I think, important to think about, too, how this impacts the quality of care as well people receive.

Rovner: Hospitals are very clever. Margot.

Sanger-Katz: I wanted to recommend an article from Jessie Hellman at Roll Call called “Providers Say Medicare Advantage Hinders New Methadone Benefit.” And I’ve been doing a lot of reporting on the Medicare Advantage program lately. And so I was a little bit jealous of this story. Congress just recently required Medicare to pay for methadone. You know, a very evidence-based treatment for opioid addiction that it hadn’t been covering before. And what this article found is that these Medicare Advantage plans, or private competitors to the government Medicare program, have been enacting a lot of roadblocks that make it hard for people to get this treatment. So they technically cover it, but they require often what’s called prior authorization, where you have to … doctors and others have to jump through a lot of hoops to prove that the person really needs it. And when I saw this article, I put out a bat signal on my Twitter and I said, Can anyone think of the medical reason why you would want to have … restrict access to methadone treatment? And, you know, this is just a Twitter poll, but no one could come up with the reason. They could think of lots of reasons why the insurance company might not want to cover it, because it’s expensive, because patients who have opioid addiction probably are pretty expensive in general. And so, you know, this could be a way to avoid paying for a complex treatment or a way to discourage patients who have complex health care needs from choosing a Medicare Advantage plan. Anyway, so just a good story and just, you know, another illustration of, you know, even after Congress does something like add a new benefit, there’s always value in doing oversight to see how is that actually working in the real world and is it giving patients the care that was intended?

Rovner: Yes. And we will be talking, I think, much more about Medicare Advantage this year. Alice.

Ollstein: So I have a very sad piece to recommend. It is an op-ed by Céline Gounder, who is a public health expert that we all know well, as well as the widow of Grant Wahl, the soccer journalist who died covering the World Cup. And she wrote about how her husband’s death has been co-opted by anti-vax conspiracy theorists who are trying to draw some connection to what happened to him and being vaccinated for covid. But she really smartly walks through the misinformation playbook because it is a very sort of predictable playbook with very predictable points and, you know, dismantles them one by one. And I think it’s really helpful for the inevitable next time we see this come up to be prepared in advance and be able to refute those points. Very tragic but very helpful thing to know.

Rovner: Yeah. Céline is our colleague now at KHN, in addition to everything else that she does, and I can just say to these trolls: Don’t mess with Céline. It really was a very good piece. Well, my extra credit this week is from The Washington Post, and it’s a great story that ran in the dead week between Christmas and New Year’s. So I … gave it an extra week. It’s called “Social Security Denies Disability Benefits Based on List With Jobs From 1977,” by Lisa Rein. And while I’ve known for a long time that the Social Security disability program has a multiyear backlog, one thing I didn’t know until I read this story is that a lot of otherwise likely eligible people get their benefits denied because they could theoretically do jobs that largely no longer exist. Among the jobs the government says people who are disabled might be able to do are nuts sorter, dowel inspector, or egg processor. That’s because the last time the labor market data used to determine if a disabled person might be able to do a job was last updated 45 years ago. The agency has been working since 2012 to update its listing of jobs that could be done by sedentary individuals. But somehow the new directory of jobs has not made it into use yet. Meanwhile, thousands of people deserving of disability benefits are being steered to jobs that are now largely automated, offshored, or otherwise obsolete, something that clearly needs to be fixed.

OK, that is our show for this week. As always, if you enjoy the podcast, you could subscribe wherever you get your podcasts. We’d appreciate it if you’ve 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 still at Twitter for now: @jrovner. Sarah?

Karlin-Smith: I’m @SarahKarlin

Rovner: Margot?

Sanger-Katz: @sangerkatz

Rovner: Alice.

Ollstein: @AliceOllstein

Rovner: We will be back in your feed next week. In the meantime, 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-Z,” now in its third edition.

The year-end government spending bill includes a lot of changes to federal health programs, including changes to Medicare payments and some structure for states to begin to disenroll people on Medicaid whose eligibility has been maintained through the pandemic.

Separately, the Biden administration took several steps to expand the availability of the abortion pill, which in combination with another drug can end a pregnancy within about 10 weeks of gestation. Anti-abortion forces have launched their own campaign to limit the reach of the abortion pill.

This week’s panelists are Julie Rovner of KHN, Rachel Cohrs of Stat, Joanne Kenen of the Johns Hopkins Bloomberg School of Public Health and Politico, and Rachel Roubein of The Washington Post.

Panelists

Rachel Cohrs
Stat News

@rachelcohrs

Read Rachel's stories

Joanne Kenen
Johns Hopkins Bloomberg School of Public Health and Politico

@JoanneKenen

Read Joanne's stories

Rachel Roubein
The Washington Post

@rachel_roubein

Read Rachel's stories

Among the takeaways from this week’s episode:

• Congress ended the year by passing a nearly $1.7 trillion government spending package. The legislation included smaller-than-scheduled cuts to Medicare payments for physicians, extended telehealth flexibilities, and funding boosts for programs like the Indian Health Service and the federal 988 mental health hotline.
• But lawmakers left out many priorities, such as more money in response to the covid-19 emergency, and included a change to Medicaid eligibility that could result in millions of Americans losing their health insurance.
• The Biden administration took perhaps its biggest stand on abortion rights since the Supreme Court overturned Roe v. Wade last year, with the FDA announcing that retail pharmacies will be permitted to dispense abortion pills for the first time, and the Justice Department confirming that it is legal to send the pills through the U.S. Postal Service.
• A new congressional report on Aduhelm, the controversial Alzheimer’s drug, reveals its manufacturer, Biogen, knew the impact its pricing could have on the Medicare program — and priced it high anyway. The report also raises big questions about the FDA’s decision-making in approving the drug and what some officials were willing to do to make it happen.
• And in price transparency news, insurers are now required to provide patients with cost-estimating tools designed to make more than 500 nonemergency services “shoppable.” But it is unclear whether insurance companies are prepared to help consumers access and use that information.

