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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.

Health and other federal programs are at risk of shutting down, at least temporarily, as Congress races toward the Oct. 1 start of the fiscal year without having passed any of its 12 annual appropriations bills. A small band of conservative House Republicans are refusing to approve spending bills unless domestic spending is cut beyond levels agreed to in May.

Meanwhile, former President Donald Trump roils the GOP presidential primary field by vowing to please both sides in the divisive abortion debate.

This week’s panelists are Julie Rovner of KFF Health News, Alice Miranda Ollstein of Politico, Rachel Cohrs of Stat News, and Tami Luhby of CNN.

Panelists

Alice Miranda Ollstein
Politico

@AliceOllstein

Read Alice's stories

Rachel Cohrs
Stat News

@rachelcohrs

Read Rachel's stories

Tami Luhby
CNN

@Luhby

Read Tami's stories

Among the takeaways from this week’s episode:

• The odds of a government shutdown over spending levels are rising. While entitlement programs like Medicare would be largely spared, past shutdowns have shown that closing the federal government hobbles things Americans rely on, like food safety inspections and air travel.
• In Congress, the discord isn’t limited to spending bills. A House bill to increase price transparency in health care melted down before a vote this week, demonstrating again how hard it is to take on the hospital industry. Legislation on how pharmacy benefit managers operate is also in disarray, though its projected government savings means it could resurface as part of a spending deal before the end of the year.
• On the Senate side, legislation intended to strengthen primary care is teetering under Bernie Sanders’ stewardship — in large part over questions about how to pay for it. Also, this week Democrats broke Alabama Republican Sen. Tommy Tuberville’s abortion-related blockade of military promotions (kind of), going around him procedurally to confirm the new chair of the Joint Chiefs of Staff.
• And some Republicans are breaking with abortion opponents and mobilizing in support of legislation to renew the United States President’s Emergency Plan for AIDS Relief — including the former president who spearheaded the program, George W. Bush. Meanwhile, polling shows President Joe Biden is struggling to claim credit for the new Medicare drug negotiation program.
• And speaking of past presidents, former President Donald Trump gave NBC an interview over the weekend in which he offered a muddled stance on abortion. Vowing to settle the long, inflamed debate over the procedure — among other things — Trump’s comments were strikingly general election-focused for someone who has yet to win his party’s nomination.

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 “Inside the Gold Rush to Sell Cheaper Imitations of Ozempic,” by Daniel Gilbert.

Alice Miranda Ollstein: Politico’s “The Anti-Vaccine Movement Is on the Rise. The White House Is at a Loss Over What to Do About It,” by Adam Cancryn.

Rachel Cohrs: KFF Health News’ “Save Billions or Stick With Humira? Drug Brokers Steer Americans to the Costly Choice,” by Arthur Allen.

Tami Luhby: CNN’s “Supply and Insurance Issues Snarl Fall Covid-19 Vaccine Campaign for Some,” by Brenda Goodman.

Also mentioned in this week’s episode:

• The AP’s “Biden’s Medicare Price Negotiation Is Broadly Popular. But He’s Not Getting Much Credit,” by Seung Min Kim and Linley Sanders.
• Roll Call’s “Sanders, Marshall Reach Deal on Health Programs, but Challenges Remain,” by Jessie Hellmann and Lauren Clason.

CLICK TO EXPAND THE TRANSCRIPT

Transcript: Countdown to Shutdown

[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, Sept. 21, at 9 a.m. because, well, lots of news this week. And as always, news happens fast, and things might well have changed by the time you hear this. So here we go. We are joined today via video conference by Tami Luhby of CNN.

Tami Luhby: Good morning.

Rovner: Rachel Cohrs of Stat News.

Rachel Cohrs: Hi, everybody.

Rovner: And Alice Miranda Ollstein of Politico.

Alice Miranda Ollstein: Hello.

Rovner: Let’s get to some of that news. We will begin on Capitol Hill, where I might make a T-shirt from this tweet from Wednesday from longtime congressional reporter Jake Sherman: “I feel like this is not the orderly appropriations process that was promised after the debt ceiling deal passed.” For those of you who might’ve forgotten, many moons ago, actually it was May, Congress managed to avoid defaulting on the national debt, and as part of that debt ceiling deal agreed to a small reduction in annual domestic spending for the fiscal year that starts Oct. 1 (as in nine days from now). But some of the more conservative Republicans in the House want those cuts to go deeper, much deeper, in fact. And now they’re refusing to either vote for spending bills approved by the Republican-led appropriations committee or even for a short-term spending bill that would keep the government open after this year’s funding runs out. So how likely is a shutdown at this point? I would hazard a guess to say pretty likely. And anybody disagree with that?

Ollstein: It’s more likely than it was a week or two ago, for sure. The fact that we’re at the point where the House passing something that they know is dead on arrival in the Senate would be considered a victory for them. And so, if that’s the case, you really have to wonder what the end game is.

Rovner: Yeah, I mean it was notable, I think, that the House couldn’t even pass the rule for the Defense Appropriations Bill, which is the most Republican-backed spending bill, and the House couldn’t get that done. So I mean it does not bode well for the fate of some of these domestic programs that Republicans would, as I say, like to cut a lot deeper. Right?

Cohrs: Democrats are happy, I think, to watch Republicans flail for a while. I think we saw this during the speaker votes. Obviously, a CR [continuing resolution] could pass with wide bipartisan support, but I think there’s a political interest for Democrats going into an election year next year to lean into the idea of the House Republican chaos and blaming them for a shutdown. So I wouldn’t be too optimistic about Democrats billing them out anytime soon.

Rovner: But, bottom line, of course, is that a shutdown is not great for Democrats who support things that the government does. I mean, Tami, you’re watching, what does happen if there’s a shutdown? Not everything shuts down and not all the money stops flowing.

Luhby: No, and the important thing, unlike in the debt ceiling, potentially, was that Social Security will continue, Medicare will continue, but it’ll be very bothersome to a lot of people. There’ll be important things that … potentially chaos at airlines and food safety inspectors. I mean some of them are sometimes considered essential workers, but there’s still issues there. So people will be mad because they can’t go to their national parks potentially. I mean it’s different every time, so it’s a little hard to say exactly what the effects will be and we’ll see also whether this will be a full government shutdown, which will be much more serious than a partial government shutdown, although at this point it doesn’t look like they’re going to get any of the appropriation bills through.

Rovner: I was going to say, yeah, sometimes when they get some of the spending bills done, there’s a partial shutdown because they’ve gotten some of the spending bills done, but I’m pretty sure they’ve gotten zero done now. I think there’s one that managed to pass both the House and the Senate, but basically this would be a full shutdown of everything that’s funded through the appropriations process. Which as Tami points out, the big things are the Smithsonian and the National Zoo close, and national parks close, but also you can’t get an awful lot of government services. Meanwhile, the ill will among House Republicans is apparently rubbing off on other legislation. The House earlier this week was supposed to vote on a relatively noncontroversial package of bills aimed at making hospital insurance and drug prices more transparent, among other things. But even that couldn’t get through. Rachel, what happened to the transparency bill that everybody thought was going to be a slam-dunk?

Cohrs: Well, I don’t think everybody thought it was going to be a slam-dunk given the chaos that we saw, especially in the Democratic Caucus last week, where one out of three chairmen who work on health care in the House endorsed the package, but the other two would not. And they ran into a situation where, with the special rule that they were using to consider the House transparency package, they needed two-thirds vote to pass and they couldn’t get enough Democrats on board to pass it. And I think there were some process concerns from both sides that there was a compromise that came out right after August recess and it hadn’t been socialized properly and they didn’t have their ducks in a row in the Democratic side. But ultimately, I mean, the big picture for me I think was how hard it really is to take on the hospital industry. Because this was the first real effort I think from the House and it melted down before its first vote. That doesn’t mean it’s dead yet, but it was an embarrassment, I think, to everyone who worked on this that they couldn’t get this pretty noncontroversial package through. And when I tried to talk to people about what they actually oppose, it was these tiny little details about a privacy provision or one transparency provision and not with the big idea. It wasn’t ideological necessarily. So I think it was just a reflection on Congress has taken on pharma, they’re working on PBMs this year, but if they really do want to tackle hospital costs, which are a very big part of Medicare spending, it’s going to be a tough road ahead for them.

Rovner: As we like to point out, every single member of Congress has a hospital in their district, and they are quick to let their members of Congress know what they want and how they want them to vote on things. Before we move on, where are we on the PBM legislation? I know there was a whole raft of hearings this week on doing something about PBMs. And my inbox is full of people from both sides. “The PBMs are making drug prices higher.” “No, the PBMs are helping keep drug prices in check.” Where are we with the congressional effort to try and at least figure out what the PBMs do?

Cohrs: Yeah, I think there is still some disarray at this point. I would watch for action in December or whenever we actually have a conversation about government funding because some of these PBM bills do save money, which is the golden ticket in health care because there are a lot of programs that need to be paid for this year. So Congress will continue to debate those over the next couple of weeks, but I think everyone that I talk to is expecting potential passage in a larger package at the end of the year.

Rovner: So speaking of things that need to be paid for, the saga of Sen. Bernie Sanders and the reauthorization of some key primary care programs, including the popular community health center program, continues. When we left off last July, Sen. Sanders, who chairs the Senate Health, Education, Labor & Pensions Committee [HELP], tried to advance a bill to extend and greatly expand primary care programs without negotiating with his ranking Republican on the committee, Louisiana Sen. Bill Cassidy, who had his own bill to renew the programs. Cassidy protested and blocked the bill’s movement and the whole enterprise came to a screeching halt. Last week, Sanders announced he’d negotiated a bipartisan bill, but not with Cassidy, rather with Kansas Republican Roger Marshall, who chairs the relevant subcommittee. Cassidy, however, is still not pleased. Rachel, you’re following this. Sanders has scheduled a markup of the bill for later today. Is it really going to happen?

Cohrs: Well, I think things are on track and the thing to remember about a markup is it passes on a majority. So as long as Sen. Sanders can keep his Democratic members in line and gets Sen. Marshall, then it can pass committee. But I think there are some concerns that other Republicans will share with Sen. Cassidy about how the bill is paid for. There are a lot of ambitious programs to expand workforce training, have debt forgiveness, and address the primary care workforce crisis in a more meaningful way. But the list of pay-fors is a little undisciplined from what I’ve seen, I would say.

Rovner: That’s a good word.

Cohrs: Sen. Sanders is pulling some pay-fors from other committees, which he can’t necessarily do by himself, and they don’t actually have estimates from the Congressional Budget Office for some of the pay-fors that they’re planning to use. They’re just using internal committee math, which I don’t think is going to pass muster with Republicans in the full Senate, even if it gets through committee today. So I think we’ll see some of those concerns flare up. It could get ugly today compared with HELP markups of the past of community health center bills. And there are certainly some concerns about the application of the Hyde Amendment too, and how it would apply to some of this funding as it moves through the appropriations process.

Rovner: That’s the amendment that bans direct government funding of abortion, and there’s always a fight about the Hyde Amendment, which are reauthorizing these health programs. But I mean, we should point out, I mean this is one of the most bipartisanly popular programs, both the community health center program and these programs that basically give federal money to train more primary care doctors, which the country desperately needs. I mean, it’s something that pretty much everybody, or most of Congress, supports, but Cassidy has what, 60 amendments to this bill. I guess he’s really not happy. Cassidy who supports this in general just is unhappy with this process, right?

Cohrs: I think his concern is more that the legislation is half-baked, not that he’s against the idea of it. And Sen. Cassidy did sign on to a more limited House proposal as well, just saying, we need to fund the community health centers, we need to do something. This isn’t ready for prime time. We could see further negotiations, but the time is ticking for this funding to expire.

Rovner: Well, another program whose authorization expires at the end of the month is PEPFAR, the international AIDS/HIV program. It’s being blocked by anti-abortion activists among others, even though it doesn’t have anything to do with the abortion. And this is not just a bipartisan program, it’s a Republican-led program. Former President George W. Bush who signed it into law in 2003, had an op-ed this week pushing for the program in The Washington Post. Alice, you’ve been following this one. Is there any progress on PEPFAR?

Ollstein: Yes and no. There’s not a vote scheduled, there’s not a “Kumbaya” moment, but we are seeing some movement. I call it “Establishment Republican Strike Back.” You have some both on- and off-the-Hill Republicans really mobilizing to say, “Look, we need to reauthorize this program. This is ridiculous.” And they’re going against the anti-abortion groups and their allies on Capitol Hill who say, “No, let’s just extend this program just year by year through appropriations, not a reauthorization.” Which they say would rubber-stamp the Biden administration redirecting money towards abortion, which the Biden administration and everybody else denies is happening. And so we confirmed that Chairman Mike McCaul in the House and Lindsey Graham in the Senate are working with Democrats on some sort of reauthorization bill. It might not be the full five years, it might be three years, we don’t really know yet. But they think that at least a multiyear reauthorization will give the program some stability rather than the one-year funding patch that other House Republicans are mulling. So we’re going to see where this goes; obviously, it’s an interesting test for the influence of these anti-abortion groups on Capitol Hill. And my colleague and I also scooped that former President Bush, who oversaw the creation of this program, is quietly lobbying certain members, having meetings, and so we will see what kind of pull he still has in the party.

