The Host

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 change at the top of the likely Democratic presidential ticket is prompting both abortion rights and anti-abortion organizations to recalibrate their campaigns, even as they fight over finalizing fall ballot proposals in many states.

Meanwhile, former President Donald Trump’s campaign is trying to distance itself from “Project 2025,” the controversial plan reportedly designed for the next GOP administration and put together by the conservative Heritage Foundation and former Trump administration officials. Although the head of the project’s policy arm was pushed out this week, the part of the project creating a database of Trump loyalists to staff a potential new administration remains up and running.

This week’s panelists are Julie Rovner of KFF Health News, Alice Miranda Ollstein of Politico, Lauren Weber of The Washington Post, and Sarah Karlin-Smith of the Pink Sheet.

Panelists

Sarah Karlin-Smith
Pink Sheet

@SarahKarlin

Read Sarah's stories.

Alice Miranda Ollstein
Politico

@AliceOllstein

Read Alice's stories.

Lauren Weber
The Washington Post

@LaurenWeberHP

Read Lauren's stories.

Among the takeaways from this week’s episode:

• Vice President Kamala Harris is promising to “restore reproductive freedom” if elected president; her campaign says that means restoring the constitutional right to an abortion under Roe v. Wade. Despite that goal having slim prospects in Congress, some abortion rights supporters are hoping the federal government would expand abortion access even beyond Roe under her presidency.
• President Joe Biden this week recommended a sweeping overhaul of the Supreme Court, including term limits for justices. Famously an institutionalist, Biden stopped short of embracing the progressive call to add more justices to the high court. Nonetheless, his proposal has been considered politically dangerous, even as the conservative-tilted court has overturned its own precedents and shrugged at its ethics policies — and shifts in the national conversation about the court could have a long-term effect.
• The Trump campaign’s attempts to distance itself from the controversial ideas of Heritage’s Project 2025 are more savvy marketing than anything: Even without adopting the document, the conservative policy personnel behind it could well become the conservative policy personnel of a second Trump administration.
• GOP state officials and anti-abortion groups are launching their next attempts to block potential abortion rights victories at the ballot box. The next few weeks will reveal whether voters in certain influential states — like Arizona and Florida — weigh in on abortion this fall.

Also this week, Rovner interviews KFF Health News’ Elisabeth Rosenthal, who reported and wrote the latest KFF Health News-NPR “Bill of the Month” installment about a preauthorized surgery that generated a six-figure bill.

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

Julie Rovner: The Washington Post’s “Online Portals Deliver Scary Health News Before Doctors Can Weigh In,” by Fenit Nirappil.  

Alice Miranda Ollstein: ProPublica’s “A Lab Test That Experts Liken to a Witch Trial Is Helping Send Women to Prison for Murder,” by Duaa Eldeib.  

Lauren Weber: The Tributary’s “Testimony: Florida Wrongly Cut People From Medicaid Due to ‘Computer Error,’ Bad Data,” by Charlie McGee.  

Sarah Karlin-Smith: KFF Health News’ “Why Many Nonprofit (Wink, Wink) Hospitals Are Rolling in Money,” by Elisabeth Rosenthal; and The Hollywood Reporter’s “New York’s Largest Hospital System Is Setting Its Sights on the Entertainment Business,” by Alex Weprin. 

Also mentioned on this week’s podcast:

Politico’s “States Break Out New Tactics To Thwart Abortion Ballot Measures,” by Alice Miranda Ollstein.

click to open the transcript

Transcript: Abortion Heats Up Presidential Race 

KFF Health News’ ‘What the Health?’ Episode Title: ‘Abortion Heats Up Presidential Race’Episode Number: 358Published: Aug. 1, 2024

[Editor’s note: This transcript was generated using both transcription software and a human’s light touch. It has been edited for style and clarity.] 

Mila Atmos: The future of America is in your hands. This is not a movie trailer. And it’s not a political ad. But it is a call to action. I’m Mila Atmos, and I’m passionate about unlocking the power of everyday citizens. On our podcast “Future Hindsight,” we take big ideas about civic life and democracy and turn them into action items for you and me. Every Thursday, we talk to bold activists and civic innovators to help you understand your power, and your power to change a status quo. Find us at futurehindsight.com, or wherever you listen to podcasts.

Julie Rovner: Hello, and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF Health News, and I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, Aug. 1, at 10 a.m. As always, news happens fast and things might change by the time you hear this, so here we go.

We are joined today via video conference by Lauren Weber, of The Washington Post.

Lauren Weber: Hello, hello.

Rovner: Alice Miranda Ollstein of Politico.

Alice Miranda Ollstein: Hello.

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

Sarah Karlin-Smith: Hi, everybody.

Rovner: Later in this episode, we’ll have my interview with KFF Health News’ Elisabeth Rosenthal, who reported and wrote the latest KFF Health News-NPR “Bill of the Month.” It’s about a woman who had a cochlear implant surgery that was preapproved by her insurer, but still, and say it with me, got an enormous bill anyway. But first, this week’s news.

We’re going to start this week with presidential politics, because I think everyone, or at least me, is still kind of processing the idea that the race is no longer Biden versus Trump, but Harris versus Trump. One thing we have already seen from Vice President [Kamala] Harris is a new focus on reproductive rights. As we mentioned last week, Iowa’s six-week abortion ban took effect this past Monday, making it the 22nd state to impose what the vice president is now calling a “Trump abortion ban,” referring to total bans as well as restrictions that wouldn’t have been allowed under Roe [v. Wade]. Alice, how are abortion rights groups refocusing themselves now that Harris, rather than Biden, is at the top of the ticket?

Ollstein: Well, in one sense, a lot has changed, and in another sense, nothing has changed. I mean, these groups were already holding events with Harris around the country. They stressed that when they endorsed Biden, they also endorsed Harris. They endorsed the ticket, and so it wasn’t a surprise or much of an internal discussion to decide to come out strong and endorse. What’s been sort of interesting for me is the politics and the messaging versus the policy on this front. So these activist groups were really excited about Harris and were saying that they’re confident that she’s going to both campaign and govern more aggressively in favor of abortion rights. And we haven’t really seen concrete signs that that’s the case. We wrote about how she was giving these speeches in her first week as the candidate at the top of the ticket, saying, “I’m going to restore reproductive freedom.” And she kept saying that over and over. And I saw that that became a Rorschach test for a lot of people. And some people said, “Oh, that is code for she’s going to go beyond Roe v. Wade.”

I saw a lot of projection on that front. But when we got the campaign to confirm, they said, “No, she means Roe v. Wade.” So she’s endorsing the exact same policy that Biden was endorsing, which a lot of abortion rights groups say is not good enough. They point out that many people were denied abortions under Roe v. Wade. States could impose all these restrictions, they could have bans on abortions later in pregnancy, they could have restrictions throughout pregnancy, they put clinics out of business, etc. And so the hopes that she would really advocate for going beyond restoring Roe v. Wade have sort of fizzled. Although there’s also a divide between sort of the big mainstream groups and the smaller, scrappier, more sort-of-militant progressive groups.

Rovner: It’s kind of the mirror image of what’s going on on the anti-abortion side.

Ollstein: Absolutely, absolutely. You have hard-liners and then you have more politically pragmatic, “Let’s just get done what we can get done.” And a lot of this conversation is theoretical because the likelihood of a Congress willing to pass either restoring Roe v. Wade, or going further, is very slim. What the administration could do on the executive front is also curtailed by recent Supreme Court opinions on Chevron. So, some of this is theoretical. It’s not totally clear to me what Kamala Harris would do on abortion rights that Biden has not already done. And it seems that a lot of this race is pledging to stop Donald Trump from undoing those things and imposing restrictions.

Rovner: So it looks like another issue that Harris is appearing to be highlighting is medical debt, something she’s been working on as vice president. The federal government this week approved a novel program out of North Carolina that would raise Medicaid rates for hospitals that forgive patient medical debt, as well as automatically enroll eligible low-income patients in financial assistance programs.

Now, there was a study a couple of months back that showed that forgiving medical debt after it’s gone to collections doesn’t actually help people all that much. Their credit rating is still a mess, and they still can’t afford a lot of things. What does seem to help is preventing those debts in the first place. So is this project — which includes some of these things like enrolling people automatically in assistance programs — maybe the beginning of an effort to address this debt further upstream?

Weber: I think, theoretically, it’s the beginning of an effort, but if you read the fine print, none of the hospitals have signed on yet, from what I understand. So, when you’ve got the hospital association saying, “Oh, we’re working on it,” but no one signed on, I don’t know that you have a deal yet. I mean, that remains to be seen. Obviously, this is something that they’re really hoping to get done. But if you don’t have hospital buy-in — which is the major player here — and the hospitals in lobbyists-speak are saying things like, “We think the insurers and other parts of the health care system should be involved,” I’m just hesitant to comment on the longevity of this project before these people actually sign on the dotted line.

Rovner: And it’s important to remember that hospitals are supposed to be doing this anyway. Nonprofit hospitals, at least, are supposed to be doing this anyway. That’s one of the things that they keep their nonprofit status for. And yet we have seen, obviously, rather painfully, over particularly more in this last decade or so, that that’s just not happening. And people are ending up with these big bills, and they’re being sent to collections, and their credit ratings are being ruined, and makes it harder for them to find a place to live, or in some cases get a job. I mean, this spin-out from unpaid medical debt is not great, and affects many other parts of people’s lives.

OK, well meanwhile, President Biden, who is still president for another five and a half months, this week proposed a pretty sweeping overhaul of the Supreme Court, including term limits and enforceable ethics requirements. This obviously isn’t going to happen while he’s still in office, but it lays down a marker going forward for Democrats. I know President Biden was very resistant to calls for major Supreme Court change earlier in his term. I guess some of the scandals that we’ve been hearing about with some of these Supreme Court justices have perhaps made him soften a little bit towards doing something.

Ollstein: I mean, this has kind of bubbled up for a while, and you’ve slowly seen more members of Congress endorsing these kinds of reforms. Biden has, he’s famously an institutionalist. He was resistant to calling for the end of the Senate filibuster. He was resistant to some of these big reforms. He sort of convened committees to study the issue and sort of kick it down the road a bit. But I think in the context of some of this was starting to be announced when he was attempting to save his own presidential candidacy and was shoring up support from progressives on that front. But there is not a Congress, and there is not likely to be a Congress, willing to pass these reforms. And so I think the shift in conversation is still important. And I think some of these reforms that were once considered crazy, fringe ideas are now being taken more seriously by top-level folks. Still, obviously a long way to go. But like you said, all of the scandals around ethics at the Supreme Court have really highlighted and brought this to the fore.

Karlin-Smith: It does seem notable to me that even though he did sort of tease this a little bit as he was still trying to save his campaign, he really didn’t lean into it until he was in this lame-duck period. And that gives you that sense of, it felt politically dangerous a bit to go this far, and gives you a sense of where we are on it. And that he has not brought up what I think some people on the left would like Democrats to think about, which is adding more justices to the Supreme Court, which could be something that I think might have a bigger impact. And there is some justification for that given that the expansion of the circuit court system and so forth over the years. So I think those are two big markers for me that give a sense of, there’s progress in this area, but for people that really want to see major reform, we’re a long way off from that.

Rovner: Yeah. It bears noting that the way that the term-limit proposal is structured, every president would get two appointments, because it would be 18 years and they would be staggered. So you wouldn’t have sort of the odd situation we’re in now, where Democrats have been in the presidency, in the nominating form, for more years than Republicans, and yet there’s now a 6 to 3, basically Republican-appointed majority, on the court. But as Alice says, I don’t think anybody thinks this is going to happen. Somewhat like medical debt, this is going to be a political talking point for this fall.

So, in Republican political news, the head of the Heritage Foundation’s Project 2025 resigned this week, as top staff at the Trump campaign tried to distance their candidate from some of the really-out-there proposals in the 900-page blueprint for the next Republican administration. But while the policy part of Project 2025 may or may not be winding down, we’ve heard differing ideas about the personnel part of the project. The presidential personnel database, which is arguably even more important, remains up and running. Trump has said he wants to remove civil service protections from tens of thousands of federal workers and replace them with people loyal to him and his agenda. And Project 2025 is presumably going to have those people ready, and waiting, and vetted. Sarah, just as an example, what could this mean in an agency like the FDA [Food and Drug Administration]?

Karlin-Smith: The FDA has a pretty small amount of political appointees and so forth, but it could kind of impact tenure of people higher up in senior positions and their ability to stay in them. And even if it doesn’t impact, even if the Trump administration didn’t necessarily go after them directly, I have heard reports from people that suggest it might initiate a series of people leaving, and then trickle-down effect there. And it really makes career positions a lot less secure, in part because it could give a lot of ammunition to basically move people around to jobs they don’t want to be in, or don’t like.

Rovner: Yeah, I mean we saw this during the Trump administration, just with the Trump administration picked up the Bureau of Land Management, moved it to Colorado, and a lot of people quit their jobs. There was, I think a piece of the Ag[riculture] Department that they moved to Kansas City. And civil servants — we’re not talking about these top political appointees — civil servants have wives and spouses, and kids in school, and it’s hard for them to just sort of up and say, “I’m going to move to another part of the country,” without really very much warning.

Weber: If anybody’s wondering, they should probably pick up Michael Lewis’ The Fifth Risk. I would highly recommend it as a very interesting book that gets at what happens if you eliminate career federal employees that you have no idea how important their job is because they operate in the background. So, it’s really helpful background. I just wanted to also add, I think we have to read aloud what the Trump campaign said about Project 2025, which is reports of Project 2025’s demise would be greatly welcomed and serve as notice to anyone or any group trying to misrepresent their influence of President Trump in his campaign: it will not end well with you. Which I found to be just a particularly savvy bit of marketing. Because I mean, the president, former President Trump, has made it very clear that he’s not going to give positions on things that he thinks could cost him votes, which is what I think this statement is from. That doesn’t necessarily mean he’s not going to take Project 2025’s guidebook by letter and key. I find this messaging moment to be very interesting.

Rovner: The people who wrote Project 2025 are people who are currently loyal to President Trump. Many of them are former Trump appointees, or people who worked for Trump. Basically what this is is a much more sophisticated preparation for if he gets back into office than he had in 2016 when he famously said he didn’t think he was going to win. And it took them months, and in some cases years, to actually get people into the administration.

Ollstein: Yeah, it’s become this interesting double-edged sword. Because like you said, when he was elected in 2016, they were clearly unprepared. And when they attempted to do all of these rule changes at federal agencies, a lot of them got blocked in court. They weren’t really ready for prime time. And so this was an attempt to have all of the groundwork laid, so that they could have this sort of blitz to remake federal law as soon as they entered office and have the loyal personnel ready to execute it. But it’s now backfiring politically, and Trump has always sort of been sensitive to portrayal of any group or person being the ideas generator and not himself. I’m thinking of “No puppet” from … if people remember that.

So any sort of portrayal of him as the mouthpiece or the puppet of some other group has always really sort of triggered him. And so you see him lashing out now and saying, “I have nothing to do with this group.” Even though, like you said, this group has lots and lots and lots of ties to him. And the repeated disavowals show that this is a sensitive point for them. But like Lauren said, there’s no sign this is stopping or severing ties to them in the future.

Rovner: And of course, Trump rather famously wants to preserve his ability to say different things to different audiences at different times. Sometimes he contradicts himself in the same paragraph. In fact, frequently he contradicts himself in the same paragraph. He’s thinking aloud, that’s sort of his thing. So he can pretend to be all things to all people. And having things written down, like Project 2025, sort of hamper his ability to do that. I think we all agree that the fact that this guy stepped down does not mean that this is not going to be what’s very much the plan for the administration, assuming he gets back into office.

Well, speaking of former President Trump, on Wednesday he took the stage at the National Association of Black Journalists conference in Chicago. And let us say, it was not very pretty. On abortion, he repeated his false claim that Democrats support abortion in the ninth month and even after birth. That’s murder, people. And he tried to make it clear that the issue is now successfully back to the states to decide, which is what he said he wanted. But Alice, you have a story this week about how anti-abortion forces in several different states are working hard to keep voters from getting to express their views on abortion-related ballot questions. So, what’s sort of the rundown here?

Ollstein: We’ve seen the states that are working to put this on the ballot. They’ve already overcome several waves of lawsuits and attempts by state legislatures to pass new rules, making the ballot initiative process more difficult. And so now we’re nearing the deadline, and we’re seeing a new blitz of efforts, both from Republican state officials and outside anti-abortion groups, to keep these off the ballot, or sort of put a thumb on the scale in terms of inserting wording that is favorable to the anti-abortion side. Inserting cost estimates saying, “Oh, if this passes, it’ll cost the state so much in litigation.” That’s happening in Florida.

And so I think the next few weeks, the certification deadlines, a lot of them are in late August so the next few weeks will be really crucial to see if these will or will not get on the ballot. In certain states, they could also have ripple effects on other political races by spurring higher turnout potentially. You see Democrats hoping that’s the case. But we’re seeing things are not yet settled in a lot of really major states — Arizona, Missouri, Montana, South Dakota, Florida — so wanting to keep a close eye on these fights. Obviously, all of the ones that have happened so far over the past two years have been victories for the pro-abortion-rights side. And knowing that, and anticipating that will continue, you see anti-abortion forces really mobilizing to make sure these votes don’t happen in the first place.

Weber: And as you pointed out, I mean, this is obviously important because this is a turnout election, especially now with the new Harris-Trump dynamic. And so all of these battles that are down-ticket have so much more emphasis now with what we’re looking at, especially as new poll results show this election could be pretty tight. We’ll still see. Obviously, there’s still a lot of adjustment to be done. But I think these battles that Alice reported on are so critical, because they have so much more reverberation than even just the abortion reverberation, but in the possible turnout that could drive other factors.

Rovner: In some of these very swingy states, too. Well, one final interesting piece of news on the reproductive health front this week. A patient in Kansas is suing the University of Kansas Health System for denying her an emergency abortion in 2022 in violation of the federal EMTALA law, the Emergency Medical Treatment and Active Labor Act. This appears to be the first such lawsuit of its type, and the patient is seeking not just financial compensation — her water broke early and she ended up having to go to another state — but she wants the hospital to admit that it violated both federal and Kansas law so that this doesn’t happen to anybody else. Do we expect to see more of these kinds of actions? And somebody remind us what EMTALA does and doesn’t do, and how the fight over this is still live because Supreme Court decide the case out of Idaho anyway.

Ollstein: Yeah. So we have seen some other patients sue over being turned away from hospitals. But what I think is really interesting is that the Biden administration pledged really aggressive enforcement of EMTALA. But yet you’re not seeing this lawsuit come from the administration, you’re seeing it come from a patient, an outside advocacy group. So I think that’s really notable. Maybe the Biden administration is doing more behind the scenes that we don’t know about. I’ve tried to ask them and they have not said. Like you said, the Supreme Court punted on this issue of the intersection between federal patient protections under EMTALA and state abortion bans and where to draw the line. And which one takes precedence when they’re in conflict, or whether they’re in conflict, is also up for debate.

So we could see more of this, but we’ve also seen over the past two years that a lot of patients don’t want to put themselves out there like this and become a public figure in the face of a lawsuit for very understandable reasons in this really painful moment. And so I think that’s why you see groups wanting the administration to do more on the front end to prevent this from happening, rather than patients having to take this on after it happens to them in a devastating way.

Rovner: I have also talked to people in the administration who have suggested to me that they are in fact doing more on this. Although Alice, as you say, we haven’t really seen it publicly. But I mean, I had somebody approach me to make it known that this is something that they are extremely concerned about. There is some reporting out this week from my former colleague, Joan Biskupic, who covers the Supreme Court for CNN, about speculation about that Idaho case was exactly correct. They took the case and they didn’t decide it. They sent it back to the lower court, because they had split 3-3-3. That the liberals wanted to dismiss the case entirely. The three hard-line conservatives wanted to find that Idaho did not have to provide abortions in emergency cases unless the life, rather than both the life and the health, were threatened. And that Chief Justice [John] Roberts and Justice [Brett] Kavanaugh and [Justice] Amy Coney Barrett were concerned and were stuck in the middle.

And the deal that they struck was to put back the stay that had kept the Iowa law from taking effect, but send it back to the lower court, which, of course, is what they ended up doing. So, as we said at the time, this case continues to go on. There is still not sort of a judicial decision about the situations in which hospitals have to provide emergency abortions for people in these cases that are health-threatening, and/or life-threatening, but not imminently life-threatening, which is what we’ve been seeing. So this is obviously something that’s going to continue.

All right, moving on. Medicare and Medicaid turned 59 this week, making the program almost old enough to qualify for benefits. And as of today, we are exactly a month away from the first 10 negotiated drug prices being officially unveiled. Sarah, what are you hearing about how this is going? I think there was another court case this week that pharma lost. So I mean, this is definitely going forward, right?

Karlin-Smith: Right. Novo Nordisk joined the slew of losses for the industry here. There are appeals, but I don’t think anybody is expecting anything to change the dynamic leading up to the announcements around this first set of drugs. The thing to remember is, and a number of the pharma companies that have drugs impacted have been speaking about the dynamics on their financial earnings calls, which just sort of are happening around now for this quarter of the year, and have kind of made some suggestions that have gone headlines like, “Oh, it’s not so bad, it’s fine.” But there’s sort of these caveats that, like, “We still hate the law!” And it’s still problematic. And I think it’s important to kind of understand the dynamics here. So one thing is this first set of drugs that’s going for negotiations are older drugs, just based on the way the law was written. The things around the money, and how long they have to be on the market. When you start a program like this, the first drugs are going to be older. So they’ve been on the market longer than drugs that’ll come up as part of the program in the past. A lot of them have competition, brand competition, are actually in some ways competitors to each other. So there’s a sense that Medicare Part D private plans are already getting pretty significant discounts through that private process.

So I think there’s not a ton of optimism in some ways that the government can do much better. And it’s going to be very hard to figure out whether they did or didn’t. Again, because so much of this is not transparent, right? We don’t actually know. Every Part D plan is going to have different discounts. And even one of the things that’s said is could we look at what other countries are paying compared to what the government gets. Well, even when many of these country systems negotiate discounts, we have a sense they’re getting better discounts than the U.S., but we don’t actually know what they are. So lack of transparency makes it hard.

So, it’s going to be a little bit of, I think, like this thing where the headlines are going to be a bit confusing for people to parse. That doesn’t mean that there may not be savings for taxpayers. There may not be savings for some consumers when they get their copay. But I think we’re going to have to wait and see later on as this law progresses what happens when drugs actually get thrown into the mix earlier on in their life cycle, and when we get what are known as Medicare Part B drugs, which are the drugs that you get at a doctor’s office administered to you, like say, an expensive chemotherapy or something. With those drugs, there really is no negotiation system going on now in the private sector, the government just pays a set formula that people say inflates the cost of drugs.

So, it’s going to be interesting to watch. Democrats are certainly going to highlight this. There’s some thought process they’ll actually try and time the government announcements to the Democratic [National] Convention. But I think it’s going to be really hard for people initially to make clear claims as to whether this is a success or a failure. And certainly industry is going to keep going after the law, particularly on the idea that just even this threat of government negotiation down the line impacts the amount of money and investment that goes into new innovation and treatments for people down the road.

Rovner: Well, I mean, obviously this was sort of a big deal for the administration. So one would think that they would want to have a chance. And of course, I think the first is the Friday before Labor Day. So it’s not the biggest news week in general. So yeah, I wouldn’t be surprised if they tried to do something a little bit beforehand.

OK, that is the news for this week. Now we will play my Bill of the Month interview with Elisabeth Rosenthal, and then we will come back and do our extra credits.

I am so pleased to welcome back to the podcast my KFF Health News colleague, Elisabeth Rosenthal, who reported and wrote the latest KFF Health News-NPR Bill of the Month. Libby, of course, is the person who launched this entire project in the first place more than six years ago. Libby, welcome back to “What the Health?”

Elisabeth Rosenthal: Thanks for having me again.

Rovner: So, tell us about this month’s patient. Who she is, where she’s from, and what kind of medical care she got.

Rosenthal: Well, her name is Caitlyn Mai, and she’s this wonderful woman from Oklahoma who, basically she needed a cochlear implant, because she’s had single-sided deafness since an infection when she was 12. And people will go like, “Single-sided deafness, what’s the big deal? She has one hearing ear.” But she couldn’t locate where things were, she couldn’t have conversations because she didn’t know who was talking. So actually, over time it’s become a real impediment in school and in work life. She got approved to have a cochlear implant. She was so excited, because it really would change her life. And she gets the implant: It’s magic. She can suddenly find her phone if it’s lost when it rings. And she’s so excited, except then she gets a bill for $139,000.

Rovner: Yeah. So let’s go back a second. As you have advised us so many, many times, she did all of her homework before the surgery …

Rosenthal: Totally.

Rovner: … checking to make sure she had the paperwork for the prior authorization from her insurance company, and checking to make sure that the hospital and all of the doctors were in-network. And as you say, the bill came! So what happened here?

Rosenthal: Well, the problem is we say, “Oh, the patient’s not responsible, there’s prior authorization,” blah, blah, blah, but there’s no problem in trying. You generate a bill, you send it to a patient, it scares the pants off of them. She said she had to leave work she was so upset. And my first piece of advice, which I would never give people in any other part of their lives is, “Don’t pay the bill.” You get a bill, it says you owe $139,000. Of course, she couldn’t pay it. And I believe it also said, “Hey, if you don’t have $139,000, you can pay it off with $19,000-a-month payments.”

And this is a young woman, getting started in life, newly married. And I guess $19,000 a month wasn’t a viable alternative. So Caitlyn starts doing what many patients do, and we’ve seen this more and more in Bill of the Month: She calls the hospital, she calls the insurer. She’s like the referee. Like, the insurer says they didn’t do the billing codes right. She calls the hospital and says, “Oh, you didn’t give us an itemized bill. Can you generate one?” She calls the insurance, says they’re generating an itemized bill. They go back and forth, and back and forth. Then the itemized bill isn’t right, it contains the wrong codes. And in the meantime, for three months, or four months even, she’s getting these bills that say what you owe now: “prompt payment,” “discount,” and “overdue.” And many patients now are in the terrifying position of playing go-between between their provider and their insurance.

She actually said to the provider, “Send me an itemized bill. Send it to me and I will send it to the right person at the insurance company.” And she said to them, “Look, I’ve done all your work for you. Now just figure it out, you guys.” And, in the meantime, she wasn’t actually sent to collections, but threats were made and it was scary. And she spent endless amounts of time. She works for a nonprofit. She’s lucky, she has a job where she can play this kind of go-between role. But really it should be the provider and the insurer that work it out when you have preauth[orization]. There was no reason why any bills should be sent. And that’s one of my mantras. While you’re working this stuff out, don’t send patient bills, because they’re not responsible for this stuff.

Rovner: Well, that’s the whole point of Congress passing the No Surprises Act, that was supposed to take the patient out of the middle. Why is the patient still in the middle?

Rosenthal: Well, because the No Surprises Act did a lot of great things. It held the patient harmless. And this is actually not a surprise bill, it’s a slightly different issue. But even with the No Surprises Act and with surprise bills, it never said you can’t try. And that’s the problem. Americans are good bill-paying citizens. You send people a bill, and they think, “Wow, I guess I owe it.” So what should be added to the No Surprises Act — and I’m not supposed to use the word should — is you can’t send a bill until the insurer and the provider work it out. I know my mailbox is filled with medical bills that I know I don’t owe, right? But the mantra of the provider is, “Well, there’s no harm in trying. Let’s see if someone pays.”

Rovner: Eventually, she did get this worked out.

Rosenthal: She did get this worked out after hours of her time playing go-between, and many hours spent terrified that she would end up somehow having to foot this bill. Once again, the treatment is miraculous. The bills are not miraculous. I mean, they’re miraculous, but in a really different way. They’re horrifying.

Rovner: So what’s the takeaway here? I mean, we’ve given all the advice, “Don’t pay the first bill. Do your homework in advance.” Is there anything else that you can do to avoid getting six-figure bills for preauthorized surgery?

Rosenthal: Well, there is that “don’t pay your bill” advice, and “don’t be scared by the prompt payment discount,” which she had, too. But I think, unfortunately, you have to be the go-between often. And that’s a terrible position for Americans to be in, because it’s really an equity issue. You and I have jobs and knowledge where we can navigate between these two warring parties, essentially, being the peacemaker. And Caitlyn was lucky she had that kind of job. But many Americans don’t have 20 hours to spend on the phone to avoid a huge bill, and they end up in collections if it’s huge. Or if it’s a small bill — and I’ve done this, and I feel like I’m so angry when I do — if it’s a small bill, you’re like, “All right, fine. I’ll just pay it to get this over with.” Even though I know I don’t owe it.

So I do think there should be a policy that you can’t try to send bills to patients that they don’t owe. They know the patients don’t owe these bills. But like I said, there’s no harm in trying, and there’s no HHS [Department of Health and Human Services] police force out there saying, “You shouldn’t do this.” So, it should have been part of the act, but I think the health care system is endlessly agile in figuring out ways to get around laws that Congress has passed to rein in some of their more outrageous practices.

Rovner: As I like to say, full employment for health care reporters. Libby Rosenthal, thank you so much.

Rosenthal: Take care, Julie. Thanks.

Rovner: OK, we are back. It’s time for our extra-credit segment. That’s when we each recommend a story we read this week we think you should read, too. As always, don’t worry if you miss it. We will post the links on the podcast page at kffhealthnews.org and in our show notes on your phone or other mobile device. Sarah, why don’t you go first this week?

Karlin-Smith: Sure. I looked at a piece from Elisabeth Rosenthal, “Why Many Nonprofit (Wink, Wink) Hospitals Are Rolling in Money.” And we sort of alluded to this in the conversation around medical debt. But nonprofit hospitals are supposed to, as part of their nonprofit status, be providing certain sorts of commitments to how they serve patients and our greater society. And over the years, they have morphed from looking not much like nonprofits in many ways. And her lead sort of talks about the various for-profit businesses that they have acquired and lumped under their umbrella, and how that affects what they’re doing. And some of them do not even necessarily seem completely connected to health care.

And just, again, it raises this issue of if you’re going to have this nonprofit status you should be fulfilling that other end of the commitment for not paying taxes. And if you don’t, perhaps we need to rethink that, if we are not getting the charity care and the other commitments to society, is health that we should get. And I wanted to flag, it was a Hollywood Reporter article [“New York’s Largest Hospital System Is Setting Its Sights on the Entertainment Business,”] that I had seen last week about Northwell [Health] Hospital getting into the movie and filmmaking business. And that just gives you a crazy example of what some of these nonprofit systems are doing. And I think it’s why it’s become so egregious and people have been making marks about it.

Rovner: Congress has been talking about the “nonprofit” health entities, particularly hospitals, since the 1990s. It goes along with drug prices, this sort of evergreen issue on Capitol Hill. Lauren, why don’t you go next?

Weber: Yeah. I have something from The Tributary called “Testimony: Florida Wrongly Cut People From Medicaid Due to ‘Computer Error,’ Bad Data.” It’s a story we’ve heard over and over again, but I will just note that highlighted in this story is the company Deloitte, who my former colleagues, who I love dearly at KFF News, Rachana Pradhan and Samantha Liss, had a great investigation on just, I think, a month ago? So, I think that you see these stories about people being removed from Medicaid rolls. And to be clear, this was in Florida, and I believe it was a bunch of moms who were removed the year after they gave birth. So, these are serious consequences for “computer errors.” And I mean, we have no idea the catastrophic impact these could have had. But I think it’s important to keep an eye on this, and I know Racha and Sam certainly have. And pretty wild stuff to see continued reporting on that.

Rovner: We’ve seen a continuing software programs that went in and thought that they would sort of efficiently look at household income, and to determine whether people were still eligible. And forgot that when they were programming it, that eligibility varies by income, depending on whether you’re a kid, or a pregnant woman, or a mom who’s just given birth. That those eligibility amounts are not the same, and that you can’t just go in and say, “You’re over a certain cutoff, you’re off.” So we’re continuing to see this in the continuing unwinding. Alice.

Ollstein: So, I have a really interesting piece from ProPublica about something I had never heard about. It’s called “A Lab Test That Experts Liken to a Witch Trial Is Helping Send Women to Prison for Murder.” So this is about a forensic practice that some states and counties use for determining whether a baby was stillborn, or that the mother ended the baby’s life after it was born alive. Sorry if this is graphic, folks, but it involves removing the lungs and seeing if they float or not. The reasoning being that that will help you determine if the baby was born alive and took a breath before it died, or if it was stillborn. But we’ve been learning about a lot of forensic “tests.” This is pseudoscience. It is really inaccurate. There are many ways that this could inaccurately convict someone of murder when, in fact, they suffered a stillbirth. So I think people think it’s scientific, it’s unbiased, but science is more complicated than that. So this was a really fascinating story.

Rovner: Yeah, this is something that’s been around for a good while. I became aware of it in, I think, the 2010s, when it was used to convict someone who, I believe her conviction was eventually overturned.

Well, my extra credit this week is from The Washington Post by Fenit Nirappil, and it’s called “Online Portals Deliver Scary Health News Before Doctors Can Weigh In.” It’s about a likely unintended impact of the transparency provisions of the 2016 [21st Century] Cures Act, requiring that patients be given access to test results as soon as they’re available, even before their doctors in many cases. Doctors are lobbying for a change in the regulations so they can at least have time to review the results first, so patients don’t open up a portal and find out that they have cancer. But the Biden administration, at least so far, says it’s the patient’s own information and that the patients have a right to it.