Also this week, Rovner interviews Mark Kreidler, who wrote the latest NPR-KHN “Bill of the Month” feature, about two patients with the same name and a mistaken bill. If you have an outrageous or exorbitant medical bill you want to share with us, you can do that here.

Plus, for extra credit, the panelists recommend their favorite health policy stories of the week they think you should read, too:

Julie Rovner: The New York Times’ “The F.D.A. Now Says It Plainly: Morning-After Pills Are Not Abortion Pills,” by Pam Belluck

Joanne Kenen: Politico Magazine’s “Racist Doctors and Organ Thieves: Why So Many Black People Distrust the Health Care System,” by Joanne Kenen and Elaine Batchlor

Rachel Cohrs: The New York Times’ “‘Major Trustee, Please Prioritize’: How NYU’s E.R. Favors the Rich,” by Sarah Kliff and Jessica Silver-Greenberg

Rachel Roubien: KHN’s “Hundreds of Hospitals Sue Patients or Threaten Their Credit, a KHN Investigation Finds. Does Yours?” by Noam N. Levey

Also mentioned in this week’s podcast:

Stat’s “‘Rife With Irregularities’: Congressional Investigation Reveals FDA’s Approval of Aduhelm Marked by Secret Discussions, Breaches of Protocol,” by Rachel Cohrs

KHN’s “Want a Clue on Health Care Costs in Advance? New Tools Take a Crack at it,” by Julie Appleby

Stat’s “Congress Reaches Major Health Policy Deal on Medicare, Medicaid, and Pandemic Preparedness,” by Rachel Cohrs and Sarah Owermohle

USA Today’s “Half of Ambulance Rides Yield Surprise Medical Bills. What’s Being Done to Protect People?” by Ken Alltucker

Click to expand

Episode Transcript

Julie Rovner: Hello, Happy New Year, 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, Jan. 5, at 10 a.m. As always, news happens fast, and things might have changed by the time you hear this. So here we go. Today we are joined via video conference by Joanne Kenen of the Johns Hopkins Bloomberg School of Public Health and Politico. 

Joanne Kenen: Hi, everybody. Welcome back. 

Rovner: Rachel Cohrs of Stat News. 

Rachel Cohrs: Hi, Julie. 

Rovner: And we welcome to the podcast panel this week Rachel Roubein of The Washington Post. 

Rachel Roubein: Thanks for having me. 

Rovner: So I plan to call you guys “Rachel C.” and “Rachel R.” since I have you both today. Later in this episode, we’ll have my “Bill of the Month” interview with Mark Kreidler. This month’s patient got a bill for care that was actually delivered to someone else and eventually had that bill sent to collections. We will try to sort this all out in far less time than it took her. But first, the news. And there’s plenty with what happened over the break. So we’re going to start with the bill that ended the 117th Congress. That huge omnibus spending bill that included all 12 of the annual appropriations that fund much of the government through the end of the fiscal year. That bill also served as a vehicle for a lot of other bills, including an array of health legislation. Rachel C., why don’t you start us off with what the bill did for Medicare and Medicaid? Both of which are pretty significant. 

Cohrs: Sure. For Medicare, I think, doctors had been worried that they were going to see pay cuts at the end of the year, and they had been asking Congress to make sure they were budget-neutral there. Congress didn’t quite meet their demands all the way. They blunted the effect of the cuts. So a little bit of cuts will go into effect this year, and then those cuts will increase a little bit next year as well. So it’s some of what they asked for, not all of it. On Medicaid, there was a really big change to what we call in D.C. the redetermination process. Basically, to get extra money from the federal government during the pandemic, states had to agree not to kick people off Medicaid — even if they were no longer eligible. But starting in April, states are going to be able to start kicking people off Medicaid if they are no longer eligible. And there’s a phase-out of that extra money that states were getting to treat these people as well.  

Rovner: This has been the big concern about the public health emergency and why everybody’s cared whether or not when it ends, because when it ended, states were going to start being able to basically kick off the program people who weren’t eligible. And there was a whole lot of concern about how they would do it and how long it would take. And this basically sets up a process, right? 

Cohrs: Right. It provides a lot more certainty. And states and CMS [the Centers for Medicare & Medicaid Services] have been preparing for this for months. There’s resources. But I think the ultimate question is whether these people are going to transition from Medicaid onto another form of coverage or whether there’s going to become uninsured. And, I think KFF estimates about … between maybe 5 million and 14 million people will lose Medicaid coverage. And if there’s not a smooth transition, that could have really big implications for coverage. So those were the two big things. There were many other smaller policies that this paid for, though, because it saved money based on all the congressional budget magic that CBO [the Congressional Budget Office] uses. So I think there’s more protections for children on Medicaid as well. It extends CHIP [the Children’s Health Insurance Program] until 2029, makes permanent maternal health programs. So there were improvements that Congress decided to make to the Medicaid program with this money. But I think it does … it’s a little bit of a tighter timeline than some people were expecting.  