Rovner: Well, this was one of his signature achievements, literally. So it’s something that I know that … and we should point out, unlike the spending bills, the appropriation bills, if this doesn’t happen by Oct. 1, nothing stops, it’s just it becomes theoretically unauthorized, like many programs are, and it’s considered not a good sign for the program.

Luhby: One thing I also wanted to just bring up quickly, tangentially related to health care, but also showing how bipartisan programs are not getting the support that they did, is the WIC program, which is food assistance for women, infants and children, needs more money. Actually participation is up, but even before that, the House Republicans wanted to cut the funding for it, and that was going to be a big divide between them and the Senate. And now because participation is up, the Biden administration is actually asking for another $1.4 billion for the program. This is a program that, again, has always had support and has been fully funded, not had to turn people away. And now it’s looking that many women and small children may not be able to get the assistance if Congress isn’t able to actually fund the program fully.

Rovner: Yes, they’re definitely tied in knots. Well, Oct. 1 turns out to be a key date for a lot of health care issues. It’s also the day drugmakers are supposed to notify Medicare whether they will participate in negotiations for the 10 high-cost drugs Medicare has chosen for the first phase of the program that Congress approved last year. But that might all get blocked if a federal judge rules in favor of a suit brought by the U.S. Chamber of Commerce, among others. Rachel, there was a hearing on this last week, where does this lawsuit stand and when do we expect to hear something from the judge?

Cohrs: So the judge didn’t ask any questions of the attorneys, so they were essentially presenting arguments that we’ve already seen previewed in some of the briefing materials. We are expecting some action by Oct. 1, which is when the Chamber had requested a ruling on whether there’s going to be a preliminary injunction, just because drugmakers are supposed to sign paperwork and submit data to CMS by that Oct. 1 date. So I think we are just waiting to see what the ruling might be. Some of the key issues or whether the Chamber actually has standing to file this lawsuit, given it’s not an actual drug manufacturer. And there was some quibbling about what members they listed in the lawsuit. And then I think they only addressed the argument that the negotiation program violated drugmakers’ due process rights, which isn’t the full scope of the lawsuit. It’s not an indicator of success really anywhere else, but it is important because it is the very first test. And if a preliminary injunction is issued, then it brings everything to a halt. So I think it would be very impactful for other drugmakers as well.

Rovner: Nobody told me when I became a health reporter that I was going to have to learn every step of the civil judicial process, and yet here we are. Well, while we are still on the subject of drug prices, a new poll from the AP and the NORC finds that while the public, Republicans and Democrats, still strongly support Medicare being able to negotiate the price of prescription drugs, President [Joe] Biden is getting barely any credit for having accomplished something that Democrats have been pushing for for more than 20 years. Most respondents in the survey either don’t think the plan goes far enough, because, as we point out, it’s only the first 10 drugs, or they don’t realize that he’s the one that helped push it over the finish line. This should have been a huge win and it’s turning out to be a nothing. Is that going to change?

Ollstein: It’s kind of a “Groundhog Day” of the Obamacare experience in which they pass this big, huge reform that people had been fighting for so long, but they’re trying to campaign on it when people aren’t really feeling the effects of it yet. And so when people aren’t really feeling the benefit and they’re hearing, “Oh, we’re lowering your drug prices.” But they’re going to the pharmacy and they’re paying the same very high amount, it’s hard to get a political win from that. The long implementation timeline is against them there. So there are some provisions that kick in more quickly, so we’ll have to see if that makes any kind of difference. I think that’s why you hear them talk a lot about the insulin price cap because that is already in effect, but that hits fewer people than the bigger negotiation will theoretically hit eventually. So it’s tough, and I think it leaves a vacuum where the drug industry and conservatives can fearmonger or raise concerns and say, “This will make drugs inaccessible and they won’t submit new cures for approval.” And all this stuff. And because people aren’t feeling the benefits, but they’re hearing those downsides, yeah, that makes the landscape even tougher for Democrats.

Luhby: This is very much the pattern that the Biden administration has had with a lot of its achievements or successes because it’s also not getting any credit for anything in the economy. The job market is relatively strong still, the economy is relatively strong. Yes, we have high inflation and high prices, even though that’s moderated, prices are still high, and that’s what people are seeing. Gas prices are now up again, which is not good for the administration. But they’re touting their Bidenomics, which also includes lowering drug prices. But generally polling shows, including our CNN polling shows, that people do not think the economy is doing well and they’re not giving Biden any credit for anything.

Cohrs: I think part of the problem is that … it’s different from the Affordable Care Act where it was health care, health care, health care for a very long time. This is lumped into a bill called the Inflation Reduction Act. I think it got lumped in with climate, got looped in with tax. And the media, we did our best, but it was hard to explain everything that was in the bill. And Medicare negotiation is complicated, it’s wonky, and I don’t know that people fully understood everything that was in the Inflation Reduction Act when it passed and they capitulated to Sen. [Joe] Manchin for what he wanted to name it. And so I think some of that got muddled when it first passed and they’re kind of trying to do catch-up work to explain, again, like Alice said, something that hasn’t gone into effect, which is a really tough uphill climb.

Rovner: This has been a continuing frustration for Democrats, which is that actually getting legislation done in Washington always involves some kind of compromise, and it’s always going to be incremental. And the public doesn’t really respond to things that are incremental. It’s like, “Why isn’t it bigger? Why didn’t they do what they promised?” And so the Republicans get more credit for stopping things than the Democrats get for actually passing things. Right. Well, let us turn to abortion. The breaking news today is that the Senate is finally acting to bust the blockade Alabama Republican Sen. Tommy Tuberville has had on military promotion since February to protest a Defense Department policy allowing service people leave to travel to other states for abortions. And Tuberville himself is part of this breakage, right, Alice? And it’s not a full breakage.

Ollstein: Right. And there have also been some interesting interviews that maybe raise questions on how much Tuberville understands the mechanics of what he’s doing because he said in an interview, “Oh, well, the people who were in these jobs before, they’ll just stay in it and it’s fine.” And they had to explain, “Well, statutorily, they can’t after a certain date.” And he seemed surprised by that. And now you’re seeing these attempts to go around his own blockade, and Democrats to go around his blockade. In part, for a while, Democrats were really not wanting to do that, schedule these votes, until he fully relented because they thought that would increase the pressure.

Rovner: They didn’t want to do it nomination by nomination for the big-picture ones because they were afraid that would leave behind the smaller ones.

Ollstein: Exactly. But this is dragging on so long that I think you’re seeing some frustration and desire to do something, even if it’s not fully resolving the standoff.

Rovner: And I’m seeing frustration from other Republicans. Again, the idea of a Republican holding up military promotions for six months is something that was not on my Republican Bingo card five years ago or even two years ago. I’m sure he’s not making a lot of his colleagues very happy with this. So on the Republican presidential campaign trail, abortion continues to be a subject all the candidates are struggling with — all of them, it seems, except former President Donald Trump, who said in an interview with NBC on Sunday that he alone can solve this. Francis, you have the tape.

Donald Trump: We are going to agree to a number of weeks or months or however you want to define it, and both sides are going to come together, and both sides, and this is a big statement, both sides will come together and for the first time in 52 years, you’ll have an issue that we can put behind us.

Rovner: OK. Well, Trump — who actually seemed all over the place about where he is on the issue in a fairly bald attempt to both placate anti-abortion hardliners in the party’s base and those who support abortion rights, whose votes he might need if he wants to win another election — criticized his fellow Republicans, who he called, “inarticulate on the subject.” I imagine that’s not going over very well among all of the other Republican candidates, right?

Ollstein: We have a piece up on this this morning. One, Trump is clearly acting like he has already won the primary, so he is trying to speak to a general audience, as you noted, and go after those votes in the middle that he may need and so he’s pitching this compromise. And we have a piece that the anti-abortion groups are furious about this, but they don’t really know what to do about it because he probably is going to be the nominee and they’re probably going to spend tens of millions to help elect him if he is, even though they’re furious with these comments he’s making. And so it’s a really interesting moment for their influence. Of course, Trump is trying to have it both ways, he also is calling himself the most pro-life president of all time. He is continually taking credit for appointing the justices to the Supreme Court who overturned Roe v. Wade.

Rovner: Which he did.

Ollstein: Exactly.

Rovner: Which is true.

Ollstein: Which he definitely did. But he is not toeing the line anymore that these groups want. These groups want him to endorse some sort of federal ban on abortion and they want him to praise states like Florida that have passed even stricter bans. He is not doing that. And so there’s an interesting dynamic there. And now his primary opponents see this as an opening, they’re trailing him in the polls, and so they’re trying to capitalize on this. [Gov. Ron] DeSantis and a bunch of others came out blasting him for these abortion remarks. But again, he’s acting like he’s already won the primary, he’s brushing it off and ignoring them.

Rovner: I love how confident he is though, that there’s a way to settle this — really, that there is a compromise, it’s just nobody’s been smart enough to get to it.

Ollstein: Well, he also, in the same interview, he said he’ll solve the Ukraine-Russia war in a day. So I mean, I think we should consider it in that context. It was interesting when I talked to all these different anti-abortion groups, they all said the idea of cutting some sort of deal is ludicrous. There is no magic deal that everybody would be happy about. If anything …

Rovner: And those on the other side will say the same thing.

Ollstein: Exactly. How could you watch what’s happened over the past year or 30 years and think that’s remotely possible? However, they did acknowledge that him saying that does appeal to a certain kind of voter, who is like, “Yeah, let’s just compromise. Let’s just get past this. I’m sick of all the fighting.” So it’s another interesting tension.

Rovner: Yeah. And I love how Trump always says the quiet part out loud, which is that this is not a great issue for Republicans and they’re not talking about it right. It’s like Republicans know this is a not-great issue for Republicans, but they don’t usually say that in an interview on national television. That is Trump, and this will continue. Well, finally this week I wanted to talk about what I am calling the dark underbelly of the new weight loss drugs. This is my extra credit this week. It’s a Washington Post story by Daniel Gilbert called “Inside the Gold Rush to Sell Cheaper Imitations of Ozempic.” It’s about the huge swell of sometimes not-so-legitimate websites and wellness spas selling unapproved formulations of semaglutide and tirzepatide — better known by their brand names Ozempic, Wegovy, and Mounjaro — to unsuspecting consumers because the demand for these diabetes drugs is so high for people who want to lose weight. The FDA has declared semaglutide at least to be in shortage for the people it was originally approved for, those with Type 2 diabetes. But that designation legally allows compounding pharmacies to manufacture their own versions, at least in some cases, except to quote the piece, “Since then, a parallel marketplace with no modern precedent has sprung up attracting both licensed medical professionals and entrepreneurs with histories ranging from regulatory violations to armed robbery.” Meanwhile, and this is coming from a separate story, both Eli Lilly and Novo Nordisk, the manufacturers of the approved versions of the drugs, are suing companies they say are selling unapproved versions of their drug, including, in some cases, drugs that actually pretend to be the brand name drug that aren’t. This is becoming really a big messy buyer-beware market, right? Rachel, you guys have written about this.

Cohrs: It has. Yeah, my colleagues have done great coverage, including I think the lawsuit by manufacturers of these drugs who are seeing their profits slipping through their fingers as patients are turning to these alternatives that aren’t necessarily approved by the FDA. And I think there are also risks because we have seen some side effects from these medications; they range from some very serious GI symptoms to strange dreams. There’s just a whole lot going on there. And I think it is concerning that some patients are getting ahold of these medications, which are expensive if you’re buying them the traditional way. And again, for weight loss, I think some of these medications are still off-label, they’re not FDA-approved. So if they’re getting these without any supervision from a medical provider or somebody who they can ask when they have questions that come up and are monitoring for some of these other side effects, then I think it is a very dangerous game for these patients. And I think it’s just a symptom of this outpouring of interest and the regulators’, I think, failure to keep up with it. And there’s also some supply concerns. So I think it’s just this perfect storm of desperation from patients and the bureaucracy struggling to keep up.

Rovner: Yeah. One of the reasons I chose the story is I really feel like this is unprecedented. I mean, I suppose it could have been predicted because these drugs do seem to be very good at what they do and they are very expensive and very hard to get, so not such a surprise that not-so-honest people might spring up to try and fill the void. But it’s still a little bit scary to see people selling heaven only knows what to people who are very anxious to take things.

Luhby: And in related news, there are more doctors who are interested in obesity medicine now, so everyone is trying to cash in.

Rovner: Yeah, I mean, eventually I imagine this will sort itself out. It’s just that at the beginning when it’s so popular, although I will still … I keep thinking this, is the solution to really throw this much money at it or to try to figure out how to make these drugs cheaper? If it’s going to be such a societal good, maybe we should do something about the price. Anyway, that is my extra credit in this week’s news. Now we will take a quick break and then we’ll come back with the rest of our extra credits.