The story’s a really very nuanced look at how the solution to just about every problem in health policy inevitably creates problems of its own.

OK, that is our show. As always, if you enjoy the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left us a review; that helps other people find us, too. Special thanks as always to our technical guru, Francis Ying, and our editor, Emmarie Huetteman. As always, you can email us your comments or questions. We’re at whatthehealth@kff.org, or you can still find me at X, @jrovner. Sarah?

Karlin-Smith: I’m @SarahKarlin.

Rovner: Lauren?

Weber: @LaurenWeberHP on X. “HP” is for health policy.

Rovner: Alice.

Weber: @AliceOllstein on X.

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

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

Debunking Abortion Myths

I want to send a big THANK YOU to Matt Volz for writing a fact-checking article on the nonsense rhetoric around “abortion up until and after birth” that has run wild and unchallenged in the media (“GOP’s Tim Sheehy Revives Discredited Abortion Claims in Pivotal Senate Race,” July 9). Thanks for putting abortion later in pregnancy in context and debunking false assumptions.

I am a near-third-trimester abortion patient (nonviable pregnancy, terminated at 26 weeks), and I am so sick of hearing politicians like Tim Sheehy talk about something they have never experienced or bothered to learn about. It is as though I am watching the entire nation maliciously gossip about me and other parents like me. Those of us in the termination for medical reasons (TFMR) community have walked through hell only to have our voices, at best, be ignored or, more commonly, be insulted and threatened.

And I imagine watching this political circus is just as hurtful for parents who lost an infant shortly after birth and had to provide palliative care. That is who they are talking about with “abortion after birth”; they are talking about comfort care for infants who will not survive.

Thank you again for bringing a dose of reality to a conversation that never should have become political. These are impossible decisions that only parents should make. It was really refreshing to read Volz’s article and know that some journalists are still willing to fact-check the absurd claims floating around. It was encouraging to know that someone does see us.

— Anne Angus, Bozeman, Montana

A physician and Yale professor of radiology and biomedical imaging took to the social platform X to share feedback:

.@SenatorTester is a great Senator. And his opponent is a great liar. Both the GOP presidential candidate and Tim Sheehy have perpetuated this lie. Please push back every time you hear it. https://t.co/1LBGPgOA2u

— (((Howard Forman))) (@thehowie) July 9, 2024

— Howard Forman, New Haven, Connecticut

I just read your article at PolitiFact on Republican Senate candidate Tim Sheehy’s statement about abortion, and I would like to point out (what I believe) are a couple of errors.

1. In paragraph 10, you quote KFF’s Alina Salganicoff saying that “in the good-faith medical judgment of the treating health care provider, continuation of the pregnancy would pose a risk to the pregnant patient’s life or health.” Now, you may know that almost at the same time that the Roe v. Wade decision was released, there was a decision called Doe v. Bolton that interpreted “health” to mean almost anything. That broad interpretation of health is found in your article in paragraph 24: “Women have abortions later in pregnancy either because they find out new information or because of economic or political barriers,” [Katrina] Kimport said.

When a woman can have an abortion after viability because she offers any reason that can be interpreted as “health,” then abortion would be legal throughout all nine months of pregnancy. I believe that you are wrong in your interpretation. Democrats do not want to name any restriction on abortion during all nine months, and every mention of “health” is a fig leaf that does not restrict abortion at all. Every abortion advocate knows that.

2. Whether late-term abortions are rare or not is logically irrelevant to whether late-term abortions should be restricted.

Why don’t you know these things?

— Darryl A. Linde, Tahlequah, Oklahoma

An Air Force veteran added his two cents on X:

Dems have the facts. Republicans spread fear and lies.https://t.co/6CWfKhqxJZ

— James Knight (@jamesUSAF_vet) July 12, 2024

— James Knight, Reno, Nevada

Making a Healthy Difference for the Homeless

Thank you for printing this story (“A California Medical Group Treats Only Homeless Patients — And Makes Money Doing It,” July 19). It really piqued my interest and portrayed a positive solution for getting care to the people.

Up here in the Bay Area, I believe there are a couple of groups who go out and find what needs doing instead of waiting for people to come to them — but nothing like this. Makes me curious about what we actually have going on here.

— Laurie Lippe, El Cerrito, California

A self-described “nurse turned health tech nerd” commended the effort on X:

"They distribute GPS devices so they can track their homeless patients. They keep company credit cards on hand in case a patient needs emergency food or water, or an Uber ride to the doctor"This is healthcare at its best 💕https://t.co/UhM1dgTPH7

— Rik Renard (@rikrenard) July 22, 2024

— Rik Renard, New York City

A senior policy director at the National Health Care for the Homeless Council shared the post on X — while stressing that her tweets reflected her own opinions and not those of her organization:

I’m with ⁦@DrJimWithers: “I do worry about the corporatization of street medicine and capitalism invading what we’ve been building, largely as a social justice mission outside of the traditional health care system.” https://t.co/IOjazvrvqP

— Barbara DiPietro (@BarbaraDiPietro) July 19, 2024

— Barbara DiPietro, Baltimore

On X, a physician who says she champions “physicians, patients, public health, and the patient-physician relationship” reacted to our coverage surrounding the Federal Trade Commission’s rule banning the use of noncompete agreements in employment contracts: 

FTC #noncompete crackdown may not protect doctors and nurses at ~64% of US community hospitals that are tax-exempt nonprofits or government-owned.But, ⁦@FTC⁩ said some nonprofits could be bound by the rule if they do not operate as true charities. https://t.co/9fDbfVflTH

— Marilyn Heine (@MarilynHeineMD) May 28, 2024

— Marilyn Heine, Langhorne, Pennsylvania

Without a Noncompete Ban on All Employers, Rural Access to Care Suffers

When news broke that the Federal Trade Commission would be banning noncompete agreements in employment contracts, many of us in the medical profession celebrated. However, until nonprofit hospitals and health care facilities benefit from the same ban, access to care — particularly in rural regions — will suffer.

As reported in “Health Worker for a Nonprofit? The New Ban on Noncompete Contracts May Not Help You” (June 5), about two-thirds of U.S. community hospitals are nonprofit or government-owned. This means that most hospitals nationwide may continue to enforce noncompete agreements among their employees, a practice that will have an outsize impact on rural medical professionals.

As a rheumatologist in a rural area, I’ve seen how detrimental limited access to care is for patients. Noncompete agreements serve only to further limit access to much-needed care. Due to the physician shortage being particularly acute in rural America, there are oftentimes only a few specialty physicians servicing a large region. Suppose one of these specialists is employed by a large health system and wants to transition to a private practice. It reduces the number of accessible specialists in the area when their noncompete agreement prohibits them from practicing near any of the health care facilities associated with the system. And increasing consolidation across health care means many rural regions may have only a single health system that operates across the entire state and surrounding areas. A geographically limiting noncompete agreement essentially stops a physician or medical professional from practicing entirely in the area, or they must uproot their life and move away from the major health system.

I hope the FTC takes further action to include nonprofit health care employers in its noncompete ban. I also urge nonprofit employers to consider their rural patients’ access to care when requiring providers to sign noncompete agreements. It’s in the best interest of our patient’s health to get rid of these agreements entirely.

— Chris Phillips, chair of the American College of Rheumatology’s Committee on Rheumatologic Care, Paducah, Kentucky

The president of the Texas Medical Board also posted on X with feedback:

Is it a coincidence that this affects everyone, except those who work for nonprofit hospitals and health care facilities, which employs the largest number of medical professionals?The FTC and it's selective enforcement and rules is blatantly obvious! https://t.co/RzXInqiJ8D

— Sherif Zaafran, MD (@szaafran) June 16, 2024

— Sherif Zaafran, Houston

Repurposing Newspaper Boxes for Public Health

I recently read your article by Mara Silvers regarding the state’s intended use of public health vending machines (PHVMs) to help fight the opioid overdose epidemic (“Montana’s Plan To Curb Opioid Overdoses Includes Vending Machines,” July 18). Working on the covid-19 response for almost four years now, and with our American Rescue Plan Act funding coming to an end, we recently used a byline in our equipment budget to purchase and place “resource kiosks” in the community.

In 2022, after researching the use of vending machines for test distribution, we discovered vending machines have high barrier-to-entry costs and high maintenance costs. And even if purchasing isn’t possible, rental contracts come with high fees. We decided it was better to use a lower-cost resource that could be purchased in greater quantity, easily placed with community partners, and required no maintenance: the refurbished newspaper kiosk.

We decided to purchase double-decker boxes, which have a secondary door, creating another shelf, for roughly $410 apiece and stocked them with covid tests, nasal naloxone, injectable naloxone, fentanyl test strips, xylazine test strips, various types of condoms, and lubrication packets. We are in the process of securing a supply of gun locks and adding links to our pilot landing page for individual free gun lock deliveries, as well as links for free sexually transmitted infection test kits. We have investigated providing dental supplies and other items, but long-term funding is a constant concern. Grant money for most programs (likely all ARPA dollars) is running out, so the viability of these types of pilot programs is tentative without a buy-in from state or federal agencies.

Mara’s article hinted at criteria for possible placements and, similarly, we didn’t use locational overdose data, which can be “othering” to communities, but instead placed these kiosks with community partners that have been accomplished supporters of their at-risk populations throughout the covid response. Each community partner helped protect the communities they served through increased access to resources and provided information as trusted messengers. Truly meeting people where they are.

While money quickly appeared to fight the covid pandemic, and states spirited away dollars for pet projects, that sea of funding has dried up, and there doesn’t seem to be a plan for any continued funding. Covid-related functions have all been folded back into communicable disease epidemiology programs, which were already underfunded; in our state, the money funding the naloxone bulk fund is also drying up. Covid deaths might be down, but there is always a new bug (H5N1), STI infections are up, and gun-related deaths grow year over year. Funding population-level health interventions is our next pandemic.

With enough funding, kiosk-sized PHVMs could be swiftly added to any public health agency’s or community program’s quiver of tools to help increase access to resources and information for the most vulnerable residents.

Thank you for publishing a great article about the emerging opportunities to respond to changing public health needs!

— Christopher Howk, Arapahoe County Public Health’s covid-19 testing and logistics coordinator, Greenwood Village, Colorado

A retiree with a PhD in quantum chemistry tweeted his surprise over the news:

Montana’s Plan To Curb Opioid Overdoses Includes Vending Machineshttps://t.co/kNxYjnIOEO(What???!! Vending machines for opioids?)

— John Lounsbury (@jlounsbury59) July 18, 2024

— John Lounsbury, Lake Frederick, Virginia

Misappropriation of Opioid Settlement Funds

OK, so I see how all these states got all these lump sums of money for people like us who became addicted and whose lives were devastated by Purdue Pharma, Vicodin, and all the pharmacies (“Lifesaving Drugs and Police Projects Mark First Use of Opioid Settlement Cash in California,” July 12). How come all these states got all the money but those of us who have suffered have to wait, hire lawyers, and wait years for the money that was just handed over to these states? We’re the ones whose lives were devastated. My son was hooked, I was hooked, and my wife, and yet we must sit here penniless after the addiction, while all these states take the money — and they don’t do what they’re supposed to with it, and everyone knows it.

— Michael Stewart, Des Moines, Iowa

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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The Host

Julie Rovner
KFF Health News

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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.

As Vice President Kamala Harris appears poised to become the Democratic Party’s presidential nominee, health policy in general and reproductive health issues in particular are likely to have a higher profile. Harris has long been the Biden administration’s point person on abortion rights and reproductive health and was active on other health issues while serving as California’s attorney general.

Meanwhile, Congress is back for a brief session between presidential conventions, but efforts in the GOP-led House to pass the annual spending bills, due by Oct. 1, have run into the usual roadblocks over abortion-related issues.

This week’s panelists are Julie Rovner of KFF Health News, Stephanie Armour of KFF Health News, Rachel Cohrs Zhang of Stat, and Alice Miranda Ollstein of Politico.

Panelists

Stephanie Armour
KFF Health News

@StephArmour1

Read Stephanie's stories.

Rachel Cohrs Zhang
Stat News

@rachelcohrs

Read Rachel's stories.

Alice Miranda Ollstein
Politico

@AliceOllstein

Read Alice's stories.

Among the takeaways from this week’s episode:

• President Joe Biden’s decision to drop out of the presidential race has turned attention to his likely successor on the Democratic ticket, Vice President Kamala Harris. At this late hour in the campaign, she is expected to adopt Biden’s health policies, though many anticipate she’ll take a firmer stance on restoring Roe v. Wade. And while abortion rights supporters are enthusiastic about Harris’ candidacy, opponents are eager to frame her views as extreme.
• As he transitions from incumbent candidate to outgoing president, Biden is working to frame his legacy, including on health policy. The president has expressed pride that his signature domestic achievement, the Inflation Reduction Act, took on the pharmaceutical industry, including by forcing the makers of the most expensive drugs into negotiations with Medicare. Yet, as with the Affordable Care Act’s delayed implementation and results, most Americans have yet to see the IRA’s potential effect on drug prices.
• Lawmakers continue to be hung up on federal government spending, leaving appropriations work undone as they prepare to leave for summer recess. Fights over abortion are, once again, gumming up the works.
• In abortion news, Iowa’s six-week limit is scheduled to take effect next week, causing rippling problems of abortion access throughout the region. In Louisiana, which added the two drugs used in medication abortions to its list of controlled substances, doctors are having difficulty using the pills for other indications. And doctors who oppose abortion are pushing higher-risk procedures, like cesarean sections, in lieu of pregnancy termination when the mother’s life is in danger — as states with strict bans, like Texas and Louisiana, are reporting a rise in the use of surgeries, including hysterectomies, to end pregnancies.
• The Government Accountability Office reports that many states incorrectly removed hundreds of thousands of eligible people from the Medicaid rolls during the “unwinding” of the covid-19 public health emergency’s coverage protections. The Biden administration has been reluctant to call out those states publicly in an attempt to keep the process as apolitical as possible.

Also this week, Rovner interviews Anthony Wright, the new executive director of the consumer health advocacy group Families USA. Wright spent the past two decades in California, working with, among others, now-Vice President Kamala Harris on various health issues.

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

Julie Rovner: NPR’s “A Study Finds That Dogs Can Smell Your Stress — And Make Decisions Accordingly,” by Rachel Treisman.  

Alice Miranda Ollstein: Stat’s “A Pricey Gilead HIV Drug Could Be Made for Dramatically Less Than the Company Charges,” by Ed Silverman, and Politico’s “Federal HIV Program Set To Wind Down,” by Alice Miranda Ollstein and David Lim. 

Stephanie Armour: Vox’s “Free Medical School Won’t Solve the Doctor Shortage,” by Dylan Scott.  

Rachel Cohrs Zhang: Stat’s “How UnitedHealth Harnesses Its Physician Empire To Squeeze Profits out of Patients,” by Bob Herman, Tara Bannow, Casey Ross, and Lizzy Lawrence. 

Also mentioned on this week’s podcast:

• States Newsroom’s “Anti-Abortion Researchers Back Riskier Procedures When Pregnancy Termination Is Needed, Experts Say,” by Sofia Resnick.
• KFF Health News’ “Louisiana Reclassifies Drugs Used in Abortions as Controlled Dangerous Substances,” by Rosemary Westwood, WWNO.
• The New York Times’ “Biden and Georgia Are Waging a Fight Over Medicaid and the Future of Obamacare,” by Noah Weiland.

click to open the transcript

Transcript: Harris in the Spotlight

KFF Health News’ ‘What the Health?’Episode Title: ‘Harris in the Spotlight’Episode Number: 357Published: July 25, 2024

[Editor’s note: This transcript was generated using both transcription software and a human’s light touch. It has been edited for style and clarity.] 

Julie Rovner: Hello, and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF Health News, and I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, July 25, 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: Hello.

Rovner: Rachel Cohrs Zhang of Stat News.

Rachel Cohrs Zhang: Hi, everybody.

Rovner: And we welcome back to the podcast one of our original panelists, Stephanie Armour, who I am pleased to say has now officially joined us here at KFF Health News. Stephanie, so great to have you back.

Stephanie Armour: Great to be back.

Rovner: Later in this episode, we will have my interview with Anthony Wright, the new executive director of the consumer health advocacy group Families USA. Anthony previously spent two decades working on health issues in California so he’s pretty familiar with the health work of the current vice president and soon-to-be Democratic presidential nominee, Kamala Harris, and he’ll share some of that knowledge with us. But first, this week’s news.

So it’s safe to say a lot has changed since the last time we met. In fact, it may be fair to say that just about everything has changed. President Joe Biden announced he would not seek reelection after all, he endorsed his vice president, Kamala Harris, and she proceeded to all but lock up the nomination in less than 48 hours. Obviously, this will be a huge deal for the fight over abortion and reproductive health care, which we will get to in a moment. But how is this going to impact health care, in general, as a campaign issue?

Ollstein: Yeah, it’s interesting because Kamala Harris has been a public figure for a while and has held a bunch of different offices, and so we can glean some clues as to where she is on various health care issues. But she’s been a bit hard to pin down. And when my colleagues and I were talking to a lot of folks throughout the health care industry over the past week, there were a lot of question marks on their end, so we know a few things. We know that she used the powers of the AG [attorney general] office to go after monopolies and consolidation and anticompetitive practices in California.

She did that in the insurance space, in the provider space, in the drug space, and so people are expecting that she would be maybe more aggressive on that front. We know that she did co-sponsor [Sen. Bernie Sanders’] “Medicare for All” bill, but then she also introduced her own, arguably more moderate, one that preserved private health insurance. And then, of course, abortion rights. She’s been very vocal on that front, but since becoming the presumptive nominee, she hasn’t really laid out what, if anything, she would do differently than Joe Biden. So like I said, a lot of question marks.

Rovner: Stephanie, you led our coverage of Harris’ health record. What did you learn?

Armour: Well, I think a number of the people that I’ve talked with really expect that she’ll be a standard-bearer to what Biden has already done, and I think that’s probably true. I don’t think she’s going to go back stumping for Medicare for All right now, for example. What I did find really interesting is, yes, she’s very much made abortion and reproductive rights a cornerstone of her vice presidency and, I assume, will be of her campaign. But based on where abortion is polling right now, a number of the strategists I spoke to said she really needs to do something pretty major on it in order to get a real uptick in terms of galvanizing voters, just because economy and immigration are so high. They’re saying that she really needs to do something like say that she’ll bring back legislation to restore Roe v. Wade, for example, to really make a difference. So I think it’ll be interesting to see how much that can really motivate voters when there’s so much competing for interest right now.

Cohrs Zhang: Oh, there is one other issue that I wanted to bring up. And I think especially from her time in the Senate, she didn’t sit on health care committees, but she did go out of her way to take ownership over concerns about maternal mortality. She was lead Senate sponsor of the Momnibus Act, which included a whole slew of different policies and programs that could help support mothers, especially Black mothers. And I think she has continued that interest in the White House and really championed health equity, which does, again, just draw a very stark contrast. So we haven’t seen a lot of passion or interest in the traditional health policy sense from her outside of abortion, but that is one issue she really has owned.

Rovner: Yeah, I mean, it has not been part of her quote-unquote “portfolio” as vice president, anything except, as I mentioned, reproductive rights, which will obviously be the biggest change from Biden to Harris. The president, as we all know, does not even like to say the word “abortion.” She, on the other hand, has been all over the issue since well before Roe got overturned and obviously particularly since then. Alice, how are advocates on both sides of this issue reacting to this switch at the top of the ticket?

Ollstein: Yeah, honestly, it’s been this interesting convergence because the pro-abortion-rights side is really jazzed. They’ve basically all rushed to endorse her and talk about how they’ve been working with her for years and really know her and trust her, and they believe she’ll be more aggressive than Biden was. But you also have the anti-abortion side being excited to have her as the villain, basically. They’ve had a hard time portraying Biden as extreme on this issue and they think they’ll have an easier time portraying Kamala Harris as extreme on abortion rights. One other thing from her record and background is her fight with the conservatives who recorded sting videos at Planned Parenthood that the anti-abortion movement still brings that up a lot. So yeah, it’ll be really interesting to see for which side this really lights a fire more because we’re hearing claims from both that it will fuel them.

Rovner: And, actually, I think it will actually fuel both sides of this. I would think that the abortion-rights groups were very — I mean everybody was pretty quick to endorse her — but the abortion-rights groups were right there right away, as were the anti-abortion groups saying she is extreme on abortion, which in some ways will fuel the abortion-right side. It’s like, “Oh good. The more the antis don’t like her, the stronger that means she is for us.” I mean, I literally could see this fueling both sides of this issue and …

Armour: Whereas you see Republicans backing away increasingly from abortion like the RNC [Republican National Committee] platform. And so it’s turning out to be still very much a hot-button issue and difficult issue for Republicans.

Rovner: So they say that the vice presidency is not very good for much, and I definitely agree with that. I mean, everybody always says, “The vice president hasn’t done anything.” Because the vice president doesn’t really have a job to do anything. Often the only time the vice president is on TV is when he or she sits behind the president at the State of the Union. But I feel like, in Harris’ case, it’s made her a much more confident and natural and comfortable campaigner. I watched her a lot when she was running for president in 2019 and 2020, and she was, to be kind, a little bit awkward; I mean she was just not one of those natural, had-that-rapport with a crowd, and I feel like that has changed a lot having watched her crisscross the country, particularly on reproductive health. Am I the only one that feels that way? I feel like people are going to see a very different vice president than they think they saw, while she was doing her due diligence as vice president.

Ollstein: Definitely, and I’ve found it interesting that it’s only been a few days since all of this went down, but I have noticed that while she has brought up abortion rights in pretty much every speech and appearance she’s given, she has not given specifics. She has not indicated if she is in the Biden camp of let’s restore Roe v. Wade, or with a lot of the rest of the movement that says Roe was never good enough, we need to aim for something much more expansive. So we didn’t know where she is on that. I mean, largely she’s been just saying, “Oh, I will stop Donald Trump from banning abortion nationally.” And using him as the foil and pledging to stop him. And so we haven’t really seen her make an affirmative case of what she would do on this front.

Rovner: Well, I think that would probably be as difficult for her as it is for the Republicans to try and figure out how far they want to go banning. Because yeah, as you mentioned, I mean, there’s a lot of the abortion-rights movement that think that restoring Roe, even if they could, is not enough because obviously under Roe, many, many types of restrictions were allowed and were in place. That is obviously not where the abortion-rights side wants to end up. And on the other side, as we’ve talked about ad nauseum, do anti-abortion forces, are they OK with state-by-state bans? Do they want a national ban? If so, what would it look like? So that will obviously continue.

Now that we have, relatively, mostly settled who’s going to be at the top of the ticket, we are once again, back to the “Who will be the VP pick?” sweepstakes. Now that we’ve finished the Republican side, we’re back to the Democratic side of the short list. We’ve all been hearing Kentucky Gov. Andy Beshear, North Carolina Gov. Roy Cooper, Arizona Sen. Mark Kelly, and Pennsylvania Gov. Josh Shapiro. They all have significant health records, but mostly on different issues. Who do you think of the people who are being mentioned would make the biggest splash on the health care scene?

Ollstein: I’ve been hearing a lot of people talk about Gov. Beshear’s record on Medicaid expansion and pushing back against work requirements, and also opposing legislation to restrict trans care. And so there’s definitely a lot there. Really, a lot of them have something there, but I’ve been hearing the most about him.

Rovner: And Mark Kelly, of course, is married to Gabrielle Giffords, who was shot at a campaign event and is now a leading voice in the gun control movement. So they all seem to have slightly different major health issues. Roy Cooper in North Carolina got North Carolina to expand Medicaid, which was a very, very, very big deal with a very, very, very Republican legislature. I’m not going to ask anybody to guess who it’s going to be because I can’t imagine that any of us have any major insight into this. Whoever it turns out to be, and I imagine we’ll know in the next week or two, we will go in and examine their health care record. One of the advantages that Vice President Harris will have on the campaign trail is she gets to campaign on the Biden administration’s record, which is fairly accomplished on the health care front without the drag of being in her 80s. Somebody remind us of all the health policies the Biden administration has gotten done. Start with the Inflation Reduction Act.

Cohrs Zhang: The name of the legislation is very general, but I think President Biden, in his goodbye speech last night, did mention the drug pricing portion of that bill. He’s described it as beating Big Pharma. And I think that’s definitely something that he talked about in his State of the Union, that he wanted to expand some of those pricing mechanisms to more people, not just people in Medicare, but people in commercial health plans, too. So I think that’s been something that he has really felt passionate about and Vice President Harris now could certainly use on the campaign trail. It’s a really popular issue and, again, not a huge policy departure, but, certainly, there’s more work to be done there on Democrats’ side.

Armour: And also I think the ACA [Affordable Care Act] extensions in terms of how many more people have been eligible for coverage is something that will definitely be part of Biden’s legacy as well. And the record-low uninsurance that we saw is something I bet that will be remembered, too.

Rovner: Yeah, I mean I’ve been personally surprised at some of the things that he’s gotten done in a Congress with virtually minuscule majority. I mean, one vote in the Senate and, when the Democrats were controlling the House, it was, what, four votes in the House. That takes, I think, a certain kind of legislator to get things passed. I know people walk around and say, “Oh, the Biden administration hasn’t done anything.” And you want to pull your hair out because that’s all we’ve spent the last six years talking about, things that have actually gotten done and not gotten done.

Cohrs Zhang: Right. Well, I mean doing things and communicating well about doing things are different issues, and I think that’s going to be Vice President Harris’ challenge over the next few months.

Rovner: Yeah, and so we’ve seen, and I think the Biden administration has prevented a lot of things from happening, which is always very hard to campaign on. It’s like, “Well, if we hadn’t done this, then this might’ve happened.” I mean, I think that’s true about the pandemic. Things could have gone much, much worse and didn’t and that’s tricky to say, “Hey, we prevented things from getting even more terrible than they were.”

Ollstein: And on the drug pricing front, I mean it just always reminds me of the Affordable Care Act where the payoff is years down the road, and so selling it to voters in the moment when they’re not feeling the effects yet is really hard. So it makes sense that people aren’t aware that they got this major legal change that’s been decades in the making over the finish line because the drugs aren’t cheaper yet for a lot of people.

Rovner: That’s true. And the caps on spending haven’t really kicked in yet. It is a lot like the Affordable Care Act, which took four years from the time of passage to the time it was fully implemented.

Well, in other news, and there is some other news, Congress is back after a break for the Republican [National] Convention, although they’re about to leave again. At the top of the House’s list was passing the spending bills that they didn’t manage to pass last year. So how’s that all going, Rachel?

Cohrs Zhang: I think they’ve just thrown in the towel this week, given up a bit. I think there’s been an attitude of just apathy on the Hill and especially on health care issues that the sense has been, “We’ll return to this in December when we all have a little bit more information about the dynamics going to the lame-duck session.” And I think that clearly has bled over into any will that remains to pass appropriations bills before August recess. I think they’re ready to get out there, ready to be on the campaign trail and put this on the back burner.

Rovner: Yeah, and in an election year, you basically have the six months leading up to the first convention and then almost nothing until they come back after the election. They were going gangbusters on some of these spending bills. They were getting them out of committee even though they were obviously not in the kind of shape that they were going to become law. We talked at some length about all of the riders and all of the funding cuts that the Republicans have put in some of these bills, but they couldn’t even get them through the floor. I mean, Alice we’re hung up on abortion, again!

Ollstein: Oh, as always. And it’s the exact same policy fights as last time. The fight’s going to happen in the ag[riculture] bill, around FDA [Food and Drug Administration] regulation of abortion pills. There’s going to be fights about the provisions helping veterans and active-duty service members access abortion, knowing that these appropriations bills are the only real legislation that has any chance of going anywhere. People are putting all of their policy priorities in as riders. And last round of this, there were anti-abortion provisions tacked onto basically every single spending bill, and almost all of them got stripped out in the end and did not become law. Obviously, they kept long-standing things like the Hyde Amendment, but they didn’t add the new restrictions Republicans wanted to add. That is likely to happen again. We’ll see. This could drag past the election potentially. So the dynamics, depending on the outcome of the election, could be really different than they are today.

Rovner: Yeah, I mean, I guess the House is going out and they won’t be back until September. It used to be there would be an August recess in an election year, and they would come back in September, and they would actually work until the beginning or even the middle of October. And even that seems to have gone away. Now, once they’re gone for the quote-unquote “August recess,” it’s like, bye-bye getting much of anything done.

Well, there’s also some more news on the abortion front: The on-again off-again, on-again, off-again, six-week abortion ban in Iowa appears to be on again, possibly to start as soon as next week. Alice, I think we’ve mentioned this before, but this is going to affect a lot more than just people in Iowa.

Ollstein: Yeah, definitely. I mean, we’re seeing a big erosion of access across the Midwest Great Plains, like that whole area, that whole swath, the Dakotas, et cetera. And there’s already a lot of pressure on Illinois as the destination and clinics there are already overwhelmed with folks coming in from all over. And so this will add to that. As we’ve seen when this has happened in other states, wait times can go up, shortages of providers needed to care for everyone. Telemedicine does relieve some of that, and there are these groups that mail abortion pills into any state regardless of restrictions. But not everyone is comfortable doing that or knows how to do that or wants to do that or can afford to do that. And so this is said to have a big impact, and we’ll have to see what happens.

Rovner: There were two other pieces about abortion that caught my eye this week, and they’re both about things that we’ve talked about before. One is the push by anti-abortion doctors to change medical practice. In Louisiana, the abortion drugs mifepristone and misoprostol, both of which are used for many more things than just abortion, are now on the state’s list of controlled substances. And then from States Newsroom, there’s a piece about how anti-abortion OB-GYNs are trying to get medically necessary abortions that happen later in pregnancy, switched instead to C-sections or having the pregnant person go through and induce labor and delivery. I’ve been covering this issue, as I like to say, for nearly 40 years. This is the most intense effort I’ve ever seen from inside the medical profession to actually change how medicine is practiced in terms of what’s considered the standard of care, both for things like — not even so much mifepristone the abortion pill, but misoprostol, which is used for a lot of things other than abortion.

Armour: Was it initially an ulcer medication?

Rovner: Yes, yes, misoprostol.

Armour: That’s what I thought. Yeah.

Rovner: Cytotec. It was for a long time one of the go-to ulcer medicine. And in fact, the only reason it stopped becoming the go-to ulcer medicine because, if you were pregnant and wanted to be, it could help end your pregnancy. It is known to have that as a side effect, but yes, it’s an ulcer medication.

Armour: Yeah, this is the first I had seen anywhere, and I could be wrong, but of a real push to try and change the management of late-term medical miscarriages to how it would actually be carried out, which was just very interesting and to see what they were recommending instead.

Rovner: ACOG, the American College of Obstetricians and Gynecologists, has put out guidelines — forever, that’s what they do — about how to handle pregnancy problems later in pregnancy. Generally using the least invasive procedure is considered the safest and, therefore, best for the patient. And that’s not necessarily having a C-section, which is major surgery, or going through labor and delivery. People forget that it’s really dangerous to be pregnant. I mean, it’s amazing that we have all of these kids and happy parents because if you go back and look in history, a lot of women used to die in childbirth. They still do. It’s obviously not as bad as it used to be, but it is not everything-goes-fine-99%-of-the-time thing that I think a lot of people think it is.

Armour: That’s right. Yeah.

Rovner: All right, well, meanwhile, before we bid Congress goodbye for the rest of the summer, the House Oversight Committee, which is usually as partisan a place as there is in this Congress, held a hearing this week on PBMs [pharmacy benefit managers] and there seems to be pretty bipartisan support that something needs to be done. Rachel, I keep asking this question: It seems that just about everybody on Capitol Hill wants to do something to rein in PBM drug price abuse, and yet no one ever does. So are we getting closer yet?

Cohrs Zhang: We are getting closer, I think, as we approach December. My understanding was that lawmakers were pretty close on a deal on PBMs back in March. But I think it was just a symptom of “Appropriations Bill Has to Move.” They want it to be clean. If they add one committee’s extra stuff, they have to let other committees add extra stuff, too, and it gets too complicated on deadline. But it’s wild to me that we’re still seeing new PBM reform bills at this point. But there’s just a huge, huge pile of bills at this point, everyone wants their name on it. And so I really do believe that we’re going to see something in December. I think the big question is how far some of these reforms will reach: whether they’ll be limited to the Medicare program or whether some of these will start to touch private insurance as well. I think that’s what the larger industry is waiting to see. But I think there’s a lot of appetite. I mean with congresswoman Cathy McMorris Rodgers retiring, she’s led a package on this issue …

Rovner: She’s chairman of the House Energy and Commerce Committee, which obviously has the main jurisdiction over this in the House.

Cohrs Zhang: Right. So if we’re thinking about legacy, getting some of these things across the finish line, it does depend how dynamics change in the lame duck. But I think there is a very good chance that we’re going to see some sort of action here.

Rovner: Congressman Jamie Raskin, at that hearing, had maybe my favorite line ever about PBMs, which is, he said, “The more I hear about this, the less I understand it.” It’s like you could put that on a T-shirt.

Ollstein: That’s great. Yeah.

Cohrs Zhang: Yes.