Rovner: They basically are, to some extent, divorcing the Medicaid unwinding from the end of the public health emergency, which people expect will be sometime this year. But we’ve expected that public health emergency to end for a while. Joanne, you want to add something. 

Kenen: And I think this is the time to point out, yet again, they’ll probably be a certain amount of chaos and disruption. But most people in most states who are leaving this enhanced Medicaid will in fact be eligible for Affordable Care Act coverage with good subsidies, if they’re low-income. But we still have the Medicaid gap, so there are about a dozen states — it might be down to 11 now — but there are about a dozen, 11 or 12 states where people who won’t have enhanced Medicaid won’t have anything. 

Rovner: Yeah. 

Kenen: And that’s just political reality. 

Rovner: That was something that the Democratic Congress tried very hard to fix last year and it ended up on the cutting-room floor. It didn’t make it into the Inflation Reduction Act … 

Kenen: Yes, it was in Build Back Better. It was sent … 

Rovner: Right. It was in Build Back Better and it didn’t pass.  

Kenen: An attempt to fix it was in Build Back Better and it did not make it into the final what did pass, which was the so-called Inflation Reduction Act. 

Rovner: And there were a bunch of things that members had tried to get into this last-minute package, this year-end package, that didn’t make it either, right? Like the child tax credit. Yeah. 

Kenen: I mean, there’s some mental health provisions and substance abuse provisions, but many of them didn’t make it. 

Rovner: The covid money didn’t make it. Rachel R., you would like to add something? 

Roubein: I think there’s a lot of under-the-radar provisions that people had championed for a long time that did make it. And obviously covid money didn’t. There was some pandemic preparedness that didn’t. But a bipartisan independent commission to study covid did not make it into the package, but some kind of interesting under-the-radar provisions, I think, included like a longer-term funding fix for the Indian Health Service, which Native Americans have been championing for a long time. And there was a pretty big funding boost for the 988 mental health crisis hotline, like a $400 million increase.  

Kenen: Another thing is — this is a little obscure — but normally Medicare drug coverage does not include something that would be under an emergency authorization. My understanding is — right? You’re shaking your heads — that they did fix that so that as the covid money didn’t get in, some of these drugs and therapeutics, and shots, and everything else that was not going to be subsidized by the government, they’re not gonna be free. And there was a problem with Paxlovid, which is the outpatient oral drug that you can get at a drugstore. Very important for the senior population that that was going to be really expensive, hundreds of dollars, because it’s an emergency authorization. So Medicare wasn’t going to be able to cover it. They did fix that. So seniors who do get covid, which is — may we repeat it yet again — still here and still spreading and yet another subvariant, can in fact get that under their drug coverage. They don’t have to put out hundreds of dollars out-of-pocket, which would have really been an impediment to some people. And it’s a really good drug. It’s one of the few things we have that really works. 

Rovner: And before we move away from this, it also included the pandemic preparedness bill that had been pushed by Sen. [Patty] Murray and retiring Sen. [Richard] Burr, the bipartisan bill, right? 

Cohrs: It’s not in its full form, but it’s pretty close to what they introduced. And a couple pieces to highlight there is that now the future CDC [Centers for Disease Control and Prevention] directors will have to be Senate-confirmed. And there’s a new pandemic office at the White House, which I think it’ll be really interesting to see how the infrastructure there shifts to instead of having, you know, a czar for covid and monkeypox and Ebola, you know, there’s going to be some sort of permanent infrastructure there. There’s also some public health data provisions and, like, recruitment for infectious disease doctors. There’s a lot in that package, but I think it’s definitely worth highlighting, as you said. The one other item that I think we haven’t touched on is that pandemic-era telehealth flexibilities have been extended for two years, which provides a lot of certainty with something that the health care industry really wanted. So that’ll continue with business as usual for another couple of years as Congress figures out what they would actually want to make permanent. 

Kenen: And the longer that goes on, right, the harder it is to take it away. 

Rovner: That was another thing that people were worried about when the public health emergency ended is that that freedom to do telehealth was going to end. Sorry, Joanne. 

Kenen: No, I mean, and the longer people have access to telehealth, the harder it will be for Congress to change it in two years. I mean, it’s probably here to stay.  

Rovner: Yeah. 

Kenen: They may tinker how they pay, or formulas, or certain limits. I mean, who knows what they’ll do in two years? It might not be exactly with the way it is right now, but the idea that telehealth is going to go away? It’s not going to happen. 

Rovner: Yeah, I think it’s … I also think it’s here to stay. All right. Let us turn to abortion. There has been a lot of news since we last talked about this in mid-December. But some of the biggest news that’s happened just came in the last few days from the Biden administration, which is taking some pretty significant actions, particularly by the Food and Drug Administration and the Justice Department, to make the abortion pill more widely available. Rachel R., tell us what they did. 