Hey, “What the Health?” listeners, you already know that few things in health care are ever simple. So, if you like our show, I recommend you also listen to “Tradeoffs,” a podcast that goes even deeper into our costly, complicated, and often counterintuitive health care system. Hosted by longtime health care journalist and friend Dan Gorenstein, “Tradeoffs” digs into the evidence and research data behind health care policies and tells the stories of real people impacted by decisions made in C-suites, doctors’ offices, and even Congress. Subscribe wherever you listen to your podcasts.

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

Luhby: Sure. Well, this week I chose a good story by one of my colleagues, Brenda Goodman. It’s titled “Supply and Insurance Issues Snarl Fall Covid-19 Vaccine Campaign for Some.” And we’ve all been hearing this, I heard this from a friend of mine who’s a doctor, we know Cynthia Cox at KFF tweeted about this. And that even though the new vaccines are ready and the Biden administration has been pushing people to go get them, and many people are eager to get them, they’re not so easy to get. Either because drugstores are running out, that’s what happened to my friend. She went in and said there just wasn’t any supply available. Or for some other people, they’re supposed to be free for most Americans, but the insurance companies haven’t caught up with that yet. So they go in and either they’re denied or the pharmacy tells them that they have to pay potentially $200 for the vaccines. So the problem here is that there’s already an issue with getting vaccines and people getting vaccinated in this country and then putting up extra hurdles for them will only cause more problems and cause fewer people to get vaccinated because some people may not come back.

Rovner: Talk about something that should have been predictable. The distributors knew it was going to be available and pretty much when, and the insurance companies knew it was going to be available and pretty much when, and yet somehow they seem to have not gotten their act together when the predictable surge of people wanting to get the vaccine early came about. Alice, you wanted to add something?

Ollstein: Just anecdotally, the supply and the demand are completely out of whack. My partner is back home in Alabama right now and he was at a pharmacy where they were just wandering around asking random people, “Will you take the shot? Will you take the shot?” And a bunch of people were saying, “No.” And meanwhile, here in D.C., myself and everyone I know is just calling around wanting to get it and not able to. And so you think we’d have figured this out better after so many years of this.

Rovner: Well, I have an appointment for tomorrow. We’ll see if it happens. Rachel, why don’t you go next?

Cohrs: Sure. I chose a KFF Health News story by Arthur Allen, and the headline is “Save Billions or Stick With Humira? Drug Brokers Steer Americans to the Costly Choice.” And I just love a story where it’s off the news cycle a little bit and we see this big splashy announcement. And I think Arthur did a great job of following up here and seeing what actually was happening with formulary placement for Humira and the new biosimilars that just came on the market.

Rovner: Yep. Remind us what Humira is?

Cohrs: Oh, yeah. So it’s one of the most profitable drugs ever. The company that makes it, AbbVie, had created this big patent thicket to try to prevent it from competition for a very long time, but this year saw competition that had been on the market in Europe finally come online in the U.S. So again, a big change for AbbVie, for the market. But I think there was concern about whether people would actually switch to these new medications that have lower prices. But again, as it gets caught up and spit out of our drug supply chain, there are a whole lot of incentives that don’t necessarily result in the cheaper medication being prescribed. And Arthur found that Express Scripts and Optum, which are two of the three biggest pharmacy benefit managers, have the biosimilar versions of Humira at the same price as Humira. So that doesn’t really create a lot of incentive for people to switch. So I think it was just great follow-up reporting and we don’t really have a lot of visibility into these formularies sometimes. So I think it was a illuminating piece.

Rovner: Yeah. And the mess that is drug pricing. Alice.

Ollstein: So I also chose a great piece by my colleague Adam Cancryn and it’s called “The Anti-Vaccine Movement Is on the Rise. The White House Is at a Loss Over What to Do About It.” It’s part of a series we’re doing on anti-vax sentiment and its impacts. And this is just going into how the Biden administration really doesn’t have a plan for combating this, even as it’s posing a bigger and bigger public health threat. And some of their attempts to go after misinformation online were stymied in court and they also are struggling with not wanting to elevate it by debunking it — that that age-old tension of, is it better to just ignore it or is it better to combat it directly? A lot of this is also tying into RFK Jr.’s presidential bid and how much to acknowledge that or not. But the impact is that they’re not really taking this on, even as it’s getting worse and worse in the country.

Rovner: And I got a bunch of emails this week about the anti-vax movement spreading to pets — that people are now resisting getting their dogs and cats vaccinated. Seriously. I mean, it is a serious problem. Obviously, if people stop getting rabies vaccines, that could be a big deal. So something else to watch. All right. Well, I already did my extra credit. So that is it for this week. As always, if you enjoy the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left us a review; that helps other people find us, too. Special thanks as always to our indefatigable engineer, Francis Ying. Also, as always, you can email us your comments or questions. We’re at whatthehealth@kff.org. Or you can tweet me; I’m still @jrovner on X and on Bluesky. Tami?

Luhby: You can tweet me at @Luhby. I sometimes check it still.

Rovner: Rachel.

Cohrs: I’m on X @rachelcohrs.

Rovner: Alice.

Ollstein: I’m @AliceOllstein.

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.

Congress returns from its August recess with a long list of things to do and not a lot of time to do them. The fiscal year ends Sept. 30, and it’s possible that lawmakers will fail to finish work not only on the annual appropriations bills, but also on any short-term spending bill to keep the government open.

Meanwhile, Medicare has announced the first 10 drugs whose prices will be negotiated under the Inflation Reduction Act of 2022. Exactly how the program will work remains a question, however. Even how the process will begin is uncertain, as drugmakers and other groups have filed lawsuits to stop it.

This week’s panelists are Julie Rovner of KFF Health News, Rachel Cohrs of Stat, Joanne Kenen of the Johns Hopkins Bloomberg School of Public Health and Politico, and Alice Miranda Ollstein of Politico.

Panelists

Rachel Cohrs
Stat News

@rachelcohrs

Read Rachel's stories

Joanne Kenen
Johns Hopkins Bloomberg School of Public Health and Politico

@JoanneKenen

Read Joanne's stories

Alice Miranda Ollstein
Politico

@AliceOllstein

Read Alice's stories

Among the takeaways from this week’s episode:

• Hard-line Republicans are refusing to back even a temporary government spending bill, suggesting a government shutdown looms — with repercussions for health programs. While the Senate and House have come to intra-chamber agreements on subjects like community health center funding or even have passed spending bills, Congress as a whole has been unable to broker an overarching deal.
• A coalition of House Republicans is falsely claiming that global HIV/AIDS funding through PEPFAR promotes abortion and is battling efforts to extend the program’s funding. PEPFAR is a bipartisan effort spearheaded by then-President George W. Bush and credited with saving millions of lives.
• The PEPFAR fight underscores the dysfunction of the current Congress, which is struggling to fund even a highly regarded, lifesaving program. Another example is the months-long blockade of military promotions by a freshman Republican senator, Alabama’s Tommy Tuberville, a member of the Senate Armed Services Committee. His objections over an abortion-related Pentagon policy have placed him at odds with top military leaders, who recently warned that his heavy-handed approach is weakening military readiness.
• The Biden administration recently announced new staffing requirements for nursing homes, as a way to get more nurses into such facilities. But how long will compliance take, considering ongoing nursing shortages? And the drug industry is reacting to the news of which 10 drugs will be up first for Medicare negotiation, with much left to be sorted out.
• In abortion news, a Texas effort to block patients seeking abortions from using the state’s roads is spreading town to town — and, despite being dubiously enforceable, it could still have a chilling effect.

Also this week, Rovner interviews Meena Seshamani, who leads the federal Medicare program, about the plan to start negotiating drug prices.

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

Julie Rovner: JAMA Health Forum’s “Health Systems and Social Services — A Bridge Too Far?” by Sherry Glied and Thomas D’Aunno.

Alice Miranda Ollstein: The Washington Post’s “Heat’s Hidden Risk,” by Shannon Osaka, Erin Patrick O’Connor, and John Muyskens.

Rachel Cohrs: The Wall Street Journal’s “How Novartis’s CEO Learned From His Mistakes and Got Help From an Unlikely Quarter,” by Jared S. Hopkins.

Joanne Kenen: Politico’s “How to Wage War on Conspiracy Theories,” by Joanne Kenen, and “Court Revives Doctors’ Lawsuit Saying FDA Overstepped Its Authority With Anti-Ivermectin Campaign,” by Kevin McGill.

Also mentioned in this week’s episode:

• The Washington Post’s “Highways Are the Next Antiabortion Target. One Texas Town Is Resisting,” by Caroline Kitchener.
• KFF Health News’ “Biden Administration Proposes New Standards to Boost Nursing Home Staffing,” by Jordan Rau.
• Stat’s “The Curious Case of J&J’s Stelara, The Unluckiest Drug on Medicare’s List,” by Rachel Cohrs.

Click to open the transcript

Transcript: Welcome Back, Congress. Now Get to Work.

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

Julie Rovner: Hello and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent 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, Sept. 7, at 10 a.m. As always, news happens fast, and things might have changed by the time you hear this. So here we go. We are joined today via video conference by Rachel Cohrs of Stat News.

Rachel Cohrs: Good morning.

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

Joanne Kenen: Hi, everybody.

Rovner: And Alice Miranda Ollstein of Politico.

Alice Miranda Ollstein: Hello.

Rovner: Later in this episode, we’ll have an interview with Meena Seshamani, who runs the Medicare program for the federal government, with an update on the Medicare drug negotiation debate as, we’ll discuss, the first 10 drugs that will be subject to negotiation were announced last week. But first, this week’s news. So Labor Day is behind us, and Congress is back — sort of. The Senate is back. The House returns next week. And there are lots of questions to be answered this fall, starting with whether or not Congress can finish the annual spending bills before the start of fiscal 2024 on Oct. 1. Spoiler: They cannot. But there’s also a real question whether Congress can even pass a short-term bill to keep the government running while lawmakers continue to work on the rest of the appropriations. As of now, what do you guys think are the odds that we’re going to end up with some kind of government shutdown at the end of the month?

Ollstein: Well, it’s whether it happens at the end of the month or at the end of the year, really. Folks seem pretty convinced that it will happen at some point. It could be short-lived. But, yeah, like you said, you have some hard-line House Republicans who say they won’t support even a temporary stopgap bill without spending cuts, policy changes, without sort of extracting some of their demands from leadership. And you could work around that in the House by cobbling together a coalition of Republicans and Democrats. But that also puts [House Speaker Kevin] McCarthy’s leadership in jeopardy. And so, we’re having sort of the same dynamic play out that we saw earlier this year, trying to navigate between the hard-line House Republicans and, you know, the more vulnerable swing districts’ members. So it’s … tough.

Rovner: Yeah, it’s the Republicans from districts that [President Joe] Biden won … basically.

Ollstein: Yeah. And so you have this weird game of chicken right now where both the House and Senate are trying to pass whatever they can to give themselves more leverage in the ultimate House-Senate negotiations. They think, OK, if we pass five bills and they only pass one, you know, then we have the upper hand. So we’ll see where that goes.

Rovner: It’s funny, because the Senate has been a well-oiled machine this year on the spending bills, which is unusual. I was about to say I will point out that there are two women: the chairman and ranking member. But that’s actually also true in the House. We do have women running the appropriations process this year. But I was amused that Kevin McCarthy, sometime during August, a couple of weeks ago, said, you know, very confidently, well, we’ll pass a short-term spending bill. You know, we won’t let the government shut down. And by the next day, the hard-line Republicans, the right wing, were saying, yeah, no you won’t. You’re going to have to deal with us first. And, obviously, there’s lots of health stuff that’s going to get caught up in that. The end of the fiscal year also marks the end of funding authority for a number of prominent programs. This is not the same as the appropriations programs whose authorizations lapse can continue, although things can get complicated. PEPFAR, the two-decade-old bipartisan program that provides AIDS and HIV prevention and treatment around the world, is one of those programs that, at least as of now, looks pretty stuck. Alice, is there any movement on this? We’ve talked about it before.

Ollstein: Not yet. So the latest we know, and we got this last night, is that [Foreign Relations Committee] Chairman [Bob] Menendez in the Senate is floating a new compromise. Basically, supporters of PEPFAR have been pushing for the full five-year standard reauthorization. And a coalition of House Republicans who are claiming that PEPFAR money is going to abortion say they want no reauthorization at all. They just want the program to sort of limp along through appropriations. So between five years and zero, Menendez is now suggesting a three-year extension. There is a huge desire not to just have the one-year funding patch because that would kick all of this into the heat of the 2024 season. And if you think the debate is ugly now over abortion and federal spending, just wait until 2024.

Kenen: I mean, this … [unintelligible] money … it’s saved tens of millions of lives — and with bipartisan support in the past.