Rovner: The PBM debate in one sentence. All right. Finally, this week we have some Medicaid news, a new report from the GAO [Government Accountability Office] finds pretty much what we already knew: that states have been wrongly kicking eligible people off of their Medicaid coverage as they were, quote, “unwinding from the public health emergency.” According to the report, more than 400,000 people lost coverage because the state looked at the household’s eligibility instead of individual eligibility. Even though Medicaid income thresholds are much higher for many people, like children and pregnant women. So if the household wasn’t eligible, possibly, even probably, the children still were. It’s a pretty scathing report. Is anybody going to do anything about it? I mean, the GAO’s recommendation was that the administration act a little more strongly and the administration says, “We already are.”

Cohrs Zhang: Yeah, I actually had the chance to talk with a White House official about this dynamic, and just, I think there’s only so far that they’re willing to go, and I think might talk about, in a while. I think there’s been clashes between the Biden administration and conservative states, especially on Medicaid programs, and there’s really only so much influence they can exert. And I think without provoking an all-out war, I’m personally expecting them to get much more aggressive in the last six months of their administration, if they weren’t going to do it before, when they really could have potentially made a difference and really made it a calling card in some of these states. So I’m not expecting much change from the White House on this issue.

Rovner: Yeah, I remember the administration was so sensitive about this that when we were first learning about how states were cutting people off who they shouldn’t have been, the administration said, “We’re working with the states.” And we all said, “Which states?” And they said, “We’re not going to tell you.” I mean, that’s literally how sensitive it was. They would not give us the list of the states who they said were incorrectly knocking people off the roll. So yeah, clearly this has been politically sensitive for the administration, but I’m …

Armour: And the Medicaid directors, too. They really pushed back, especially initially, about not wanting it to be too adversarial. I think the administration really took that to heart. Whether that was the right call or not remains to be seen, but there was a lot of tension around that from the get-go.

Rovner: Yeah. Well, also this week, The New York Times has a deep dive into the one remaining Medicaid work requirement in the country, Georgia’s Pathways to Coverage. In case you don’t remember, this was the program that Georgia said would enroll up to 100,000 people, except, so far it’s only managed to sign up about 4,500. It feels relevant again though, because the Heritage Foundation’s Project 2025, which is now all over the campaign trail, would go even further than previous Republican efforts to rein in Medicaid by possibly imposing lifetime caps on coverage. Cutting Medicaid didn’t go very well in 2017 when the Republicans tried to repeal and replace the Affordable Care Act. What makes them think an even bigger cutback would be more popular now?

Armour: Well, the study’s authors say to me that if they’re not cutting Medicaid, which goes back to the original debate back when they were talking about …

Rovner: The Project 2025 authors.

Armour: Yes, authors. Right. And that goes back to the original debate of how do you define it? A little bit of sleight of hand. And the other thing is that would definitely bring back the Medicaid work requirements and some premiums for some, which also turned out not to be super-popular as well. So it does dive right into an issue. But it’s also an issue that conservatives have been, boy, working on for years and years now to try and get this accomplished.

Rovner: Oh yeah, block-granting Medicaid goes back decades.

Armour: Exactly. Yeah.

Rovner: And there’ve been various ways to do it. And then work requirements, obviously Alice, you were the queen of our work requirement coverage in Arkansas because they put in a work requirement and it didn’t go well. Remind us.

Ollstein: Yeah. So this is what a lot of experts and advocates predicted, which is that we know from years of data that pretty much everybody on Medicaid who can work is already working and those who aren’t working are not working because they are a student or they have to care for a relative or they have a disability or there are all these reasons. And so when these work requirements actually went into effect, just a lot of people who should have been eligible fell through the cracks. It was hard to navigate the bureaucracy of it all. And so even people who were working struggled to prove it and to get their benefits. And so people really point to that as a cautionary tale for other states. But this is something conservatives really believe in ideologically, and so I don’t expect it to be going away anytime soon.

Rovner: To swing back to where we started. I imagine we will see more talk about health care on the presidential campaign trail as we go forward.

All right, well that’s as much news for this week as we can fit in. Now we will play my interview with Families USA’s Anthony Wright, and then we’ll come back and do our extra credits.

I am so pleased to welcome to the podcast Anthony Wright, the brand-new executive director of Families USA, one of the nation’s leading consumer health advocacy groups. And a big part of why we even have the ACA. Anthony is no stranger to health care battles. He spent more than 20 years heading up the group Health Access California, where he worked on a variety of health issues, large and small, and encountered someone who is suddenly very much in the news: Vice President Kamala Harris. Anthony Wright, welcome to “What the Health?”

Anthony Wright: Thank you so much for having me. I’m a longtime listener, but first-time caller.

Rovner: Awesome. So, for those who are not familiar with Families USA, tell us about the group and tell us what your immediate priorities are.

Wright: So, Families USA has been a longtime voice for health care consumers in Congress, at the administration, working nationally for the goal of quality, affordable, equitable health care for all Americans. I’m pleased to take on that legacy and to try to uplift those goals. I’m also particularly interested in continuing to uplift and amplify the voices of patients in the public in health policy debates. It’s opaque to try to figure out how normal people engage in the federal health policy discussions so that health reforms actually matter to them. I would like families to do more to provide pathways so that they have an effective voice in those policy discussion tables. There’s so many policy debates where it’s the fight between various parts of the industry, when, in fact, the point of the health care system is patients, is the public, and they should be at the center of these discussions.

Rovner: Yes, and I’m embarrassed to admit that we spend an enormous amount of time talking about the players in the health care debate that are not patients. They are basically the people who stand to make money from it. What’s your biggest priority for this year and next?

Wright: Yeah, I want to take some of the lessons that I’ve learned over the 22 years of working in California, where we had the biggest drop of the uninsured rate of all 50 states, mostly working to implement and improve the Affordable Care Act. And I recognize that some of those lessons will have to be adopted and changed for the different context of [Washington,] D.C., or the 49 other states. But there is work that we can do, and we should do, moving forward. There are things on the plate right now. For example, in the next year, the additional affordability assistance that people have in the exchanges is set to expire. And so we can either have a system where everybody has a guarantee that their premiums are capped at 8.5% of their income or less on a sliding scale, or we can let those enhanced tax credits expire and to have premiums go up by hundreds, or for many people, thousands of dollars literally in the next year or so.

So that’s a very important thing that will be on the ballot this fall, along with a number of other issues and we want to highlight that. But frankly, I’m also interested in the work around expanding coverage, including in those 10 states that haven’t expanded Medicaid yet. In California, we’ve done a lot of work on health equity dealing with racial and ethnic disparities and just meeting the specific needs of specific communities. That was an imperative in California with the diversity and the size and scale of that state. But there’s more we can do both in California, but nationally, with regard to that. And then I think there’s more to work on costs with regard to just how darn expensive health care is and how do we fix the market failures that lead to, not just high, but irrational and inflated health prices.

Rovner: So obviously a big part of what you will or won’t be able to do next year depends on who occupies the White House and who controls Congress. You’re from California and so is Vice President Harris. Tell us about her record on health care.

Wright: Yeah, she actually has a significant record, mostly from her time as attorney general of California. She didn’t have much of a portfolio as district attorney, but when she did become the attorney general — attorney generals have choices about where they focus their time and she made a point to focus more on health care and start an evolution of the attorney general being more involved in health care issues — on issues like reviewing mergers of hospitals and putting conditions to make sure that emergency rooms stayed open, that hospitals continued their commitments to charity care. She worked on broader issues of consolidation, for example, joining the [U.S.] Justice Department in opposing the merger of Anthem and Cigna.

And she took on, whether it’s the insurers or the drug companies or the hospital chains, on issues of pricing and anticompetitive practices, whether it was Bayer and Cipro and other drug companies with regard to pay-for-delay practices, basically schemes to keep the price of drugs inflated. Or on the issue of high hospital prices. She began the investigations that led to a landmark Sutter settlement where that hospital chain paid $575 million in fines, but also agreed to a series of conditions with regard to no longer engaging in anticompetitive contracting practices. And that kind of work is something that we worked on with her, and I think is really relevant to the moment we’re in now where we really do see that consolidation is one of the major drivers of why health care prices are so high. And that kind of experience that she could talk about as she talks about health care costs broadly, medical debt, and some of the issues that are on the campaign trail today.

Rovner: So, obviously, with the exception of reproductive health, health in general has not been a big part of the campaign this year. Do you think it’s going to get bigger now that Harris is at the head of the ticket?

Wright: One of the things that I’m happy with is that, after several weeks where the conversation has much been about the campaign processes, we can maybe focus back on policy and the very real issues that are at stake. Our health care is on the ballot, whether it is reproductive health and abortion care, but also there’s a very easy leap to also talk about the threats, not just to reproductive health, but also to the Affordable Care Act, to Medicaid, to Medicare. There’s very different visions and records of the last two administrations with regard to the Affordable Care Act, whether to repeal it or build upon it, on Medicaid and whether to bolster it or to block-grant it. And even on the question of something like prescription drug negotiation, whether we took some important steps under the Inflation Reduction Act. Do we now expand that authority to cover more drugs for more discounts for more people? Or do we give up that authority to negotiate for the best possible price?

Those are very key issues that are at stake in this election. We are a nonpartisan, non-endorsing organization, but we do want to make sure that health care issues are on people’s minds, and also, frankly, policymakers to make some commitments, including on something like what I was talking about earlier with those enhanced tax credits. Again, at a time when people are screaming about affordability, but we know that they’ve been actually screaming about health care affordability for not just years but decades. And that’s a very specific, concrete thing that literally means hundreds or thousands of dollars in people’s pockets.

Rovner: So then-presidential candidate Kamala Harris was a supporter of Medicare for All in 2020 when she ran. Do you expect that that may have changed, as she’s learned how hard it is even to make incremental change? I haven’t seen anybody ask her yet what her feeling is on systemic health reform.

Wright: I mean, she had a modified proposal that I think was trying to both take seriously the question of how do we get to universal coverage while also recognizing the politics and procedural barriers that exist. And so I think there’s a practical streak of how do we get the most help to the most people and help change, frankly, the financial incentives in our system, which are right now just to get bigger, not to get better. And so I think that there’s some very practical questions on the table right now, like these tax credits, this cap on how much a percentage of your income should go for premium. That’s something that’s front of mind because it literally expires next year. So it’s something that maybe gets dealt with in a lame duck, but hopefully early in the next year, since rates need to be decided early. And so those are the immediate things.

But I do think she’s also, in her record — I’m not going to talk about what may be — but in her record, she’s been supportive of the Affordable Care Act. I mean our biggest actual engagement with then-U.S. Sen. Harris was at a time when we all thought that the Affordable Care Act was a goner. It would be repealed and replaced. She was willing to be loud and proud at our rallies, in front of a thousand people, in front of a Los Angeles public hospital, talking about the need to defend the Affordable Care Act and protections for people with preexisting conditions. And she came again in July and just at a time where we needed that forceful defense of the Affordable Care Act. She was there and we very much appreciated that. I think she would continue to do that as well as want to work to build upon that financing and framework to make additional gains forward.

Rovner: This being Washington, everybody’s favorite parlor game this week is handicapping the vice presidential sweepstakes. And who about-to-be-candidate Harris is going to choose to be her running mate. Are any of the big names in contention more or less important in terms of their health care backgrounds?

Wright: I have my credentials to talk about the Californian on the ticket. I probably have less there. I do know that some of those governors and others have their own records of trying to take the framework of the ACA and adapt it to their state. And I think that would be a useful thing to continue to move forward on the trail. I’m not in a position, again, as a non-endorsing organization, we’re focused on the issues.

Rovner: You’re agnostic about the vice presidential candidate.

Wright: You’re right, I think the point is how can we make sure that people recognize what is at stake for the health care that they depend on and, frankly, the financial piece of it. Affordability has been something that has been talked about a lot and there is no greater source of economic anxiety and insecurity than the health care bill. A hospital bill is the biggest bill that anybody will get in their entire life. So how do you deal with it? And whether it’s a conversation about medical debt and how you deal with it, or what kind of tax credits we can provide to provide some security that you don’t pay more than the percentage of your income. Or how do you deal with the root causes of the market failures in our health care system, whether it’s consolidations and mergers or anticompetitive practices. Those are the things that I think we should have a bigger conversation in this campaign cycle about.

Rovner: Hopefully we’ll be able to do this again as it happens. Anthony Wright, thank you so much.

Wright: Thank you.

Rovner: OK, we are back. It’s time for our extra-credit segment. That’s when we each recommend a story we read this week we think you should read, too. As always, don’t worry if you miss it. We will post the links on the podcast page at kffhealthnews.org and in our show notes on your phone or other mobile device. Rachel, why don’t you go first this week?

Cohrs Zhang: Sure. There’s a lot of good health journalism out there, but I have to highlight a new project from my colleagues. Bob Herman, Tara Bannow, Casey Ross, and Lizzy Lawrence are looking into UnitedHealth’s business practices, and there’s been a lot of buzz about UnitedHealthcare on the Hill, and the first part of their investigation is headlined “How UnitedHealth Harnesses Its Physician Empire To Squeeze Profits out of Patients.” It focuses on the trend that UnitedHealth has been acquiring so many physician practices and looks at the incentives of what actually happens when an insurer owns a physician practice.

What pressures are they putting on? What’s the patient experience? What’s the physician experience? Their physicians on the record were telling them about their experiences: having to turn through patients; feeling pressure to make patients look sicker on paper so UnitedHealth could get more money from the federal government to pay for them. And just, I mean, the documentation here is just really superb reporting. It’s part one of a series. And I think reporting like this really helps inform Washington about how these things are actually playing out and what’s next in terms of whether action should be taken to rein these practices in.

Rovner: I feel like the behemoth that is UnitedHealthcare is going to keep a lot of health reporters busy for a very long time to come. Alice.

Ollstein: Yeah. So there’s been a lot of news on the PrEP front recently. That’s the drug that prevents transmission of HIV. And so basically two steps forward, one step back. I chose this piece from Stat News [“A Pricey Gilead HIV Drug Could Be Made for Dramatically Less Than the Company Charges”], about a new form of PrEP that is an injection that you get just twice a year that has proven wildly effective in clinical trials. And so folks are really excited about that, and I think it could really make a difference because, as with birth control and as with lots of other medication, the effectiveness rate is only if you use it perfectly, which, you know, we’re humans. And humans don’t always adhere perfectly. And so something like just a couple injections a year that you could get from your doctor would go a long way towards compliance and making sure people are safe with their medications.

But my colleague and I also scooped this week that HHS [the Department of Health and Human Services] is ending one of its big PrEP distribution programs [“Federal HIV Program Set To Wind Down”]. It’s called Ready, Set, PrEP. It debuted under the Trump administration in 2019. And the reason given by HHS for it ending — which, by the way, they were very quiet about and didn’t even tell a lot of providers that it was ending — they said it was because there are all these other ways people can get PrEP now, that didn’t exist back then, like generic versions. And while that’s true, we also heard from a lot of advocates who said the program was just really flawed from the start and didn’t reach even a fraction of the people it should have reached. And so we’ll continue to dig on that front.

Rovner: Good stories. Stephanie.

Armour: Yes. I picked the story by Dylan Scott on Vox about “Free Medical School Won’t Solve the Doctor Shortage.” And it looks at Michael Bloomberg, who is donating a billion dollars to Johns Hopkins to try to pay for medical school for students there. The idea being that, “Look, there’s this doctor shortage and what can we do to help?” And what’s really interesting about the story is it goes beyond just the donation to look at the fact that it’s not really that there’s a doctor shortage, it’s that we don’t have the right kind of doctors and it’s the distribution. Where you don’t have nearly what we need when it comes to psychiatrists, for example. And there’s a real dearth of physicians in areas that are rural or in the Midwest. So I think what it raises is what resources do we want to spend and where? What other steps can we do that would really help drive doctors to where they’re most needed? So it’s a good story. It’s worth a read.

Rovner: Yeah, it is a good story. It is a continuing problem that I continue to harp on. But we now have quote-unquote “free medical school,” mostly in really urban, really expensive places.

Armour: Yes.

Rovner: New York, Los Angeles, Baltimore. That’s nice for the doctors who will now graduate without $200,000 in medical debt. But yeah, as Dylan points out, it’s not exactly solving the problem that we have. Well, I went cute this week. My extra credit this week is from NPR. It’s called “A Study Finds That Dogs Can Smell Your Stress — And Make Decisions Accordingly,” by Rachel Treisman. Now, we’ve known for a fairly long time that dogs’ sensitive noses can detect physical changes in their humans. That’s how alert dogs for epilepsy and diabetes and other ailments actually work.

But what we didn’t know until now is that if a dog smells a person’s stress, it can change the dog’s emotional reaction. It was a complicated experiment that you can read about if you want, but as somebody who competes with my dogs, and who knows how differently they act when I am nervous, this study explains a lot.

All right, that is our show. As always, if you enjoy the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left us a review; that helps other people find us too. Special thanks, as always, to our technical guru, Francis Ying, and our editor, Emmarie Huetteman. As always, you can email us your comments or questions. We’re at whatthehealth@kff.org, or you can still find me at X, @jrovner. Alice, where are you?

Ollstein: @AliceOllstein on X.

Rovner: Rachel.

Cohrs Zhang: @rachelcohrs on X.

Rovner: Stephanie.

Armour: @StephArmour1.

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

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Not so long ago, Bonner General Health, the hospital in Sandpoint, Idaho, had four OB/GYNs on staff, who treated patients from multiple rural counties.

That was before Idaho’s near-total abortion ban went into effect almost two years ago, criminalizing most abortions. All four of Bonner’s OB/GYNs left by last summer, some citing fears that the state’s ban exposed them to legal peril for doing their jobs.

The exodus forced Bonner General to shutter its labor and delivery unit and sent patients scrambling to seek new providers more than 40 miles away in Coeur d’Alene or Post Falls, or across the state border to Spokane, Wash. It has made Sandpoint a “double desert,” meaning it lacks access to both maternity care and abortion services.

One patient, Jonell Anderson, was referred to an OB-GYN in Coeur d’Alene, roughly an hour’s drive from Sandpoint, after an ultrasound showed a mass growing in her uterus. Anderson made multiple trips to the out-of-town provider. Previously, she would have found that care close to home.

The experience isn’t limited to this small Idaho town.

A 2023 analysis by ABC News and Boston Children’s Hospital found that more than 1.7 million women of reproductive age in the United States live in a “double desert.” About 3.7 million women live in counties with no access to abortion and little to no maternity care.

Texas, Mississippi and Kentucky have the highest numbers of women of reproductive age living in double deserts, according to the analysis.

Amelia Huntsberger, one of the OB/GYNs who chose to leave Sandpoint — despite having practiced there for a decade — did so because she felt she couldn’t provide the care her patients needed under a law as strict as Idaho’s.

The growing provider shortages in rural states affect not only pregnant and postpartum women, but all women, said Usha Ranji, an associate director for Women’s Health Policy at KFF, a health information nonprofit that includes KFF Health News.

“Pregnancy is obviously a very intense period of focus, but people need access to this care before, during and after, and outside of pregnancy,” Ranji said.

The problem is expected to worsen.

In Idaho, the number of applicants to fill spots left by departing doctors has “absolutely plummeted,” said Susie Keller, CEO of the Idaho Medical Association.

“We are witnessing the dismantling of our health system,” she said.

This article is not available for syndication due to republishing restrictions. If you have questions about the availability of this or other content for republication, please contact NewsWeb@kff.org.

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

The Republican National Convention highlighted a number of policy issues this week, but health care was not among them. That was not much of a surprise, as it is not a top priority for former President Donald Trump or most GOP voters. The nomination of Sen. J.D. Vance of Ohio adds an outspoken abortion opponent to the Republican ticket, though he brings no particular background or expertise in health care.

Meanwhile, abortion opponents are busy trying to block state ballot questions from reaching voters in November. Legal battles over potential proposals continue in several states, including Florida, Arkansas, and Arizona.

This week’s panelists are Julie Rovner of KFF Health News, Alice Miranda Ollstein of Politico, Sarah Karlin-Smith of the Pink Sheet, and Joanne Kenen of the Johns Hopkins schools of public health and nursing and Politico Magazine.

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Alice Miranda Ollstein
Politico

@AliceOllstein

Read Alice's stories.

Joanne Kenen
Johns Hopkins University and Politico

@JoanneKenen

Read Joanne's articles.

Sarah Karlin-Smith
Pink Sheet

@SarahKarlin

Read Sarah's stories.

Among the takeaways from this week’s episode:

• Sen. J.D. Vance of Ohio has cast few votes on health policy since joining Congress last year. He has taken a doctrinaire approach to abortion restrictions, though, including expressing support for prohibiting abortion-related interstate travel and invoking the Comstock Act to block use of the mail for abortion medications. He also speaks openly about his mother’s struggles with addiction, framing it as a health rather than criminal issue in a way that resonates with many Americans.
• Although Republicans have largely abandoned calls to repeal and replace the Affordable Care Act, it would be easy for former President Donald Trump to undermine the program in a second term; expanded subsidies for coverage are due to expire next year, and there’s always the option to cut spending on marketing the program, as Trump did during his first term.
• Trump’s recent comments to Robert F. Kennedy Jr. about childhood vaccinations echoed tropes linked to the anti-vaccination movement — particularly the false claim that while one vaccine may be safe, it is perhaps dangerous to receive several at once. The federal vaccination schedule has been rigorously evaluated and found to be safe and effective.
• Covid is surging once again, with President Joe Biden among those testing positive this week. The virus is proving a year-round concern and has peaked regularly in summertime; covid spreads best indoors, and lately millions of Americans have taken refuge inside from extremely high temperatures. Meanwhile, the virology community is concerned that the nation isn’t testing enough animals or humans to understand the risk posed by bird flu.

Also this week, Rovner interviews KFF Health News’ Renuka Rayasam, who wrote the June installment of KFF Health News-NPR’s “Bill of the Month,” about a patient who walked into what he thought was an urgent care center and walked out with an emergency room bill. If you have an exorbitant or baffling medical bill, you can send it to us here.

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

Julie Rovner: Time magazine’s “‘We’re Living in a Nightmare:’ Inside the Health Crisis of a Texas Bitcoin Town,” by Andrew R Chow.

Joanne Kenen: The Washington Post’s “A Mom Struggles To Feed Her Kids After GOP States Reject Federal Funds,” by Annie Gowen.

Alice Miranda Ollstein: ProPublica’s “Texas Sends Millions to Crisis Pregnancy Centers. It’s Meant To Help Needy Families, but No One Knows if It Works,” by Cassandra Jaramillo, Jeremy Kohler, and Sophie Chou, ProPublica, and Jessica Kegu, CBS News.

Sarah Karlin-Smith: The New York Times’ “Promised Cures, Tainted Cells: How Cord Blood Banks Mislead Patients,” by Sarah Kliff and Azeen Ghorayshi.

Also mentioned on this week’s podcast:

The Wall Street Journal’s “Mail-Order Drugs Were Supposed To Keep Costs Down. It’s Doing the Opposite,” by Jared S. Hopkins.

Click to open the transcript

Transcript: At GOP Convention, Health Policy Is Mostly MIA

KFF Health News’ ‘What the Health?’Episode Title: ‘At GOP Convention, Health Policy Is Mostly MIA’Episode Number: 356Published: July 18, 2024

[Editor’s note: This transcript was generated using both transcription software and a human’s light touch. It has been edited for style and clarity.]

Julie Rovner: Hello, and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF Health News, and I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, July 18, at 10 a.m. As always, news happens fast and things might’ve changed by the time you hear this. So, here we go.

We are joined today via video conference by Alice Miranda Ollstein, of Politico.

Alice Miranda Ollstein: Good morning.

Rovner: Sarah Karlin-Smith at the Pink Sheet.

Sarah Karlin-Smith: Hi, everybody.

Rovner: And Joanne Kenen of the Johns Hopkins Schools of public health and nursing, and Politico Magazine.

Joanne Kenen: Hi, everybody.

Rovner: Later in this episode, we’ll have my interview with KFF Health News’ Renuka Rayasam, about the latest “Bill of the Month.” This month’s patient went to a facility with urgent care in its name but then got charged emergency room prices. But first, this week’s news.

So as of this morning, we are most of the way through the Republican National Convention, which obviously has a somewhat different tone than was expected, following last weekend’s assassination attempt on former President Donald Trump. The big news of the week is Trump’s selection of Ohio Republican Sen. JD Vance as his running mate. Vance has only been in the Senate since 2023, had not served previously in public office, and he doesn’t have much of a record on much of anything in health care. So, what do we know about what he thinks?

Ollstein: Well, I have been most focused on his abortion record, which is somewhat more extensive than his record on other health policy. Obviously, Congress has not done very much on abortion, but he’s been loud and proud about his anti-abortion views, including calling for national restrictions. He calls it a national minimum standard, but the idea is that he does not want people in conservative states where abortion is banned to be able to travel to progressive states where it is allowed. He has given interviews to that effect. He has signed letters to that effect. He has called for enforcement of the Comstock Act, which, as we’ve talked about before, is this long dormant statute that prohibits the mailing of abortion drugs or medical instruments that could be used to terminate a pregnancy. And so this is a very interesting moment to pick Vance.

The Republican Party is attempting to reach out to more moderate voters and convince them that they are hoping to leave this issue to the states. Vance’s record somewhat says otherwise. He also opposed efforts in his own state of Ohio to hold a referendum that ended up striking down that state’s abortion ban. So, definitely a lot for Democrats to go after in his record and they are not wasting any time; they are already doing it.

Rovner: Yeah, I’m kind of surprised because Vance, very much like Trump, has been kind of everywhere, or at least he has said that he’s kind of everywhere on abortion. But as you mentioned, Alice, you don’t have to look very hard to see that he’s pretty doctrinaire on the issue. Do you think people are going to buy this newer, softer Republicanism on abortion?

Ollstein: Well, abortion rights groups that I’ve spoken to are worried that people are buying it. They’re worried as they campaign around the country that the Republican Party’s attempt to walk away from their past calls for national restrictions on abortion are breaking through to people. And so they are trying really hard to counter that message and to stress that Republicans can and would pursue national restrictions, if elected.

I think both Democratic candidates and abortion rights groups are working to say even the leave-it-to-states position is too extreme and is harming people. And so they’re lifting up the stories of people in Texas and other states with bans who have experienced severe medical harm as a result of being denied an abortion. And so they’re lifting up those stories to say, “Hey, even saying let’s leave it to the states, let’s not do a national ban — even that is unacceptable in the eyes of the left.”

Kenen: The other issue obviously with his life story is opioids. His mother was addicted. Originally it began with being prescribed a legal painkiller. It’s a familiar story: became addicted, he was raised by his grandmother. His mother, who he showed on TV last night and she was either in tears or really close to tears, she’s 10 years sober now. He had a tough life and opioids was part of the reason he had a tough life. And whatever you think of his politics, that particular element of his life story resonates with people because it may explain some of his political views. But that experience is not a partisan experience and he was a kid. So I think he clearly does see opioids as a medical problem, not just, oh, let’s throw them in jail. I mean, the country and the Republican Party, that has been a change. It’s not a change that’s completed, but that shift is across party lines as well. That’s part of him that — it’s something you listen to when he tells that story.

I mean also, he told a story about his grandmother late in life, the grandmother who raised him, having, when she died, they found 19 handguns in the house all over the place. And he told sort of a funny story that she was old and frail and she always wanted to have one within reach. And all I could think of is, all these unlocked handguns with kids in the house! I mean, which is not a regulatory issue, but there’s a gun safety issue there. I’m just thinking, oh my God, 19 guns in drawers all over the house. But he’s obviously a very, the Republican Party is … I mean, after the assassination attempt, you have not heard Donald Trump say, “Maybe I need to rethink my position on gun control.” I mean, that’s not part of the dialogue right now.

I think having someone with that experience, talking about it the way he does, is a positive thing, really. Saying, “Here’s what we went through. Here’s why. Here’s how awful it was. Here’s how difficult it was to get out of it. And this is what these families need.” I mean, that is …

Rovner: Although it’s a little bit ironic because he’s very anti-social programs, in general.

Karlin-Smith: And he’s had a bad track record of trying to address the opioid crisis. He had a charity he started that he ended I guess about when he was running for Senate that really was deemed nonsuccessful. It also had questionable ties to Purdue Pharma, that’s sort of responsible for the opioid crisis. And the other thing that you sometimes hear in both him and Trump’s rhetoric is the blaming of immigrants and the drug cartels and all of that stuff for the opioid crisis. So, there’s a little bit of use of the topic, I think, to drop anti-immigrant sentiment and not really think about how to address the actual health struggles.

Kenen: When he talks about his family, he’s not saying China sent my mother fentanyl. I think it is good for people to hear stories from the perspective of a family who had this, as it is a health problem, reminding people that this is not thugs on the street shooting heroin. It’s a substance abuse disorder, it’s a disease. And so I think the country has come a long way, but it isn’t where it needs to be in terms of understanding that it’s a behavioral health problem. So I think in that sense he will probably be a reminder of that. But he doesn’t have a health record. I mean, he wasn’t there during the Obamacare wars. We don’t really know what he thinks about. I’m not aware of anything he’s really said about entitlements and Medicare. He does come from the state … I mean, Trump is saying he won’t touch it. But I mean if he said Medicare stuff, I missed it. I mean, if one of you knows, correct …

Karlin-Smith: Well, he has actually said that he supports Medicare drug price negotiation at times, which is interesting and unique for a Republican. And I mean Trump, as well, has been a bit different from the traditional Republican, I think, when it comes to the pharma industry and stuff, but I think that maybe is even a bridge too far in some ways.

Rovner: Yeah, he’s generally pretty anti-social program, so it’ll be interesting to see how he walks that line.

Well, this is all good segue into my next question, which is, health in general has been mostly MIA during this convention, including any update on Trump’s ear injury from the attempted assassination. Are we finally post-repeal-and-replace in the Republican Party? Or is this just one of those things that they don’t want to talk about but might yet take up if they get into office?

Kenen: We don’t know what the balance of power is in the Senate and the House, right? I mean, that’s probably going to be part of it. I mean, if they have huge … if they capture both chambers with huge majorities, it’s a new ballgame. Whether they actually try to repeal it, versus there’s all sorts of ways they can undermine it. Trump did not succeed in repealing it. Trump and the House Republicans did not, the Republicans in general did not succeed in repealing it, despite a lot of effort. But they did undermine it in all sorts of ways and coverage actually fell during the Trump administration. ACA [Affordable Care Act] coverage did drop; it didn’t vanish completely, but it dropped. And under Biden it continued to grow. Now, the Republicans get their health care through the ACA, so it’s become much more normalized, but we don’t know what they will do. Trump is not a predictable politician, right? I mean, he often made a big deal about trying to lower drug prices early in his term, and then nothing. And then he even released huge, long list of things …

I remember one of our reporters — Sarah and I were both … Sarah, Alice, and I were all at Politico — and I think it was David who counted the number of question marks in that report. And at the end of the day, nothing much happened. I don’t think the ACA is untouchable; it may or may not be unrepealable in its entirety, but it’s certainly not untouchable.

Rovner: Well, he also changes positions on a whim, as we’ve seen. Most politicians you can at least count on to, when they take a position, to keep it at least for a matter of days or weeks, and Trump sometimes in the same interview can sort of contradict himself, as we know. But I mean, obviously a quick way to undermine the ACA, as you say, would just be to let the extended subsidies expire because they would need to be re-upped if that’s going to continue and there are many millions of people that are now …

Kenen: And they expire next year.

Rovner: … Yes, that are …

Kenen: And there are also two other things. You cut the navigating budget. You cut advertising. You don’t try to sell it. I don’t mean literally sell it, but you don’t try to go out and urge … I mean, that was their playbook last time, and that’s why — it’s one reason enrollment dropped. And that was, the subsidies were under Biden, the extended subsidies. So that’s one year away.

Ollstein: But it’s no surprise that this hasn’t been a big topic of discussion at the RNC [Republican National Convention]. I mean, polling shows that voters trust Democrats more on health care; it’s one of their best issues. It’s not a good issue for Republicans. And so it was fully expected that they would stick to things that are more favorable to them: crime, inflation, whatnot. So, I do expect to hear a lot about health care at the DNC [Democratic National Convention] in a few weeks. But beyond that, we do not know what’s going to happen at the DNC.

Rovner: Yeah.

Karlin-Smith: I was going to say, the one health issue we haven’t really touched on, which the Republicans have been hammering on, is transgender health care and pushing limits on it, especially for people transitioning, children, and adolescents. And I think that’s clearly been a strategic move, particularly as they’ve gotten into more political trouble with abortion and women in the party. They clearly seem to think that the transgender issue, in general, appeals more to their base and it’s less risky for them.

Rovner: Their culture warrior base, as you will. Yeah, and we have in fact seen a fair bit of that. Well, before we leave the convention, one more item: It seems that Trump and RFK Jr. [independent presidential candidate Robert F. Kennedy Jr.] had a phone conversation, which of course leaked to the public, during which they talked about vaccine resistance. Now we know that RFK Jr. is a longtime anti-vaxxer. What, if anything, does the recounting of this conversation suggest about former President Trump’s vaccine views? And we’ve talked about this a little bit before, he’s been very antimandate for the covid vaccine, but it’s been a little bit of a blank on basic childhood vaccines.