Roubein: On Tuesday night, and not with a ton of fanfare, there wasn’t a huge press release. But the Food and Drug Administration said that they will permit some retail pharmacies to dispense abortion pills for the first time. So that’s potentially a major step towards easing access to medication abortion — I should say, in states where it is legal. I think the really big question was what will major retail pharmacy chains do? On Tuesday night, they said they were still looking at it. But yesterday, CVS and Walgreens did say they planned to seek certification to do that. There’s a few steps they have to go through. The expectation is those two major retailers deciding to do that could have implications for other pharmacy use decisions. They may follow suit as well. 

Kenen: But to be clear, this still requires a prescription. This is not over-the-counter access. The so-called quote “morning-after” pill is over-the-counter. The abortion pill, which is [for] the first, I believe, 10 weeks of pregnancy, will still require a prescription, but it’ll be easier to fulfill that prescription. And there are time pressures when you can take that drug. It’s going to be easier to go to a neighborhood pharmacy and pick it up once you have the prescription. 

Roubein: Exactly. 

Rovner: When it first got approved, there were a lot of restrictions, including for a long time — and now in some states — that the doctor has to actually hand the pill to the pregnant person who has to then take it in the doctor’s presence. That obviously is starting to be relaxed because we now have 20 years of data that shows that this is a pretty safe way to end a pregnancy. But let’s not skip … what did the Justice Department do? They added to this, right?  

Roubein: Yes. So the Justice Department essentially cleared the U.S. Postal Service to deliver abortion pills to women in states that have banned or restricted the medication to terminate a pregnancy. Basically, the gist is that Postal Service had requested an opinion from the office. And the legal opinion issued Tuesday basically concluded that mailing the drugs doesn’t violate a nearly 150-year-old statute. 

Rovner: The Comstock law, for people who have covered the … 

Roubein: Yes, the Comstock law. 

Rovner: … the early history of birth control, that was what was used to ban the distribution of birth control until the 1960s. So I imagine that this is going to make the anti-abortion movement very angry because they seem to be honing in on the abortion pill, because they’re worried that in places where you ban abortion and you don’t have any more abortion clinics, people are going to turn to the abortion pill, which more than half of people are anyway, even in sort of the pre-end of Roe v. Wade world, when abortion was legal. 

Roubein: There was a lot of backlash from the anti-abortion movement in the past few days. And we’ve already seen a major conservative group file a lawsuit even over the approval of the pills from the FDA. 

Rovner: From the year 2000. The original approval, which seems a long time to wait, but I imagine that this will end up being maybe the biggest deal of anything the Biden administration has done. Because I can see … 

Kenen: On abortion. 

Rovner: Yeah, on abortion. Excuse me. Yes. When President [Joe] Biden said, after Roe v. Wade got overturned, that they were going to do everything they could to make abortion accessible and available, and they hadn’t done very much, all of a sudden, they seem to do a lot — at the last minute at the end of the year. Actually, there was one more thing that we should add to this last week in the middle of the break between Christmas and New Year, the Biden administration formally moved to reverse the Trump administration’s so-called conscience rules, which had been blocked by federal courts anyway. But that’s a fight that’s been going on since 2008, at the very tail end of the George W Bush administration, trying to balance the rights of individual health care workers to opt out of providing services that violate their conscience and balance that with the rights of patients to actually obtain care. The Biden administration signaled they were going to rewrite those rules in March of 2021. Does anybody have any idea what took them so long or is this just really hard to balance? 

Kenen: And one more quick thing that happened over the break is the FDA came out and formally stated, or restated more publicly and explicitly, that the so-called morning-after pill does not cause abortion. 

Rovner: That’s my extra credit. So we’ll get to that.  

Kenen: All right.  

Rovner: That’s another thing that I’ve been covering pretty much forever. All right. Well, let us move on. Also over the break, there was an unusually large amount of news between Christmas and New Year this year. We got a very juicy report from a congressional committee on its investigation into how Aduhelm, that promising, expensive, and ultimately mostly ineffective drug for Alzheimer’s disease, was approved by the FDA. Rachel C., you wrote about the report, and I know it’s very long, but what are a couple of the highlights here?  

Cohrs: The most interesting findings fell into two buckets for me. The first was looking behind the curtain at how Biogen priced this drug. The initial price was around $56,000 a year, which is really expensive. They later dropped that. But, I mean, it caused a great upheaval in the Medicare program. It caused a dramatic spike in premiums and then a drop the next year. I mean, it really impacted people’s lives. And the documents that the committee uncovered showed that Biogen was well aware of the impact that this drug could have on the Medicare program. They knew that if they priced this drug above around $20,000 a year, that some patients wouldn’t be able to access it. And they chose a really high price point anyway. And I think it just offers some interesting graphs to show that they saw the breakdown and they understood all the finances and they just wanted to make it the biggest drug launch in history. They wanted the blockbuster; they wanted the glory. And it definitely was historic, but not for the reasons that they quite wanted. 

Rovner: I was gonna say, they succeeded at making it a really big deal! 