Rovner: It was a Republican initiative.

Kenen: Right. It was President Bush, George the second.

Rovner: George W. Bush. Yeah.

Kenen: And they’re not saying they’re actually going out and using the AIDS dollars to conduct, to actually do abortions. They’re saying that there’s, you know, they’re in the world of abortion and they’re promoting abortion, etc., etc. So the conversation gets really, really, really, really muddled. Under U.S. law, they cannot use U.S. dollars for abortion under the Hyde Amendment, you know, all sorts of other foreign policy rules. So it’s hard to overstate how important this program has been, particularly in Africa. It has saved millions and millions of lives. And I think Alice might have broken the story originally, but it got caught up in abortion politics, and it caught people by surprise. This is not something … everything in Washington gets caught up in politics, except this! So I think it’s been quite shocking to people. And it’s, I mean — life-and-death sounds like a, you know, it’s a Washington cliché — this is life-and-death.

Ollstein: Yeah, absolutely. And, you know, even though the program won’t shut down if they don’t manage to get a reauthorization through, you know, I talked to people who run PEPFAR services in other countries, and they said that, you know, having this year-to-year funding and instability and uncertainty — you know, they won’t be able to hire, they won’t be able to do long-term planning. They said this will really undermine the goal to eliminate HIV transmission by 2030.

Cohrs: Oh, I actually did just want to jump in about another Sept. 30 deadline, because there was a big development this week. I know we were just talking about long-term planning. There is funding for community health centers that’s expiring at the end of September as well. DSH cuts could go into effect for hospitals. We do this routine every so often, but the House is actually more in step than the Senate on this issue; they released — at least Republicans released — a draft legislation, where all three committees of jurisdiction are in agreement about how to proceed. There are some transparency measures in there.

Rovner: The three committees in the House.

Cohrs: In the House. Yes, yes, we’re talking about the House. Yeah. So, they have reconciled their differences here and are hoping to go to the floor this month. So, I think they are out of the gate first, certainly with some sort of longer-term solution here. Again, could get punted. But I think it is a pretty big development when we’re talking about these extenders that the industry cares about very much.

Kenen: Congress is so polarized that it can’t even do the things that it agrees on. And we have seen this before where CHIP [Children’s Health Insurance Program] got caught up a few years ago. Community health clinics have gotten caught right in that same bill, right? But, you know, we really have this situation where it’s so dysfunctional they can’t even move fully on things that everybody likes. And community health centers date back to the early ’60s. However, they got a really big expansion, again, under second President Bush. And they’re popular, and they serve a need, and everybody likes them.

Rovner: They got a bigger expansion under the Affordable Care Act.

Kenen: Right, but they, you know — but I think that the Bush years was like the biggest in many years. And then they got more. So again, I mean, are they going to shut their doors? No. Is it going to be a mess? It is already a mess. They can’t — they don’t know what’s coming next. That’s no way to run a railroad or a health clinic.

Rovner: All right, well, one more while we’re on the subject of abortion-related delays: Alabama Sen. Tommy Tuberville is still blocking Senate approval of routine military promotions to protest the Biden administration’s policy of allowing funding for servicewomen and military dependents to travel for abortions if they’re posted to states where it’s banned. Now, the secretaries of the Army, Navy, and Air Force are joining together to warn that Tuberville’s hold is threatening military readiness. Tuberville apparently went on Fox News last night and said he’s got more people who are coming to support him. Is there any end to this standoff in sight? I mean, people seem to be getting kind of upset about it. It’s been going on since, what, February?

Ollstein: Yeah, there is not yet an end in sight. So far, all of the attempts to pressure Tuberville to back down have only hardened his resolve, it seems, you know, and he’s gone beyond sort of his original statement of, you know, all of this is just to get rid of this policy that doesn’t pay for abortions; it just allows people to travel out of state if they’re stationed — they don’t get to choose where they’re stationed — if they’re stationed somewhere where abortion is not legal or accessible. And so now he’s making claims about other things in the military he considers too woke. He’s criticized some of these individual nominees themselves that he’s blocking, which was not sort of part of the original stand he took. And so, it’s tough, and there isn’t enough floor time to move all of these and go around him. And so this pressure campaign doesn’t seem to be really making any headway. So I don’t really see how this gets resolved at this point.

Kenen: Except that other Republicans are getting a little bit more public. I mean, they were sort of letting him run out for a while. And there’s more Republicans who are clearly getting enough of this. But I mean, unless McConnell can really get him to move — and we don’t know what’s gone on behind closed doors, but we’re certainly not seeing any sign of movement. In fact, as Alice said, he’s digging in more. I mean, like, Marines and woke are not the two words you usually hear in one sentence, but in his worldview, they are. So, I think it’s unprecedented. I mean, I don’t think anyone’s ever done this. It’s not like one or two people. It’s like the entire U.S. military command can’t move ahead.

Rovner: I’ve been doing this a very long time, and I don’t remember anything quite like this. Well, the one thing that we do expect to happen this fall is legislation on — and Rachel, you were referring to this already — sort of health care price transparency and PBMs, the pharmacy benefit managers. Where are we with that? They were supposed to work on it over the August break. Did they?

Cohrs: They were supposed to work on it. The House was clearly working on it and reconciling some of their differences. They’re planning to introduce legislative text on Friday. So, I think Democrats aren’t on board yet, so things could change from the draft they had been circulating early this week. But again, Republicans don’t really need Democrats to move forward, at least in the House. The Senate has been pretty quiet so far. Not to say that no work has gone on, but they certainly weren’t ready for the rollout in the same way that the House was. You know, I think there are still some big questions about, you know, what they’re planning to accomplish with insulin policy, how they’re planning to fit together this jigsaw puzzle of PBM transparency and reforms that have come out of different committees. And I think it’ll come down to [Senate Majority Leader] Sen. Schumer making some tough choices. And from my understanding, that hasn’t quite happened yet. But if the actual showdown happens November, December, they still have some time.

Rovner: Yeah. Now they’re not going out early. They’re clearly going to be fighting over the appropriation. So, the legislative committees have plenty of time to work on these other things. All right. Well, let’s turn to Medicaid for a moment. The quote-unquote “unwinding” continues as states move to redetermine who remains eligible for the program and who doesn’t following the pandemic pause. As predicted, it’s been a bit of a bumpy road. And now it seems a bunch of states have been incorrectly dropping children from Medicaid coverage because their parents are no longer eligible. That’s a problem because nationwide, income limits for children’s eligibility is higher than parents’. In some states, it is much higher. I remember after Hurricane Katrina, in Louisiana, parents were only eligible if they earned 15% of poverty. Somebody said 50, and the Medicaid director said, “No, 15, one-five.” Whereas kids are eligible to, I believe it’s 200% of poverty. And I think that’s a national level.

Kenen: Now, in some states it’s higher.

Rovner: Yes. But I say this is happening in a bunch of states because federal government won’t tell us how many or which ones. We do know it’s more than a dozen, but this is the second time the administration has admonished states for wrongly canceling Medicaid coverage. And they wouldn’t say which states were involved at that time either. Is this an effort to keep this as apolitical as possible, given that the states most likely to be doing this are red states who are trying to remove ineligible people from Medicaid as fast as they can, that they’re trying to sort of keep this from becoming a Republican versus Democrat thing.

Ollstein: It seems like, from what we’re hearing, that the administration is really wary of publicly picking a fight with these states. They want the states to work with them. And so, even if the states are going about this in a way they think is totally wrong, they don’t want to just put them publicly on blast, because they think that’ll make them, again, double down and refuse to work with the government at all. And so, they’re trying to maintain some veneer of cooperation. But at the same time, you’re having, you know, millions of people, including children, falling through the cracks. And so, you know, we have sort of this sternly-worded-letter approach and we’ll see if that accomplishes anything, and if not, you know, what measures can be taken. You know, the administration also created a way for states to hit pause on the process and take a little more time and do a little more verification of people’s eligibility. And some — a couple states — have taken advantage of that, and it’s been successful in, you know, having fewer people dropped for paperwork reasons, but it’s not really happening in the states where it sort of most needs to happen, according to experts.

Rovner: The administration has had fingers pointed at it, too, because apparently it approved some of these plans from the states that were going to look at total family income without realizing that, oh, that meant that kids who are still eligible could end up losing coverage because their parents are no longer eligible.

Kenen: Right. And I also read something yesterday that in some cases it’s sort of a technical issue rather than a “how much outreach and what your intentions are,” that it’s a programing issue, which is related to what Julie just said about the plan. So, it’s not that these states set about to drop these kids, and there may be some kind of goodwill to fix it, in which case you don’t want to get in — and I don’t know that it’s 100% red states either. So —

Rovner: No, that’s clear. We assume, because they’re the ones going fastest, but we do not know.

Kenen: Right, so that there seems to be some kind of — the way it was set up, technically, that can be remedied. And if it’s a technical fix as opposed to an ideological fight, you don’t really want to — you want to figure out how to reprogram the computer or whatever it is they have to do and then go back and catch the people that were lost. So, they’ve been pretty low-key about politicizing rewinding in general. But on the kids, I think they’re going to be even more — CHIP passed, another thing with bipartisan support that’s a mess. I mean, it seems to be the theme of the day. But, you know, CHIP was created on a bipartisan basis, and it’s always been sustained on a bipartisan basis. So, I think that the issue, I don’t know how technically easy it is to fix, but there’s a big difference in how the administration goes after someone that’s intentionally doing something versus someone who wrote their computer programmer set something up wrong.

Rovner: Well, we will definitely keep on this one.

Kenen: But it’s a big mess. It’s a lot of kids.

Rovner: It is a big mess. And let’s turn to the thing that is not bipartisan in Congress, and that is —

Kenen: That’ll be a bigger mess.

Rovner: — Medicare drug negotiations. Yes. While we were away, the federal government released its much-anticipated list of the 10 brand-name drugs that will be the first tranche up for potential price negotiation. I say potential, because the companies have the option of negotiating or not — sort of — and because there are now, I think, nine lawsuits challenging the entire program. My interview with Medicare administrator Meena Seshamani will get into the nuts and bolts of how the negotiation program is supposed to work. But Rachel, tell us a little bit about the drugs on the list and how their makers are trying to cancel this entire enterprise before it even begins.

Cohrs: Sure. So, a lot of these drugs that we’re seeing on the list are blood thinners. Some are diabetes medications. There are drugs for heart failure, rheumatoid arthritis, Crohn’s disease, and there’s also a cancer treatment, too. But I think overall, the drugs were chosen because they have high cost to Medicare. And it was —

Rovner: So that either could mean a lot of people use an inexpensive drug —

Cohrs: Yes.

Rovner: — or a few people use a very expensive drug.

Cohrs: Correct. And it was Wall Street’s favorite parlor game to try to guess what drugs were going to be on this list of 10 drugs that are going to be the guinea pigs to go through this program for the very first time. But it was interesting, because there were a few surprises. Medicare officials were using newer data than Wall Street analysts had access to. So, there were a couple drugs, especially further down on the list, that people used more in the period CMS [Centers for Medicare & Medicaid Services] was studying than had been used previously. So, we saw a couple very interesting instances of a drug being chosen for the list, even though it just kind of fell through the cracks. It was J&J’s [Johnson & Johnson’s] Stelara. It’s a Crohn’s disease treatment, and it does have competition coming in the market soon, but just because of a fluke of kind of when it was approved by the FDA, it just missed cutoffs for some of these exemptions and is now subject to some pretty significant discounts through the program.

Rovner: We’ll link to your very sad story about Stelara.

Cohrs: Sad for the company, but not sad for the patients who will hopefully be paying less for this medication. And there’s also the case of Astellas [Pharma Inc.], which makes a prostate cancer drug that’s very expensive. A lot of people expected that to be selected, but actually wasn’t. And Astellas had sued the Biden administration already before the list came out and then had to withdraw their lawsuit yesterday because their argument that they were going to be harmed by this legislation was made much weaker by the fact that they weren’t selected for this first year of the program. So, who knows? They could dust off their arguments a year from now or two years from now. But it was interesting to see kind of some of these surprises on the list. Again, there are still several, like you mentioned, outstanding lawsuits in several different jurisdictions. I think the main one that we’re watching is by the [U.S.] Chamber of Commerce, which requested a preliminary injunction by the end of this month. So, we’ll see if that comes through. But it is a very long road to 2026. There might be a new administration by then. So, I think there are still a lot of questions about whether this reaches the finish line. But I think it’s a very important step for CMS to get this list out there in the world.

Rovner: So, I spent some time digging in my notes from earlier years, and I dug up notes from an interview I did on Aug. 26 with a spokesperson from the drug industry about how the Medicare drug benefit, quote, “impact the ability of companies to research new medicines. And if that happens, the elderly would be the ones hurt the most.” That quote, by the way, was from Aug. 26 of 1987. Some things truly never change. But is this maybe, possibly, the beginning of the end of drugmakers being able to charge whatever they want in the United States? Because it’s the only country where they can.