Karlin-Smith: And I mean, his remarks are, they’re almost a little bit difficult to parse, they don’t quite make sense, but they seem to be essentially repeating anti-vax tropes around, well, maybe one vaccine on their own isn’t dangerous, but we give kids too many vaccines at a time or too close together. And all of that stuff has been debunked over the years as incorrect. The vaccine schedule has been rigorously evaluated for safety and efficacy and so forth.

That said, Trump obviously was in office when we spearheaded the development of covid vaccines, which ended up being wildly successful, and he didn’t really undermine that process, I guess, for the most part when he was in office. So it’s hard to know. Again, there’s a lot of difficulty in predicting what Trump will actually do and it may depend a lot who he surrounds himself with and who he appoints to key positions in his health department and what their views are. Because he seems like he can be easily persuaded and right now he may just be in, again, campaign mode, very much trying to appeal to a certain population. And you could easily see him — because he doesn’t seem to care about switching positions — just pivoting and being slightly less anti-vax. But it’s certainly concerning to people who have been even more about the U.S. anti-vax sentiments since covid and decreases in vaccination rates.

Rovner: It did feel like he was trying to say what he thought RFK Jr. wanted to hear, so as to win his endorsement, which we know that Trump is very good at doing. He channels what he says depending on who he’s talking to, which is what a lot of politicians do. He just tends to do it more obviously than many others.

Kenen: Julie, we heard this at the tail end of the 2016 campaign. He made a few comments, exactly, very, very similar to this, the size of a horse vaccine and you see the changes — there’s too many, too many vaccines, too large doses. We heard this briefly in the late 2016, and we heard it at the very — I no longer remember whether it was during transition in 2016 or whether it was early in 2017 when he was in the White House — but we heard a little bit of this then, too. And he had a meeting with RFK then. And RFK said that Trump was talking about maybe setting up a commission and RFK at one point said that Trump had asked him to head the commission. We don’t think that was necessarily the case.

First of all, there was no commission. The White House never confirmed that they had asked RFK to lead it. Who knows who said what in a closed room, or who heard what or what they wanted to hear; we don’t know. But we heard this whole episode, including Trump and RFK, at approximately the beginning of 2017, and it did go away. Covid didn’t happen right away; covid was later. There was no anti-vax commission. There was no vax commission. There was no change in vaccination policy in those early years prepandemic. And as Sarah just pointed out, Trump was incredibly pro-vaccine during the pandemic. I mean, the Operation Warp Speed was hailed by even people who didn’t like anything else about Trump. When public health liked Operation Warp Speed, he got vaccines into arms fast, faster than many of us thought, right?

The difference — there were anti-vaxxers then; there have been since smallpox — but it is much more politicized and much more prominent, and in some ways it has almost replaced the ACA as your identifying health issue. If you talk to somebody about the ACA, you know what party they are, you even know where within the party they are, what wing. And that’s not 100% true of anti-vaxxers. There are anti-vaxxers on both sides, but the politicization has been on the Republican-medical-libertarian side, that you-can’t-tell-me-what-to-do-it’s-my-body side. It is much more part of his base and a more intense, visible, and vocal part of his base. So, it’s the same comments, or very similar comments, to the same person in a different political context.

Rovner: Well, I think it’s safe to say that abortion does remain the most potent political health issue of the year, and there was lots of state-based abortion election news this week. As we’ve been discussing all year, as many as a dozen states will have abortion questions on the ballot for voters this November, but not without a fight. Florida has just added an addendum to its ballot measures, suggesting that if passed, it could cost the state money. And in Arkansas and Montana, there are now legal fights over which signatures should or shouldn’t be counted in getting some of those questions to the ballot.

Alice, in every state that’s voted on abortion since Dobbs [v. Jackson Women’s Health Organization], the abortion-right side has prevailed. Is the strategy here to try to prevent people from voting in the first place?

Ollstein: Oh, yes. I wrote a story about this in January. It’s been true for a while, and it’s been true in the states that already had their votes, too. There were efforts in Ohio to make a vote harder or to block it entirely. There were efforts in Michigan to do so. And even the same tactics are being repeated. And so the fight over the cost estimate in Florida, which is usually just a very boring, bureaucratic, routine thing, has become this political fight. And that also happened in Missouri. So, we’re seeing these trends and patterns and basically any aspect of this process that can be mobilized to become a fight between conservative state officials and these groups that are attempting to get these measures on the ballot, it has been. And so Arizona is also having a fight over the language that is going to go in the voter guide that goes out to everybody. So there’s a fight going on there that’s going to go to court next week about whether it says fetus or unborn child. So, all of these little aspects of it, there’s going to be more lawsuits over signature, validation, and so it’s going to be a knockdown, drag-out fight to the end.

It’s been really interesting to see that conservative efforts to mount these so-called decline-to-sign campaigns, where they go out and try to just convince people not to sign the petition — those have completely failed, even in states that haven’t gotten the kind of national support and funding that Florida and Nevada and some of these states have. Even those places have met their signature goals and so they’re now moving to this next phase of the fight, which is these legal and bureaucratic challenges.

Rovner: This is going to play out, I suspect, right, almost until the last minute, in terms of getting some of these on the ballot.

Meanwhile, here on Capitol Hill, there’s an effort underway by some abortion rights backers to repeal the 1873 Comstock Act, which some anti-abortion activists say could be used to establish a national abortion ban. On the one hand, repealing the law would take away that possibility. On the other hand, suggesting that it needs to be repealed undercuts the Biden administration’s contention that the law is currently unenforceable. This seemed to be a pretty risky proposition for abortion rights forces no matter which way they go, right?

Ollstein: Well, for a while, the theory on the abortion rights side was, oh, we shouldn’t draw attention to Comstock because we don’t want to give the right the idea of using it to make a backdoor abortion ban. But that doesn’t really hold water anymore because they clearly know about it and they clearly have the idea already and are open about their desire to use it in documents like Project 2025, in letters from lawmakers urging enforcement of the Comstock Act. And so the whole …

Rovner: In concurring opinions in Supreme Court cases.

Ollstein: … Exactly, exactly. In legal filings in Supreme Court cases from the plaintiffs. So clearly, the whole “don’t give the right the idea thing” is not really the strategy anymore; the right already has the idea. And so now I think it’s more like you said, about undercutting the legal argument that it is not enforceable anyway. But those who do advocate for its repeal say, “Why wouldn’t we take this tool out of contention?” But this is sort of a philosophical fight because they don’t have the votes to repeal it anyway.

Rovner: Yeah, though I think the idea is if you bring it up you put Republicans on the record, as …

Ollstein: Sure, but they’ve been doing that on so many things. I mean, they’ve been doing that on IVF [in vitro fertilization], they’ve been doing that on contraception, they’ve been doing that on abortion, they’ve been doing it on the right to travel for an abortion. They’ve been doing it over and over and over and I don’t see a lot of evidence that it’s making a big impact in the election. I could be wrong, but I think that’s the current state of things.

Rovner: Yeah, I’m with you on that one.

All right, well, while we are all busy living our lives and talking about politics, covid is making its now annual summer comeback. President Biden is currently quarantining at his beach house in Rehoboth after testing positive. HHS [Department of Health and Human Services] Secretary Xavier Becerra was diagnosed earlier this week. And wastewater testing shows covid levels are “very high” in seven states, including big ones like Florida, Texas, and California. Sarah, do we just not care anymore? Is this just not news?

Karlin-Smith: Probably, it depends on who you ask, right? But I think obviously with Biden getting covid, it’s going to get more attention again. I think that a lot of health officials, including in the Biden administration, spent a lot of time trying to maybe optimistically hope that covid was going to become a seasonal struggle, much like flu, where we really sort of know a more defined risk period in the winter and that helps us manage it a bit. And always sort of seemed a little bit more optimistic than reality. And I think recently I’ve listened to some CDC [Centers for Disease Control and Prevention] meetings and stuff where — it’s not really, it’s a little bit subtle — but I think they’re finally kind of coming around to, oh wait, actually this is something where we probably are going to have these two peaks every year. They’re sort of year-round risk. But there hasn’t been a ton done to actually think through, OK, what does that mean for how we handle it?

In this country, every year they have been approving a second vaccine for the people most at risk, although uptake of that is incredibly low. So it does seem like it’s become a little bit of a neglected public health crisis. And certainly in the news sometimes when something kind of stays at this sort of constant level of problem, but nothing changes, it can sometimes, I think, be harder for news outlets to figure out how to draw attention to it.

Rovner: It does seem like, I mean, most of the prominent people who have been getting it have been getting mild cases. I imagine that that sort of has something to do … We’re not seeing … even Biden, who’s as we all know, 81, is quarantining at his beach house, so.

Karlin-Smith: Right, I mean, if you kind of stay up to date, as the terminology is, on your vaccinations, you don’t have a lot of high-risk conditions, if you are in certain at-risk groups you get Paxlovid. For the most part a lot of people are doing well. But that said, I think, I’m afraid to say the numbers, but if you look up the amount of deaths per week and so forth, it’s still quite high. We’re still losing — again, more people are still dying from covid every year, quite a few more than from the flu. I mean, one thing I think people have also pointed out is when new babies are born, you can’t get vaccinated until you’re 6 months. The under-6-month population has been impacted quite a bit again. So, it is that tension. And we saw it with the flu before covid, which is every year flu is actually a very big issue in the U.S. and the public health world for hospitals and stuff but the U.S. never quite put enough maybe attention or pressure to figure out how to actually change that dynamic and get better flu vaccine uptake and so forth.

Kenen: And the intense heat makes it, I mean — covid is much, much, much, much more transmissible inside than outside. And the intense heat — we’re not sitting around enjoying warm weather, we’re inside hiding from sweltering weather. We’re all in Washington or the Washington area, and it’s been hot with a capital H for weeks here, weeks. So people are inside. They can’t even be outside in the evening, it’s still hot. So we think of winter as being the indoors time in most of the country, and summer sort of the indoors time in only certain states. But right now we are in more transmissible environments for covid and …

Rovner: Meanwhile, while we’re all trying to ignore covid, we have bird flu that seems to be getting more and more serious, although people seem to just not want to think about it. We’re looking at obviously in many states bird flu spreading to dairy cows and therefore spreading to dairy workers. Sarah, we don’t really even know how big this problem is, right? Because we’re not really looking for it?

Karlin-Smith: That seems to be one of the biggest concerns of people in the public health-virology community who are criticizing the current response right now, is just we’re not testing enough, both in terms of animal populations that could be impacted and then the people that work or live closely by these animal populations, to figure out how this virus is spreading, how many people are actually impacted. Is the genetics of the virus changing? And the problem of course then is, if you don’t do this tracking, there’s a sense that we can get ourselves in a situation where it’s too late. By the time we realize something is wrong, it’s going to already be a very dangerous situation.

Rovner: Yeah, I mean, before covid, the big concern about a pandemic was bird flu. And was bird flu jumping from birds to other animals to humans, which is exactly what we’re seeing even though we’re not seeing a ton of it yet.

Kenen: We’re not seeing a ton of it, and in its current form, to the best of our knowledge, it’s not that dangerous. The fear is the more species it’s in and the more people it’s in, the more opportunities it has to become more dangerous. So, just because people have not become seriously ill, which is great, but it doesn’t mean it stays great, we just don’t — Sarah knows more about this than I do, but the flu virus mutates very easily. It combines with other flu viruses. That’s why you hear about Type A and Type B and all that. I mean, it’s not a stable virus and that is not, I’m not sure if stable is the right …

Rovner: It’s why we need a different flu shot every year.

Kenen: Right, and the flu shots we have, bird flu is different.

Rovner: Well, we will continue to watch that.

Kenen: Sarah can correct anything I just got wrong. But I think the gist was right, right?

Rovner: Sarah is nodding.

All right, well finally, one follow up from last week in the wake of the report from the Federal Trade Commission on self-dealing by pharmacy benefits managers: We get a piece from The Wall Street Journal this week [“Mail-Order Drugs Were Supposed To Keep Costs Down. It’s Doing the Opposite.”] documenting how much more mail-order pharmacies, particularly mail-order pharmacies owned by said PBMs [pharmacy benefit managers] are charging. Quoting from the story, “Branded drugs filled by mail were marked up on average three to six times higher than the cost of medicines dispensed by chain and grocery-store pharmacies, and roughly 35 times higher than those filled by independent pharmacies.” That’s according to the study commissioned by the Washington State Pharmacy Association. It’s not been a great month for the PBM industry. Sarah, I’m going to ask you what I asked the panel last week: Is Congress finally ready to do something?

Karlin-Smith: It seemed like Congress has finally been ready to do something for a while. Certainly, both sides have passed legislation and committees and so forth, and it’s been pretty bipartisan. So we’ll see. I think some of it costs — I forget if some of it costs a little money — but some of it does save. And that’s always an issue. And we know that Congress is just not very good at passing stand-alone bills on particular topics, so I think the key times will be to look at when we get to any big end-of-year funding deals and that sort of thing, depending on all the dynamics with the election and the lame duck, but …

Rovner: I mean, this has been so bipartisan. I mean, there’s bipartisan irritation in both houses, in both parties.

Karlin-Smith: Right, and I think the antitrust sort of element of this with PBMs kind of appeals to the Republican side of the aisle quite a bit. And that’s why there’s always been a bit of bipartisan interest. And the question becomes: PBMs sort of fill the role that in other countries government price negotiators fill. And that’s not particularly popular in the U.S., particularly on the Republican side of the aisle. And so most of the legislation that is pending, I think, will maybe hopefully get us to some transparency solutions, tweak some things around the edges, but it’s not really going to solve the crisis. It’s going to be, I mean, a very [Washington,] D.C. health policy move, which is kind of, take some incremental steps that might eventually move us down to later reforms, but it’s going to be slow-moving, whatever happens. So, PBMs are going to be in the spotlight for probably a while longer.

Rovner: Yes, which popular issue moves slower: drug prices or gun control?

All right, well finally this week the health policy community has lost another giant. Gail Wilensky, who ran Medicare and Medicaid under the first President Bush, and the advisory group MedPAC for many years after that, died of cancer last week at age 81. Gail managed to be both polite and outspoken at the same time. A Republican economist who worked with and disagreed with both Democrats and Republicans, and who, I think it’s fair to say, was respected by just about everyone who ever dealt with her. She taught me, and lots of others, a large chunk of what I know about health policy. She will be very much missed. Joanne, I guess you worked with her probably as long as I did.

Kenen: Yeah, I’m the one who told you she had died, right?

Rovner: That’s true.

Kenen: I think that when I heard her speak in a professional setting in the last few years, she talked to her about herself not as a Republican health economist, but as a free market health economist. She was very well respected and very well liked, but she also ended up being a person without a party. But she was a fixture and she was a nice person.

Rovner: And she wasn’t afraid to say when she was the head of MedPAC she made a lot of people angry. She made a lot of Republicans angry in some of those sort of positions that she took. She basically called it as she saw it and let the chips fall.

Kenen: And Julie, she went to Michigan, right?

Rovner: Yes, and she went to Michigan. That’s true. A fellow Michigan Wolverine. All right, well, that is the news for this week. Now we will play my interview with Renuka Rayasam, and then we will come back and do our extra credits.

I am pleased to welcome to the podcast my KFF Health News colleague Renuka Rayasam, who reported and wrote the latest KFF Health News-NPR “Bill of the Month.” It’s about what should have been a simple visit to an urgent care center but of course turned out to be anything but. Renu, thanks for joining us.

Renuka Rayasam: Thanks for having me.

Rovner: So, tell us about this month’s patient, who he is, and what kind of medical problem he had.

Rayasam: Sure, let me tell you about the patient in this month’s “Bill of the Month.” His name is Tim Chong. He’s a Dallas man, and last December he felt severe stomach pain and he didn’t know what it was from. And he thought at first maybe he’d had some food poisoning. But the pain didn’t subside and he thought, OK, I don’t want to have to pay an ER bill, so let me go to an urgent care. And he opted to visit Parkland Health’s Urgent Care Emergency Center, where he learned he had a kidney stone and was told to go home and that it would pass on its own.

Rovner: Now, we’re told all the time exactly what he was told, that if we have a health problem that needs immediate attention but probably not a hospital-level emergency, we should go to an urgent care center rather than a hospital emergency room. And most insurers encourage you to do this; they give you a big incentive by charging a far smaller copay for urgent care. So, that’s what he tried to do, right?

Rayasam: That’s what he tried to do, at least that’s what he thought he was doing. Like I said, this is a facility, it’s called Urgent Care Emergency Center. He told me that he walked in, he thought he was at an urgent care, he got checked out, was told it was a kidney stone. He actually went back five days later because his stomach pain worsened and didn’t get better. And it wasn’t until he got the bills the following month that he realized he was actually at an emergency center and not an urgent care center. His bill was $500 for each visit, not $50 for each visit as he had anticipated.

Rovner: And no one told him when he went there?

Rayasam: He said no one told him. And we reached out to Parkland Health and they said, “Well, we have notices all over the place. We label it very clearly: This is an emergency care center, you may be charged emergency care fees,” but they also sent me a picture of some of those notices and those are notices that are buried among a lot of different notices on walls. Plus, this is a person who is suffering from severe stomach pain. He was really not in a position to read those disclosures. He went by what the front desk staff did or didn’t tell him and what the name of the facility was.

Rovner: I was going to say, there was a sign that said “Urgent Care,” right?

Rayasam: Right, absolutely. Urgent Care Emergency Center, right? And so when we reached out to Parkland, they said, “Hey, we are clearly labeled as an emergency center. We’re an extension of the main emergency room.” And that’s the other thing you have to remember about this case, which is that this is the person who knew Parkland’s facility. He knew they had a separate emergency room center and he said, “I didn’t go into that building. I didn’t go into the building that’s labeled emergency room. I run into this building labeled Urgent Care Emergency Center.” Parkland says, hey, this is an extension of their main emergency room. This is where they send lower-level emergency cases, but obviously it’s a really confusing name and a really confusing setup.

Rovner: Yeah, absolutely. So, how did this all turn out? Medically, he was OK eventually, right?

Rayasam: Medically he was OK eventually. Eventually the stone did pass. And it wasn’t until he got these bills that he kind of knew what happened. When he first got the bills, he thought, well, obviously there’s some mistake. He talked to his insurer. His insurer, BlueCross and BlueShield of Texas, told him that Parkland had billed these visits using emergency room codes and he thought, wait a second, why are they using emergency room codes? I didn’t go into the emergency room. And that’s when Parkland told him, “Hey, you actually did go into an emergency room. Sorry for your confusion. You still owe us $1,000 total.” He paid part of the bills. He was trying to challenge the bills and he reached out to us at “Bill of the Month,” but eventually his bill got sent to collection and Parkland’s sort of standing by their decision to charge him $500 for each visit.

Rovner: So he basically still owes $1,000?

Rayasam: Yes, that’s right.

Rovner: So what’s the takeaway here? This feels like the ultimate bait and switch. How do you possibly make sure that a facility that says urgent care on the door isn’t actually a hospital emergency room?

Rayasam: That’s a great question. When it comes to the American medical system, unfortunately patients still have to do a lot of self-triage. One expert I’ve talked to said it’s still up to the patients to walk through the right door. Regulators have done a little bit, in Texas in particular, of making sure these facilities, these freestanding emergency room centers, as they’re called — and this one is hospital-owned, so the name is confusin, but it’s technically a freestanding emergency center, so it did have the name emergency in the name of the facility, and I think that that’s required in Texas — but I’ve talked to others who’ve said, you should ban the term urgent care from a facility that’s not urgent care. Because this is a concept that’s very familiar to most Americans. Urgent care has been around for decades; you have an idea of what an urgent care is.

And when you look at this place on its website, it’s called Urgent Care Emergency Center, it’s sort of advertised as a separate clinic within Parkland structure. It’s closed on nights, it’s closed on Sundays. The list of things they say they treat very much resembles an urgent care. So, this patient’s confusion I think is very, very understandable and he’s certainly not the only one that’s had that confusion at this facility. Regulators could ban the term urgent care for facilities that bill like emergency rooms. But until that happens it’s up to the patients to call, to check, and to ask about billing when they show up, which isn’t always easy to do when you’re suffering from severe stomach pain.

Rovner: Another thing for patients to watch out for.

Rayasam: Yes, absolutely, and worry about.

Rovner: Yes, Renuka Rayasam, thank you so much for joining.

Rayasam: Thank you, Julie.

Rovner: OK, we are back. It’s time for our extra credit segment. That’s when we each recommend a story we read this week we think you should read, too. As always, don’t worry if you miss it. We will post the links on the podcast page at kffhealthnews.org and in our show notes on your phone or other mobile device.

Sarah, why don’t you go first this week?

Karlin-Smith: Sure, I looked at a New York Times piece called “Promised Cures, Tainted Cells: How Cord Blood Banks Mislead Patients.” And it’s about the often very aggressive sort of tactics of these banks to convince women to save some of the cord blood after they give birth with the promise that it may be able to help treat your child’s illness down the road. And the investigation into this found that there’s a number of problems. One is that, for the most part, the science has progressed in a way that some of what people used to maybe use some of these cells for, they now use adult stem cells. The other is these banks are just not actually storing the products properly and much of it gets contaminated so it couldn’t even be used. Or sometimes you just don’t even collect enough, I guess, of the tissue to even be able to use it.

In one instance, they documented a family that — the bank knew that the cells were contaminated and were still charging them for quite a long time. And the other thing that I actually personally found fascinated by this — because my OB-GYN actually did kind of, I feel like, push one of these companies — was that they can pay the OB-GYNs quite a hefty fee for what seems like a very small amount of work. And it’s not subject to the same sort of kickback type of regulation that there may be for other pharmaceutical/medical device interactions between doctors and parts of the biotech industry. So I found that quite fascinating as well, what the economic incentives are to push this on people.

Rovner: Yeah. One more example of capitalism and health care being uncomfortable bedfellows, Chapter 1 Million. Joanne?

Kenen: There was a fantastic piece in The Washington Post by Annie Gowan: “A Mom Struggles To Feed Her Kids After GOP States Reject Federal Funds,” which was a long headline, but it was also a long story. But it was one of those wonderful narrative stories that really put a human face on a policy decision.

The federal government has created some extra funds for childhood nutrition, childhood food, and some of the Republican governors, including in this particular family’s case, the Republican Gov. Kevin Stitt in Oklahoma, have turned down these funds. And families … So this is a single, full-time working mom. She is employed. She’s got three teenagers. They’re all athletic and active and hungry and she doesn’t have enough food for them. And particularly in the summer when they don’t get meals in school, the struggle to get enough food, she goes without meals. Her kids — one of the kids actually works in the food pantry where they get their food from. The amount of time and energy this mom spends just making sure her children get fed when there is a source of revenue that her state chose not to us: It’s a really, really good story. It’s long, but I read it all even before Julie sent it to me. I said, “I already read that one.” It’s really very good and it’s very human. And, why?

Rovner: Policy affects real people.

Kenen: This is hungry teenagers.

Rovner: It’s one of things that journalism is for.

Kenen: Right, right, and they’re also not eating real healthy food because they’re not living on grapefruits and vegetables. They’re living on starchy stuff.

Rovner: Alice?

Ollstein: I chose a good piece from ProPublica called “Texas Sends Millions to Crisis Pregnancy Centers. It’s Meant To Help Needy Families, but No One Knows if It Works.” And it is about just how little oversight there is of the budgets of taxpayer dollars that are going to these anti-abortion centers that in many cases use the majority of funding not for providing services. A lot of it goes to overhead. And so there’s a lot of fascinating details in there. These centers can bill the state a lot of money just for handing out pamphlets, for handing out supplies that were donated that they got for free. They get to charge the state for handing those out. And there’s just not a lot of evaluation of, is this serving people? Is this improving health outcomes? And I think it’s a good critical look at this as other states are moving towards adopting similar programs to what’s going on in Texas.

Rovner: Yeah, we’re seeing a lot of states put a lot of money towards some of these centers.

Well, my extra credit this week is from Time magazine. It’s called, “‘We’re Living in a Nightmare:’ Inside the Health Crisis of a Texas Bitcoin Town,” by Andrew Chow. And in case we didn’t already have enough to worry about, it seems that the noise that comes from the giant server farms used to mine bitcoin can cause all manner of health problems for those in the surrounding areasm from headaches to nausea and vomiting to hypertension. At a local meeting, one resident reported that “her 8-year-old daughter was losing her hearing and fluids were leaking from her ears.”

The company that operates the bitcoin plant says it’s in the process of moving to a quieter cooling system. That’s what makes all the noise. But as cryptocurrency mining continues to grow and spread, it’s likely that other communities will be affected in the way the people of Granbury, Texas, have been.

All right. That is our show for this week. As always, if you enjoy the podcast, you can subscribe wherever you get your podcast. We’d appreciate it if you left us a review; that helps other people find us, too. Special thanks as always to our technical guru, Francis Ying, and our editor, Emmarie Huetteman. As always, you can email us your comments or questions. We’re at whatthehealth@kff.org, or you can still find me at X, I’m @jrovner. Sarah, where are you these days?

Karlin-Smith: I’m mostly on X @SarahKarlin or on some other platforms like Bluesky, at @sarahkarlin-smith.

Rovner: Alice?

Ollstein: I’m on X @AliceOllstein and on Bluesky @alicemiranda.

Rovner: Joanne?

Kenen: A little bit on X @JoanneKenen and a little bit on Threads @joannekenen1.

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

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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.

Republicans released a draft party platform in advance of the GOP national convention next week, and while it is being described as softening the party’s stance opposing abortion, support from major groups that oppose abortion suggests that claim may be something of a mirage.

Meanwhile, the Federal Trade Commission is taking on the pharmacy benefits management industry as it prepares to file suit charging that the largest PBMs engage in anticompetitive behavior that raises patients’ drug costs.

This week’s panelists are Julie Rovner of KFF Health News, Jessie Hellmann of CQ Roll Call, Shefali Luthra of The 19th News, and Sandhya Raman of CQ Roll Call.

Panelists

Jessie Hellmann
CQ Roll Call

@jessiehellmann

Read Jessie's stories.

Shefali Luthra
The 19th

@shefalil

Read Shefali's stories.

Sandhya Raman
CQ Roll Call

@SandhyaWrites

Read Sandhya's stories.

Among the takeaways from this week’s episode:

• For the first time in decades, the GOP presidential platform will not include a call for a national abortion ban. But Republicans are hardly soft-pedaling the issue: The new platform effectively asserts that abortion violates the 14th Amendment, which guarantees equal protection under the law for all citizens — including, under their reading, human embryos. Under that argument, abortion opponents may already have the constitutional justification they need to defend in court further restrictions on the procedure.
• Lawmakers in Washington are making early progress on government spending bills, including for the Department of Health and Human Services. Some political issues, like access to gender-affirming care for service members and minors, are creating wrinkles. Congress will likely need to pass a stopgap spending measure to avoid a government shutdown this fall.
• And a new report from the Federal Trade Commission illuminates the sweeping control of a handful of pharmacy benefits managers over most of the nation’s prescription drugs. As the government eyes lawsuits against some of the major PBMs alleging anticompetitive behavior, the findings bolster the case that PBMs are inflating drug prices.

Also this week, Rovner interviews Jennifer Klein, director of the White House Gender Policy Council, about the Biden administration’s policies to ensure access to reproductive health care.

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

Julie Rovner: STAT News’ “Troubled For-Profit Chains Are Stealthily Operating Dozens of Psychiatric Hospitals Under Nonprofits’ Names,” by Tara Bannow.

Jessie Hellmann: North Carolina Health News’ “N.C. House Wants to Spend Opioid Money on Multiple Abstinence-Based Recovery Centers, While Experts Stress Access to Medication,” by Grace Vitaglione.

Shefali Luthra: The Washington Post’s “These GOP Women Begged the Party to Abandon Abortion. Then Came Backlash,” by Caroline Kitchener.

Sandhya Raman: Roll Call’s “For at Least One Abortion Clinic, Dobbs Eased Stressors,” by Sandhya Raman.

click to open the transcript

Transcript: GOP Platform Muddies Abortion Waters

KFF Health News’ ‘What the Health?’ Episode Title: ‘GOP Platform Muddies Abortion Waters’Episode Number: 355Published: July 11, 2024

[Editor’s note: This transcript was generated using both transcription software and a human’s light touch. It has been edited for style and clarity.] 

Julie Rovner: Hello, and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF Health News, and I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, July 11, at 10 a.m. As always, news happens fast and things might’ve changed by the time you hear this. So here we go. We are joined today by a video conference by Shefali Luthra of The 19th.

Shefali Luthra: Hello.

Rovner: Sandhya Raman of CQ Roll Call.

Sandhya Raman: Good morning.

Rovner: And Jessie Hellmann, also of CQ Roll Call.

Jessie Hellmann: Hi there.

Rovner: Later in this episode we’ll have my interview with White House Gender Policy Council Director Jennifer Klein about how the administration is dealing with the recent Supreme Court decisions about abortion access. But first, this week’s news. So, the Republican National Convention is next week. I have no idea how that happened already.

And in preparation, the party’s platform committee, behind closed doors, overwhelmingly approved a document that, depending on who you believe, either weakens the party’s longtime anti-abortion stance or cleverly disguises it. Shefali, what exactly did they do and how is this a change from the last Republican platform, which was actually written in 2016?

Luthra: So this is pretty interesting because there was a lot of attention paid to the fact that this is the first Republican platform in decades to not include a national abortion ban at 20 weeks. And so that got a lot of headlines. People saying, “This is really backpedaling, this is softening the GOP’s abortion stance.” But if you look at the text, that’s not really true. Because while they don’t talk about a national abortion ban, they do cite one of the anti-abortion movement’s favorite legal theories, the 14th Amendment of the Constitution.

And they argue that states when banning abortion can use the 14th Amendment, and they recognize that as protecting essentially the rights of fetuses and embryos. It’s kind of having it both ways because while they argue this is a state decision in the language, they’re using the federal Constitution. And every anti-abortion group that I’ve spoken with sees this as a victory, at least the major ones do. Because if you’re citing the Constitution, you’re opening a door to a national abortion ban through our founding documents.

And that is something that they have been working for for a long time. And so I think it’s really important for us to understand just how drastic in some ways this really is. It is not really soft peddling in terms of what they’re ultimately hoping to achieve.

Rovner: Yeah, I think people have not pointed out that this is the first Republican platform post-Roe v. Wade. So they don’t need to call for federal legislation because they have a court that will basically, as they put in the platform, guarantee what they are asserting, which is that basically the 14th Amendment already effectively bans abortion. So the heck with Congress,

Luthra: And one thing that I do think is worth noting is, in some ways, why, and many have made this point, why would they care about a national 20-week abortion ban? Most abortion opponents don’t see that as a victory because most abortions occur well before that. They would much rather have national restrictions, or at the very least, six or 15.

Rovner: Yeah, and somebody, now I can’t remember who it was, wrote about this. There’s a reference in the platform language to, I think I can’t remember, whether it’s late term or later abortions, but that can be defined many, many, many, many ways, not just… I mean, 20 weeks is, like, that is so three years ago.

Raman: Oh, I was going to say I would agree in part. I do think that, yes, it lets you cater to an array of people, because you can either have someone follow the 14th Amendment language or the only other sentence that anything in this realm says, advocating for prenatal care and access to birth control and IVF. And then with certain forms of birth control, with IVF, we still have some of the same people that are citing personhood concerns as their opposition for that. So it’s playing both ways.

And yes, I would say that most of the anti-abortion groups have been saying that they’re OK with this. But then at the same time, we have someone like former Vice President Mike Pence, who came out pretty strongly against this and is really disappointed, and he’s been a huge player in the anti-abortion advocacy. But I think one thing that was interesting was we focused a lot on just the limit not being in this version.

But the older version also had just more language on preventing fetal tissue research from abortions or federal funding from abortions or sex-specific or disability-specific abortions. It’s just a smaller social issue, I think, in the overall platform, whereas I think they’ve really been playing up some of the other things like gender-affirming care and pushing back against that as you can see throughout ads and stuff.

Rovner: But of course, all of those things are in Project 2025, right?

Raman: Yeah.

Luthra: And part of that also is that this is a fairly short platform as Republican platforms go. It’s clearly written in the Trump voice. Detail is not its desired narrative.

Rovner: It’s not the 900-page Project 2025 …

Luthra: Absolutely not.

Rovner: … that Trump now insists he knows nothing about. Which seems was written, in fact, I think almost exclusively by people who worked for him and who I believe plan to work for him in his second term.

Luthra: And if you see photos from the RNC, it’s very clear that Heritage [Foundation], the organization behind Project 2025, has a strong presence there.

Rovner: Yes, we’ll all be watching the convention carefully next week. I assume that they’re going to do the job that they’ve done so far, which is to keep everybody singing from the same songbook. That’s clearly the goal of every party convention, and so far they seem to have managed to play this both ways enough. As you mentioned, they have the anti-abortion groups on board, but they’ve gotten the mainstream media, if you will, to say, “Oh, look, they’re softening their abortion stance.” We’ll see if that lasts through the week.

So in my conversation with Jen Klein, which we will hear a little bit later, we talked about how the two abortion cases at the Supreme Court this term challenging the abortion pill and the federal emergency abortion requirements under EMTALA [Emergency Medical Treatment and Active Labor Act] are likely to come back at some point since the court didn’t reach the merits of either case.