Cohrs: And I think the other aspect that was really interesting as we got a little bit more insight into the FDA’s reflection on this whole process. And there was an internal review that the agency conducted that was made public in part for the first time, and they decided to exonerate themselves. They thought that communications were appropriate and that was kind of their top-line takeaway. But they did go through and admit that there were some problems. And I think one big issue was that Biogen and some FDA officials were working together to prepare presentations for FDA advisers. But there were other parts of the FDA that were a little bit more skeptical of the drug that were almost entirely left out of that process. They said the skeptical division didn’t know that this report was happening. They didn’t know they were working with Biogen, and they only hav, like, two days to comment. And then ultimately, that dispute wasn’t resolved before advisers got this presentation that was supposed to represent this “unity FDA perspective” that didn’t really exist. And I think there was some reflection there. But we still have some unanswered questions. We don’t know if there’s been any discipline within the agency. We saw no reference to it. But again, with personnel issues that can be sensitive. We don’t know what progress exactly they’ve made toward any of the committee’s recommendations or any of the internal review findings or suggestions there. But I think there are some big questions about the agency’s decision-making and how badly they wanted this drug approved and what they were willing to do to make it happen. 

Kenen: And … beyond the $56,000 [annual price] and beyond this whole controversy about the process within the FDA, there’s also the fact that this big controversial drug, expensive drug … there’s big questions about whether it works, how well it works, and how safe it is. I mean, it’s not like the hepatitis C drugs, which had these huge launches — eight? $84,000, you know, 10 years ago was a lot of money, or 12 years ago, whenever it was. They work. They cure hepatitis. I’m not defending the price point. But there’s a whole other thing. It’s this whole saga about this drug and, like, it’s not even a clear-cut, useful drug. 

Rovner: Well, and that … it looks like history might be about to repeat itself. We’re expected to hear possibly by the end of this week, FDA’s decision on a similar drug, lecanemab, which seems to work somewhat better than Aduhelm, but which also has dangerous side effects. Do we assume the FDA is going to be more careful with this one? 

Cohrs: I mean, I think there’s definitely a sensitivity by FDA as to how rebuilding public trust in the agency, because I think there was so much skepticism. Again, this is a different drug with the different data behind it that showing it maybe could be more clinically effective. But I think the agency is … I mean, we’ll see over time, but hopefully going to document and their decision-making process more clearly and being more accountable. But I think that there are going to be these lingering questions about this new drug, both for FDA and for Medicare, ultimately in deciding how they’re going to give Medicare beneficiaries access to this drug or not, because the parameters were based on this other drug, which is a strange situation. But that’s how these things work.  

Rovner: Yeah, but I mean, but to be clear, though, I mean, finding a cure for … an effective treatment for Alzheimer’s would be an enormous medical breakthrough that people, scientists, have been working towards for a couple of generations now. So at least it feels like they’re getting closer, but perhaps they’re not there yet.  

Cohrs: I think, yeah, there’s a little bit of a gap sometimes between, I think, what some people wish these drugs were and what they actually are. 

Rovner: Yeah. 

Kenen: So it’s sort of this first-draft phenomenon, like a drug will come out and it’s not great. But down the road — we’ve seen this with cancer, too — I mean, you have a certain kind of drug that’s the first of its kind and in the in the years to come, they’ll be a better version. I don’t think there’s a consensus on that with Alzheimer’s, though. I mean, they still don’t agree on what causes it. 

Rovner: Yeah, So we may not be there yet. All right. Well, moving on, Jan. 1 brought us another step in the government quest to help patients figure out how much medical care might cost before they get it. In addition to hospitals and insurers having to post prices, insurers will have to give their clients access to a cost estimate or that takes into account out-of-pocket costs like copays and deductibles. The goal is to make 500 different nonemergency services, quote, “shoppable.” Joanne, price transparency is one of the few reforms to the health care system that Democrats and Republicans actually agree on. Why is that? What makes … yeah, to a point … what makes transparency something that transcends the partisan disagreements about health care? 

Kenen: Well, I think that it’s hard to be against transparency. You know, you’re supposed to be for consumers not knowing anything? That politically is not great, right? So everybody’s for transparency. I think that the partisan difference is how much you think it matters. Like, the Democrats are for transparency, they’re not going to say, “No, consumers shouldn’t have tools” and that insurers and hospitals and everybody else shouldn’t empower us with more information that’s actually usable. The Republicans tend to think that this is much more of a cure-all for health care costs than the Democrats. Generally speaking, you’ll … it’s not 100%, but generally speaking, the Republicans have more faith in this as something that’ll really, really empower consumers and bring down prices and spur more competition. You know, I can see this provider charges this, this provider charges that; I’m going to go to the cheaper one. But that’s actually not how it always works in the real world. Sometimes people think in health care there’s two phenomena. One is like Hospital A can see that Hospital B is getting away with charging more and they raise their prices, or that people think the more expensive care is, the better care is, which is not true. So, yes, transparency is good. Yes, transparency is bipartisan. But how well this tool works in the real world? Health care is complicated, as we’ve all heard people say. It might be easier to find out, OK, you know, I need a mammogram. It’s going to be, you know, $30 here out-of-pocket and $90 there. That might be an easier call. But some of these really complicated conditions people have and treatments … and things go wrong. An insurer said that it’s going to cost $90. But then something happened and it cost $900. I mean, I just don’t see it as like, OK, we fixed health care.  

Rovner: And plus, what we’ve discovered from the transparency that we have is that people don’t shop even when they can. 

Kenen: Right. 