Cohrs: Oh, they can still charge whatever they want. This law doesn’t change that. It just changes the fact that Medicare won’t be paying whatever drugmakers happen to charge for an unlimited amount of time. Like, they can still charge whatever they want to Medicare for as long as they can get on the market before they’re selected for this negotiation program. But certainly there could be significant cost — significant savings to Medicare, even if those prices are high. And it’s just kind of a measure that forces price reductions, even if the generic or biosimilar market isn’t functioning to lower those prices through competition.

Kenen: Right. And it’s only Medicare. So, people who are not on Medicare — insurance companies also negotiate prices, but they’re not the government. It’s different. But I mean, these drugs are not going to start being, you know, three bucks.

Rovner: But they may stop being 300,000.

Kenen: Well, we don’t know, because there are some people who think that if Medicare is paying less, they’re going to charge everybody else more. We just don’t know. We don’t know what their behavior is going to be. But no, this does not solve the question of affordability of medication in the United States.

Rovner: The drug companies certainly think it’s the camel’s nose under the tent.

Kenen: They have some medicine for camels’ noses that they can charge a lot of money for, I’m sure.

Rovner: I bet they do. While we are on the subject of things that I have covered since the 1980s, last week the Biden administration finally put out its regulation requiring that nursing homes be staffed 24/7/365 by, you know, an actual nurse. One of the first big reconciliation bills I covered was in 1987 — that was a big year for health policy — and it completely overhauled federal regulation of nursing homes, except for mandating staffing standards, because the nursing homes said they couldn’t afford it. Basically, that same fight has been going on ever since. Except now the industry also says there aren’t enough nurses to hire, even if they could afford it. Yet patient advocates say these admittedly low staffing ratios that the Biden administration has put out are still not enough. So, what happens now? Is this going to be like the prescription drug industry, where they’re going to try to sue their way out of it? Or is it going to be more like the hospital transparency, where they’re just not going to do it and say, “Come and get us”?

Kenen: My suspicion is litigation, but it’s too soon to know. I assume that either one of the nursing home chains — because there are some very big corporations that own a lot of nursing homes — there are several nursing home trade industry groups, for-profit, nonprofit. Does one owner — is in an area where there is a workforce shortage, because that does exist. I mean, I’d be surprised if we don’t see some litigation, because when don’t we see that? I mean, it’s rare. That’s the norm in health care, is somebody sues. Some of the workforce issues are real, but also this proposal doesn’t go into effect tomorrow. It’s not like — but I mean, there are issues of the nursing workforce. There are issues about not just the number of nurses, but do we have them in the right places doing the right jobs? It’s not just RNs [registered nurses]; there are also shortages of other direct care workers. I did a story a few months ago on this, and there are actually nursing homes that have closed entire wings because they don’t have enough staff, and those are some of the nonprofits. There are nursing issues.

Rovner: And a lot of nursing home staff got sick at the beginning of the covid pandemic, and many of them died before there were good treatments. I mean, it’s always been a very hard and not very well-paid job to care for people in nursing homes. And then it became a not very pleasant, not very well-paid, and very deadly job. So I don’t think that’s probably helping the recruitment of people to work in nursing.

Kenen: Right, but the issue — I think a lot of people, when you have your first family experience with a nursing home or, you know, or those of us reporters who hadn’t been familiar with them until we went and did some stories on them, I think people are surprised at how little nursing there actually is. It’s nurses’ aides; it’s, you know, what they used to call licensed practical nurses or nursing assistants; and CNAs, certified nursing assistants. They’re various; different states have different names. But these are not four-year RNs. The amount of actual nursing — forget doctors. I mean, there’s just not a lot of RNs in nursing homes. There’s not a lot of doctors who spend time in nursing homes. A lot of the care is done through people with less training. So, this is trying to get more nurses in nursing homes. And there’s been a lot of stories about inadequate care. KFF Health News — I think it was Jordan Rau who did them. There have been some good stories about particularly nights and weekends, just really nobody there. These are fragile people. And they wouldn’t be in a nursing home if they weren’t fragile people. There are a lot of horror stories. At the same time, there are some legitimate — How fast can you do this? And how well can you do it? And can you do it across the country? I mean, it’s going to take some working out, but I don’t think anybody thinks that nursing home care in this country is, you know, a paragon of what we want our elders to experience.

Rovner: And the nursing home industry points out, truthfully, that most nursing home payments now come from Medicaid, because even people who start out being able to afford it themselves often run out of money and then they end up — then they qualify for Medicaid. And Medicaid in many states doesn’t pay very much, doesn’t pay nursing homes very much. So it’s hard for these companies. We’re not even talking about the private equity companies. A lot of nursing homes operate on the financial edge. I mean, there are —our long-term care policy in this country is, you know, just: What happens, happens, and we’ll worry about it later. And this has been going on for 50 years. And now we have baby boomers retiring and getting older and needing nursing home care. And at some point, this is all going to come to a head. All right. Well, let us turn to abortion. This week marks the second anniversary of the Texas abortion ban, the so-called heartbeat bill, that bans most abortion and lets individuals sue other individuals for helping anyone getting an abortion, which the Supreme Court, if you’ll recall, allowed to take effect months before it formally overturned Roe v. Wade. And, I guess not surprisingly, Texas is still in the news about abortion. This time. The same people who brought us Texas SB 8, which is the heartbeat bill, are going town by town and trying to pass ordinances that make it illegal to use roads within that town’s borders to help anyone obtain an abortion. They’re calling it abortion “trafficking.” Now, it’s not only not clear to me whether a local ordinance can even impact a state or an interstate highway, which is what these laws are mostly aimed at; but how on earth would you enforce something like this, even if you want to?

Ollstein: So, my impression is that they do not want to. These are not meant to be practical. They are not meant to be enforced, because how would you do it other than implementing a very totalitarian checkpoint system? This is meant to —

Rovner: Yes, have you been drinking and are you on your way to get an abortion?

Ollstein: Right. Right, right, right. So, it seems like the main purpose is to have a chilling effect, which it very well could have, even if it doesn’t stand up in court. You know, you also have this situation that we’ve had play out in other ways, where people are challenging laws in courts for having a chilling effect, and courts are saying, look, you have to wait till you actually get prosecuted and challenge it, you know, do an as-applied challenge. If you can’t challenge unless there’s a prosecution but there’s no prosecutions, then you sort of just have it hanging over your head like a cloud.

Kenen: Like Alice said, there’s no way you could do this. Like, what do you do, stop every car and give every person a pregnancy test? Are you going to, like, have, you know, ultrasounds on the E-ZPass monitors? Like, you go through it, it checks your uterus. So, I mean, it’s just not — you can’t do this. But I think one of the things that was really interesting in one of the stories I read about it, I think it was in The Washington Post, was that when they interviewed people about it, they thought it was trafficking, like really trafficking, that there were pregnant woman being kidnapped and forced to have an abortion. So even if you’re pro-choice, you might say, “Oh, I’m against abortion trafficking. I mean, I don’t want anyone to be forced to have an abortion.” You know, so, it’s — the wording and the whole design of it is, they know what they’re doing. I mean, they want to create this confusion. They want to create a disincentive. There’s no way — you know, radar guns? I mean, it’s just, there’s no way of doing this. But it is part of the effort to clamp down even further on a state that has already really, really, really clamped down.

Rovner: Although, I mean, if one could sue and if one could then know about something that’s happening and then you could presumably take the person to court and say, I know you were pregnant and now you’re not, and somebody took you in a car to New Mexico or whatever …

Kenen: You can’t even prove — how do you prove that it wasn’t a miscarriage?

Rovner: That’s —

Kenen: Right? I mean …

Rovner: I’m not saying — I’m not talking about the burden of proof. I’m just saying in theory, somebody could try to have a case here. I mean, but we certainly know that Texas has done a very good job creating a chilling effect, because we still have this lawsuit from the women who were not seeking abortions, who had pregnancy complications and were unable to get health-saving and, in some cases, lifesaving care promptly. And that’s still being litigated. But meanwhile, we have, you know, just today a study out from the Guttmacher Institute that showed that despite how well these states that are banning abortion have done in banning abortion, there were presumably more abortions in the first half of 2023 than there were before these bans took effect, because women from ban states were going to states where it is not banned. And there has been, ironically, better access in those states where it is not banned. I can’t imagine that this is going to please the anti-abortion community. One would think it would make them double down, wouldn’t it?

Ollstein: We know that people are leaving their states to obtain an abortion. We also know that that’s not an option for a lot of people, and not just because a lot of people can’t afford it or they can’t take time off work, they can’t get child care — tons of reasons why somebody might not be able to travel out of state. They have a disability, they’re undocumented. We also have — it’s become easier and easier and easier to obtain abortion pills online through, you know, a variety of ways: individual doctors in more progressive states, big online pharmacies are engaged in this, overseas activist groups are engaged in this. And so, you know, that’s also become an option for a lot of people. And anti-abortion groups know that those are the two main methods. People are still continuing to have abortions. And so, they’re continuing to just throw out different ways to try to either, you know, deter people or actually block them from either of those paths.

Rovner: This fight will also continue on. So, that is this week’s news. Now we will play my interview with Meena Seshamani, and then we will come back and do our extra credits.

Hey, “What the Health?” listeners, you already know that few things in health care are ever simple. So, if you like our show, I recommend you also listen to “Tradeoffs,” a podcast that goes even deeper into our costly, complicated, and often counterintuitive health care system. Hosted by longtime health care journalist and friend Dan Gorenstein, “Tradeoffs” digs into the evidence and research data behind health care policies and tells the stories of real people impacted by decisions made in C-suites, doctors’ offices, and even Congress. Subscribe wherever you listen to your podcasts.

I am pleased to welcome back to the podcast Dr. Meena Seshamani, deputy administrator and director of the Center for Medicare at the Centers for Medicare & Medicaid Services. Meena was with us to talk generally about Medicare’s new prescription drug negotiation program earlier this summer. But now that the first 10 drugs subject to negotiation have been announced, we’re pleased to have her back. Welcome.

Meena Seshamani: Thank you for having me.

Rovner: So, remind our listeners, why hasn’t Medicare been able to negotiate drug prices until now — they negotiate prices of everything else — and what changed to make that happen?

Seshamani: That’s right. It was because of the Medicare law that Medicare did not have the ability to negotiate drugs. And thanks to the new drug law, the Inflation Reduction Act, now Medicare has the ability to negotiate the prices of the highest-cost drugs that don’t have competition. And that is part of the announcement that we had on what the first 10 drugs are that have been selected.

Rovner: So, as you say, last week, for the first time and in time for the Sept. 1 deadline, Medicare announced the list of the first 10 drugs that will be part of the first round of price negotiations. Why these 10 specifically? I imagine it’s not a coincidence that the list includes some of the drugs whose ads we see the most often on TV: drugs like Eliquis, Xarelto, and Jardiance, which I of course know how to pronounce because I see the ads all the time.

Seshamani: Well, the process of selection really was laid out in the drug law and also through the guidance that we put out that we had incorporated everybody’s comment for. So, what we did is we started with the, you know, over 7,500 drugs that are covered in the Part D Medicare prescription drug program. From there, we picked those drugs that had been on the market for seven years for a drug product or 11 years for a larger molecule or biologic product that did not have competition. And then from there, there are various exemptions and exclusions that, again, are laid out in the law: for example, drugs that have low Medicare spend, of less than $200 million; drugs that are plasma-derived products; certain orphan drugs. An orphan drug is a drug that is indicated for a rarer disease. So that, again, those specific criteria are laid out in the law and in our guidance. And then there were opportunities for manufacturers to apply, for example, for a small biotech exemption; if their drug was, you know, 80% of their, you know, Medicare Part D revenue, they could say, “Hey, I’m a small biotech.” Again, a lot of these criteria were laid out in the law. Or for a manufacturer of a biosimilar, which is kind of like a generic drug for one of these biologic drugs, they could say, “Hey, we have a biosimilar that’s going to be coming on the market, has a high likelihood of coming on the market, so you should delay negotiating” the brand, if you will, drug. So, again, all of these steps were laid out in the drug law, and those are the steps and criteria that we followed that came to that list of 10 drugs that we published.

Rovner: I did see the makers of one drug — and forgive me, I can’t remember which one it was — saying, “But our drug isn’t that expensive.” On the other hand, their drug is used by a lot of people on Medicare. So, it’s not just the list price of the drug, right? It’s how much it costs Medicare overall.

Seshamani: That’s right. The list is made up of those drugs that have the highest gross total cost to the program — so, price per unit times units of volume that is used.

Rovner: So, how does this negotiation process work? What happens now? Now we have this list of 10 drugs.