But those are far from the only cases that could come back to the justices in the next year or so, regardless of who gets elected president. There are also going to be cases about whether women who live in states with abortion bans can travel to other states where abortion is legal. And whether states can really shield doctors who prescribe abortion pills to patients who are residents of states where abortion is banned. The court by itself could effectively ban abortion no matter who’s elected president or controls Congress, right?

Luthra: There’s definitely a lot of unanswered legal questions that we will see coming to the court. The shield law question is one that I think is incredibly interesting with significant tremendous ramifications for how people get abortion. I don’t know that we’ve seen incredible test cases yet that could become the one that the court weighs in on. But it really is only a matter of time until abortion opponents in particular find a way to develop a legal challenge and then advance it.

Rovner: I’m watching the travel cases, because I mean, even [Supreme Court Justice] Brett Kavanaugh wrote in one of these abortion decisions that you cannot ban travel from one state to another. There certainly seem to be ways of trying. I know that there’s been a bill that’s been kicking around in Congress for three decades to make it a crime to take a minor across state lines without the minor’s parents’ permission.

It was based off a case where the guy’s mom took the kid from Pennsylvania to New York. That was the origin of this case in 1997. But certainly that was the first bit of, maybe we should do something about people trying to travel from state to state since we now have cases where abortion is legal in some and not legal in others.

Raman: We’ve definitely seen that historically that certain types of things that if it starts with minors and things like that, that it can grow. I mean, that’s a thing that they’ve been messaging a lot on with the gender-affirming care. If it’s starting with youth, that slowly the age range creeps up. So that even if this is something that starts just in a few states like with what Idaho has been doing with minors, it could change.

Rovner: Well, meanwhile, the number of states with complete bans or major restrictions continues to grow. The Iowa Supreme Court, which ruled as recently as 2018 that abortion was “a fundamental right under the state constitution,” has now reversed itself and has allowed a six-week ban to take effect. Shefali, that’s going to have ramifications way beyond Iowa, right?

Luthra: It always does. We are now up to 14 states with near-total abortion bans and four more with six-week bans. That means Iowa. That is South Carolina. That is Georgia. That is Florida. And what we know is people try and travel from one state to another to access care. And there weren’t a large number of abortions being done in Iowa. I checked the data after this ban took effect, and it’s a small state.

But we’ll see what we always see, which is people trying to travel somewhere else where they can get care, creating longer wait times at clinics that are under-resourced already, overtaxed, making it harder for everyone to access not only abortion, but any other health service they might provide, whether that is STI [sexually transmitted infection] testing, whether that is family planning services, whether that’s cancer screenings.

Rovner: And we’re also seeing doctors leaving some of these states with bans, which means that there’s simply less care available in those states.

Luthra: Absolutely. We’re seeing people have to go from their home states to neighboring states just for basic pregnancy care for when they deliver, because they don’t have maternal fetal medicine specialists. They don’t have OB-GYNs. And eventually they’re going to have fewer family physicians and doctors of all kinds practicing in these states for the reasons, as you’ve reported so often, Julie, that in part they don’t want to practice somewhere where their profession isn’t fully legal. And also they would like full access to health care themselves.

Rovner: Yes, for themselves or their partners. Well, back here in Washington, it’s a million degrees this week and Congress is back, not that those two things are connected, just mentioning. Anyway, unlike last year when the House basically abandoned the appropriations process, culminating in the spending bills for the current fiscal year not being finalized until this past spring, like more than halfway through the year, House Republicans are in fact moving the 12 regular appropriations for next year. Although not in a way that’s likely to become law.

Sandhya, you’re following the gigantic Labor, Health and Human Services, Education spending bill that got marked up in a full committee yesterday. What’s it look like at the moment?

Raman: So yesterday we had our monster markup. Six hours that it took just to get through that bill to approve the Labor-HHS-Education bill. We had 15 different amendments come up, which takes up the bulk of the conversation. What we had approved on a party-line vote was $107 billion in discretionary money for HHS. So if that were to become law, that’s a drop of about $8.5 billion from what we currently have.

And so this is just the first step because the Senate will put out their version in the coming weeks. We can help and they’ll come together on a deal. And even during the markup, it was acknowledged by leadership that this is the first step. This was on party lines. This is not what we’re going to get when we come to law. Democrats had a lot of issues that they voiced throughout the process about the big cuts.

Rovner: Oh, there’s some pretty dramatic cuts in this bill.

Raman: Yeah. The bill, as it stands, would cut a lot of the CDC [Centers for Disease Control and Prevention] prevention programs. It would cut all the funding for Title X family planning funding. It would cut a lot of HIV prevention funding, and has smaller numbers for a variety of programs throughout. And that has just been a nonstarter.

Ranking member [Rep.] Rosa DeLauro has said that she wants at least a 1% increase over what was there last year, and she cited the budget deal that Congress and the White House had agreed to last year, whereas Republicans had said that the numbers in the bill that was approved reflects what they see as following that model. So we’ll see as the Senate moves and then this should eventually get to the House floor if they stick to it.

I mean, last year we had a subcommittee markup and it never went to full committee because of various issues there, but they did take it to the floor. It’s been a different process.

Rovner: It was basically too extreme to pass last year.

Raman: Yeah. Well, last year they also revised it to make it more conservative. And so that also brought up some issues there to get everyone on board. But this is just the first step and we will see what happens in the coming weeks with what the Senate puts out.

Rovner: One of the things that interested me in the bill is that it looks like these are the appropriators. They’re not supposed to be making policy. They’re just supposed to be setting spending, but they seem to want to completely overhaul the National Institutes of Health: cut the number of institutes in half or more; eliminate the Agency for Healthcare Research and Quality. Where did this come from? Does anybody know?

Raman: So this has been like a pet project of [Rep. Robert] Aderholt, the subcommittee chairman of Labor-H, as well as [Rep.] Cathy McMorris Rodgers, the [House] chairwoman of the Energy and Commerce Committee, and they …

Rovner: Which is the authorizing committee.

Raman: … Yeah. So they came together and did an op-ed a little while ago about how this was something that they wanted to do and they’ve put it in this bill. But a thing that has come up at both of the markups on this has been that we have not had hearings on this. This should come up through an authorizing committee, like Energy and Commerce, if you want to make changes.

And I think there are people like Rep. Steny Hoyer who were like, “We’re not against reforming different parts of NIH, but it needs to come through that process rather than this,” especially when this is a partisan bill if we’re going to do something as big as that. Because NIH is one of the biggest agencies in any department. And so changes of that grand of scale need to be done through that process rather than in appropriations.

Rovner: And it has been bipartisanly popular over the years. It was the Republicans who first proposed doubling funding for NIH. So it’s interesting that that popped up. Well, meanwhile, we’ll see how this bill fares when it comes to the House floor and how it changes in the Senate.

Congress is also moving on separate must-pass bills, including the annual defense authorization. There’s a defense appropriation, too, but the authorization is where the policy is supposed to be made, as we just said. And as in years past, the defense authorization is picking up riders that don’t have a lot to do with defense, right?

Raman: Yeah. I think that this is increasingly where we’re seeing some of the varied riders related to gender-affirming care. The Senate and the House’s versions both had provisions related to that. I mean, you could see that, again, as the broad issue for Republicans. Even within the labor age bill, we had different things related to that within the education portion. And so I think that has been the big thing that people are watching there on the health front.

Rovner: And abortion too, right? This continuing concern about allowing service women and dependents to travel for abortion if they’re in states with bans.

Raman: Yeah, and we had that whole issue just last year when we had the Defense nominees held up over a hold from Sen. [Tommy] Tuberville over that policy. So the pushback against those kind of policies in the Defense Department, the VA [Veterans Administration], are not ending here.

Rovner: Yeah.

Luthra: What I find so striking, Julie, if I can add something on, in particular, the exclusion of gender-affirming care, is that trans service members have seen what the laws and their protections are really zigzag back and forth over the past several administrations. And there’s something that I think we haven’t fully grappled with or articulated about the implications for that, right?

Because if you start accessing health care that you want to stay with for the rest of your life, in theory, and you keep seeing your benefits change on and off, that’s not adequate health care, that’s not appropriate. Because your ability to access your medications — for instance, is really subject to the whims of Congress in a way that wouldn’t be the case for other forms of medication — wouldn’t really be tolerated. And I think we haven’t fully understood exactly what this means for service members’ long-term lives and health outcomes.

Rovner: And as we say, and their family members. And when you sign up for the military, I mean, it’s not like you can just get another job with different health benefits. You make a commitment. And you’re right, the commitment that’s made back to you keeps changing. That’s probably not great for military morale.

All right, well, turning to health industry news, the Federal Trade Commission is taking square aim at pharmaceutical benefit managers. On Tuesday, it released the results of a two-year investigation that found the three largest PBMs now control 80% of the nation’s prescriptions while the six largest control 90%. The study also demonstrates what we’ve known for a long time: PBMs tend to steer patients to their own pharmacies even when that tends to cost patients more. And the PBMs pay themselves more than they pay independent pharmacies for the same drugs.

After letting that all settle in for about 24 hours, the agency then leaked the news that it plans to sue those three largest PBMs — the ones owned by UnitedHealthcare, Cigna, and CVS — for a variety of their practices, including steering patients towards more expensive insulin products that the PBMs get larger rebates for. In other words, the patients have to pay more so the PBMs can get more money.

Jessie, PBMs have been targets for several years now. Is this finally something that could take them down a peg? I know Congress has been wringing its hands over this for the last four or five years.

Hellmann: So the announcement hasn’t been officially made, but the FTC has been talking about this for several years. I guess they just wanted to wait until they had this big report out to bolster their case against PBMs. But it seems like this lawsuit specifically might be looking at the rebate situation. According to the report, they just have a lot of concerns about how the rebate structure can favor more expensive drugs, more expensive branded drugs over generics. And they think that that’s anticompetitive.

I know they have said in the past that they think these structures could potentially violate antitrust laws. And so if there is a lawsuit filed targeting these kinds of structures, that could chip out away at a major revenue source for PBMs. The rebates that they get on some of these expensive drugs are really large. In many cases, the patients don’t see those benefits when they’re paying for a drug at the pharmacy counter.

So if you’re a patient and your formulary says, “If you want to access this type of drug, you have to go for this branded amount,” that could increase your out-of-pocket costs. So any kind of lawsuit could take years. But Congress has also been really interested in the rebate issue. There has been many bills that, I think there’s some consensus on that would tie these rebates, basically making them a flat fee versus tying them to the list price. So it’ll be interesting to see where that goes.

There’s been questions about whether that should extend to the private market, and I think that’s what’s been holding up some of the action on this front. But …

Rovner: Rather than just Medicare and Medicaid?

Hellmann: Yeah, exactly. Because Congress prefers to just tweak Medicare and Medicaid and hope that that will change how private insurers behave. But maybe this report, it does have some new details. The FTC was able to access some contracts. It shined more of a light on it. So maybe this report will change that conversation in Congress. We’ll see.

Rovner: I must have gotten a hundred emails from Congress after this report came out and it’s like, yes, you guys have had legislation on this since 2015, and it’s bipartisan. It just never seems to make it over the finish line.

Hellmann: Yeah, it’s going to be interesting to see what happens over the next six months because some of these PBM bills could save money. And Congress wants to pay for a lot of things at the end of the year, like telehealth expansion and things like that. So I think if they can figure it out in the next few months, that could definitely happen this year.

Rovner: What they’re doing on their summer vacation. Also, this week, updating something that we’ve talked about a lot on this podcast; the future of the medical workforce. A billion-dollar gift from Johns Hopkins alum Michael Bloomberg will enable the Johns Hopkins Medical School to go tuition-free for students whose families earn less than $300,000 per year, and will pay tuition and living expenses for those families who earn under $175,000 a year.

Johns Hopkins thus joins NYU, UCLA, and a couple of other medical schools, in helping prevent medical students from graduating with crippling debt that all but forces them into the highest-paying specialties rather than primary care, which is where, of course, they’re most needed. Except that it seems that a lot of these subsidized doctors still aren’t going into primary care. So maybe it’s going to take more than just money to get people to do the hardest job in medicine.

Hellmann: Yeah, I feel like even if someone’s tuition is fully paid for, I don’t know if that’s enough to make them want to go into these lower-paid specialties like primary care. It’s a trend that we’ve seen for a long time that people just want to make more money. And primary care, there’s been a lot of conversation lately about how it’s just the most unappreciated specialty that you can go into. Especially there’s been a lot of frustration around dealing with insurance companies. So I don’t know if this is it.

Rovner: And PBMs.

Luthra: Building on Jessie’s point, we have programs that make it easier to become teachers. That does not mean we have a glut of teachers because of the longer-term underappreciation we have for professions that are quite valuable in our society. And having those benefits early on doesn’t make up for yearslong lower pay and general career frustrations that have only grown in recent decades.

Whether that is because of physician practice consolidation. Whether that is because of electronic health records that doctors find to be so frustrating. Whether that’s just having to navigate patients’ different insurance. And now on top of that, more and more restrictions on health care that you provide. It’s already a really tough industry to go into.

And if you’re going to go into it, there are arguments that you might benefit from a higher-paid specialty and one where you don’t have to navigate as many of these really frustrating challenges that doctors still have to deal with.

Rovner: Yeah, a lot of it is lifestyle. I mean, it’s not just that you get paid less. Even if you got paid more, you’re on call a lot. We’ve seen graduating medical students gravitating towards things like dermatology, and emergency medicine, even, because there’s a shift; you’re either on or you’re off, or you don’t get called in the middle of the night.

Being a primary care doctor is hugely stressful and hugely time-consuming and not the greatest lifestyle. And yes, having $200,000 of debt is a good reason to not go into it. But apparently not having $200,000 of debt is still not enough of a reason not to go into it. Sandhya, you wanted to add something?

Raman: No, I was just going to say that part of this is just that we have to broaden the pipeline in general, and these are careers that take years and years of study and training to get to. So I think a lot of this we’ll have to wait and see that if someone is excited by something like this now, getting up to making this a possibility for them and then going through the training is going to take a while to dig through and see how that data is really affecting people.

Rovner: Yeah, we will. Another space we shall continue to watch. All right, that is this week’s news. Now we will play my interview with the White House’s Jen Klein, and then we will come back with our extra credit.

I am so pleased to welcome to the podcast Jennifer Klein, director of the White House Gender Policy Council. Jen oversees administration policy on a wide range of subjects, domestic and international, affecting women’s health, economic security, and gender-based violence. Jen, welcome to “What The Health?”

Jennifer Klein: Thank you so much for having me.

Rovner: So I want to start with the Supreme Court. In the last few weeks of the term, the court punted on two big abortion cases, one challenging the FDA’s approval of the abortion pill mifepristone, and the other challenging the Biden administration’s interpretation of the Emergency Medical Treatment and Active Labor Act, EMTALA. What’s the status of both of those and has anything changed as a result of these cases?

Klein: Well, as you noted, the Supreme Court didn’t really reach the merits on either of those cases, and in fact, both will be ongoing. And so I won’t get into the back and forth on the litigation, which the Department of Justice is tracking that closely. But I will say, first of all, on the first case, the case about access to mifepristone, we are going to continue to fight to make mifepristone medication abortion available. As you know, this is a drug that has proven to be safe and effective.

Twenty years ago, the FDA approved it. And in 2023, the FDA took independent evidence-based action to give women more options about how and where to pick up their prescription for medication abortion, just as they would for any other medication, including through telehealth and through a retail pharmacy. And earlier this year, two major retail pharmacy chains became newly certified to dispense medication abortion under a new pathway created by the FDA in 2023.

And so we’re continuing to encourage all pharmacies that want to pursue this option to seek certification so that this medication can be widely available. Because back to point one about the Supreme Court, it still is. While they didn’t reach the merits of the case and they sent the case back on standing grounds, they didn’t actually resolve the underlying legal issues.

So we will continue to defend our legal point of view and also make sure that people, first of all, know that this drug should remain available and people should be able to access it, and then do everything we can to make sure that that is easy for people who actually need access to the medication.

Rovner: And then on EMTALA?

Klein: On EMTALA, same issue. As you noted, the Supreme Court didn’t actually reach the merits of the case. So it’s first very important to point out that currently in Idaho, which was the state where the Department of Justice brought this suit to ensure that women in Idaho could have access to emergency medical services when they’re in the middle of an obstetrical emergency. And so they are in Idaho still able to access care.

And we are going to continue to make clear both our legal point of view, but also our policy point of view, that all patients, including women experiencing pregnancy loss and other pregnancy complications in the middle of an emergency, should be legally able to access emergency care under federal law. The federal law is called the Emergency Medical Treatment and Labor Act.

And what that says is that if somebody is in the middle of a medical emergency and they need care and that care includes abortion, that care is legally available to them. And so what we’ve done, and we are going to continue to do, is make sure that patients know what their rights are and that, importantly, that providers know what their responsibilities are under EMTALA.

So HHS, the Department of Health and Human Services, has issued a number of comprehensive plans to make sure that people know their rights and responsibilities. They have created new patient-facing resources, offer training to doctors and health care providers. They actually created a dedicated team of experts at HHS to educate patients and hospitals about their rights and obligations under EMTALA.

And most recently, CMS [Centers for Medicare & Medicaid Services] launched a new option on CMS.gov, which is the ability in both, by the way, English and Spanish, to allow individuals to more easily file a complaint themselves if they have been denied emergency care. The reason that’s important is because previously that had to be done through a state agency, which in some states you might imagine is less possible, less easy to do, than in others.

Rovner: So obviously, as we mentioned, both of these cases are likely to come back to the Supreme Court in the next couple of years. Is there anything that you can do to shore up either of these policies to try to legally brace against what’s likely to be another assault? And we already know, I guess in both cases, the next assault is already ongoing.

Klein: Yeah. I mean, as I said, the Department of Justice is going to be defending our legal point of view, and I can’t really get into that. But what I can say is that we strongly believe that both the medication abortion should be legally available, and is now legally available, and emergency medical services should be legally available, and are legally available under EMTALA. And we are going to continue to do whatever we can through executive action.

This was the subject of … Actually the president has issued three executive orders and a presidential memorandum. The presidential memorandum was focused specifically on medication abortion. The other three were broader, covered all sorts of reproductive health services, including contraception, as well as abortion. And we’re continuing to implement those, every day.

And I will add that today, actually, there’s a new regulation, a notice of proposed rulemaking, I shouldn’t say a regulation, that has come out today from the Department of Health and Human Services, which builds on work we’ve done to improve maternal health and reduce maternal mortality. And what that does is proposes the first-ever baseline health and safety requirements for obstetric services in hospitals.

So separate and apart from EMTALA, which speaks more generally to the services that you get when you walk into an emergency room, what this proposed rule would do is make sure that there are protocols and standards in place for obstetrical emergencies, and also procedures for transfers when somebody is in the middle of an obstetrical emergency or pregnancy complication and that hospital where they are can’t provide the care that they need.

Rovner: So we’ll see how that one goes. After last month’s debate, a lot of abortion rights supporters were dismayed that President Biden didn’t very effectively defend abortion access and didn’t really rebut falsehoods repeated by former President Trump. We know that reproductive health isn’t the issue that the president feels most comfortable talking about anyway. What do you say to those who are worried that the president won’t go far enough or isn’t the right messenger for this extremely critical moment?

Klein: I would say a couple of things: I would say look at what this administration has done under his leadership. I was with him in the Oval Office the day the Dobbs [v. Jackson Women’s Health Organization] decision came down and he was angry. And why was he angry? The same reason we were all angry, because never before had the Supreme Court taken away a fundamental constitutional right. And he has been fighting and asked me to help lead the fight for the last two-plus years to do whatever we can.

And he also was quite clear on that day that the only way to replace a constitutional right that was lost is to restore the protections that existed under Roe v. Wade for nearly 50 years. And that’s what we intend to do, what he intends to do. And he has said many, many times, while the other side would actually ban abortion nationwide, what he is attempting to do and what he will sign the minute a bill reaches his desk is to restore the protections of Roe in federal law so that every woman in every state has the right to access abortion care and other reproductive health services.

By the way, as you well know, many other reproductive health services like contraception, like in vitro fertilization, and other fertility services, are on the chopping block as well. And Republican elected officials, whether that’s in Congress or in states, have been not only unwilling but dramatically invested in reducing access to care and restricting access to care. And so what this president is doing is fighting to make sure that people do have access to abortion and the full range of reproductive health services.

And I think the second point I would make is the contrast could not be clearer. And so as people think about who is protecting their rights and their access to health care, I think that the choice is obvious. And then the third thing I would say is we also have a vice president who has really led and traveled, I think, to 20 states around the country, met with 250 state legislators, state attorneys general, presidents, met with governors. We are here to support the states, which are really the front lines. And she has really led the charge for reproductive freedom.

Rovner: And obviously it is an issue that she does feel comfortable talking about, and does a lot. Speaking of restoring Roe v. Wade, there are a lot of people in the abortion rights community who say that that’s actually not far enough. That even under Roe, there were many, many restrictions on abortion that were still allowed, most notably, the Hyde Amendment that bans virtually all federal funding of abortion. Would the administration support efforts to expand abortion rights beyond Roe?

Klein: Well, the president has been on record, obviously also the vice president, against the Hyde Amendment, would remove the Hyde Amendment to address exactly the issue that you just raised. And yes, what we want to do is ensure that people have access to health care. In the moment we are in, we are fighting that in states across the country, and also want to have a national law that protects access to abortion and all of the other reproductive health services that were lost.

Rovner: So we’ve seen a lot of predictable outcomes of abortion bans around the country, but also some that were more maybe unexpected, including a spike in infant mortality in Texas and graduating medical students avoiding doing their residencies in states with abortion bans. Are you working on policies to address those issues? I guess you mentioned infant mortality already.

Klein: Yes. We’re very focused, as we have been, by the way, the administration released a maternal health blueprint two years ago, actually before the Dobbs decision came down. And we are continuing to work on that. So in addition to what I mentioned earlier, another great example of the work we’ve done is to extend Medicaid postpartum coverage from two to 12 months. That now exists in 46 states, plus the District of Columbia.

The other thing I would say is you raised a very important point, which is, first of all, clinics are closing because of extreme abortion bans across the country. Secondly, training. People are not able to get the training to provide the services that their patients will need in many states. And so we are very focused on addressing issues of training, issues of access to clinics, and other reproductive health services across the country. That’s why we’ve increased Title X funding for family planning clinics.

So the short answer is, yes, we have a very broad agenda. And by the way, this week in Congress there have been several bills introduced on issues like training, to ensure that people have access to care. So the three that were introduced were, first, the freedom to travel for health care, which is obviously another very important issue. Which, by the way, there are states and state attorneys general who are attempting to block people from traveling to seek legal reproductive health care in other states.

There’s another unanimous consent resolution this week to protect health care providers from being held liable for providing services to patients from other states. And third, a unanimous consent resolution to protect reproductive health care training. So those are what our colleagues on the Hill are working on and we firmly support efforts to do that.

Rovner: And obviously two of them got tried yesterday and blocked. And so we know that Congress has stuck on this issue. Even if President Biden is reelected and Democrats keep the Senate and take the majority in the House, it’s unlikely that Congress will be able to pass broad legislation to protect abortion rights.

There has actually never been a pro-choice majority in Congress while a Democrat was in the White House. So how will the administration be able to advance reproductive rights, particularly in light of the Supreme Court’s decision striking down the Chevron doctrine that’s going to make it easier for outsiders to challenge administration actions in court?

Klein: Yeah, this is not easy. We have seen a very concerted effort on the other side. First of all, to pass extreme abortion bans at the state level. We now have 20-plus states with extreme abortion bans in place. One in three women of reproductive age live in a state with an abortion ban right now. And yes, we see that the courts are also challenging. On the other hand, you raised the question earlier about being frustrated with only restoring Roe.

I think our view, my view, is that we need to start somewhere. And while, yes, it has been very difficult at the national level to pass any legislation to support reproductive freedom, I remain optimistic. The president, as we all know, is an eternal optimist. I remain optimistic that we can do that and that we can get bipartisan support.

Because what you’ve seen across the country in states that might not have been obvious, but when people have had the opportunity to speak out about this, state ballot initiatives, we’ve had states like Kansas and Montana. And most recently there’s a few states that have just put abortion ballot initiatives on the ballot for November, like Florida, like Colorado, like Nevada.

There is a broad range of states where when people are given the opportunity to speak to these issues, they speak really loudly and clearly for reproductive freedom. So that’s why I actually remain very optimistic, despite the odds that you rightfully point out, that actually Congress could pass federal legislation which the president would sign.

Rovner: Last question, there’s been a lot of talk about the Comstock Act, it’s 1873 anti-vice law, and whether a future Republican administration could use it to basically ban abortion nationwide. Congress, as I mentioned, seems unlikely to have the votes to repeal it. Is there anything the administration can do to try and forestall that for a future administration?

Klein: Not for a future administration, which is why our interpretation of what the Comstock Act does and doesn’t do is really important. So this Department of Justice under the Biden-Harris administration has made it clear that the Comstock Act does not apply to lawful abortion. And by the way, four appellate courts, Congress for more than 50 years, agreed with that interpretation.

So we stick by our interpretation, which means that there’s no restriction on the transport, shipping of medication abortion or, by the way, any other supply that’s used in abortion for lawful purposes. And there is a lawful purpose, by the way, in every state for medication abortion because it is also used for miscarriage management, for example. And there are states which have exceptions for rape or incest, where obviously medication abortion could be used in those cases.

So our interpretation I think is not only legally viable, but just makes a lot of sense. And I do think that people should really understand that a future administration could come in with a very different view, and actually have completely signaled that they would do that. If you look at some of the policy papers and documents, it makes really clear that the other side doesn’t think they need to pass a national abortion ban. They think they have one on the books, and they think that’s the Comstock Act.

Rovner: Jen Klein, thank you so much for joining us. I hope we can do this again.

Klein: Thank you so much. It was great to be with you.

Rovner: OK, we’re back. And now it’s time for our extra credit segment. That’s where we each recommend a story we read this week we think you should read too. As always, don’t worry if you miss it, we will post the links on the podcast page at kffhealthnews.org and in our show notes on your phone or other mobile device. Shefali, you were the first one to choose this week. Why don’t you go first?

Luthra: I’m very excited about this story. It’s by Caroline Kitchener at The Washington Post, who everyone should be reading all the time. The headline: “These GOP Women Begged the Party to Abandon Abortion. Then Came Backlash.” And the story fits into a pattern of reporting that we’ve started to see about what it means to be a Republican woman in state politics at a time when the party’s views on abortion are out of step with the national norm.

We saw these effects happen in South Carolina where the Republican women who opposed their state’s abortion ban have all lost their seats. And Caroline’s story does a really good job of getting into the tensions that have come up at the state GOP convention and how these women have said, “Hey, maybe abortion is not a winning issue. We already have an abortion ban. Maybe we shouldn’t make this the thing that is our No. 1 concern. Maybe we should focus on other things.”

And at the same time, you have very influential anti-abortion organizations in the state that are not satisfied with the status quo and want a place like Texas to go much further, and to find ways to ban medication abortion from being mailed into states or find ways to restrict travel. And what happened to these women in Caroline’s story is they fought at the convention to have abortion not be an issue, and then afterward they were ostracized.

And that I think is going to be very indicative of what we will see in the Republican Party moving forward. And it’s something that has come up over and over again; is that lawmakers on a state level are really nervous about the politics of pursuing further abortion restrictions. But also there is a very influential group of people who do not want them to stop. And this is only going to be a tension that keeps coming to a head and very often on lines of gender.

Rovner: I’m old enough to remember when abortion was not a completely partisan issue, when there were lots and lots and lots of Republicans who supported abortion rights and lots and lots and lots of Democrats who didn’t. I think in both cases they’re being… Each is being shoved into the other party. Sandhya, why don’t you go next?

Raman: So I picked “For at Least One Abortion Clinic, Dobbs Eased Stressors,” and that’s by me this week on Roll Call. So following the Dobbs decision, North Dakota’s only abortion clinic of the past 20 years moved to Minnesota. And so I spent a week there in June in Moorhead, Minnesota, where they moved, which is on the border with Fargo, North Dakota, and just looked at the mental well-being of people associated with the clinic and the community and was surprised by what I found.

Rovner: Well, I’m looking forward to reading it because I haven’t actually read it yet. Jessie?

Hellmann: My story is from North Carolina Health News [“N.C. House Wants to Spend Opioid Money on Multiple Abstinence-Based Recovery Centers, While Experts Stress Access to Medication,”] and it’s looking at this debate I think a lot of states are going to be facing pretty soon, about how to spend the massive amount of money that’s coming in from these opioid settlements. And in North Carolina specifically, there is a little bit of a push to award funds to clinics that may not be using evidence-based approaches to the opioid epidemic. Some of these centers, they don’t offer medication at all, which is the gold standard for treating opioid use disorder.

Some of these centers go even further and say, “If you are on these medications, you cannot stay in our facilities,” which is very antithetical to how you should treat someone with opioid use disorder. And then some of these centers are not licensed. So I think this is definitely something that we’re going to be seeing coming up in the next few years about who is qualified to treat people for opioid use disorder and how are they doing it.

Rovner: Yeah, lots of important stories for local reporters to pursue. Well, my extra credit this week is an investigation from Stat News by Tara Bannow called “Troubled For-Profit Chains Are Stealthily Operating Dozens of Psychiatric Hospitals Under Nonprofits’ Names.” And it’s about how nonprofit hospital systems, who are in many cases desperate for places to put psychiatric patients who are crowding their emergency departments, are creating these joint ventures with the two major national for-profit psychiatric hospital chains, UHS and Acadia, both of which have been cited repeatedly by state and local regulators for lack of staffing, lack of training, and lack of security that’s resulted in patient injuries and deaths.

Under these deals, the psychiatric hospitals operate under the banner of the nonprofits, which are usually well-known in their communities, and then the revenues get split. But some of the stories here are pretty hair-raising, and you really should read the whole story because it is quite an investigation.

OK, that is our show. As always, if you enjoy the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left us a review; that helps other people find us, too. Special thanks as always to our technical guru, Francis Ying, and our editor, Emmarie Huetteman. As always, you can email us your comments or questions. We’re at whatthehealth@kff.org, or you can still find me at X, @jrovner. Sandhya, where are you hanging these days?

Raman: @SandhyaWrites on X.

Rovner: Shefali?

Luthra: I’m @shefalil on the same platform.

Rovner: Jessie?

Hellmann: @jessiehellmann on X.

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

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

In what will certainly be remembered as a landmark decision, the Supreme Court’s conservative majority this week overruled a 40-year-old legal precedent that required judges in most cases to yield to the expertise of federal agencies. It is unclear how the elimination of what’s known as the “Chevron deference” will affect the day-to-day business of the federal government, but the decision is already sending shockwaves through the policymaking community. Administrative experts say it will dramatically change the way key health agencies, such as the FDA and the Centers for Medicare & Medicaid Services, do business.

The Supreme Court also this week decided not to decide a case out of Idaho that centered on whether a federal health law that requires hospitals to provide emergency care overrides the state’s near-total ban on abortion.

This week’s panelists are Julie Rovner of KFF Health News, Joanne Kenen of the Johns Hopkins schools of public health and nursing and Politico Magazine, Victoria Knight of Axios, and Alice Miranda Ollstein of Politico.

Panelists

Joanne Kenen
Johns Hopkins University and Politico

@JoanneKenen

Read Joanne's articles.

Victoria Knight
Axios

@victoriaregisk

Read Victoria's stories.

Alice Miranda Ollstein
Politico

@AliceOllstein

Read Alice's stories.

Among the takeaways from this week’s episode:

• In 1984, the Supreme Court ruled broadly that courts should defer to the decision-making of federal agencies when an ambiguous law is challenged. On Friday, the Supreme Court ruled that the courts, not federal agencies, should have the final say. The ruling will make it more difficult to implement federal laws — and draws attention to the fact that Congress, frequently and pointedly, leaves federal agencies much of the job of turning written laws into reality.
• That was hardly the only Supreme Court decision with major health implications this week: On Thursday, the court temporarily restored access to emergency abortions in Idaho. But as with its abortion-pill decision, it ruled on a technicality, with other, similar cases in the wings — like one challenging Texas’ abortion ban.
• In separate rulings, the court struck down a major opioid settlement agreement, and it effectively allowed the federal government to petition social media companies to remove falsehoods. Plus, the court agreed to hear a case next term on transgender health care for minors.
• The first general-election debate of the 2024 presidential cycle left abortion activists frustrated with their standard-bearers — on both sides of the aisle. Opponents didn’t like that former President Donald Trump doubled down on his stance that abortion should be left to the states. And abortion rights supporters felt President Joe Biden failed to forcefully rebut Trump’s outlandish falsehoods about abortion — and also failed to take a strong enough position on abortion rights himself.

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

Julie Rovner: The Washington Post’s “Masks Are Going From Mandated to Criminalized in Some States,” by Fenit Nirappil.  

Victoria Knight: The New York Times’ “The Opaque Industry Secretly Inflating Prices for Prescription Drugs,” by Rebecca Robbins and Reed Abelson. 

Joanne Kenen: The Washington Post’s “Social Security To Drop Obsolete Jobs Used To Deny Disability Benefits,” by Lisa Rein.  

Alice Miranda Ollstein: Politico’s “Opioid Deaths Rose 50 Percent During the Pandemic. in These Places, They Fell,” by Ruth Reader.  