Rovner: You know, if their doctor says you should go to this place, that’s where they go. So it’s been hard to get them to use the transparency that’s available. Rachel R., you wanted to say something? 

Roubein: I think I found one of the interesting things about some of these debates over surprise bills and transparencies is sometimes it doesn’t always fall under ideological lines. Sometimes it is — at least in the surprise billing debate — lawmakers who are more hospital- or provider-friendly will stick together, whether they’re Republicans and Democrats. And then seven or more insurer-friendly will stick together. We saw some real fights between just committees in general on this. 

Cohrs: There was one more item I wanted to add on this, and I think when I first saw this kicked in, I was like, oh, I’m curious, does my health plan have this? So I poked around, couldn’t really find … it wasn’t on the homepage, you know, we have this flashy new feature. So I called the number on my card and they didn’t know anything about it, couldn’t help me. And so then I asked the media line, and then I finally figured out … like, they taught me how to do it. But I think there’s a big possibility that people just don’t know about this. And if they’re not asking the media line, it’s possible customer service reps aren’t trained in how to help people find it. And I think there’s just this disconnect sometimes, as things are rolling out. So I’m curious to see how many people use it, and it shows kind of generally what your plan allows, like generally what you might be expected to pay. But it wasn’t necessarily, like, here’s your bill, like what that’s going to be at one provider versus another. So I think I’ll be curious to see, once the reports and once academics do their wonderful work on really evaluating compliance over the next couple of months, what the results of that are and how that compares with what we’ve seen from hospitals. 

Rovner: I was already going to ask my next question: that politicians want this, but there’s been a lot of resistance from both health care providers and insurers who are loath to release what they consider proprietary information. And, Rachel C., as you pointed out, we have seen less than stellar showings for the information that’s supposed to be available already. We’ve also seen a lot of hospitals simply not post the information that they were supposed to post. Do we think that Congress might go back to this or is there some good way to nudge them to comply?  

Cohrs: I think there are some signals that the oversight could be a priority for … especially the Energy and Commerce Committee, I believe? The chair and ranking member, I think, last Congress wrote a joint letter, which is sort of unusual for Democrats and Republicans to join together in that way, saying that it’s an area of interest for them and that they would like to check into that more. So I think there are not a whole lot of things that Democrats and Republicans will be agreeing on this session. So I think this is a really ripe area for oversight.  

Rovner: Yes. Rachel R. 

Roubein: Off of what the other Rachel is saying, I think another place to watch here is the Centers for Medicare & Medicaid Services, because over the summer they had done the first warning shot and fined two hospitals for flouting federal price transparency rules. So if they kick up more fines, etc., that could put pressure on other hospitals. 

Rovner: And finally, this week, while we’re talking about price transparency, there’s a new study from the U.S. Public Interest Research Group that finds that half of ambulance rides result in an out-of-network balance bill. Yet — we’ve talked about this before — air ambulances were covered in the surprise bill law, but ground ambulances were not. Any chance that might change? 

Roubein: You’re right. Ground ambulances were not. Basically, what Congress had [done] was said that they were going to require that an advisory committee begin, and that advisory committee work is going to start in January. CMS released the names of the people who are going to be part of it, and they will essentially have to issue a report to Congress within, like, 180 days of their first meeting, which I think is mid-January. 

Rovner: So stay tuned for that one. Obviously, more to come on this. All right. Well, that’s as much news as we have time for. Now we’re going to play my interview for the “Bill of the Month” with Mark Kreidler, and then we will be back with our extra credits. 

We are pleased to welcome to the podcast Mark Kreidler, who reported and wrote the latest KHN-NPR “Bill of the Month.” Mark, welcome to “What the Health?” 

Mark Kreidler: Hi, Julie. Nice to be with you. 

Rovner: So this month’s patient definitely got an outrageous bill, although the outrageous part was not so much the amount. It was the fact that she got a bill at all. Tell us who the patient is and what happened. 

Kreidler: Well, if we’re really getting serious about it, there were two patients. They’re both named Grace Elliott and that lies at the heart of the confusion. Our patient, the woman that we first interviewed to talk to about this story, is Grace E. Elliott. She’s 31 years old. She’s a preschool teacher now living in San Francisco, California. There’s another Grace Elliott. She’s 81 years old, a retiree living in Venice, Florida. Younger Grace, for lack of a better way to put it, once used a hospital in Venice, Florida. It was in 2013. She was a kid home from college on break. Younger Grace was taken to the hospital in Venice, which at that time was really just called Venice Hospital or Venice Regional Hospital. She was treated, held overnight for a kidney infection, received a prescription for antibiotics the next morning, and sent on her way. She remembers that it cost her about 100 bucks, which as a college kid, struck her as exorbitant. Those were the good old days. And that was the last time that Grace Elliott, the younger, ever used the hospital in Venice. In fact, it apparently was the first and last time. But that doesn’t mean her name wasn’t still in their records system. It was. And about this time one year ago, her mother, still living in Venice, received a letter from the hospital, now owned by a hospital corporation called ShorePoint, with her daughter’s name on it. She got a bad feeling about that letter, called her daughter in California. Younger Grace Elliott asked her mother to please open it, and what she found inside was a bill for $1,170 for hospital services at Venice, rendered over a six-day period the previous September. So Grace was a little bit confused. 