Seshamani: Yeah, a lot of this is also laid out in the law, and then we fleshed out further in our guidance. So, from the list of 10 drugs, on Oct. 1, manufacturers now have to decide if they want to participate in the negotiation program. It is a voluntary program. It is our hope that they will come to the table and want to negotiate, because I think we all have shared goals of improving access and affordability and really driving innovation for the cures and therapies that people need. So, Oct. 1, they sign agreements for the negotiation program if they decide to participate. And Oct. 2 is the deadline for gathering data. We put out what’s called an information collection request to say, this is the kind of data we’re thinking about collecting. We got lots of comments and incorporated that. So, that provides the framework for the data that we’re requesting both from the manufacturer of the selected drug, but also, there are aspects open to the public on, you know, how the drug benefits populations, for example. So that’s Oct. 2. Then we’re going to have patient-focused listening sessions, a session for each drug, for patients, their caregivers, you know, other advocates, to be able to share what they see as the benefits of the drugs that are selected. And, we will have meetings with each of the manufacturers. All of that information will come together in an initial offer that CMS will make Feb. 1, 2024, and that is a date that is stipulated in the law. The manufacturer then has about 30 days to evaluate that. If they like that offer, they can agree. If they want, they can make a counteroffer. From that counteroffer, CMS has the ability to agree or to say, “You know, we don’t agree, so let’s now have a series of negotiation meetings.” There can be up to three negotiation meetings that provides that back-and-forth, ultimately leading to an agreed-upon what’s called maximum fair price in the law. And those maximum fair prices are published by Sept. 1, 2024. Again, that Sept. 1 is stipulated in the law. And also as part of this process, CMS will publish a narrative about that negotiation process — you know, the data that was received, you know, the back-and-forth, and also we’ll publish ultimately the maximum fair prices that are agreed to.

Rovner: And does that maximum fair price just apply to Medicare?

Seshamani: The maximum fair price just applies to Medicare. The information will be available. I mean, we don’t have any authority. You know, the commercial sector, they do their own negotiations, and they will continue to do so. But part of this is an opportunity to really further the conversation about how drugs impact the lives of people. We have an opportunity now with some drugs that have been on the market for quite a while, right? Minimum of seven years or 11 years, to see how these drugs work in the real world, in people’s communities, so that we can incorporate that into what it is that we need and want for people to be healthy, to stay out of the hospital, to live meaningful lives. So it’s really an opportunity to further that conversation. And a lot of that data, a lot of those listening sessions, that will all go into our negotiation process and will be part of the narrative that we publish.

Rovner: And what happens if the drug company says either we don’t want to negotiate or we don’t like our final offer? If they say they don’t want to play, what happens?

Seshamani: Julie, I will say again, to start with, we are hopeful that the drug companies will come forward and will want to negotiate because, again, through many conversations that we have had, we do have shared goals of access and affordability and really driving innovation and procures and therapies that people need. And it is a choice for drug companies if they want to participate or not, as stipulated in the law. If a drug company decides not to sign, you know, the negotiation agreement, not to participate in negotiation, then we would refer them to the Department of Treasury for an excise tax. That excise tax is also described in the law. If a drug company has this excise tax applied, they can get out of paying the excise tax. If, No. 1, they decide to come to the table and negotiate, or No. 2, if they exit the Medicare and Medicaid market. So those are kind of their off-ramps, if you will, for that excise tax.

Rovner: So they don’t have to participate in the negotiation, but they also don’t have to participate in Medicare and Medicaid.

Seshamani: Correct.

Rovner: So I saw a lot of complaining last week with the first group of drugs that this is really only going to benefit the people on Medicare who take those drugs. But, in fact, if there really is a lot of money saved, the benefits could go well beyond this, right?

Seshamani: Yeah, I think two points. So, yes, this negotiation is for, you know, some of the highest-cost drugs to the Medicare program that don’t have competition. And the negotiated drug prices apply to the Medicare program. However, as we talked about, this really drives a conversation around drugs and really grounding this negotiation process in the clinical benefit that a drug provides. Considering things like if a drug is easier for someone to take and it’s easier for a caregiver, that can have tangible improvements to the health of the person they’re caring for, right? And I think we have that opportunity to really drive the conversation. And as we know in many aspects of health care, people look to Medicare to see what Medicare is doing. And also, the transparency around providing that narrative of the negotiation, publishing the maximum fair prices that are agreed to. That’s all data that anybody can use as they would like. And I think the second piece that’s important to remember is that negotiation is one very important piece of a very big change to Medicare prescription drug coverage. You know, alongside the $2,000 out-of-pocket tab that’s going to go into effect in 2025, the no-cost vaccines, $35 copay cap for insulin that have already gone into effect. So, really, it is part of a larger sea change in Medicare drug coverage that will help millions of people and their families. You know, I did a roundtable with seniors as we were rolling out the insulin copay cap. And one woman was telling me that she was providing money to her brother every month so that he could pay for his insulin on Medicare. So, really, I mean, this has tremendous impact not just for people on Medicare, but their families, their communities, and really furthers the conversation for the entire system.

Rovner: I was actually thinking of more nitty-gritty money, which is if you save money for Medicare, premiums will be lower for people who are getting drug coverage, and taxpayers will save money, too, right? I mean, this is not just for these people and their families.

Seshamani: Our priority is being able to reach agreement on a fair price for the people who rely on these medications for their lives and the American taxpayer in the Medicare program.

Rovner: I know you can’t comment on lawsuits, and there are many lawsuits already challenging this. But the drug companies, one of their major arguments is that if you limit what they can charge for their drugs, particularly in the United States, the last country where they can charge whatever they want for their drugs, they will not be able to afford to keep the pipeline going to discover more new, important drugs. This is an argument they’ve been making since, I told somebody earlier, since I covered this in the late 1980s. What is your response just to that argument?

Seshamani: Well, I think there were several articles, many articles were written about this on the day that the 10 selected drugs were published. They were published before the stock market opened. And there really was no impact on the stocks of the companies. There were many financial pieces written about this. So I think that is one indication of the fact that the pharmaceutical industry is strong, it is thriving, and it is designed to innovate. And what we’re hoping to do through this negotiation program is really reward the kinds of innovations that we all need, the cures and therapies that people need. Recently, the venture fund that backed Moderna invested in a new startup for small molecules. Bayer has recently invested a billion dollars in the U.S. So you see, the industry very much is thriving. That is what the stock market response also shows. And it’s also the way that we are approaching negotiation to make sure that we’re rewarding the kinds of innovations that people need.

Rovner: Well, Meena Seshamani, thank you so much. I hope we can come back to you as this negotiation process for the first time proceeds.

Seshamani: Absolutely. Thanks again, Julie.

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

Ollstein: Yeah, I picked a very sad story from The Washington Post about how people who have schizophrenia are a lot more vulnerable to extreme heat. And it’s rare to find one of these health care stories where you’re just astonished. You know, I had no idea about this. You know, it really walks through not only are people more vulnerable for mental health reasons, you know, it profiles this terrible story of a guy in Phoenix who wandered off into the desert and died because he was experiencing paranoid delusions. But also, just physically, people with schizophrenia have difficulty regulating their body temperature. A lot of medications people take make people more dehydrated, less able to cope. And just an astonishingly high percentage of people hospitalized and killed by extreme heat have these mental illnesses. Of course, they’re also more likely to have housing instability or be out on the street. So just a fascinating piece, and I hope it spurs cities to think of ways to address it. One other small thing I want to compliment is it just, technically, on this article online, they have a little widget where you can convert all of the temperatures cited in the lengthy story from Fahrenheit to Celsius. And I just really appreciated that for allowing, you know, no matter where you live, you sort of get what these high temperatures mean.

Rovner: Yeah, graphics can be really helpful sometimes. Rachel.

Cohrs: Yeah. So I chose a story in The Wall Street Journal and the headline is “How Novartis’s CEO Learned From His Mistakes and Got Help From an Unlikely Quarter,” by Jared S. Hopkins. And I think it was a really interesting and rare look inside one of these pharmaceutical companies. And Novartis hired a Wall Street analyst, Ronny Gal, to help advise them. And I think I had read his analysis before he crossed over to Novartis. So I think it was interesting to just hear how that has integrated into Novartis’ strategy and just how they’re changing their business. But I think as we’re, you know, having these conversations about drug pricing and how strategies are changing due to some of these policies, it is helpful to look at who these executives are listening to and what they’re prioritizing, whose voices in this decision-making process that really has impacts for so many people who are waiting for treatments. And I think there are tough choices that are made all the time. So I just thought it was very illuminating and helpful as we’re talking about how medicines get made in D.C.

Rovner: Yeah, maybe there will be a little more transparency to actually how the drug industry works. We will see. Joanne.

Kenen: With Julie’s permission, I have two that are both short and related. I wrote a piece for Politico Nightly called “How to Wage War on Conspiracy Theories,” and I liked it because it really linked political trends and disinformation and attempts to debunk, with very parallel things going on in the world of health care and efforts to the motivations and efforts to sow trust and what we do and do not know about how to debunk, which we’re not very good at yet. And then the classic example, of course, is the related AP story, which has a very long headline, so bear with me. It’s by Kevin McGill: “Court Revives Doctors’ Lawsuit Saying FDA Overstepped Its Authority With Anti-Ivermectin Campaign.” And, basically, it’s that the 5th Circuit, a conservative court that we’ve talked about before, is saying that the FDA is allowed to inform doctors, but it can’t advise doctors. And I’m not really sure what the difference is there, because if the FDA is informing doctors that ivermectin, we now know, does not work against covid, and it can in fact harm people, there’s ample data, that the FDA is not allowed to tell doctors not to use it. So the ivermectin campaign is a form of disinformation, or misinformation, whatever you want to call it, that at the very beginning, people had, you know, there were some test-tube experiments. We had nothing else. You can sort of see why people wanted … might have wanted to try it. But we have lots and lots and lots of good solid clinical research and human beings and, no, it does not cure covid. It does not improve covid. And it can be damaging. It’s for parasites, not viruses.

Rovner: It can cure worms. Well, I’m going to channel my inner Margot Sanger-Katz this week and choose a story from a medical journal, in this case the Journal of the American Medical Association. Its lead author is Sherry Glied, who’s dean of the NYU Robert F. Wagner Graduate School of Public Service and former assistant HHS [Department of Health and Human Services] secretary for planning and evaluation during the Obama administration — and I daresay one of the most respected health policy analysts anywhere. The piece is called “Health Systems and Social Services — A Bridge Too Far?” And it’s the first article I’ve seen that really does question whether what’s become dogma in health policy over the past decade that — tending to what are called social determinants of health, things like housing, education, and nutrition — can improve health as much as medical care can. Rather, argues Glied, quote, “There are fundamental mismatches between the priorities and capabilities of hospitals and health systems and the task of addressing social determinants of health,” and that, basically, medical providers should leave social services to those who are professional social service providers. That is obviously a gross oversimplification of the argument of the piece, however, but I found it really thought-provoking and really, for the first time, someone saying, maybe we shouldn’t be spending all of this health care money on social determinants of health. Maybe we should let social service money go to the social service determinants of health. Anyway, we will see if this is the start of a trend or just sort of one outlier voice. OK, that is our show for this week. As always, if you enjoy the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left us a review; that helps other people find us, too. Special thanks, as always, to our amazing engineer, Francis Ying. Also, as always, you can email us your comments or questions. We’re at whatthehealth@kff.org. Or you can tweet me, or X me, or whatever. I’m still there @jrovner, also on Bluesky and Threads. Rachel?

Cohrs: I’m @rachelcohrs on X.

Rovner: Alice.

Ollstein: @AliceOllstein.

Rovner: Joanne.

Kenen: @JoanneKenen on Twitter, @joannekenen1 on Threads.

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

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El cansancio y las náuseas de su marido fueron tan intensas que no fue a trabajar por tres días. Pero bebió agua con lima en lugar de ir al médico porque no tienen seguro médico. “A mucha gente le pasa esto”, agregó.

No existen normas federales para proteger a los trabajadores como los García cuando los días son excesivamente calurosos. Y sin el apoyo bipartidista del Congreso, incluso con la atención urgente de la administración Biden, es posible que el alivio no llegue en años.

El presidente Joe Biden encargó en 2021 a la Administración de Seguridad y Salud Ocupacional (OSHA) la elaboración de normas para prevenir los accidentes y las enfermedades causados por el calor.

Pero ese proceso de 46 pasos puede llevar más de una década y podría estancarse si un republicano es elegido presidente en 2024, porque el Partido Republicano se ha opuesto generalmente a las regulaciones de salud laboral en los últimos 20 años.

Estas normas podrían obligar a los empleadores a proporcionar abundante agua potable, descansos y un espacio para refrescarse a la sombra o con aire acondicionado cuando las temperaturas superen un determinado umbral.

El 7 de septiembre, OSHA comenzó reuniones con propietarios de pequeñas empresas para discutir sus propuestas, incluidas las medidas que deberían adoptar las empresas cuando las temperaturas llegan a los 90 grados.

Como este verano se han batido récords de calor, la congresista Judy Chu (demócrata de California) y otros miembros del Congreso han impulsado una legislación que aceleraría el proceso de elaboración de normas de OSHA.