Also mentioned in this week’s podcast:

• Politico’s “Inside the $100 Million Plan To Restore Abortion Rights in America,” by Alice Miranda Ollstein.
• JAMA Network Open’s “Use of Oral and Emergency Contraceptives After the US Supreme Court’s Dobbs Decision,” by Dima M. Qato, Rebecca Myerson, Andrew Shooshtari, et al.
• JAMA Health Forum’s “Changes in Permanent Contraception Procedures Among Young Adults Following the Dobbs Decision,” by Jacqueline E. Ellison, Brittany L. Brown-Podgorski, and Jake R. Morgan.
• JAMA Pediatrics’ “Infant Deaths After Texas’ 2021 Ban on Abortion in Early Pregnancy,” by Alison Gemmill, Claire E. Margerison, Elizabeth A. Stuart, et al.

click to open the transcript

SCOTUS Ruling Strips Power From Federal Health Agencies

KFF Health News’ ‘What the Health?’Episode Title: ‘SCOTUS Ruling Strips Power From Federal Health Agencies’Episode Number: 353Published: June 28, 2024

[Editor’s note: This transcript was generated using both transcription software and a human’s light touch. It has been edited for style and clarity.] 

Mila Atmos: The future of America is in your hands. This is not a movie trailer, and it’s not a political ad, but it is a call to action. I’m Mila Atmos and I’m passionate about unlocking the power of everyday citizens. On our podcast, “Future Hindsight,” we take big ideas about civic life and democracy and turn them into action items for you and me. Every Thursday, we talk to bold activists and civic innovators to help you understand your power and your power to change the status quo. Find us at futurehindsight.com or wherever you listen to podcasts.

Julie Rovner: Hello, and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF Health News, and I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Friday, June 28, at 10:30 a.m. As always, news happens fast and things might’ve changed by the time you hear this, so here we go.

We are joined today via video conference by Alice Miranda Ollstein of Politico.

Alice Miranda Ollstein: Hello.

Rovner: Victoria Knight of Axios News.

Victoria Knight: Hello, everyone.

Rovner: And Joanne Kenen of the Johns Hopkins Schools of Nursing and Public Health and Politico Magazine.

Joanne Kenen: Hi, everybody.

Rovner: I hope you enjoyed last week’s episode from Aspen Ideas: Health. This week we’re back in Washington with tons of breaking news, so let’s get right to it. We’re going to start at the Supreme Court, which is nearing, but not actually at, the end of its term, which we now know will stretch into next week. We have breaking news, literally breaking as in just the last few minutes: The court has indeed overruled the Chevron Doctrine. That’s a 1984 ruling that basically allowed experts at federal agencies to, you know, expert. Now it says that the court will get to decide what Congress meant when it wrote a law. We’re obviously going to hear a lot more about this ruling in the hours and days to come, but does somebody have a really quick impression of what this could mean?

Ollstein: So this could prevent or make it harder for health agencies, and all the federal agencies that touch on health care, to both create new policies based on laws that Congress pass and update old ones. Things need to be updated; new drugs are invented. There’s been all these updates to what Obamacare does and doesn’t have to cover. That could be a lot harder going forward based on this decision. It really takes away a lot of the leeway federal agencies had to interpret the laws that Congress passed and implement them.

I think kicking things back to courts and Congress could really slow things down a lot, and a lot of conservatives see that as a good thing. They think that federal agencies have been too untouchable and not have the same accountability mechanisms because they’re career civil servants who are not elected. But this has health policy experts … Honestly, we interviewed members of previous Republican administrations and Democratic administrations and they’re both worried about this.

Rovner: Yeah, going forward, if Donald Trump gets back into the presidency, this could also hinder the ability of his Department of Health and Human Services to make changes administratively.

Knight: These agencies are stacked with experts. This is what they work on. This is what they really are primed to do. And Congress does not have that same type of staffing. Congress is very different. It’s very young. There’s a lot of turnover. There are experienced staffers, but usually when they’re writing these laws, they leave so much up to interpretation of the agency because they are experts.

So I think pushing things back on Congress would really have to change how Congress works right now. When I talked to experts, we would need staffers who are way more experienced. We would need them to write laws that are way more specific. And Congress is already so slow doing anything. This would slow things down even more. So that’s a really important congressional aspect I think to note.

Rovner: I think when we look back at this term, this is probably going to be the biggest decision. Joanne, you want to add something before we move on?

Kenen: We’re recording. We don’t know if immunity just dropped, which is all still going to be, not a health care decision but an important decision of the country. I’ve got SCOTUSblog on my other screen. Here’s a quote from [Justice Elena] Kagan’s dissent. She says, because it’s very unfocused for what we do on this podcast, “Chevron has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds, to name a few, keeping air and water clean, food and drugs safe and financial markets honest.” So two of the three of us. Financial markets affect the health industry as well.

Rovner: Oh, yeah.

Kenen: But I think that what the public doesn’t always understand is how much regulatory stuff there is in Washington. Congress can write a 1,000-page law like the ACA [Affordable Care Act]. I’ve never counted how many pages of regulation because I don’t think I can count that high. It’s probably tens of thousands.

Rovner: At least hundreds of thousands.

Kenen: Right. And that every one of those, there’s a lobbying fight and often a legal fight. It’s like the coloring book when we were kids. Congress drew the outline and then we all tried to scribble within the lines. And when you go out of the lines, you have a legal case. So the amount of stuff, regulatory activity is something that the public doesn’t really see. None of us have read every reg pertaining to health care. You can’t possibly do it in a lifetime. Methuselah couldn’t have done it. And Congress cannot hire all the expert staff and all the federal agencies and put them in; they won’t fit in the Capitol. That’s not going to happen. So how do they come to grips with how specific are they going to have to be? What kind of legal language can they delegate some of this to agency experts. We’re in really uncharted territory.

Rovner: I think you can tell from the tones of all of our voices that this is a very big deal, with a whole lot of blanks to be filled in. But for the moment …

Kenen: Maybe they’ll just let AI do it.

Rovner: Yeah, for the moment, let’s move on because, until just now, the biggest story of the week for us was on Thursday. We finally got a decision in that case about whether Idaho’s near-total ban on abortion can override a federal law called EMTALA, the Emergency Medical Treatment and Active Labor Act, which requires doctors in emergency rooms to protect a pregnant woman’s health, not just her life. And much like the decision earlier this month to send the abortion pill case back to the lower courts because the plaintiffs lacked legal standing, the court once again didn’t reach the merits here. So Alice, what did they do?

Ollstein: So like you said, both on abortion pills and on EMTALA, the court punted on procedural issues. So it was standing on the one and it was ripeness on the other one. This one was a lot more surprising. I think based on the oral arguments in the mifepristone case, we could see the standing-based decision coming. That was a big focus of the arguments. This was more of a surprise. This was a majority of justices saying, “Whoops, we shouldn’t have taken this case in the first place. We shouldn’t have swooped in before the 9th Circuit even had a chance to hear it. And not only take the case, but allow Idaho to fully enforce its law even in ways that people feel violate EMTALA in the meantime.” And so what this does temporarily is restore emergency abortion access in Idaho. It restores a lower-court order that made that the case, but it’s not over.

Rovner: Right. It had stayed Idaho’s ban to the extent that it conflicted with EMTALA.

Ollstein: So this goes back to lower courts and it’s almost certain to come back to the Supreme Court as early as next year, if not at another time. Because this isn’t even the only major federal EMTALA case that’s in the works right now. There’s also a case on Texas’ abortion ban and its enforcement in emergency situations like this. And so I think the main reaction from the abortion rights movement was temporary relief, but a lot of fear for the future.

Rovner: And I saw a lot of people reminding everybody that this Texas ruling in Idaho, now the federal law is taking precedence, but there’s a stay of the federal law in the 5th Circuit. So in Texas, the Texas ban does overrule the federal law that requires abortions in emergency circumstances to protect a woman’s health. That’s what the dispute is basically about. And of course, you see a lot of legal experts saying, “This is a constitutional law 101 case that federal law overrides state law,” and yet we could tell by some of the add-on discussion in this case, as they’re sending it back to the lower court, that some of the conservatives are ready to say, “We don’t think so. Maybe the federal law will have to yield to some of these state bans.” So you can kind of see the writing on the wall here?

Ollstein: It’s really hard to say. I think that you have some justices who are clearly ready to say that states can fully enforce their abortion bans regardless of what the federal government’s federal protections are for patients. I think they put that out there. I think the case is almost certain to come back to them, and there was clearly not a majority ready to fully side with the Biden administration on this one.

Rovner: And clearly not a majority ready to fully side with Idaho on this one. I think everything that I saw suggested that they were split 3-3-3. And with no majority, the path of least resistance was to say, “Our bad. You take this back lower court. We’ll see when it comes back.”

Ollstein: It was a very unusual move, but some of the justification made sense to me in that they cited that Idaho state officials’ position on what their abortion ban did and didn’t do has wavered over time and changed. And what they initially said when they petitioned to the court is not necessarily exactly what they said in oral arguments, and it’s not exactly what they have said since. And so at the heart here is you have some people saying there’s a clear conflict between the patient protections under EMTALA — which says you have to stabilize anyone that comes to you at a hospital that takes Medicare — and these abortion bans, which only allow an abortion when there’s imminent life-threatening situation. And so you have people, including the attorney general of Idaho, saying, “There is no conflict. Our law does allow these emergency abortions and the doctors are just wrong and it’s just propaganda trying to smear us. And they just want to turn hospitals into free-for-all abortion facilities.” This is what they’re arguing. And then you have people say …

Rovner: [inaudible 00:11:12] … in the meanwhile, we know that women are being airlifted out of Idaho when they need emergency abortions because doctors are worried about actually performing abortions …

Ollstein: Correct.

Rovner: And possibly being charged with criminal charges for violating Idaho’s abortion ban.

Ollstein: Sure, but I’m saying even amongst conservatives, there are those who are saying, “There’s no conflict between these two policies. The doctors are just wrong either intentionally or unintentionally.” And then there’s those who say there is a conflict between EMTALA and state bans, and it should be fine for the state to violate EMTALA.

Rovner: No. Obviously this one will continue as the abortion pill case is likely to continue. Well, also in this end-of-term Supreme Court decision dump, an oddly split court with liberals and conservatives on both sides, struck down the bankruptcy deal reached with Purdue Pharma that would’ve paid states and families of opioid overdose victims around $6 billion, but would also have shielded the company’s owners, the Sackler family, from further legal liability. What are we to make of this? This was clearly a difficult issue. There were a lot of people even who were involved in this settlement who said the idea of letting the Sackler family, which has hidden billions of dollars from the bankruptcy settlement anyway, and clearly acted very badly, basically giving them immunity in exchange for actually getting money. This could not have been an easy… obviously was not an easy decision even for the Supreme Court.

Kenen: No, it wasn’t theoretical. The ones who opposed blowing up the agreement were very much, “This is going to add delay any kind of justice for the families and the plaintiffs.” It was not at all abstract. It was like there are a lot of people who aren’t going to get help. At least the help will be delayed if this money doesn’t start flowing. So I was struck by how practical, relating to the families who have lost people because of the actions of Purdue. But the other side was, also that was much more a clear-cut legal issue, that people didn’t give up their right to sue. It was cutting off the right to sue was imposed on potential plaintiffs by the settlement. So that was a much more legalistic argument versus, it was a little bit more real world, but they need the help now. And including some of the conservatives. This is an interesting thing to read. This was painstaking. This is a huge settlement. It took so long. It had many, many moving parts. And I don’t know how you go back and put it together again.

Rovner: But that’s where we are.

Kenen: Yes.

Rovner: They have to basically start from scratch?

Kenen: I don’t know if they have to start entirely from scratch. You’d have to be nuts to get the Sacklers to say, “OK, we’ll be sued,” which they’re obviously you’re not going to. Is somebody going to come up with a “Split the difference, let’s get this moving and we won’t sue anymore?” I don’t know. But I don’t know that you have to start 100% from scratch, but you’re surely not anywhere near a finish line anymore.

Rovner: That’s big Supreme Court case No. 3 for this week. Now let’s get to big Supreme Court case No. 4. Earlier this week, the court turned back a challenge that the government had wrongly interfered with free speech by urging social media organizations to take down covid misinformation. But again, as with the abortion pill case, the court did not get to the merits. But instead, they ruled that the states and individuals who sued did not have standing. So we still don’t know what the court thinks of the role of government in trying to ensure that health information is correct. Right?

Knight: Right. And I thought it was interesting. Basically the White House was like, “Well, we talked to the tech companies, but it was their decision to do this. So we weren’t really mandating them do this.” I think they’re just being like, “OK, we’ve left it up to the tech companies. We haven’t really interfered. We’re just trying to say these things are harmful.” So I guess we’ll have to see. Like you said, they didn’t take it up on standing, but overall, conservatives that were saying, “This was infringing on free speech.” It was particularly some scientists, I think, that promoted the herd immunity theory, things like that.

So I think they’re obviously going to be upset in some way because their posts were depromoted on social media. But I think it just leaves things the way they are, the same way. But it would be interesting, I guess, if Trump does go to the White House, how that might play out differently?

Rovner: This court has been a lot of the court deciding not to decide cases, or not to decide issues. Sorry, Alice, go ahead.

Ollstein: Yeah, so I think it is pretty similar to the abortion pill case in one key way, which is that it’s the court saying, “Look, the connection between the harm you think you suffered and the entity you are accusing of causing that suffering, that connection is way too tenuous. You can’t prove that the Biden administration voicing concerns to these social media companies directly led to you getting shadow-banned or actual banned,” or whatever it is. And the same in the abortion pill case, the connection between the FDA [Food and Drug Administration] approving the drug and regulating the drug and these individual doctors’ experiences is way too tenuous. And so that’s something to keep in mind for future cases that, we’re seeing a pattern here.

Rovner: Yes, and I’m not suggesting that the court is directly trying to duck these issues. These are legitimate standing cases and important legal precedents for who can sue in what circumstance. That is the requirement of constitutional review that first you have to make sure that there’s both standing in a live controversy and there’s all kinds of things that the court has to go through before they get to the merits. So more often than not, they don’t get there.

Well, meanwhile, we have our first hot-button, Supreme Court case slotted in for next term. On Monday, the court granted “certiorari” [writ by which a higher court reviews a decision of a lower court] to a case out of Tennessee where the Biden administration is challenging the state’s ban on transgender care for minors. It was inevitable that one of these cases was going to get to the high court sooner or later, right?

Kenen: Yeah, I think it’s not a surprise, the politics of it and the techniques or tools used by the forces that are against the treatment for minors. It’s very similar to the politics and patterns of the abortion case, of turning something into an argument that it’s to protect somebody. A lot of the abortion requirements and fights were about to protect the woman. Ostensibly, that was the political argument. And now we’re seeing we have to protect the children so that it’s the courts, as opposed to families and doctors, who are, “protecting the children.”

There’s a lot of misunderstanding about what these treatments do and who gets them and at what age;  that they’re often described as mutilation and irreversible. For the younger kids, for preteen, middle school age-ish, early teens, nothing is irreversible. It’s drugs that if you stop them, the impact goes away. But it has become this enormous lightning rod for the intersection of health and politics. And I think we all have a pretty good guess as to where the Supreme Court’s going to end up on this. But you’re sometimes surprised. And also, there could be some …

Rovner: Maybe they don’t have standing.

Kenen: There could be some kind of moderation, too. It could be a certain … they don’t have to say all … it depends on how clinical they want to get. Maybe they’ll rule on certain treatments that are more less-reversible than a puberty blocker, which is very reversible, and some kind of safeguards. We don’t know the details. We’re not surprised that it ended up … and we know going in, you could have a gut feeling of where it’s likely to turn out without knowing the full parameters and caveats and details. They haven’t even argued it yet.

Rovner: This is a decision that we’ll be waiting for next June.

Kenen: Right. Well, could not. Maybe it’s so clear-cut, it’ll be May. Who knows, right?

Rovner: Yeah, exactly. All right, well, moving on. There was a presidential debate last night. I think it was fair to say that it didn’t go very well for either candidate, nor for anybody interested in what President Biden or former President Trump thinks about health issues. What did we learn, if anything?

Ollstein: Well, I was mainly listening for a discussion of abortion and, boy was it all over the place. What I thought was interesting was that both candidates pissed off their activist supporters with what they said. I was texting with a lot of folks on both sides and conservatives were upset that Trump doubled down on his position that this should be entirely left to states, and they disagree. They want him to push for federal restrictions if elected.

And on the left, there was a lot of consternation about Biden’s weird, meandering answer about Roe v. Wade. He was asked about abortions later in pregnancy. One, neither he nor the moderators pushed back on what Trump’s very inflammatory claims about babies being murdered and stuff. There was no fact-checking of that whatsoever. But then Biden gave a confusing answer, basically saying he supports going to the Roe standard but not further, which is what I took out of it. And that upset a lot of progressives who say Roe was never good enough. For a lot of people, when Roe v. Wade was still in place, abortion was a right in name only. It was not actually accessible. States could impose lots of restrictions that kept it out of reach for a lot of people. And in this moment, why should we go back to a standard that was never good enough? We should go further. So just a lot of anxiety on both sides of this.

Rovner: Yeah. Meanwhile, Trump seemed to say that he would leave the abortion pill alone, which jumped out at me.

Kenen: But that was a completely … CNN made a decision not to push back. They were going to have online fact-checking. Everybody else had online fact. … And they didn’t challenge. And I guess they assumed that the candidates would challenge each other, and Biden had a different kind of challenging night. Trump actually said that the previous Supreme Court had upheld the use of the abortion drug and that it’s over, it’s done. That was not a true statement. The Supreme Court rejected that case, as Alice just explained, on standing. It’s going to be back. It may be back in multiple forms, multiple times. It is not decided. It is not over, which is what Trump said, “Oh, don’t worry about the abortion drug. The Supreme Court OK’d it.” That’s not what the Supreme Court did, and Biden didn’t counter that in any way.

And then Biden, in addition to the political aspect that Alice just talked about, he also didn’t describe Roe, the framework of Roe, particularly accurately. And, as Alice just pointed out, the things that Trump said were over-the-top even for Trump, and that they went unchallenged by either the moderators or President Biden.

Rovner: I was a little bit surprised that there wasn’t anything else on health care or there wasn’t much else.

Knight: Biden tried to hit his health care talking points and did a very terrible job. Alice had a really good tweet getting the right. … He initially said wrong numbers for the insulin cap, for the cap on out-of-pocket for Medicare beneficiaries, how much they can spend on prescription drugs. He got both of those wrong. I think he got insulin right later in the night. And then the very notably, “We will beat Medicare.” That was just unclear what he even meant by that. Maybe it was about drug price negotiations, I’m sure. So he was trying, but just could not get the facts right and I don’t think it came across effective in any way. And health care does do really well for Democrats. Abortion does really well for Democrats. So he was not effective in putting those messages.

I also noticed the moderators asked a question about opioids, addressing the opioid epidemic. Trump did not answer at all, pivoted to I think border or something like that. I don’t think Biden really answered either, honestly. So that was an opportunity for them to also talk about addressing that, which I think is something they could both probably talk about in a winning way for both. But I thought it was mentioned more than I expected a little bit. I thought they may want to talk about it at all. So it was still not much substantive policy discussion on health care.

Kenen: Biden tried to get across some of the Democratic policies on drug prices and polls have shown that the public doesn’t really understand that is actually the law in going forward. So if any attempt to message that in front of a very large audience was completely muddled. Nobody listening to that debate would’ve come out — unless they knew going in — they would’ve not have come out knowing what was in the law about Medicare price negotiations. They would’ve gotten four different answers of what happened with insulin, although they probably figured something good, helpful happened. And a big opportunity to push a Democratic achievement that has some bipartisan popularity was completely evaporated.

Rovner: I think Biden did the classic over-prepare and stuff too many talking points into his head and then couldn’t sort them all out in the moment. That seemed pretty clear. He was trying to retrieve the talking point and they got a little bit jumbled in his attempt to bring them out. Well, back to abortion: Alice, you got a cool scoop this week about abortion rights groups banding together with a $100 million campaign to overturn the overturn of Roe. Tell us about that?

Ollstein: Yeah, so it’s notable because there’s been so much focus on the state level battles and fighting this out state by state, and the ballot initiatives that have passed at the state level and restored or protected access have been this glimmer of hope for the abortion rights movement. But I think there was a real crystallization of the understanding that that strategy alone would leave tens of millions of people out in the cold because a lot of states don’t have the ability to do a ballot initiative. And also, if there were to be some sort of federal restrictions imposed under a Trump presidency or whatever, those state level protections wouldn’t necessarily hold. So I think this effort of groups coming together to really spend big and say that they want to restore federal protections is really notable.

I also think it’s notable that they are not committing to a specific bill or plan or law they want to see. They are keeping on the, “This is our vision, this is our broad goal.” But they’re not saying, “We want to restore Roe specifically, we want to go further,” et cetera. And that’s creating some consternation within the movement. I’ve also, since publishing the story, heard a lot of anxiety about the level of spending going to this when people feel that that should be going to direct support for people who are suffering on the ground and struggling to access abortion. Right now you have abortion funds screaming that they’re being stretched to the breaking point and cannot help everyone who needs to travel out of state right now. So, of course, infighting on the left is a perennial, but I think it’s particularly interesting in this case.

Rovner: Well, meanwhile, we have a trio this week of examples of what I think it’s safe to call unintended consequences of the Supreme Court’s overturn of Roe. First, a study in the medical journal JAMA Pediatrics this week, found that in the first year abortion was dramatically restricted in Texas — remember, that was before the overturn of Roe — infant deaths rose fairly dramatically. In particular, deaths from congenital problems rose, suggesting that women carrying doomed fetuses gave birth instead of having abortions. What’s the takeaway from seeing this big spike in infant mortality?

Ollstein: So I’ve seen a lot of anti-abortion groups trying to spin this and push back really hard on it. Specifically picking up on what you just said, which is that a lot of these are fatal fetal anomalies. And so they were saying, “Were abortion still legal, those pregnancies could have been terminated before birth.” And so they’re saying, “There’s no difference really, because we consider that an infant death already. So now it’s an infant death after birth. Nothing to see here.”

Rovner: When everybody has suffered more, basically.

Ollstein: Yeah, that is the response I’m seeing on the right. On the left, I am seeing arguments that anyone who labels themselves pro-life should think twice about the impact of these policies that are playing out. And like you said, we’re only just beginning to get glimmers of this data. In part because Texas was out in front of everybody else, and so I think there’s a lot more to come.

The other pushback I’ve seen from anti-abortion groups is that infant mortality also rose in states where abortion remains legal. So I think that’s worth exploring, too. Obviously, correlation is not always causation, but I think it’s hard when you’re getting the data in little dribs and drabs instead of a full complete picture that we can really analyze.

Rovner: Well, in another JAMA study, this one in JAMA Network Open, they found that the use of Plan B, the morning-after birth control pill, fell by 60% in states that implemented abortion bans after the Dobbs [v. Jackson Women’s Health Organization] decision. Now, for the millionth time, Plan B is not the same as the abortion pill. It’s a high-dose contraceptive. But apparently, a combination of the closure of family planning clinics in states that impose bans, which are an important source of pills for people with low incomes who can’t afford over-the-counter versions, and misinformation about the continuing legality of the morning-after pill, which continues to be legal, contributed to the decline. At least that’s what the authors theorize. This is one of many ironies in the wake of Dobbs; that states with abortion bans may well be ending up with more unintended pregnancies rather than fewer.

Ollstein: Well, one trends that could be feeding this is that some of the clinics where people used to go to to access contraception, also provided abortion and have not been able to keep their doors open in a post-Roe environment. We’ve seen clinics shutting down across the South. I went to Alabama last year to cover this, and there are clinics there that used to get most of their revenue from abortion, and they’re trying to hang on and provide nonabortion gynecological services, including contraception, and the math just ain’t mathing, and they’re really struggling to survive.

And so this goes back to the finger-pointing within the movement about where money should be going right now. And I know that red state clinics that are trying to survive feel very left behind and feel that this erosion of access is a result of that.

Kenen: Julie, and also to put in, even before Dobbs, it was not easy in many parts of the country for low-income women to get free contraception. There are states in which clinics were few and far between. Federal spending on Title X has not risen in many years.

Rovner: Title X is a federal [indecipherable].

Kenen: Right. Alice knows this, and maybe I’ve said on the podcast, I once just pretty randomly with me and my cursor plunked my cursor down on a map of Texas and said, “OK, if I live here, how far is the nearest clinic?” And I looked at the map of the clinics and it was far, it was something like 95 miles, the nearest one. So we had abortion deserts. We’ve also had family planning deserts, and that has only gotten worse, but it wasn’t good in the first place.

Rovner: Well, finally, and for those who really want to make sure they don’t have unintended pregnancies, according to a study in a third AMA journal, JAMA Health Forum, the number of young women aged 18 to 30 who were getting sterilized doubled in the 15 months after Roe was overturned. Men are part of this trend, too. Vasectomies tripled over that same period. Are we looking at a generation that’s so scared, they’re going to end up just not having kids at all?

Kenen: Well, there are a lot of kids in this generation who are saying they don’t want to have kids for a variety of reasons: economic, climate, all sorts of things. I think that I was a little surprised to see that study because there are safe long-acting contraceptives. You can get an IUD that lasts seven to nine years, I think it is. I was a little surprised that people were choosing something irreversible because.. I do know young people who… You’re young, you go through lots of changes in life, and there is an alternative that’s multiyear. So I was a little surprised by that. But that’s apparently what’s happening. And it’s for… This generation is not as… What are they, Gen[eration] Z? They’re not as baby-oriented as their older brothers and sisters even.

Knight: Well, that age range is millennial and Gen Z. But I don’t know. I’m a millennial. I think a lot of my friends were not baby-oriented. So I think that’s probably a fair statement to say. But it is interesting that they wouldn’t choose an IUD or something like that instead. But I do think people are scared. We’ve seen the stories of people moving out of states that have really strict abortion bans because they are so concerned on what kind of medical care they could have, even if they think they want to get pregnant. And sometimes you don’t have a healthy pregnancy and then need to get an abortion. So I’m sure it has something to do with that but…

Rovner: Yeah, it’s one of those trends to keep an eye out for. Well, moving on, U.S. Surgeon General Vivek Murthy has been busy these past couple of weeks. First, he published an op-ed in The New York Times calling for a warning label for social media that’s similar to the one that’s already on tobacco products, warning that social media has not been proven safe for children and teenagers. Of course, he doesn’t have his own authority to do that. Congress would have to pass a law. Any chance of that? I know Congress is definitely into the “What are we going to do about social media” realm.

Kenen: But talking about it and doing something or thinking, it’s a long way. Is this as, compared to his other topic of the week, which was gun safety? He’s got a lot more bipartisan …

Rovner: We’re getting to that.

Kenen: … He’s got a lot more bipartisan support for the concern about health of young people and what social media is. What is social media? Social media is mixed. There are good things and bad things, and what is that balance? There is a bipartisan concern. I don’t know that that means you get to the labeling point. But the labeling point is one thing. That the larger concept of concern about it, and recognition about it, and what do we do about it, is bipartisan up to a point. How do you even label? What do you label? Your phone? Your computer? I’m not sure where the label goes. Your eyelids? [inaudible 00:33:07]

Knight: Right. Well, tech bills in Congress in general are like… Even though TikTok was surprisingly able to get done in the House. But TikTok lobby was big. But there would be a big social media lobby, I’m sure, against that. I guess there is bipartisan support. I don’t know. It’s not something I’ve asked members about, but I think that would be pretty far off from a reality actually happening.

Rovner: Well, also this week, as Joanne mentioned, the surgeon general issued a Surgeon General’s Advisory, declaring gun violence a public health crisis, calling for more research funding on gun injuries and deaths, universal background checks for gun buyers, and bans on assault weapons and high-capacity ammunition magazines. I feel like the NRA [National Rifle Association] has lost some of its legendary clout on Capitol Hill over the past few years, thanks to a series of scandals, but maybe not enough for some of these things. I feel like I’ve heard these suggestions before, like over the last 25 or 30 years.

Kenen: I think one of the interesting things about Vivek Murthy is he came to public prominence on gun safety and guns in public health before people were really talking about guns in public health. I forgot what year it was — 2016, 2017, whenever Obama first nominated him. Because remember, this is his second run as surgeon general. It was an issue that he had spoken about and had made a signature issue, and as he became a more public figure before the nomination. And then he went silent on it. He had trouble getting confirmed. He didn’t do anything about it. We never really heard … as far as I can recollect, we never even heard him talk about it once. Maybe there was a phrase or two here or there. He certainly didn’t push it or make it a signature issue.

Right now, he’s at the end of the last year with the Biden administration. Some kind of arc is being completed. He’s a young man, there’ll be other arcs. But this arc is winding down and the president cares about gun violence. Congress actually did, not the full agenda, but they did something on it, which was unusual. And I think that this is his chance to use his bully pulpit while he still has it in this particular perch to remind people that we do have tools. We don’t have all the solutions to gun violence. We do not understand everything about it. We do not understand why some people go and shoot a movie theater or a school or a supermarket or whatever, and there are multiple reasons. There are different kinds of mass killers. But we do know that there are some public health tools that do work. That red flag laws do seem to help. That safe gun storage … There are things that are less controversial than a spectrum of things one can do.

Some of them have broader support, and I think he is using this time — not that he expects any of these things to become law in the final year of the Biden administration — but I think he’s using it. This is bully pulpit. This is saying, “Moving forward, let’s think about what we can come to agreement on and do what we can on certain evidence-based things.” Because there’s been a lot of work in the last decade or so on the public health, not just the criminal… Obviously, it’s a legal and criminal justice issue. It’s also a public health issue, and what are the public health tools? What can we do? How do we treat this as basically an epidemic? And how can we stop it?

Rovner: Finally this week, since we didn’t really do news last week, there have been a couple of notable stories we really ought to mention. One is a court case, Braidwood v. Becerra. This is the case where a group of Christian businesses are claiming that the Affordable Care Act’s preventive services provisions that require them to provide no cost-sharing access to products, including HIV preventive medication, violates their freedom of religion because it makes them complicit in homosexual behavior. Judge Reed O’Connor, district court judge — if that name is familiar, it’s because he’s the Texas judge who tried to strike down the entire ACA back in 2018. Judge O’Connor not only found for the plaintiffs, he tried to slap a nationwide injunction on all of the ACA’s preventive services, which even the very conservative 5th Circuit appeals court struck down. But meanwhile, the appeals court has come up with its ruling. Where does that leave us on the ACA preventive services?

Ollstein: It leaves us right where we were when the 5th Circuit took the case because they said that, “We’re going to allow the lower court ruling to be enforced just for the plaintiffs in the meantime, but we’re not going to allow the entire country’s preventive care coverage to be disrupted while this case moves forward.” And so that basically continues to be the case. Some of the arguments are getting sent back down to the lower court for further consideration. And we still don’t know whether either side will appeal the 5th Circuit’s ruling to the Supreme Court.

Rovner: But notably, the appeals court said that U.S. Preventive Services Task Force, which is appointed by the Department of Health and Human Services, is basically illegally constituted because it should be nominated by the president, approved by the Senate, which it is not. That could in the long run be kind of a big deal. This is a group of experts that supposedly shielded from politics.

Kenen: Yeah, I don’t think this story is over either. It is for now. Right now we’re at the status quo, except for this handful of people who brought recommendations on all sorts of health measures, including vaccination and cancer screenings and everything else. They stand. They’re not being contested at this moment. How that will evolve under the next administration and this court remains to be seen.

Rovner: Finally, finally, finally, to end on a bit of a frustrating note, the National Academies of Sciences, Engineering, and Medicine, has found that two decades after it first called out some of the most egregious inequities in U.S. health care, not that much has changed. Joanne, this has been a very high-profile issue. What went wrong?

Kenen: Well, I think this report got very little attention probably because it’s like, oh, reports aren’t necessarily news stories. And it was like nothing changed, so why do we report it? But I think when I read the report — and I did not get through all 375 pages yet, but I did read a significant amount of it and I listened to a webinar on it — I think what really struck me is how we’re not any better than we really were 20 years ago. And what really was jarring is the report said, “And we actually know how to fix this and we’re not doing it. And we have the scientific and public health and sociological knowledge. We know if we wanted to fix it, we could, and we haven’t. Some of that is needing money and some of it is needing will.” So I thought the bottom line of it was really quite grim. If we didn’t know how bad it was, if the general public didn’t know how bad it was, the pandemic really should have taught them that because of the enormous disparities, and we’re back on this glide path toward nothing.

Rovner: I do think at very least, it is more talked about. It’s a little higher profile than it was, but obviously you’re right.

Kenen: They didn’t say no gains in any… I mean, the ACA helped. There are people who have coverage, including minorities, who didn’t have it before. That was one of the bright spots. But there’s still 10 states where it hasn’t been fully implemented. It was a pretty discouraging report.

Rovner: All right, well, that is this week’s news. Now it is time for our extra-credit segment. That’s when we each recommend a story we read this week we think you should read, too. As always, don’t worry if you miss it. We will post the links on the podcast page at kffhealthnews.org and in our show notes on your phone or other mobile device. Victoria, why don’t you go first this week?