Rovner: So September of 2021. 

Kreidler: We’re now talking about nearly 10 years after she’d been to the hospital, she received a bill for services that she’d obviously never had. 

Rovner: So she actually must have started to go after to figure out what it was, right? 

Kreidler: Her first reaction was to do what any of us would do and say, “Oh, this is a case of mistaken identity.” Called the hospital, explained it very nicely: “Oh, you’ve got the wrong person.” The hospital basically at that point said, “We don’t think so. We’re pretty sure we have the right person.” And so this young woman was basically plunged into the medical billing system nightmare in which she has been misidentified. We now know because we reported the story, we know what happened. We know that when Grace Ann Elliott, an 81-year-old, as I mentioned earlier, living in Venice, needed a shoulder replacement, she went to the Venice hospital, she was checked in, and a registration clerk typed in her name, Grace Elliott. Clearly errantly retrieved the file of a 50-year-younger person, and then didn’t verify — and that’s where the story breaks down — the registration desk employee simply never confirmed via birth date or photo ID or anything like that. And at that point, two medical patients’ records functionally become one. That’s what younger Grace Elliott, the woman we spent most of our time with, wound up having to deal with. 

Rovner: I mean, this should have been easy to sort out. You call the hospital and say, “No, these are two different people. This is not my bill. I have not been to Venice, Florida. Obviously, this is not me.” And they take care of it. That’s what would usually happen in this situation. But that’s not what happened in this situation, was it? 

Kreidler: No. One of the things that happened to younger Grace Elliott was that she simply had been straight-up identified as the patient. The hospital was at that point simply trying to collect a bill. And so, in the early stages, Grace is calling this hospital. And then at a later point, she’s calling the medical system, you know, the owner of the hospital. But at each step, she’s just getting someone who never had anything to do with the case in the first place. And it’s simply part of the bill collection process. They’re just doing billing and records. And so even though Grace at one point was really able to definitively establish that she was not the person in question, and even though the hospital, at least one person in this hospital food chain, did say to her, “You’re right, we’ve got the wrong person.” Again, she made — I don’t even want to call it a mistake; she reacted the way most of us would. She exhaled a little bit and thought, “Well, good, this will be taken care of.” The next thing that she knew, she was being sent a letter from a collection agency because the hospital had done — hospitals do this all the time — if they have trouble collecting a bill, they’ll eventually pass it over to a collection agency. Now, Grace had a collection agency after her, so that’s got two problems. 

Rovner: So the whole thing sounds funny. The younger Grace Elliott got a bill for someone else’s care and got it sent to collections. The older Grace Elliott got her private medical records sent to the younger Grace Elliott, right?  

Kreidler: Yeah.  

Rovner: So how did this all get sorted out? 

Kreidler: Well, that is the really stunning thing that happened. And yes, she received, essentially as she appealed to the collection agency, in their denial of her appeal, they furnished medical records, which they thought was proof that they had the right person. In fact, they were sending her the records of Grace Elliott, this 81-year-old retiree who was obviously terribly upset to learn that her medical information had been shared. Luckily for her, I would say, it was shared with a very responsible younger person who not only started acting on her own behalf, but acting on older Grace Elliott’s behalf. The takeaway is that Grace was denied her appeal. She was denied a second time. She contacted us, and I’m not even really sure how she knew to do that. But I’m happy that she did because after we made a few phone inquiries, Grace began to see action. The hospital acknowledged that it had made a mistake. The hospital then went back and corrected its electronic records and took her out of the database of the collection agency. So they say, I mean, I think she’s being careful. She wants to see that this actually all happens the way it’s said that it would have happened. But yeah, they did eventually. And they acknowledged the mistake so that it was a straight-up human error. And that’s where the problem started. But for Grace, the nightmare was that once the problem started, even though as we sit here talking about it, Julie, it seems like such an easy fix. It took her one year to get this done. And really only journalists getting involved to really moved the needle on it. 

Rovner: What’s the takeaway here for other people? I mean, obviously, clerical errors do happen. Should either of these women have done something that would have avoided this or that would have cleaned it up faster? 

Kreidler: One of the big takeaways for medical patients is your information can be incorrectly entered and once it’s there, unless you forcefully push back, and I mean early and hard, it can be very difficult for that information to get removed. You know, database information lives on for generations. It can be hard to fix. So one big takeaway for anyone who’s using a hospital system, who sees a doctor regularly and has a health plan: Get online, look at your medical profile. Look at what your own profile says about you. And I have personal experience with this from a person very close to me who found a mistake in her medical record that took much pushback to eliminate. And it can be something as basic as a medication you never took. It can be a procedure you never had done. Sometimes things get eerily entered. So big takeaway is: Check your profile. Know what your medical record says about you so that if you need to push back on any aspect of it, you have your forces ready to be marshaled. 

Rovner: And obviously you can always complain to us, but there are other places that you can complain to, right? 

Kreidler: You certainly can. And you can go to the Better Business Bureau. These are, on some levels, consumer protection and consumer rights issues. So there are consumer agencies, federal agencies and state agencies, that can get involved on your behalf. In this case, the best defense is a good offense. Be very aggressive. Know what your profile says about you. Check your records often and do all the grunt work that we normally don’t want to do. But in a case like this, it becomes obvious pretty quickly how important it is. 