El proyecto de ley lleva el nombre de Asunción Valdivia, una trabajadora agrícola que se desmayó mientras recogía uvas en California en un día de 105 grados en 2004. Su hijo la recogió del campo y Valdivia murió de un golpe de calor en el trayecto a su casa.

“Ya sea en una granja, conduciendo un camión o trabajando en un almacén, los trabajadores como Asunción mantienen nuestro país en funcionamiento mientras soportan algunas de las condiciones más difíciles”, dijo Chu en declaraciones en julio en la que instaba al Congreso a aprobar el proyecto de ley.

Las organizaciones profesionales que representan a los empresarios se han opuesto a las normas, calificándolas de “exageradas”. También afirman que faltan datos que justifiquen regulaciones generales, dada la diversidad de trabajadores y lugares de trabajo, desde restaurantes de comida rápida hasta granjas.

La Cámara de Comercio de Estados Unidos, uno de los grupos de presión más poderosos de Washington, argumentó que tales medidas carecen de sentido “porque cada empleado experimenta el calor de forma diferente”. Además, según la Cámara, normas como los ciclos de trabajo-descanso “amenazan con perjudicar directa y sustancialmente… la productividad de los empleados y, por lo tanto, la viabilidad económica de su empleador”.

“Muchos de los problemas relacionados con el calor no son consecuencia del trabajo agrícola ni de la mala gestión del empresario, sino del moderno estilo de vida de los empleados”, escribió el Consejo Nacional del Algodón en su respuesta a la legislación propuesta.

Por ejemplo, el aire acondicionado hace más difícil que las personas se adapten a un ambiente caluroso después de haber estado en una vivienda o un vehículo fríos, y señaló que “los trabajadores más jóvenes, más acostumbrados a un estilo de vida más sedentario, no pueden aguantar un día trabajando al aire libre”.

La Asociación de Recursos Forestales, que representa a los propietarios de terrenos forestales, la industria maderera y los aserraderos, agregó que “las enfermedades y muertes relacionadas con el calor no figuran entre los riesgos laborales más graves a los que se enfrentan los trabajadores”. Citaron cifras de OSHA: la agencia documentó 789 hospitalizaciones y 54 muertes relacionadas con el calor a través de investigaciones e infracciones de 2018 a 2021.

OSHA admite que sus datos son cuestionables. Ha dicho que sus cifras “sobre enfermedades, accidentes y muertes relacionadas con el calor en el trabajo son probablemente grandes subestimaciones”.

Los accidentes y enfermedades no siempre se registran, las muertes provocadas por las altas temperaturas no siempre se atribuyen al calor, y los daños relacionados con el calor pueden ser acumulativos, provocando infartos, insuficiencia renal y otras dolencias después de que la persona haya abandonado su lugar de trabajo.

El efecto de la temperatura

Para establecer normas, OSHA debe conocer los efectos del calor en los que trabajan en interiores y al aire libre. La justificación es una parte necesaria del proceso, porque las normativas aumentarán los costos para los empresarios que necesiten instalar sistemas de aire acondicionado y ventilación en el interior, y para aquellos cuya productividad pueda bajar si se permite a los que trabajan a la intemperie tomar descansos o reducir las jornadas cuando suban las temperaturas.

Lo ideal sería que los empresarios tomaran medidas para proteger a los trabajadores del calor independientemente de las normas, afirmó Georges Benjamin, director ejecutivo de la Asociación Americana de Salud Pública. “Tenemos que hacer un mejor trabajo para convencer a los empresarios de que hay una compensación entre la eficiencia y los trabajadores enfermos”, dijo.

García y su marido sufrieron los síntomas del golpe de calor: vómitos, náuseas y fatiga. Pero sus casos forman parte de los miles que no se contabilizan cuando la gente no va al hospital ni presenta denuncias por miedo a perder su empleo o estatus migratorio.

Los trabajadores agrícolas están notoriamente subrepresentados en las estadísticas oficiales sobre accidentes y enfermedades laborales, según David Michaels, epidemiólogo de la Universidad George Washington y ex administrador de OSHA.

Investigadores que encuestaron a trabajadores agrícolas de Carolina del Norte y Georgia encontraron que más de un tercio presentaba síntomas de enfermedad por calor durante los veranos analizados, una cifra muy superior a la registrada por OSHA. En particular, el estudio de Georgia reveló que el 34% de los trabajadores agrícolas no tenía descansos regulares, y una cuarta parte no tenía acceso a espacios con sombra.

Incluso los casos en los que los trabajadores son hospitalizados pueden no atribuirse al calor si los médicos no documentan la conexión. Muchos estudios relacionan los accidentes laborales con el estrés térmico, que puede causar fatiga, deshidratación y vértigo.

En un estudio realizado en el estado de Washington, se observó que los trabajadores agrícolas se caían de las escaleras con más frecuencia en junio y julio, unos de los meses más calurosos y húmedos. Y en un informe de 2021, investigadores calcularon que las temperaturas más cálidas causaron aproximadamente 20,000 accidentes laborales al año en California entre 2001 y 2018, según los reclamos de compensación de los trabajadores.

Las lesiones renales por calor también aparecen en la base de datos de OSHA de trabajadores lesionados gravemente en el trabajo, como el caso de un empleado de una planta de procesamiento de carne hospitalizado por deshidratación y lesión renal aguda en un caluroso día de junio en Arkansas.

Sin embargo, la investigación revela que el daño renal provocado por el calor también puede ser gradual. Un estudio de trabajadores de la construcción que estuvieron durante un verano en Arabia Saudita reveló que el 18% presentaba signos de lesión renal, lo que los ponía en riesgo de insuficiencia renal futura.

Además de cuantificar las lesiones y muertes causadas por el calor, OSHA trata de atribuirles un costo para poder calcular el ahorro potencial derivado de la prevención. “Hay que medir las cosas, como ¿cuánto vale una vida?”, afirmó Michaels.

Para los trabajadores y sus familias, el sufrimiento tiene consecuencias de largo alcance que son difíciles de enumerar. Los gastos médicos son más obvios. Por ejemplo, OSHA calcula que el costo directo de la postración por calor (sobrecalentamiento debido a insolación o hipertermia), es de casi $80,000 en costos directos e indirectos por caso.

Si esto parece elevado, hay que pensar en un trabajador de la construcción de Nueva York que perdió el conocimiento en un día caluroso y se cayó de una plataforma, y sufrió una laceración renal, fracturas faciales y varias costillas rotas.

El precio de los golpes de calor

Investigadores también han intentado determinar el costo que supone para los empresarios la pérdida de productividad. El trabajo es menos eficiente cuando suben las temperaturas, y si los trabajadores se ausentan por enfermedad y tienen que ser reemplazados, la producción disminuye mientras se entrena a nuevos trabajadores.

Cullen Page, cocinero de Austin, Texas, y miembro del sindicato Restaurant Workers United, trabaja durante horas frente a un horno de pizza, donde, según dijo, las temperaturas oscilaron entre los 90 y los 100 grados cuando las olas de calor golpeaban la ciudad en agosto.

“Es brutal. Afecta tu forma de pensar. Estás confundido”, dijo. “Me dio un sarpullido por calor que no se me quitaba”. Como hace tanto calor, agregó, el restaurante tiene un alto índice de rotación de empleados. Una campana extractora adecuada sobre los hornos y un mejor aire acondicionado ayudarían, pero los propietarios aún no han hecho las mejoras, dijo.

Via 313, la cadena de pizzerías en la que trabaja Page, no respondió al pedido de comentario.

Page no es el único. Una organización que representa a los empleados de restaurantes, Restaurant Opportunities Centers United, encuestó a miles de trabajadores, muchos de los cuales informaron de condiciones inseguras por el calor: el 24% de los trabajadores de Houston, por ejemplo, y el 37% de los de Philadelphia.

“Los trabajadores estuvieron expuestos a temperaturas de hasta 100 grados después de que se rompieron los aparatos de aire acondicionado y los ventiladores de las cocinas, lo que les dificultaba respirar”, escribió el Sindicato Internacional de Empleados de Servicios, que incluye a trabajadores del sector de comida rápida, en una nota a OSHA. “No hay razón para retrasar más la creación de una norma cuando conocemos la magnitud del problema y sabemos cómo proteger a los trabajadores”, dijeron.

Investigadores del Atlantic Council calculan que Estados Unidos perderá una media de $100,000 millones anuales por la baja de la productividad laboral inducida por el calor a medida que el clima se vuelve más cálido. “A los empresarios les cuesta mucho dinero no proteger a sus trabajadores”, afirmó Juley Fulcher, defensora de salud y  seguridad de los trabajadores de Public Citizen, organización de Washington D.C. que aboga por que el proyecto de ley Asunción Valdivia permita a OSHA promulgar normas el año que viene.

Como modelo, Fulcher sugirió fijarse en California, Maryland, Nevada, Oregon y Washington, los únicos estados con normas que obligan a que todos los trabajadores al aire libre tengan acceso a agua, descanso y sombra.

Aunque las normas no siempre se hacen cumplir, parece que surten efecto. Después de que California instaurara la suya en 2005, se registraron menos accidentes en los reclamos de indemnización de los trabajadores cuando las temperaturas superaban los 85 grados.

Michaels afirmó que OSHA ha demostrado que puede actuar con más rapidez de lo habitual cuando el Congreso se lo permite.

En los primeros días de la epidemia de VIH/SIDA, la agencia aprobó rápidamente normas para evitar que médicos, enfermeras y dentistas se infectaran accidentalmente con agujas. Ahora existe una urgencia similar, dijo. “Dada la crisis climática y la prolongación de los períodos de calor extremo”, señaló, “es imperativo que el Congreso apruebe una legislación que permita a OSHA promulgar rápidamente una norma que salve vidas”.

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But a research study the Centers for Medicare & Medicaid Services commissioned to identify the appropriate level of staffing made no specific recommendations and analyzed only staffing levels lower than what the previous major federal evaluation had considered best, according to a copy of the study reviewed Monday by KFF Health News. Instead, the new study said there was no single staffing level that would guarantee quality care, although the report estimated that higher staffing levels would lead to fewer hospitalizations and emergency room visits, faster care, and fewer failures to provide care.

Patient advocates said the report was the latest sign that the administration would fall short of its pledge to establish robust staffing levels to protect the 1.2 million Americans in skilled nursing facilities. Already, the administration is six months behind its self-imposed deadline of February to propose new rules. Those proposals, which have not been released, have been under evaluation since May by the Office of Management and Budget. The study, dated June 2023, has not been formally released either, but a copy was posted on the CMS website. It was taken down shortly after KFF Health News published this article.

“It’s honestly heartbreaking,” said Richard Mollot, executive director of the Long Term Care Community Coalition, a nonprofit that advocates for nursing home patients in New York state. “I just don’t see how this doesn’t ultimately put more residents at risk of neglect and abuse. Putting the government’s imprimatur on a standard that is patently unsafe is going to make it much more difficult for surveyors to hold facilities accountable for the harm caused by understaffing nursing homes.”

For months, the nursing home industry has been lobbying strenuously against a uniform ratio of patients to nurses and aides. “What is clear as you look across the country is every nursing home is unique and a one-size-fits-all approach does not work,” said Holly Harmon, senior vice president of quality, regulatory, and clinical services at the American Health Care Association, an industry trade group.

Nursing home groups have emphasized the widespread difficulty in finding workers willing to fill existing certified nursing assistant jobs, which are often grueling and pay less than what workers can make at retail stores. Homes say their licensed nurses are often drawn away by other jobs, such as better-paying hospital positions. “The workforce challenges are real,” said Katie Smith Sloan, president and CEO of LeadingAge, an association that represents nonprofit nursing homes.

The industry has also argued that if the government wants it to hire more workers it needs to increase the payments it makes through state Medicaid programs, which are the largest payor for nursing home care. Advocates and some researchers have argued that nursing homes, particularly for-profit ones, can afford to pay employees more and hire additional staff if they forsake some of the profits they give investors.

“Certainly, facilities haven’t put all the dollars back into direct care over the years,” said David Grabowski, a professor of health care policy at Harvard Medical School. “But for certain facilities, it’s going to be a big lift to pay for” higher staffing levels, he said in an interview last week.

In a written statement to KFF Health News, Jonathan Blum, CMS’ principal deputy administrator and chief operating officer, said the study had been posted in error. “CMS is committed to holding nursing homes accountable for protecting the health and safety of all residents, and adequate staffing is critical to this effort,” he said. “CMS’s proposal is being developed using a rigorous process that draws on a wide range of source information, including extensive input from residents and their families, workers, administrators, experts, and other stakeholders. Our focus is on advancing implementable solutions that promote safe, quality care for residents.” Blum’s statement called the study a “draft,” although nothing in the 478-page study indicated it was preliminary.

The study has been widely anticipated, both because of the central role the administration said it would play in its policy and because the last major CMS study, conducted in 2001, had concluded that nursing home care improves as staffing increases up to the level of about one worker for every six residents. The formal metric for that staffing level was 4.1 staff hours per resident per day, which is calculated by dividing the number of total hours worked by nurses and aides on duty daily by the number of residents present each day.