Knight: Sure. So I was reading a story in The New York Times about PBMs [pharmacy benefit managers]. It was called “The Opaque Industry Secretly Inflating Prices for Prescription Drugs.” It’s by Rebecca Robbins and Reed Abelson. And so it kind of is basically an investigation into PBM practices. It was interesting for me because I cover health care in Congress, and so it’s always the different industries are fighting each other. And right now, one of the biggest fights is about PBMs. And for those that don’t know, PBMs negotiate with drug companies, they’re supposed to pay pharmacies, they help patients get their medications. And so they’re this middleman in between everyone. And so people don’t really know they exist, but they’re a big monopoly. There’s only three of them, really big ones in the U.S. that make up 80% of the market. And so they have a lot of control over things.

Pharma blames them for high drug prices and the PBMs blame pharma. So that’s always a fun thing to watch. There actually is quite a bit of traction in Congress right now for cracking down on PBM practices. Basically, The Times reporters interviewed a bunch of people and they came away with saying that PBMs …

Rovner: They interviewed like 300 people, right?

Knight: Yes, it said 300.

Rovner: A large bunch.

Knight: Yeah, and they came away with a conclusion that PBMs are causing higher drug prices and they’re pushing patients towards higher drugs. They’re charging employers of government more money than they should be. But it was interesting for me to watch this play out on Twitter because the PBM lobby was, of course, very upset by the story. They were slamming it and they put out a whole press release saying that it’s anecdotal and they don’t have actual data. So it was interesting, but I think it’s another piece in the policy puzzle of how do we reduce drug prices? And Congress thinks at least cracking on PBMs is one way to do it, and it has bipartisan support.

Rovner: And apparently this story is the first in a series, so there’s more to come.

Knight: Yes, I saw that. Yeah, more to come, so it’ll be fun. I also just noticed as I was just pulling it up on my phone and they had closed the comment section. It was causing some robust debate.

Rovner: Yes, indeed. Joanne?

Kenen: I should just say that after I read that story in The Times that same day, I think I got a phone call from a relative, a copay that had been something like $60 for 30 days is now $1,000. And this relative walked away without getting the drug because that’s not OK. So anyway, my extra credit [“Social Security To Drop Obsolete Jobs Used To Deny Disability Benefits,”] is from The Washington Post. Lisa Rein posted an investigation a couple of years ago, and this was the coda of the Social Security Administration finally followed through on what that investigation revealed. And Lisa wrote about the move, how it’s being addressed. That to get disability benefits, you have to be unemployable basically. And the Social Security Administration had a list of … it’s called the Dictionary of Occupational Titles. It had not been updated in 47 years. So disabled people were being denied Social Security disability benefits because they were being told, well, they could do jobs like being a nut sorter or a pneumatic tube operator or a microfilm something or other. And these jobs stopped existing decades ago.

So the Social Security Administration got rid of these obsolete jobs. You’re no longer being told, literally, to go store nuts. If you are, in fact, legitimately disabled, you’ll now be able to get the Social Security disability benefits that you are, in fact, qualified for. So thousands of people will be affected.

Rovner: No one can see this, but I’m wearing my America Needs Journalists T-shirt today. Alice?

Ollstein: I chose a piece [“Opioid Deaths Rose 50 Percent During the Pandemic. in These Places, They Fell”] by my colleague Ruth Reader, about a county in Ohio that, with some federal funds, implemented all of these policies to reduce opioid overdoses and deaths, and they had a lot of success. Overdoses went down 20% there, even as they went up by a lot in most of the country. But bureaucracy and expiring funding means that those programs may not continue, even though they’re really successful. The federal funding has run out. It is not getting renewed, and the state may not pick up the slack.

So it’s just a really good example. We see this so often in public health where we invest in something, it works, it makes a difference, it helps people, and then we say, “Well, all right, we did it. We’re done.” And then the problems come roaring back. So hopefully that does not happen here.

Rovner: Alas. Well, my extra credit this week is from The Washington Post. It’s called “Masks Are Going From Mandated to Criminalized in Some States.” It’s by Fenit Nirappil. I hope I’m pronouncing that right. In some ways, it’s a response to criminals who have obviously long used masks, and also to protesters, particularly those protesting the war in Gaza. But it’s also a mark of just how intolerant we’ve become as a society that people who are immunocompromised or just worried about their own health can’t go out masked in public without getting harassed. The irony, of course, is that this is all coming just as covid is having what appears to be now its annual summer surge, and the big fight of the moment is in North Carolina where the Democratic governor has vetoed a mask ban bill, that’s likely to be overridden by the Republican legislature. Even after covid is no longer front and center in our everyday lives, apparently a lot of the nastiness remains.

All right, that is our show. As always, if you enjoy the podcast, you can subscribe wherever you get your podcast. We’d appreciate it if you left us a review. That helps other people find us, too. Special thanks as always to our technical guru, Francis Ying, and our editor, Emmarie Huetteman. As always, you can email us your comment or questions. We’re at whatthehealth@kff.org, or you can still find me at Twitter, which the Supreme Court has now decided it’s going to call Twitter. I’m @jrovner. Alice?

Ollstein: I’m @AliceOllstein on X.

Rovner: Victoria?

Knight: I’m @victoriaregisk.

Rovner: Joanne?

Kenen: I’m at Twitter, @JoanneKenen. And I’m on Threads @joannekenen1, and I occasionally decided I just have better things to do.

Rovner: It’s all good. We will be back in your feed next week. Until then, be healthy.

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Before Ohio voters amended their constitution last year to protect abortion rights, the state’s attorney general, an anti-abortion Republican, said that doing so would upend at least 10 state laws limiting abortions.

But those laws remain a hurdle and straightforward access to abortions has yet to resume, said Bethany Lewis, executive director of the Preterm abortion clinic in Cleveland. “Legally, what actually happened in practice was not much,” she said.

Today, most of those laws limiting abortions — including a 24-hour waiting period and a 20-week abortion ban — continue to govern Ohio health providers, despite the constitutional amendment’s passage with nearly 57% of the vote. For abortion rights advocates, it’s going to take time and money to challenge the laws in the courts.

Voters in as many as 13 states could also weigh in this year on abortion ballot initiatives. But the seven states that have voted on abortion-related ballot measures since the Supreme Court overturned federal abortion protections two years ago in Dobbs v. Jackson Women’s Health Organization show that an election can be just the beginning.

The state-by-state patchwork of constitutional amendments, laws, and regulations that determine where and how abortions are available across the country could take years to crystallize as old rules are reconciled with new ones in legislatures and courtrooms. And even though a ballot measure result may seem clear-cut, the residual web of older laws often still needs to be untangled. Left untouched, the statutes could pop up decades later, like an Arizona law from 1864 did this year.

Michigan was one of the first states where voters weighed in on abortion rights following the Dobbs decision in June 2022. In November of that year, Michigan voters approved by 13 percentage points an amendment to add abortion rights to the state constitution. It would be an additional 15 months, however, before the first lawsuit was filed to unwind the state’s existing abortion restrictions, sometimes called “targeted regulation of abortion providers,” or TRAP, laws. Michigan’s include a 24-hour waiting period.

The delay had a purpose, according to Elisabeth Smith, state policy and advocacy director at the Center for Reproductive Rights, which filed the lawsuit: It’s preferable to change laws through the legislature than through litigation because the courts can only strike down a law, not replace one.

“It felt really important to allow the legislative process to go forward, and then to consider litigation if there were still statutes that were on the books the legislature hadn’t repealed,” Smith said.

Michigan’s Democratic-led legislature did pass an abortion rights package last year that was signed into law by the state’s Democratic governor in December. But the package left some regulations intact, including the mandatory waiting period, mandatory counseling, and a ban on abortions by non-doctor clinicians, such as nurse practitioners and midwives.

Smith’s group filed the lawsuit in February on behalf of Northland Family Planning Centers and Medical Students for Choice. Smith said it’s unclear how long the litigation will take, but she hopes for a decision this year.

Abortion opponents such as Katie Daniel, state policy director for Susan B. Anthony Pro-Life America, are critical of the lawsuit and such policy unwinding efforts. She said abortion rights advocates used “deceptive campaigns” that claimed they wanted to restore the status quo in place before the Dobbs decision left abortion regulation up to the states.

“The litigation proves these amendments go farther than they will ever admit in a 30-second commercial,” Daniel said. “Removing the waiting period, counseling, and the requirement that abortions be done by doctors endangers women and limits their ability to know about resources and support available to them.”

A lawsuit to unwind most of the abortion restrictions in Ohio came from Preterm and other abortion providers four months after that state’s ballot measure passed. A legislative fix was unlikely because Republicans control the legislature and governor’s office. Preterm’s Lewis said she anticipated the litigation would take “quite some time.”

Dave Yost, the Ohio attorney general, is one of the defendants named in the suit. In a motion to dismiss the case, Yost argued that the abortion providers — which include several clinics as well as a physician, Catherine Romanos — lacked standing to sue.

He argued that Romanos failed to show she was harmed by the laws, explaining that “under any standard, Dr. Romanos, having always complied with these laws as a licensed physician in Ohio, is not harmed by them.”

Jessie Hill, an attorney representing Romanos and three of the clinics in the case, called the argument “just very wrong.” If Romanos can’t challenge the constitutionality of the old laws because she is complying with them, Hill said, then she would have to violate those laws and risk felonies to honor the new amendment.

“So, then she’s got to go get arrested and show up in court and then defend herself based on this new constitutional amendment?” Hill said. “For obvious reasons, that is not a system that we want to have.”

This year, Missouri is among the states poised to vote on a ballot measure to write protections for abortion into the state constitution. Abortions in Missouri have been banned in nearly every circumstance since 2022, but they were largely halted years earlier by a series of laws seeking to make abortions scarce.

Over the course of more than three decades, Missouri lawmakers instituted a 72-hour waiting period, imposed minimum dimensions for procedure rooms and hallways in abortion clinics, and mandated that abortion providers have admitting privileges at nearby hospitals, among other regulations.

Emily Wales, president and chief executive of Planned Parenthood Great Plains, said trying to comply with those laws visibly changed her organization’s facility in Columbia, Missouri: widened doorways, additional staff lockers, and even the distance between recovery chairs and door frames.

Even so, by 2018 the organization had to halt abortion services at that Columbia location, she said, with recovery chairs left in position for a final inspection that never happened. That left just one abortion clinic operating in the state, a separate Planned Parenthood affiliate in St. Louis. In 2019, that organization opened a large facility about 20 miles away in Illinois, where lawmakers were preserving abortion access rather than restricting it.

By 2021, the last full year before the Dobbs decision opened the door for Missouri’s ban, the number of recorded abortions in the state had dwindled to 150, down from 5,772 in 2011.

“At that point, Missourians were generally better served by leaving the state,” Wales said.

Both of Missouri’s Planned Parenthood affiliates have vowed to restore abortion services in the state as swiftly as possible if voters approve the proposed ballot measure. But the laws that diminished abortion access in the state would still be on the books and likely wouldn’t be overturned legislatively under a Republican-controlled legislature and governor’s office. The laws would surely face challenges in court, yet that could take a while.

“They will be unconstitutional under the language that’s in the amendment,” Wales said. “But it’s a process.”

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

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KFF Health News

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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.

June means it’s time for the Supreme Court to render rulings on the biggest and most controversial cases of the term. This year, the court has two significant abortion-related cases: one involving the abortion pill mifepristone and the other regarding the conflict between a federal emergency care law and Idaho’s near-total abortion ban.

Also awaiting resolution is a case that could dramatically change how the federal government makes health care (and all other types of) policies by potentially limiting agencies’ authority in interpreting the details of laws through regulations. Rules stemming from the Affordable Care Act and other legislation could be affected.

In this special episode of “What the Health?”, Laurie Sobel, an associate director for women’s health policy at KFF, joins host Julie Rovner for a refresher on the cases, and a preview of how the justices might rule on them. 

The cases highlighted in this episode:

• Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce, about how much discretion federal agencies should have in interpreting laws passed by Congress.
• U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine, about whether the FDA exceeded its authority in relaxing restrictions on the abortion pill mifepristone.
• Moyle v. United States and Idaho v. United States, about whether the federal Emergency Medical Treatment and Labor Act requirement for hospitals participating in Medicare to provide needed medical care overrides Idaho’s near-total abortion ban in emergency cases.

Previous “What the Health?” coverage of these cases:

• KFF Health News' 'What the Health?': Abortion — Again — At the Supreme Court

  Apr 24, 2024

• KFF Health News' 'What the Health?': The Supreme Court and the Abortion Pill

  Mar 28, 2024

• KFF Health News' 'What the Health?': Health Enters the Presidential Race

  Jan 25, 2024

• KFF Health News' 'What the Health?': The Supreme Court vs. the Bureaucracy

  Jan 18, 2024

Where to find Supreme Court opinions as they are announced:

• The Supreme Court’s official website
•  The SCOTUSblog (not an official government website but run by lawyers and journalists)

Click to open the Transcript

Transcript: Waiting for SCOTUS

[Editor’s note: This transcript was generated using both transcription software and a human’s light touch. It has been edited for style and clarity.] 

Mila Atmos: The future of America is in your hands. This is not a movie trailer, and it’s not a political ad, but it is a call to action. I’m Mila Atmos and I’m passionate about unlocking the power of everyday citizens. On our podcast “Future Hindsight,” we take big ideas about civic life and democracy and turn them into action items for you and me. Every Thursday we talk ato bold activists and civic innovators to help you understand your power and your power to change the status quo. Find us at FutureHindsight.com or wherever you listen to podcasts.

Julie Rovner: Hello, and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF Health News. We’re taping this week on Wednesday, May 29, at 1 p.m. As always, news happens fast and things might’ve changed by the time you hear this. So here we go.

Because it’s a holiday week and health news is a little bit slow, we’re going to do something a little different. It’s about to be June, and that means the Supreme Court is going to issue opinions in some of the biggest cases argued this past term, including two abortion-related cases and one that could literally disrupt the way the entire federal government operates. I’m not sure I remember all the details of these cases, even though we have talked about them all on the podcast. So I’ve asked someone here to remind us what they’re about and give us a preview of how the court might rule in some of them. Laurie Sobel is associate director for women’s health policy here at KFF, and one of our top in-house legal experts. Laurie, welcome to “What the Health?” Thanks for joining us.

Laurie Sobel: Hi, Julie. It’s great to be here.

Rovner: So I thought we’d take the cases in the order they were argued before the court, although I know that’s not necessarily the order that we will see the opinions issued in. First up: In January, the justices heard arguments in two cases about, of all things, herring fishing. Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce. But these cases are about a lot more than herring and could affect a lot more than the Department of Commerce, right?

Sobel: Absolutely. These cases are about what’s called the Chevron doctrine [deference], which requires courts to defer to an agency’s interpretation of a law when the law is silent or ambiguous and the agency’s interpretation is reasonable.

Rovner: And what would an example of that be?

Sobel: Oh, there’s many, many examples. Essentially, Congress doesn’t fill in the details of many laws, and they rely on agencies to fill in those details, assuming that the agency has the expertise to figure out what those details might be. And also, many times the details change as new scientific evidence becomes available or there’s changed circumstances, or there’s a pandemic or something in which the agency needs to respond to.

Rovner: This is basically the entire federal regulatory process we’re talking about here, right?

Sobel: That’s correct.

Rovner: And in health care, there’s a lot of places that regulation affects.

Sobel: Absolutely. So Congress relies on the agencies to implement laws, the ACA [Affordable Care Act], Medicare, Medicaid, CHIP [Children’s Health Insurance Program]. So there’s a lot in health care. In addition, Title X is regulated by the Office of Population Affairs, and those also have regulations. So overturning Chevron would make it very difficult for Congress to continue to rely on agencies to fill in these gaps and to react to real-time situations.

Rovner: And there’s private entities that get regulated, are freaked out by the possibility that they won’t be able to rely on the agencies either.

Sobel: Absolutely. So everything from payment rates to providers and hospitals to negotiating prescription drug prices for the Medicare program. The ACA, I think, has probably more regulations than most laws. And relationship — we’ll talk about the FDA [Food and Drug Administration] in the next case, but the FDA also sets out regulations as does CDC [Centers for Disease Control and Prevention], and we really rely on those agencies to have the scientific expertise to react to the situation. So if Congress has to either fill in all the gaps, which is by most people’s assessment impossible, it might really stall how things get implemented and/or create a whole lot of new litigation.

Rovner: And I would say it would give courts a whole lot more authority than they have now, right?

Sobel: Certainly. So right now, the rule is that the agency’s interpretation stands as long as the law is ambiguous or silent and the agency’s interpretation is reasonable. This would give that power back to the courts to then guess what Congress meant or to interpret what Congress meant.

Rovner: Somebody I was talking to about this case suggested that, I hadn’t really thought about before, that if Chevron were to get struck down, that those who had sued over regulations and lost might be able to go back and reopen those cases. I mean, it could just be a flood of litigation.

Sobel: Absolutely. And that came up during oral argument about what would that mean for all the settled cases. And both sides offered different interpretations with the solicitor general arguing that it would really open up this can of worms to tons of litigation, and the plaintiffs essentially saying, “No, no, no, we could let those all stand and just going forward, the Chevron deference would be undone.” And there were some hints that maybe some compromises like that between the justices as they were talking.

Rovner: Exactly. You’re anticipating my next question, which is did we get any hints from the oral arguments about where they might be going with this case? It’s hard to imagine them just completely overturning Chevron.

Sobel: It is hard to imagine, but there are some justices that have been known to wanting to overturn Chevron for quite some time. So in that category I would put Justices [Clarence] Thomas and [Samuel] Alito, as well as [Neil] Gorsuch, as justices that have really been critical of the Chevron deference. Justice [Brett] Kavanaugh highlighted that the rules change when administrations change, and so he tried to counter the argument that there’s a reliance on Chevron for stability. He said, “Wait, wait, wait a minute. Every time there’s a new president, the rules change. So what kind of stability is that?”

Chief Justice [John] Roberts and [Justice Amy Coney] Barrett were really harder to read, and that might be where the decision relies on, where they come out and whether or not they’re able to forge a compromise with the three liberal justices who indicated support for keeping Chevron; both because of precedent, as well as they pointed out examples where they said, “We’re not subject matter experts here. We don’t want to be making these decisions.” Justice [Elena] Kagan was talking about AI and how that would change, and “we really don’t want to be in the position of Justice Kagan figuring out how that should be regulated.”

Rovner: Well, that seems to be an excellent segue to the next case, which is an abortion case concerning the availability of the abortion pill mifepristone. The case, which was argued in March, is called Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration. Let’s start, because it’s about to become important, with what is the Alliance for Hippocratic Medicine? And what did their members have against the abortion pill?

Sobel: Well, the Alliance for Hippocratic Medicine is a newly formed anti-abortion advocacy coalition. It was formed specifically for this litigation. And they contend that they have members, which are doctors and organizations and associations, in Texas and around the country, who have treated and will continue to treat people who have experienced a complication from medication abortion. So to be clear, none of their members prescribe mifepristone. They don’t believe in abortion. They don’t want to have anything to do with abortion. But their contention is that they are injured based upon having to divert their time and resources away from their regular patients when they have to treat somebody who has had a side effect from mifepristone. Similarly, the association and organizations contend that they’ve had to divert their time to educate people about the dangers of medication abortion.

Rovner: So those are the plaintiffs. And, as you mentioned, some of them are in Texas and they sued in Texas very specifically to get a certain judge, right?

Sobel: Yes, to get Judge [Matthew] Kacsmaryk, who is known for being friendly to these types of cases.

Rovner: So Judge Kacsmaryk, who as you say, is known to be friendly to these types of cases, originally ruled that mifepristone’s entire approval should be rescinded. It was approved in the year 2000, so it’s been on the market for quite a long time. But that’s actually not what’s on the table at the moment before the justices. Explain how we got there.

Sobel: So that decision was then appealed to the 5th Circuit, and the 5th Circuit said, “We’re not going to roll back the original approval of mifepristone to the year 2000, but instead we’ll roll back the requirements to 2011 and say that those are the rules that should be enforced, and that the FDA exceeded their authority in changing the rules since 2011.”

Rovner: And some of those changed rules basically made it easier to get, and you could use it a little bit later into pregnancy because it was found to be safe, right?

Sobel: Exactly. So what those new rules have done is said that you can use it up to 10 weeks instead of seven weeks, that you don’t have to be in person to receive it. So the newest rules have opened up the possibility of using it for telehealth abortion, and also for pharmacists prescribing it. And so if the Supreme Court were to affirm the 5th Circuit’s decision, that would eliminate these new protocols the FDA has established in removing the in-person dispensing requirement, permitting telehealth abortions, and establishing the process for pharmacies to become certified to dispense mifepristone. In addition, it would roll back the gestational ages you just said, from 10 weeks to seven weeks, which is significant because, according to the CDC data, more than 4 in 10 medication abortions occur at seven weeks or later.

Rovner: I was going to say, and yeah, this could be super disruptive. I mean medication abortion is now more than half of all abortions in this country.

Sobel: Oh, it’s two-thirds.

Rovner: So without banning it, making it harder to get could have a big impact.

Sobel: Oh, absolutely. Medication abortion now accounts for nearly two-thirds of all abortions, and telehealth abortions have become very common, from the latest data that we have from WeCount, 1 in 5 abortions was provided via telehealth in December of 2023. So that’s one in all abortions, not one in medication abortions. So that’s quite a big number.

Rovner: Now, this case, even though it could be very disruptive to abortion, is about a whole lot more than abortion. Drugmakers in general seem pretty concerned by the idea of judges making scientific decisions that overrule the FDA. This hearkens back to the last case we talked about, right?

Sobel: Oh, absolutely. So this is the first case to ask the Supreme Court to overrule an FDA decision that a drug is safe and effective. So the outcome of this case could really have very far-reaching implications for the FDA’s authority to continue to regulate not only mifepristone, but a wide range of other drugs. And most likely the other drugs that are perceived to be controversial — gender-affirming care or PrEP — those are the drugs that are most likely to be litigated if this door is opened.

Rovner: And I know that there’s nothing that makes drugmakers … I mean, patent issues and drugmakers and court issues are hard enough, the idea that they could be granted approval by the FDA and then somebody could just come in and sue and make that go away.

Sobel: Oh, absolutely. This got the attention of the entire industry. There were many, many amicus briefs that were filed.

Rovner: So normally you can’t really tell from the oral arguments, as we said, how the justices are leaning. But in this case, the justices seemed fairly transparent about where we think they’re going to go. What are we expecting here?

Sobel: Yes. I mean, as I said before, it’s always dangerous to read the tea leaves too much, but this did seem more transparent than most, and that most justices seemed not convinced that the plaintiffs in this case have legal standing, which requires that you have an injury and that injury can be addressed by what the court decides. So even assuming that the plaintiffs have an injury, the question is what would happen if we roll back the rules that the FDA has back to 2011? Does that make it more or less likely that these plaintiffs would see people with side effects of mifepristone? It’s not really clear. In addition, many of the justices, including Justice Barrett, really pushed back on the lawyer representing the Alliance for where in the doctors’ affidavits it said they were actually participating in something they objected to. Notably, not really about necessarily this case, but about what might come up in the future, both Justice Thomas and Alito did bring up the Comstock Act and signaled that they would uphold the enforcement of the Comstock Act, pretty much inviting a future case or a future administration to enforce the Comstock Act.

Rovner: As much as we’ve talked about it, remind us again what the Comstock Act is.

Sobel: Sure. So it’s a law from 1873, which was an anti-obscenity law, and as part of it, it banned the mailing of any drug or device or instrument that could be used for abortion.

Rovner: Well, I guess during the entirety of Roe [v. Wade], it was irrelevant, right? Because abortion was legal,

Sobel: Right. And it’s been dormant. I mean, we can’t find any enforcement in any modern era.

Rovner: Yes, so it goes back a long ways, but it’s top of mind for a lot of people.

All right, moving on to our last case. On April 24, the court heard Idaho v. United States and Moyle v. United States, both of which challenged the federal government’s interpretation of the Emergency Medical Treatment and Active Labor Act, EMTALA, to override Idaho’s near-complete abortion ban, at least in medical emergencies. Let’s start by explaining what EMTALA is and how it relates to abortion?

Sobel: Sure. So EMTALA requires hospitals that participate in Medicare, which is pretty much every acute hospital, to provide stabilizing treatment within the hospital’s capability when there’s an emergency medical condition, which includes when the absence of immediate medical attention could reasonably be expected to place the health of the individual in serious jeopardy or serious impairments of bodily functions. So it was really intended as an anti-dumping law initially so that people who were uninsured weren’t just transferred or sent away to another hospital because they didn’t have the capacity to pay.

Idaho’s abortion ban only has an exception for life. It doesn’t have an exception to preserve the health of the pregnant person. And so the Biden administration sued Idaho and said this law then, essentially, puts these hospitals that have this requirement, because they accept Medicare payments, to stabilize patients. And when that care includes abortion care, they’re required to provide that under federal law. So the question is, does the EMTALA preempt the Idaho abortion ban?

It’s clear from the oral argument that Idaho’s position is that there is no conflict because they read into the EMTALA law that “within the hospital’s capability” includes the laws of Idaho and that Idaho gets to set the standard of care, and that that’s up to states, not up to the federal government. Whereas the federal government, the Biden administration’s position, is that, no, EMTALA specifically was an antidumping law, and that includes stabilizing all patients regardless of the care. And we don’t have to say including abortion in order for it to include abortion, it includes all care that’s required to stabilize patients.

Rovner: Of course, a lot of anti-abortion activists will say that the only time abortion is medically necessary is when it threatens life and that would be covered. But we’re seeing that that’s not necessarily the case, right? I mean, we’re seeing individual instances of this these days.

Sobel: Yeah. I mean, we know from Idaho that many patients have been helicoptered out of the state into nearby states that also have some abortion restrictions but just aren’t as restrictive as Idaho is, because they’re going to become septic or they’re going to lose kidney function, or they’re going to lose their reproductive organs. So they’re not in danger of losing their life immediately, but they’re in danger of losing serious bodily functions.

The other question that came up during oral argument was about just how imminent the life needs to be. And this comes down to how this is putting doctors in a pretty uncomfortable place. So yes, the doctors are permitted to provide abortion care in Idaho when they can certify in good faith that without the abortion care, the person’s life is endangered. But they’re concerned that, after the fact, attorneys for the state could come back and say, “Oh, wait a minute, that wasn’t your really good-faith decision and we’re going to prosecute you and we’re going to bring in our own expert.” And the question is really, how much should doctors have on the line? It’s a criminal statute, so there’s jail time involved. Of course, there’s a loss of license. And so how far out should doctors be required to go? And this is, again, it’s making people really uncomfortable, and there are anecdotes of people leaving the state because of this and not feeling comfortable practicing there.

Rovner: More than anecdotes of people leaving the state, there are people who come forward and said they’re leaving the state. And as a result, some hospitals are having to shut down their OB services. I mean, because when the doctors, OB-GYNs who are leaving, so in the ironic position of people who are having babies not being able to find someone who can deliver their baby at the same time.

Sobel: Right, right.

Rovner: That’s obviously one ramification within Idaho, but there could be ramifications outside just on the idea: Isn’t federal law supposed to trump state law? Isn’t that sort of a basic foundation of how we work?

Sobel: Yes. The supremacy clause is pretty basic when you go to law school. So yes. And I think how they word this decision will be very interesting to see because it’s a question of, is there a conflict or is there not? And the attorneys for Idaho were basically suggesting that there’s no conflict. So you don’t even need to say that there’s a preemption. You just have to find that there’s no conflict between Idaho law and EMTALA.

However they rule, if they rule for Idaho and say that you’re allowed to continue having this abortion ban that only has a life exception with no health exception, immediately, there’s four additional states with abortion bans that do not make exceptions for health as well. And those states are Arkansas, Mississippi, Oklahoma, and South Dakota. So in those states, like Idaho, a hospital cannot legally provide an abortion as stabilizing treatment when a person presents with a health endangerment and not a life endangerment. And so again, those risks can include sepsis, kidney failure, loss of fertility, they’re serious risks, even though they may not be life-threatening at the moment.

And even in the states that do have exceptions for health, we have seen that those exceptions are often very narrow and vague and hard to be implemented in real time. So pregnant people can still be denied emergency abortion care that’s needed to preserve their health, even in states that have a health exception. And if EMTALA doesn’t act as a backstop to say, “But wait, hospital, you’re violating this federal law,” then people are stuck with the state law that is narrow and vague.

Rovner: So I mean, overturning Roe, the justices says, “Oh, great, we won’t have to deal with abortion anymore. It’s all about the states.” But as we can see, it’s not all about the states. The Supreme Court is going to have to continue to deal with this issue.

Sobel: Right. Definitely.

Rovner: All right, well, finally, just a couple of housekeeping issues. We don’t actually know when these decisions will come, right? People who don’t follow the court on a regular basis often think that opinions are scheduled the same way oral arguments are, but it’s always a surprise.

Sobel: Unfortunately, they are not. Right now, the court lists their decision days on their website, which is on their calendar. Right now Thursdays seem to be the popular day, they have Thursdays through June listed. They most likely will add more decision days. On decision days, they start posting decisions at 10 a.m. Eastern Time, and you can follow along either on the Supreme Court’s website or many people go to SCOTUSblog, which also has a live blog that interprets some of what’s happening for people who are new to the court.

Rovner: And I will put both of those links in the show notes. Laurie Sobel, this has been so helpful. Thank you so much for joining us.

Sobel: Thank you for having me, Julie.

Rovner: OK, that is our show. As always, if you enjoy the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left us a review; that helps other people find us, too. Special thanks as always to our technical guru, Francis Ying, and our fill-in editor this week, Rebecca Adams. As always, you can email us your comments or questions. We’re at whatthehealth@kff.org, or you can still find me at X @jrovner. We will be back in your feed next week with the news. Until then, be healthy.

Credits

Francis Ying
Audio producer

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Editor

To hear all our podcasts, click here.

And subscribe to KFF Health News’ “What the Health?” on Spotify, Apple Podcasts, Pocket Casts, or wherever you listen to podcasts.

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.

USE OUR CONTENT

This story can be republished for free (details).

The Host

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.

With abortion shaping up as a key issue for the November elections, the movement that united to overturn Roe v. Wade is divided over going further, faster — including by punishing those who have abortions and banning contraception or IVF. Politicians who oppose abortion are already experiencing backlash in some states.

Meanwhile, bad actors are bilking the health system in various new ways, from switching people’s insurance plans without their consent to pocket additional commissions, to hacking the records of major health systems and demanding millions of dollars in ransom.

This week’s panelists are Julie Rovner of KFF Health News, Alice Miranda Ollstein of Politico, Rachel Roubein of The Washington Post, and Joanne Kenen of the Johns Hopkins schools of public health and nursing and Politico Magazine.

Panelists

Alice Miranda Ollstein
Politico

@AliceOllstein

Read Alice's stories.

Joanne Kenen
Johns Hopkins University and Politico

@JoanneKenen

Read Joanne's articles.

Rachel Roubein
The Washington Post

@rachel_roubein

Read Rachel's stories.

Among the takeaways from this week’s episode:

• It appears that abortion opponents are learning it’s a lot easier to agree on what you’re against than for. Now that the constitutional right to an abortion has been overturned, political leaders are contending with vocal groups that want to push further — such as by banning access to IVF or contraception.
• A Louisiana bill designating abortion pills as controlled substances targets people in the state, where abortion is banned, who are finding ways to get the drug. And abortion providers in Kansas are suing over a new law that requires patients to report their reasons for having an abortion. Such state laws have a cumulative chilling effect on abortion access.
• Some Republican lawmakers seem to be trying to dodge voter dissatisfaction with abortion restrictions in this election year. Sen. Ted Cruz of Texas and Sen. Katie Britt of Alabama introduced legislation to protect IVF by pulling Medicaid funding from states that ban the fertility procedure — but it has holes. And Gov. Larry Hogan of Maryland declared he is pro-choice, even though he mostly dodged the issue during his eight years as governor.
• Former President Donald Trump is in the news again for comments that seemed to leave the door open to restrictions on contraception — which may be the case, though he is known to make such vague policy suggestions. Trump’s policies as president did restrict access to contraception, and his allies have proposed going further.

Also this week, Rovner interviews Shefali Luthra of The 19th about her new book on abortion in post-Roe America, “Undue Burden.”

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

Julie Rovner: The 19th’s “What Happens to Clinics After a State Bans Abortion? They Fight To Survive,” by Shefali Luthra and Chabeli Carrazana. 

Alice Miranda Ollstein: Stat’s “How Doctors Are Pressuring Sickle Cell Patients Into Unwanted Sterilizations,” by Eric Boodman.  

Rachel Roubein: The Washington Post’s “What Science Tells Us About Biden, Trump and Evaluating an Aging Brain,” by Joel Achenbach and Mark Johnson.  

Joanne Kenen: ProPublica’s “Toxic Gaslighting: How 3M Executives Convinced a Scientist the Forever Chemicals She Found in Human Blood Were Safe,” by Sharon Lerner; and The Guardian’s “Microplastics Found in Every Human Testicle in Study,” by Damian Carrington. 

Also mentioned on this week’s podcast:

• NPR’s “Republicans Try To Soften Stance on Abortion as ‘Abolitionists’ Go Farther,” by Sarah McCammon.
• KFF Health News’ “Biden Leans Into Health Care, Asking Voters To Trust Him Over Trump,” by Phil Galewitz.
• KFF Health News’ “Exclusive: Senator Urges Biden Administration To Thwart Fraudulent Obamacare Enrollments,” by Julie Appleby.
• KFF Health News’ “KHN’s ‘What the Health?’: Un-Trumping the ACA,” featuring an interview with journalist Marshall Allen.