Rovner: Good advice. Glad this worked out for both of the Grace Elliotts. And Mark Kreidler, thank you very much. 

Kreidler: You bet. Thank you. 

Rovner: We are back now. It’s time for our extra-credit segment, where we each recommend a story we read this week we think you should read, too. 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 C., why don’t you go first this week?  

Cohrs: Sure. The piece I chose is headlined “‘Major Trustee, Please Prioritize’: How NYU’s E.R. Favors the Rich,” in The New York Times by Sarah Kliff and Jessica Silver-Greenberg. And I think this piece is the last installment in the Times’ series on nonprofit hospitals. And this one really stood out to me because it seemed like it was a new phenomenon. Like, I hadn’t really read a whole lot of stories about a case like NYU’s ER, where the reporters describe this dynamic where — theoretically in an ER, everyone comes in, you know, the urgency of your medical issue, the severity determines what priority you get. But they showed here that children of donors, politicians, family members were getting special treatment. There was even a special room that they typically went to that could have negatively impacted other patients’ care. And I think it was remarkable how many doctors that used to work there, they got on the record saying that this was morally questionable. And yeah, it was just really well done, really comprehensively documented. And I thought it was interesting as well how the hospital chose to engage with them by calling into question the integrity of the doctors that spoke with the Times. And it was just really not something that we see every day from hospitals’ emergency departments. 

Rovner: Yeah, it was a very interesting story.  

Cohrs: It was wild, great, well done, highly recommend. 

Rovner: Rachel R. 

Roubein: The piece I chose was titled “Hundreds of Hospitals Sue Patients or Threaten Their Credit, a KHN Investigation Finds. Does Yours?” And it was by Noam N. Levey, and this was part of a long-running series, I believe all year, a partnership between Kaiser Health News and NPR. And I just think they’ve been doing really interesting, impactful journalism on this. What really stood out to me here was reading the numbers, and I feel like the data tells a powerful story. So some snapshots of the numbers from KHN’s analysis was more than two-thirds of hospitals sue patients or take other legal action against them, such as garnishing wages or placing liens on their home or property. And about 1 in 5 deny nonemergency care to people with outstanding debt. 

Rovner: Yeah, which is quite a number. Joanne. 

Kenen: This is a story I wrote and I spent many months talking to people for it, and I wrote it with a physician in California who’s also a hospital executive in a poor neighborhood of L.A. And it was called “Racist Doctors and Organ Thieves: Why So Many Black People Distrust the Health Care System.” I think the takeaways of that is, you know, I think we tend — or at least white people tend — to blame the distrust on historical atrocities like Tuskegee. And there are many others that are not as famous. But … and I wrote about them, and people recalled them and told me about them. 

Rovner: Henrietta Lacks. 

Kenen: Henrietta Lacks, but … I mean, one person I talked about growing up poor and Black in the South and a kid in the neighborhood cut himself — a Black child, a poor Black child — and the doctor stitched his hand up. And when they found out he couldn’t pay, he took the stitches out. And this was in our lifetimes, right? At least, Julie, in my lifetime. So, you know, it’s not just a historical legacy. It’s today. It’s subtler today. It may be implicit and unintentional, but it exists. And the other thing, it’s not income-related. It’s not just poor people. It’s just pervasive. It was a really eye-opening story for me. And I have some follow-ups I’m working on. And the organ thieves. There was a heart transplant in Richmond, Virginia. A Black laborer. His family didn’t find out. It’s one of the first heart transplants in the country, and the family didn’t find out about it until the funeral home called and asked where his heart was or said they didn’t know where his heart was. 

Rovner: It is quite a story, and I think everybody really needs to read it. Well, as Joanne teased earlier, my story this week is from The New York Times by Pam Belluck. It’s called “The F.D.A. Now Says It Plainly: Morning-After Pills Are Not Abortion Pills.” And this is a story that I’ve been tracking personally for more than a decade. In 2012, Pam Belluck wrote the first story of the studies that found that, contrary to previous belief, the morning-after pill does not work by preventing the implantation of a fertilized egg. It only works by preventing ovulation, meaning there’s not an egg available to be fertilized. It was the possibility that the morning-after pill might prevent implantation that led many abortion opponents to oppose the pill. This … remember the morning-after pill, not the abortion pill. But they call preventing implantation a very early abortion, even though that’s not the medical definition of pregnancy or abortion. I was surprised at the time that Pam’s story didn’t seem to get a lot of traction. So I did my own version of it the next year for NPR, which also didn’t get a whole lot of traction, which is another story that I have found out the reason for. But one of the things that I uncovered is that European drug regulators had already changed their labels to say that morning-after pills only work by preventing ovulation. Yet the FDA didn’t get around to changing the label here until last week. Maybe now some of this confusion will stop.  

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 producer, Francis Ying, who makes the weekly magic happen. As always, you can email us your comments or questions. We’re at what the health — all one word — @kff.org. Or you can tweet me. I’m still on Twitter: @jrovner. Joanne? 

Kenen: I’m marginally still on Twitter: @JoanneKenen  

Rovner: Rachel C. 

Cohrs: I’m @rachelcohrs 

Rovner: Rachel R. 

Roubein: @rachel_roubein 

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

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