Click to open the Transcript

Transcript: Anti-Abortion Hard-Liners Speak Up

[Editor’s note: This transcript was generated using both transcription software and a human’s light touch. It has been edited for style and clarity.] 

Mila Atmos: The future of America is in your hands. This is not a movie trailer, and it’s not a political ad, but it is a call to action. I’m Mila Atmos, and I’m passionate about unlocking the power of everyday citizens. On our podcast Future Hindsight, we take big ideas about civic life and democracy and turn them into action items for you and me. Every Thursday, we talk to bold activists and civic innovators to help you understand your power and your power to change the status quo. Find us at futurehindsight.com or wherever you listen to podcasts.

Julie Rovner: Hello, and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF Health News, and I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, May 23, at 10 a.m. As always, news happens fast and things might’ve changed by the time you hear this. So, here we go. We are joined today via a video conference by Alice Miranda Ollstein of Politico.

Alice Miranda Ollstein: Hello.

Rovner: Rachel Roubein of The Washington Post.

Rachel Roubein: Hi, thanks for having me.

Rovner: And Joanne Kenen of the Johns Hopkins schools of public health and nursing and Politico Magazine.

Joanne Kenen: Hi, everybody.

Rovner: Later in this episode, we’ll have my interview with podcast panelist Shefali Luthra of The 19th. Shefali’s new book about abortion in the post-Roe [v. Wade] world, called “Undue Burden,” is out this week. But first, this week’s news. We’re going to start with abortion this week with a topic I’m calling “Abolitionists in Ascendance,” and a shoutout here to NPR’s Sarah McCammon with a great piece on this that we will link to in the show notes. It seems that while Republican politicians, at least at the federal level, are kind of going to ground on this issue, and we’ll talk more about that in a bit, those who would take the ban to the furthest by prosecuting women, and/or banning IVF and contraception, are raising their voices. How much of a split does this portend for what, until the overturn of Roe, had been a pretty unified movement? I mean they were all unified in “Let’s overturn Roe,” and now that Roe has gone, boy are they dividing.

Ollstein: Yeah, it’s a lot easier to agree on what you’re against than on what you’re for. We wrote about the split on IVF specifically a bit ago, and it is really interesting. A lot of anti-abortion advocates are disappointed in the Republican response and the Republican rush to say, “No, let’s leave IVF totally alone” because these groups think, some think it some should be banned, some think that there should be a lot of restrictions on the way it’s currently practiced. So not a total ban, but things like you can only produce a certain number of embryos, you can only implant a certain number of embryos, you can only create the ones you intend to implant, and so that would completely upend the way IVF is currently practiced in the U.S.

So, we know the anti-abortion movement is good at playing the long game, and so some of them have told me that they see this kind of like the campaign to overturn Roe v. Wade. They understand that Republicans are reacting for political reasons right now, and they are confident in winning them over for restrictions in the long term.

Rovner: I’ve been fascinated by, I would say, by things like Kristan Hawkins of Students for Life [of America] who’s been sort of the far-right fringe of the anti-abortion movement looking like she’s the moderate now with some of these people, and their discussions of “We should charge women with murder and have the death penalty if necessary.” Sorry, Rachel, you want to say something?

Roubein: This is something that Republicans, they don’t want to be asked about this on the campaign. The more hard-line abolitionist movement is something more mainstream groups have been taking a lot of pains to distance themselves and say that we don’t prosecute women, and essentially nobody wants to talk about this ahead of 2024. GOP doesn’t want to be seen as that party that’s going after that.

Kenen: And the divisions existed when Roe was still the law of the land, and we would all write about the divisions and what they were pushing for, and it was partly strategic. How far do you push? Do you push for legislation? Do you push for the courts? Do you push for 20 weeks for fetal pain? But it was like rape exceptions and under what terms and things like that. So it was sort of much later in pregnancy, and with more restrictions, and the fight was about exactly where do you draw that line. This abolition of all abortion under all circumstances, or personhood, only a couple of years ago, were the fringe. Personhood was sort of like, “Oh, they’re out there, no one will go for that.” And now I don’t think it’s the dominant voice. I don’t think we yet know what their dominant voice is, but it’s a player in this conversation.

At the same time, on the other side, the pro-abortion rights people, there’s polls showing us this many Americans support abortion, but it’s subtler too. Even if people support abortion rights, it doesn’t mean that they’re not, some subset are in favor of some restrictions, or where that’s going to settle. Right now, a 15-week ban, which would’ve seemed draconian a year or two ago, now seems like the moderate position. It has not shaken out, and …

Rovner: Well, let’s talk …

Kenen: It’s not going to shake out for some time.

Rovner: Let’s talk about a few specifics. The Louisiana State Legislature on Tuesday approved a bill that would put the drugs used in medication abortion, mifepristone and misoprostol, on the state’s list of controlled substances. This has gotten a lot of publicity. I’m wondering what the actual effect might be here though since abortion is already banned in Louisiana. Obviously, these drugs are used for other things, but they wouldn’t be unavailable. They would just be put in this category of dangerous drugs.

Ollstein: So, officials know that people in banned states, including Louisiana, are obtaining abortion pills from out of state, whether through telehealth from states with shield laws or through these gray-area groups overseas that are mailing pills to anyone no matter what state they live in or what restrictions are in place. So I think because it would be very difficult to actually enforce this law, short of going through people’s homes and their mail, this is just one more layer of a chilling effect and making people afraid to seek out those mail order services.

Rovner: So it’s more, again, for the appearance of it than the actuality of it.

Ollstein: It also sets up another state versus federal law clash, potentially. We’ve seen this playing out in courts in West Virginia and in North Carolina, basically. Can states restrict or even completely ban a medication that the FDA says is safe and effective? And that question is percolating in a few different courts right now.

Rovner: Including sort of the Supreme Court. We’re still waiting for their abortion pill decision that we expect now next month. Meanwhile, in Kansas, where voters approved a big abortion rights referendum in 2022 — remember, it was the first one of those — abortion providers are suing to stop a new state law enacted over the governor’s veto that would require them to report to the state women’s reasons for having an abortion. Now it’s not that hard to see how that information could be misused by people with other kinds of intents, right?

Ollstein: Well, it also brings up right to free speech issues, compelled speech. I think I’ve seen this pop up in abortion lawsuits even before Dobbs [v. Jackson Women’s Health Organization], this very issue because there have been instances where either doctors are required to give information that they say that they believe is medically inaccurate. That’s an issue in several states right now. And then this demanding information from patients. A lot of clinics that I’ve spoken to are so afraid of subpoenas from officials in-state, from out of state, that they intentionally don’t ask patients for certain kinds of data even though it would really help medically or organizationally for them to have that data. But they’re so afraid of it being seized, they figure well, they can’t seize it if they’re … doesn’t exist in the first place. And so I think this kind of law is in direct conflict with that.

Roubein: It also gets at the question of medical privacy that we’ve been seeing in the Biden administration’s efforts over HIPAA and protecting patients’ records and making it harder for state officials to attempt to seize.

Rovner: Yeah, this is clearly going to be a struggle in a lot of states where voters versus Republican legislatures, and we will sort of see how that all plays out. So even while this is going on in a bunch of the states, a lot of Republicans, including some who have been and remain strongly anti-abortion, are doing what I’m calling ducking-and-covering on a lot of these issues. Case in point, Texas Republican Sen. Ted Cruz and Alabama Republican Sen. Katie Britt this week introduced a bill they say would protect IVF, which is kind of ironic given that both of them voted against a bill to protect IVF back in, checking notes, February. What’s the difference here? What are these guys trying to do?

Kenen: Theirs is narrower. They say that the original bill, which was a Democratic bill, was larded with abortion rights kinds of things. I have not read the entire bill, I just read the summary of it. And in this one, if a state restricts someone who had — someone feel free to correct me if I am missing something here because I don’t have deep knowledge of this bill — but if a state does not protect IVF, they would lose their Medicaid payment. And I was not clear whether that meant every penny of Medicaid, including nursing homes, or if it’s a subsection of Medicaid, because it seems like a big can of worms.

Ollstein: Yeah, so the key difference in these bills is the word ban. The Republican bill says that if states ban IVF, then these penalties kick in for Medicaid, but they say that there can be “health and safety regulations,” and so that is very open to interpretation. That can include the things we talked about before about you can only produce a certain number of embryos, you can only implant a certain number of embryos, and you can’t discard them. And so even what Alabama did was not an outright ban. So even something like that that cut off services for lots of people wouldn’t be considered a ban under this Republican bill. So I think there’s sort of a semantic game going on here where restrictions would still be allowed if they were short of a blanket ban, whereas the democratic bill would also prevent restrictions.

Rovner: Well, and along those exact same lines, in Maryland, former two-term Republican governor Larry Hogan, who’s managed to dodge the abortion issue in his primary run to become the Senate nominee, now that he is the Republican candidate for the open Senate seat, has declared himself, his words, “pro-choice,” and says he would vote to restore Roe in the Senate if given the opportunity. But as I recall, and I live in Maryland, he vetoed a couple of bills to expand abortion rights in very blue Maryland. Is he going to be able to have this both ways? He seems to be doing the [Sen.] Susan Collins script where he gets to say he’s pro-choice, but he doesn’t necessarily have to vote for abortion rights bills.

Kenen: Hogan is a very popular moderate Republican governor in a Democratic state. He is a strong Senate candidate. His opponent, a Democrat, Angela Alsobrooks, has a stronger abortion rights record. I don’t think that’s going to be the decisive issue in Maryland. I think it may help him a little bit, but I think in Maryland, if the Senate was 55-45, a lot of Democrats like Hogan and might want another moderate Republican in the Senate. But given that this is going to be about control of the Senate, abortion will be a factor, I don’t think abortion is going to be the dominant factor in this particular race.

If she were to win and there’s two black women, I mean that would be the first time that two black women ever served in the Senate at once, and I think they would only be number three and number four in history. So race and Affirmative Action will be factors, but I think that Democrats who might otherwise lean toward him, because he was considered a good governor. He was well-liked. This is a 50-50ish Senate, and that’s the deciding thing for anyone who pays attention, which of course is a whole other can of worms because nobody really pays attention. They just do things.

Roubein: I think it’s also worth noting this tact to the left comes as Maryland voters will be voting on an abortion rights ballot measure in 2024. So that all sort of in context, we’ve seen what’s happened with the other abortion measures, abortion rights have won, so.

Rovner: And Maryland is a really blue state, so one would expect it …

Kenen: There’s no question that the Maryland …

Rovner: Yeah.

Kenen: I mean, and all of us would fall flat on our faces if the abortion measure fails in Maryland. But I believe this is the first one on the ballot alongside a presidential election, and some of them have been in special elections. It’s unclear the correlation between, you can vote for a Republican candidate and still vote for a pro-abortion rights initiative. We will learn a lot more about how that split happens in November. I mean, is Kansas going to go for Biden? Unlikely. But Kansas went really strong for abortion rights. If you’re not a single-issue voter, you can, in fact, have it both ways.

Rovner: Yes, and we are already seeing that in the polls. Well, of course then there is the king of trying to have it both ways: former President Trump. He is either considering restrictions on contraception, as he told an interviewer earlier this week, promising a proposal soon, or he will, all caps, as he put on Truth Social, never advocate imposing restrictions on birth control. So which is it?

Ollstein: So this came out of Trump’s verbal tick of saying “We’ll have a plan in a few weeks,” which he says about everything. But in this context it made it sound like he was leaving the door open to restrictions on contraception, which very well might be the case. So what my colleague and I wrote about is he says he would never restrict contraception. A lot of things he did in his first administration did restrict access to contraception. It was not a ban. Again, we’re getting back into the semantics of ban. It was not a ban, but his Title X rule led to a drop in hundreds of thousands of people accessing contraception. He allowed more kinds of employers to refuse to cover their employees’ contraception on their health plans, and the plans his allies are creating in this Project 2025 blueprint would reimpose those restrictions and go even further in different ways that would have the effect of restricting access to contraception. And so I think this is a good instance of look at what people do, not what they say.

Rovner: So now that we’re on the subject of campaign 2024, President Biden’s campaign launched a $14 million ad buy this week that includes the warning that if Trump becomes president again he’ll try to repeal the Affordable Care Act. Maybe health care will be an issue in this election after all? I don’t have a rooting interest one way or the other. I’m just curious to see how much of an issue health will be beyond reproductive rights.

Kenen: Well, as Alice just pointed out, Trump’s promised plans often do not materialize, and we are still waiting to see his replacement plan eight years later. I think he’s being told to sort of go slow on this. I mean, not that you can control what Trump says, but he didn’t run on health care until the end, in 2016. It was a close race, and he ran against Hillary Clinton, and it was the last 10 or so days that he really came down hard because it was right when ACA enrollment was about to begin and premiums came in and they were high. He pivoted. So is this going to be a health care election from day one? And I’m putting abortion aside for one second in terms of my definition of health care for this particular segment. Is it going to be a health care election in terms of ACA, Medicare, Medicaid? At this point, probably not. But is it going to emerge at various times by one or the other side in politically opportune ways? I would be surprised if Biden’s not raising it. The ACA is thriving under Biden.

Rovner: Well, he is. That’s the whole point. He just took out a $14 million ad buy.

Kenen: Right. But again, we don’t know. Is it a health care election or is it a couple ads? We don’t know. So yes, it’s going to be a health care election because all elections are health care elections. How much it’s defined by health care compared to immigration? No, at this point, that’s not what we’re expecting. Compared to the economy? No, at this point. But is it an issue for some voters? Yes. Is it going to be an issue more prominently depending on how other things play out? It’ll have its peaks. We just don’t know how consistent it’ll be.

Roubein: Biden would love to run on the Inflation Reduction Act and politically popular policies like allowing Medicare to negotiate drug prices. One of the problems of that is polls, including from KFF, has shown that the majority of voters don’t know about that. And some of these policies, the big ones, have not even gone into effect. CMS [Centers for Medicare & Medicaid Services] is going through the negotiation process, but that’s not going to hit people’s pocketbooks until after the election.

Kenen: The cliff for the ACA subsidies, which is in 2025, I mean I would imagine Democrats will be campaigning on, “We will extend the subsidies,” and again, in some places more than others, but that’s a time-sensitive big thing happening next year.

Rovner: But talk about an issue that people have no idea that’s coming. Well, meanwhile, for Trump, reproductive health isn’t the only issue where he’s doing a not-so-delicate dance. Apparently worried about Robert F. Kennedy Jr. stealing anti-vax [vaccine] votes from him, Trump is now calling RFK Jr. a fake anti-vaxxer. Except I’m old enough to remember when Trump bragged repeatedly about how fast his administration developed and brought the covid vaccine to market. That used to be one of his big selling points. Now he’s trying to be anti-vax, too?

Kenen: Not only did he brag about bringing it to the market. The way he used to talk about it, it was like he was there in his lab coat inventing it. Operation Warp Speed was a success. It got vaccines out in record time, way beyond what many people expected. Democrats gave him credit for that one policy in health care. He got a vaccine out and available in less than a year, and he got vaccinated and boasted about being vaccinated. He was open about it. Now we don’t know if he’s been boosted. He really backed off. As soon as somebody booed him, and it wasn’t a lot of boos, at one rally when he talked about vaccination and he got pushed back, that was the end.

Rovner: So, yeah, so I expect that to sort of continue on this election season, too.

Kenen: But we don’t expect RFK to flip.

Rovner: No, we do not. Right. Well, moving on to this weekend’s “Cyber Hacks,” a new feature, the fallout continues from the hack of Ascension [health care company]. That’s the Catholic hospital system with facilities in 19 states. In Michigan, patients have been unable to use hospital pharmacies and their doctors have been unable to send electronic prescriptions, so they’re having to write them out by hand. And in Indiana orders for tests and test results are being delayed by as much as a day for hospital patients. Not a great thing.

And just in time, or maybe a little late, the U.S. Department of Health and Human Services, through the newly created ARPA-H [Advanced Research Projects Agency for Health] that we have talked about, this week announced the launch of a new program to help hospitals make security patches and updates to their systems without taking them offline, which is obviously a major reason so many of these systems are so vulnerable to cyberhacking.

Of course, this announcement from HHS is just to solicit ideas for grants to help make that happen. So it’s going to be a while before we get any of these security changes. I’m wondering, how many systems are going to try to build a lot more redundancy into them? In the meantime, are we hearing anything about what they can do in the short term? It feels like the entire health care system is kind of a sitting duck for this group of cyberhackers who think they can get in easily and get ransom.

Kenen: There’s a reason they think that.

Rovner: They can.

Roubein: Thinking about hospitals and doctors using this manually, paper-based system and how that’s delaying getting your results and just there’s been these stories about patients. Like the anxiety that that’s understandably causing patients, and we’ll see sort of whether Congress can grapple with this, and there’s not really much legislation that’s going to move, so …

Kenen: But I was surprised that they were calling on ARPA-H. I mean, that’s supposed to be a biotech- curing-diseases thing, and none of the four of us are cybersecurity experts, and none of us really specialize in covering the electronic side of the digital side of health, but it just seems to me, I just thought that was an odd thing. First of all, some of these are just systems that haven’t been upgraded or individual clinicians who don’t upgrade or don’t do their double authorization. Some of it’s sort of cyberhygiene, and some of it’s obviously like the change thing. They’re really sophisticated criminals, but it’s not something that one would think you can’t get ahead of, right? They’re smart, good-guy technology people. It’s not like the bad guys are the only ones who understand technology. So why are the smart good guys not doing their job? And also, probably, health care systems have to have some kind of security checks on their own members to make sure they are following all the safety rules and some kind of consequences if you’re not, other than being embarrassed.

Rovner: I’ve just been sort of bemused by all of this, how both patients and providers complain loudly and frequently about the frustrations of some of these electronic record systems. And of course, in the places that they’re going down and they’ve had to go back to paper, people are like, “Please give us our electronic systems back.” So it doesn’t take long to get used to some of these things and be sorry when they’re gone, even if it’s only temporarily. It’s obviously been …

Kenen: But like what Rachel said, if you’re in the hospital, you’re sick, and do your clinicians need your lab results? Yes. I mean some of them are more important than others, and I would hope that hospitals are figuring out how to prioritize. But yeah, this is a crisis. If you’re in the hospital and they don’t know what’s wrong with you and they’re trying to figure out do you have X, Y, or Z, waiting until next week is not really a great idea.

Rovner: But it wasn’t that many years ago that their existence …

Kenen: Right, no, no, no.

Rovner: … did not involve …

Kenen: [inaudible 00:21:28].

Rovner: … electronic medical record.

Kenen: Right. Right.

Rovner: They knew how to get test results back and forth even if it was sending an intern to go fetch them. Finally, this week, we have some updates on some stories that we’ve talked about in earlier episodes. First, thanks in part to the excellent reporting of my colleague and sometime-pod-panelist Julie Appleby, the Senate Finance Committee Chairman Ron Wyden is demanding that HHS [U.S. Department of Health and Human Services] officials do more to rein in rogue insurance brokers who are reaping extra commissions by switching patients’ Affordable Care Act plans without their knowledge, often subjecting them to higher out-of-pocket costs and separating them from the providers that they’ve chosen. Sen. Wyden said he would introduce legislation to make such schemes a crime, but in the meantime he wants Biden officials to do more, given that they have received more than 90,000 complaints in the first quarter of 2024 alone about unauthorized switches and enrollments. Criminals go where the money is, right? You can either cyberhack or you can become a broker and switch people to ACA plans so you can get more commissions.

Kenen: I would think there could be a bipartisan, I mean it’s hard to get anything done in Congress. There’s no must-pass bills in the immediate future that are relevant. And the idea that a broker is secretly doing something that you don’t want them to do and that’s costing you money and making them money. I could see, those 90,000 people are from red and blue states and they vote, it’s going to affect constituents nationwide. Maybe they’ll do something. Maybe the industry can also… There is the National Association … I forgot the acronym, but there’s a broker’s organization, that there are probably things that they can also do to sanction. States can also do some things to brokers, but whether there’s a national solution or piecemeal, I don’t know, but it’s so outrageous that it’s not a right-left issue.

Rovner: Yes, one would think that there’ll be at least some kind of congressional action built into something …

Kenen: Something or other, right.

Rovner: … Congress that manages to do before the end of the year. Well, and in one of those seemingly rare cases where legislation actually does what it was intended to do, the White House this week announced that it has approved more than a million claims under the 2022 PACT Act, which made veterans injured as a result of exposure to burn pits and other toxic substances eligible for VA [Veterans Affairs] disability benefits. On the other hand, the VA is still working its way through another 3 million claims that have been submitted. I feel like even if it’s not very often, sometimes it’s worth noting that there are bipartisan things from Washington, D.C., that actually get passed and actually help the people that they’re supposed to help. It’s kind of sad that this is notable as an exception of something that happened and is working.

Roubein: In sort of the, I guess, Department of Unintended Side Effects here, my colleague Lisa Rein had a really interesting story out this morning that talked about the PACT Act, but basically that despite a federal law that prohibits charging veterans for help in applying for disability benefits, for-profit companies are making millions. She did a review of up to like a hundred unaccredited for-profit companies who have been charging veterans anywhere from like $5,000 to $20,000 for helping file disability claims because …

Rovner: That’s the theme of this week. Anyplace that there’s a lot of money in health care, there were people who will want to come in and take what’s not theirs. That’s where we will leave the news this week. Now we will play my interview with Shefali Luthra, then we’ll come back with our extra credits.

I am so pleased to welcome back to the podcast my former colleague and current “What The Health?” panelist Shefali Luthra. You haven’t heard from her in a while because she’s been working on her first book, called “Undue Burden,” that’s out this week. Shefali, great to see you.

Luthra: Thank you so much for having me Julie.

Rovner: So as the title suggests, “Undue Burden” is about the difficulties for both patients and providers in the wake of the overturn of Roe v. Wade. We talk so much about the politics of this issue, and so little about the real people who are affected. Why did you want to take this particular angle?

Luthra: To me, this is what makes this topic so important. Health care and abortion are really critical political issues. They sway elections. They are likely to be very consequential in this coming presidential election. But this matters to us as reporters and to us as people because of the life-or-death stakes and even beyond the life-or-death stakes, the stakes of how you choose to live your life and what it means to be pregnant and to be a parent. These are really difficult stories to tell because of the resources involved. And I wanted to write a book that just got at all of the different reasons why people pursue abortion and why they provide abortion and how that’s changed in the past two years. Because it felt to me like one of the few ways we could really understand just how seismic the implications of overturning Roe has been.

Rovner: And unlike those of us who talk to politicians all the time, you were really on the ground talking to patients and doctors, right?

Luthra: That was really, really important to the book. I spent a lot of time traveling the country, in clinics talking to people who were able to get abortions, who were unable to get abortions, and it was just really compelling for me to see how much access to care had the capacity to change their lives.

Rovner: So what kind of barriers then are we talking about that cropped up? And I guess it wasn’t even just the wake of the overturn of Roe. In Texas we had sort of a yearlong dry run.

Luthra: Exactly, and the book starts before Roe is overturned in Texas when the state enacted SB 8, the six-week abortion ban that effectively cut off access. And the first main character readers meet is this young girl named Tiffany, and she’s a teenager when she becomes pregnant, and she would love to get an abortion. But she is a minor. She lives very far from any abortion provider. She does not know how to self-manage an abortion. She does not know where to find pills. She has no connections into the health care system. She has no independent income. And she absolutely cannot travel anywhere for care. As a result, she has a child before she turns 18. And what this story highlights is that there are just so many barriers to getting an abortion. Many already existed: The incredible cost for procedure not covered by health insurance, the geographic distance, people already had to travel, the extra restrictions on minors.

But the overturning of Roe has amplified these, it is so expensive to get an abortion. It can be difficult to know you’re pregnant, especially if you are not trying to become pregnant. You have a very short time window. You may need to find childcare. You may need to find a car, get time off work, and bring all of these different forces together so that you are able to make a journey that can be days and pay for a trip that can cost thousands of dollars.

Rovner: One of the things that I think surprised me was that states that proclaimed themselves abortion “havens” actually did so little to help their clinics that predictably got swamped by out-of-state patients. Why do you think that was the case, and is it any better now?

Luthra: I think things have certainly changed. We have seen much more action in states, such as Illinois, where we see more people traveling there for care than anywhere else in the country. But it is worth going back to the summer that Roe was overturned. The governor promised to call a special session and put all these resources into making sure that Illinois could be a sanctuary. He never called that special session. And clinics felt like they were hanging out to dry, just waiting to get some support, and in the meanwhile, doing the absolute best they could.

One thing that I think this book really gets at is we are starting to see more efforts from these bluer states, the Illinois, the Californias, the New Yorks, and they talk a lot about wanting to be abortion havens, in part because it’s great politics if you’re a Democrat, but there’s only so much you can do. California has seen also quite a large increase in out-of-state patients. But I’ve spoken to so many people who just cannot conceivably go to California. They can barely go to Illinois. Making that journey when you are young, if you don’t have a lot of money, if you live in South Texas, if you live in Louisiana, it’s just not really feasible. And the places that are set up as these access points just can’t really fill in the gaps that they say they will.

Rovner: As you point out in the book, a lot of this was completely predictable. Was there something in your reporting that actually did surprise you?

Luthra: That’s a great question, and what did surprise me was in part something that we’ve begun to see borne out in the reporting, is there are very effective telemedicine strategies. We have begun to see physicians living in blue states, the New Yorks, Massachusetts, Californias, prescribing and mailing abortion pills to people in states with bans. This is pretty powerful. It has expanded access to a lot of people. What was really striking to me, though, even as I reported about the experiences of patients seeking care, is that while that has done so much to expand access in the face of abortion bans, it isn’t a solution that everyone can use. There were lots of people I met who did not want a medication abortion, who did not feel safe having pills mailed into their homes, or whose pregnancy complications and questions were just too complex to be solved by a virtual consult and then pills being mailed to them to take in the comfort of their house.

Rovner: Aren’t these difficulties exactly what the anti-abortion movement wanted? Didn’t they want clinics so swamped they couldn’t serve everybody who wanted to come, and abortion to be so difficult to get that women would end up carrying their pregnancies to term instead?

Luthra: Yes and no, I would argue. I think you are absolutely right that one of the primary goals of the anti-abortion movement was to make abortion unavailable, to make it harder to acquire, to have more people not get abortions and instead have children. But when I speak to folks in the anti-abortion movement, they are very troubled by how many people are traveling out of state to get care. They see those really long wait times in Kansas, in, until recently, Florida, in Illinois, in New Mexico, as a symptom of something that they need to address, which is that so many people are still finding a way to fight incredible odds to access abortion.

Rovner: Is there one thing that you hope people take away after they’re finished reading this?

Luthra: There are two things that I have spent a lot of time thinking about as I’ve reported this book. The first is just who gets abortions and under what circumstances. And so often in the national press, in national politics, we talk about these really extreme life-or-death cases. We talk about people who became septic and needed an abortion because their water broke early, or we talk about children who have been sexually assaulted and become pregnant. But we don’t talk about most people who get abortions; who are usually mothers, who are usually people of color, who are in their 20s and just know that they can’t be pregnant. I think those are really important stories to tell because they’re the true face of who is most affected by this, and it was important to me that this book include that.

The other thing that I have thought about so often in reporting this and writing this is abortion demands have an unequal impact. That is true if you are poor, if you are a person of color, if you live in a rural area, et cetera. You will in all likelihood see a greater effect. That said, the overturning of Roe v. Wade is so tremendous that it has affected people in every state. It affects you if you can get pregnant. It affects you if you want birth control. It affects you if you require reproductive health care in some form. This is just such a seismic change to our health care system that I really hope people who read this book understand that this is not a niche issue. This is something worthy of our collective attention and concern as journalists and as people.

Rovner: Shefali Luthra, thank you so much for this, and we will see you soon on the panel, right?

Luthra: Absolutely. Thank you, Julie. I’m so glad we got to do this.

Rovner: OK, we are back. It’s time for our extra-credit segment. That’s when we each recommend a story we read this week we think you should read, too. As always, don’t worry if you miss it. We will post the links on the podcast page at kffhealthnews.org and in our show notes on your phone or other mobile device. Joanne, why don’t you go first this week?

Kenen: This was a pair of articles, a long one and a shorter, related one. There’s an amazingly wonderful piece in ProPublica by Sharon Lerner, and it’s called “Toxic Gaslighting: How 3M Executives Convinced a Scientist the Forever Chemicals She Found in Human Blood Were Safe.” I’m going to come back and talk about it briefly in a second, but the related story was in The Guardian by Damian Carrington: “Microplastics Found in Every Human Testicle in Study.” Now, that was a small study, but there may be a link to the declining sperm count because of these forever chemicals.

The ProPublica story, it was a young woman scientist. She worked for 3M. They kept telling her her results was wrong, her machinery was dirty, over and over and over again until she questioned herself and her findings. She was supposed to be looking at the blood of 3M workers who were, it turned out, the company knew all this already and they were hiding it, and she compared the blood of the 3M workers to non-3M workers, and she found these plastic chemicals in everybody’s blood everywhere, and she was basically gaslit out of her job. She continued to work for 3M, but in a different capacity.

The article’s really scary about the impact for human health. It also has wonderfully interesting little nuggets throughout about how various 3M products were developed, some by accident. Something spilled on somebody’s sneaker and it didn’t stain it, and that’s how we got those sprays for our upholstery. Or somebody needed something to find the pages in their church hymnal, and that’s how we got Post-it notes. It’s a devastating but very readable, and it makes you angry.

Rovner: Yeah, I feel like there’s a lot more we’re going to have to say about forever chemicals going forward. Alice.

Ollstein: So I have a pretty depressing story from Stats. It’s called “How Doctors Are Pressuring Sickle Cell Patients Into Unwanted Sterilizations,” by Eric Boodman. And it is about people with sickle cell, and that is overwhelmingly black women, and they felt pressured to agree to be permanently sterilized when they were going to give birth because of the higher risks. And the doctors said, because we’re already doing a C-section and we’re already doing surgery on you, to not have to do an additional surgery with additional risks, they felt pressured to just sign that they could be sterilized right then and there and came to regret it later and really wanted more children. And so, this is an instance of people feeling coerced, and when people think about pro-choice or the choice debate about reproduction they mostly think about the right to an abortion. But I think that the right to have more children, if you want to, is the other side of that coin.

Rovner: It is. Rachel.

Roubein: My extra credit, it’s called “What Science Tells Us About Biden, Trump and Evaluating an Aging Brain,” by Joel Achenbach and Mark Johnson from The Washington Post. And basically, they kind of took a very science-based look at the 2024 election. They basically called it a crash course in gerontology because former President Donald Trump will be 78 years old. President Biden will be a couple weeks away from turning 82. And obviously that is getting a lot of attention on the campaign trail. They talked to medical and scientific experts who were essentially warning that news reports, political punditry about the candidates’ mental fitness, has essentially been marred by misinformation here about the aging process. One of the things they dived into was these gaffes or what the public sees as senior moments and what experts had told them is, that’s not necessarily a sign of dementia or predictive of cognitive decline. There need to be kind of further clinical evaluation for that. But there have been some calls for just how to kind of standardize and require a certain level of transparency for candidates in terms of disclosing their health information.

Rovner: Yes, which we’ve been talking about for a while, and will continue to. My extra credit this week is from our guest, Shefali Luthra, and her colleague at The 19th Chabeli Carrazana, and it’s called “What Happens to Clinics After a State Bans Abortion? They Fight To Survive.” And for all the talk about doctors and other staffers either moving out of or not moving into states with abortion bans, I think less has been written about entire enterprises that often provide far more than just abortion services having to shut down as well. We saw this in Texas in the mid-2010s, when a law that shut down many of the clinics there was struck down by the Supreme Court in 2016. But many of those clinics were unable to reopen. They just could not reassemble, basically, their leases and equipment and staff. The same could well happen in states that this November vote to reverse some of those bans. And it’s not just abortion, as we’ve discussed. When these clinics close, it often means less family planning, less STI [sexually transmitted infection] screening and other preventive services as well, so it’s definitely something to continue to watch.

Before we go this week, I want to note the passing of a health policy journalism giant with the death of Marshall Allen. Marshall, who worked tirelessly, first in Las Vegas and more recently at ProPublica, to expose some of the most unfair and infuriating parts of the U.S. health care system, was on the podcast in 2021 to talk about his book, “Never Pay the First Bill, and Other Ways to Fight the Health Care System and Win.” I will post a link to the interview in this week’s show notes. Condolences to Marshall’s friends and family.

OK, that is our show. As always, if you enjoy the podcast, you can subscribe wherever you get your podcast. We’d appreciate it if you left us a review. That helps other people find us too. Special thanks as always to our technical guru, Francis Ying, and our editor, Emmarie Huetteman. As always, you can email us your comments or questions. We’re at whatthehealth@kff.org, or you can still find me at X, @jrovner. Joanne, where are you?

Kenen: We’re at Threads @JoanneKenen.

Rovner: Alice.

Ollstein: Still on X @AliceOllstein.

Rovner: Rachel.

Roubein: On X, @rachel_roubein.

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

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