CMS never adopted that staffing ratio and instead gave each nursing home discretion to determine a reasonable staffing level. Regulators rarely cite nursing homes for insufficient staffing, even though independent researchers have concluded low staffing is the root of many nursing home injuries. Too few nurse aides, for instance, often means immobile residents are not repositioned in bed, causing bedsores that can lead to infection. Low staffing also is often responsible for indignities residents face, such as being left in soiled bedsheets for hours.

The new research was conducted by Abt Associates, a regular contractor for CMS that also performed the 2001 study. But the report, in an implicit disagreement with its predecessor, concluded there was “no obvious plateau at which quality and safety are maximized or ‘cliff’ below which quality and safety steeply decline.” Abt referred questions about the study to CMS.

The study evaluated four minimum staffing levels, all of which were below the 4.1 daily staff hours that the prior study had identified as ideal. The highest was 3.88 daily staff hours. At that level, the study estimated 0.6% of residents would get delayed care and 0.002% would not get needed care. It also said that staffing level would result in 12,100 fewer hospitalizations of Medicare residents and 14,800 fewer emergency room visits. The report said three-quarters of nursing homes would need to add staff to meet that level and that it would cost $5.3 billion extra each year.

The lowest staffing level the report analyzed was 3.3 daily staffing hours. At that level, the report said, 3.3% of residents would get delayed care and 0.04% would not get needed care. That level would reduce hospitalizations of Medicare residents by 5,800 and lead to 4,500 fewer emergency room visits. More than half of nursing homes would have to increase staff levels to meet that ratio, the report said, and it would cost $1.5 billion more each year.

Charlene Harrington, a professor emeritus of nursing at the University of California-San Francisco, said CMS “sabotaged” the push for sufficiently high staffing through the instructions it gave its contractor. “Every threshold they looked at was below 4.1,” she said. “How can that possibly be a decent study? It’s just unacceptable.”

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

@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.

A divided three-judge federal appeals court panel has ruled that a lower court was wrong to try to reverse entirely the FDA’s approval of the abortion drug mifepristone. The panel did find, however, that the agency violated regulatory rules in making the drug more easily available and that those rules should be rolled back. In practice, nothing changes immediately, because the Supreme Court has blocked the lower court’s order that the drug effectively be removed from the U.S. market — for now.

The case is pivotal for the future of reproductive health, as the pill is part of a regimen that is now the most common way American women terminate early pregnancies and is also widely used by doctors to manage miscarriages.

Meanwhile, as President Joe Biden’s Inflation Reduction Act turns one, Medicare officials are preparing to unveil which 10 drugs will be the first to face price negotiation under the new law.

This week’s panelists are Julie Rovner of KFF Health News, Shefali Luthra of The 19th, Sarah Karlin-Smith of the Pink Sheet, and Alice Miranda Ollstein of Politico.

Panelists

Shefali Luthra
The 19th

@shefalil

Read Shefali's stories

Sarah Karlin-Smith
Pink Sheet

@SarahKarlin

Read Sarah's stories

Alice Miranda Ollstein
Politico

@AliceOllstein

Read Alice's stories

Among the takeaways from this week’s episode:

• Wednesday’s federal appeals court decision siding with conservative medical groups challenging mifepristone regulations has perhaps the biggest implications for the drug’s distribution via telemedicine, which has been key to securing abortion access for people in areas where abortion is unavailable.
• The ongoing legal threat to mifepristone is reverberating through the drug industry, as drugmakers worry challenges to the FDA’s scientific authority could cause serious problems for future drug development — especially in an industry that takes big financial risks on getting products approved.
• Texas is suing Planned Parenthood over past Medicaid payments made to the program, charging that the health organization “defrauded” the state, even though the claims were made while a court had specifically allowed Planned Parenthood to remain in the program. Still, the lawsuit emphasizes just how far Texas has gone, and will go, to maintain the legal authority to not support Planned Parenthood, even in its non-abortion work.
• The federal government is expected to release the list of 10 pharmaceuticals subject to Medicare price negotiations by Sept. 1. The drugs’ identities are the subject of much educated speculation, as Congress laid out in the law how drugs qualify for consideration — though even stakeholders in the drug industry are wondering which specific drugs will be up for discussion.
• A national survey of pharmacists finds drug shortages are widespread and leading to rationing at the pharmacy level. A lack of incentives to produce generic drugs is complicating supply-chain problems, leaving fewer options when there are manufacturing or other types of issues with a particular drugmaker.

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

Julie Rovner: Time’s “She Wasn’t Able to Get an Abortion. Now She’s a Mom. Soon She’ll Start 7th Grade,” by Charlotte Alter.

Sarah Karlin-Smith: MIT Technology Review’s “Microplastics Are Everywhere. What Does That Mean for Our Immune Systems”? by Jessica Hamzelou.

Shefali Luthra: The Atlantic’s “Right Price, Wrong Politics,” by Annie Lowrey.

Alice Miranda Ollstein: Politico’s “We’re on the Cusp of Another Psychedelic Era. But This Time Washington Is Along for the Ride,” by Erin Schumaker and Katherine Ellen Foley.

Also mentioned in this week’s episode:

• States Newsroom/The Georgia Recorder’s “Study Cited by Texas Judge in Abortion-Pill Case Under Investigation,” by Sofia Resnick.
• Stat’s “From Drug Shortages to High Prices, U.S. System’s Shortcomings Have Deep Roots,” by Matthew Herper.

Click to open the transcript

Transcript: Abortion Pill’s Legal Limbo Continues

KFF Health News’ ‘What the Health?’

Episode Title: Abortion Pill’s Legal Limbo Continues

Episode Number: 310

Published: Aug. 17, 2023

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

Alice Miranda Ollstein: Good morning.

Rovner: Sarah Karlin-Smith of the Pink Sheet.

Sarah Karlin-Smith: Hi, everybody.

Rovner: And Shefali Luthra of The 19th.

Shefali Luthra: Hello.

Rovner: So, no interview this week but plenty of news, particularly for the middle of August, so we will get right to it. The breaking news this week is about abortion and about a Texas abortion case, because 2023. Technically, this news is out of New Orleans, where on Wednesday a three-judge panel of the 5th Circuit federal Court of Appeals upheld, in part, a lower-court decision from Texas that found that the FDA was wrong to approve the abortion pill mifepristone back in the year 2000. Before we get any further in this discussion, we should point out that this decision does not impact the immediate availability of abortion pills. The Supreme Court earlier this spring issued a stay of the lower-court ruling, meaning nothing will change until the full outcome of the case is determined, presumably by the Supreme Court at some point, probably next year. But, Alice, remind us of what this case was about and then what the decision means.

Ollstein: Yeah. So this case is: A coalition of different anti-abortion medical groups that formed last year, specifically formed in the district that a very conservative judge was in charge of down in Texas, brought the case there. And they are going after both the original FDA approval of mifepristone more than two decades ago and a bunch of decisions the agency has made since then to make the pills easier for patients to obtain, like allowing mail delivery, like allowing their use longer into pregnancy than before — 10 weeks versus seven weeks — allowing nonphysicians to prescribe the pills, a bunch of different things.

Rovner: And allowing for a lower dose of the pill actually.

Ollstein: Yes, yes.

Rovner: Which is going to get significant in a second. Go ahead.

Ollstein: Definitely. We should talk about the labeling chaos that could result from this. But so basically, the lower-court judge went all in, agreed with everything they said, essentially, and more or less ordered a national ban. That got stayed. It remains stayed for now, but the 5th Circuit has now weighed in and endorsed some but not all of those arguments. They said, look, the statute of limitations has passed us by on challenging the original FDA approval of the drugs, but they sided with the groups in ordering FDA to get rid of all of those other subsequent decisions. And so this, if upheld by the Supreme Court — we know the Biden administration is already planning to appeal — would really put the pills out of reach for a lot of people. So, it would be a sharp curtailment, but not the total ban the groups were seeking.

Rovner: Yeah, Shefali, and this was obviously what the appeals court had been leaning towards anyway. We know that because that was what they had done before the Supreme Court overruled it. And certainly we know that Justice [Samuel] Alito and I believe Justice [Clarence] Thomas would also do this. So, there’s every reason to believe that this could well be the final outcome. What would it mean? So, the pill would still be approved, but only in the form it was allowed to be distributed before 2016?

Luthra: Precisely, which would be quite significant. You mentioned, right, the need to relabel pills based on the different formulation. We would have pills technically only approved up until seven weeks of pregnancy, although doctors could prescribe them off-label, through 12 weeks in all likelihood. But the telemedicine implications are probably some of the biggest, especially in states where they’ve seen large numbers of out-of-state patients coming for abortion care, right, because they’re near states with bans. Those clinics have really relied on telemedicine because it means they can see more people, and it’s quite safe, right? It’s endorsed by the World Health Organization. You don’t need someone to come in for two, in some cases three visits to get a couple of pills and take them at home. And to lose that would really just cut capacity and make abortions, which are already very difficult to obtain, even in states where it’s legal but there just aren’t as many clinics — like a Kansas, a New Mexico, etc. — if not impossible, very nearly so, just because the math doesn’t work in terms of providers versus patients in need.

Rovner: And the piece of this that I really don’t understand, and I read through the entire decision yesterday afternoon, was they said that the plaintiffs in the case cannot challenge the approval of the generic version of the drug, which was approved in 2019. But of course, the generic version of the drug was approved under the then-rules that that are now going to be rolled back. So you would — would you have a case for the brand name and the generic would have different labeling requirements? It seems very confusing.

Luthra: I think there are a lot of questions that are still open about what this means, right, not only for mifepristone but just for the precedents of FDA approval of medications at large, especially as we’ve seen so many more FDA-approved drugs become more politicized. And, I mean, that’s one of the reasons that so many medical groups have expressed deep concern about this case. It just opens a tremendous can of worms looking well beyond abortion and puts us in pretty uncharted territory for what comes next.

Rovner: And the drug industry is kind of freaked out. Sarah, I guess you could talk to this. I mean, the reliability of FDA approval is now called into question if anybody can basically go to court and say, “Nope, FDA, you shouldn’t have done that,” and possibly win, right?

Karlin-Smith: Right. I mean, they don’t want the scientific sort of authority of the FDA questioned. And I think, you know, like a lot of hot-button political issues where there’s maybe not a good side for them to be on, the pharmaceutical companies tend to try and stay out of abortion politics as much as they can. But some executives and so forth did join amicus briefs in this case because they are concerned about the precedent of FDA approval decisions being able to be challenged in court. And if nothing else, I think drug companies really, and any business to an extent, relies on, like, certainty. And so just having the loss of that certainty that an FDA decision really means, what it means is problematic for them. But I think also these are companies that sort of are based in science and medicine and would definitely prefer to have the assurance that those are the people that approved their drugs and kind of give that seal of approval and it means what it says.

Rovner: Yeah, and the drug industry, I think more than many others, which depends on long shots a lot. I mean, there’s just a lot of dry holes in the drug industry; you spent a lot of time and a lot of money on a drug that ends up not going anywhere. So if you spend a lot of time and a lot of money on a drug that does what it’s supposed to do and gets approved, I think that that could certainly dampen the enthusiasm if then a court could come and say, “Oops, nope.”

Karlin-Smith: And the reputation we talk a lot about, like drug pricing, on this show — the reputation of the FDA and the perceived quality and trustworthiness of its decisions is kind of why the drug companies can charge, to some degree, the prices they charge for their medicines versus, say, you know, we compare it to the supplement industry, which is very loosely regulated, and their claims are not really backed up in the same way by science and medicine. And you can buy those for much cheaper at the store. So their whole business model is really threatened by this.

Rovner: Yeah.

Ollstein: And I think it’s worth noting that one of the three judges on the panel wanted to go further and fully strip FDA approval from the drug, but he was overruled by his other two colleagues. But still, he wrote that dissenting opinion. And that could come into play if and when the Supreme Court takes this up.

Rovner: And he, of course, raised the specter of the Comstock Act, that 1800s-era anti-vice law that apparently some anti-abortion groups are hoping to sort of bring back into the 21st century — Are we in the 22nd century? I’m losing track — and try to figure out if you can just make all of this illegal.

Ollstein: Yes. Judge [James] Ho, who was appointed by [then-President Donald] Trump to the 5th Circuit, and his opinion went a lot further than his colleagues’ in embracing the arguments made by the challengers. So how much influence that has on the process going forward will be really interesting. You know, the Comstock Act has to do with things sent through the mail, and the concern from a lot of legal experts and medical groups is that the interpretation that Judge Ho and these groups are making could mean that sending anything that could potentially be used for an abortion, even if it’s medical equipment that’s also used for other things, could be in jeopardy. And this would be mail delivery. Even sending something to a state where abortion is protected by law could be challenged under this federal rule. And so, we’re definitely in a “throw things at the wall and see what sticks” kind of era. And this is one of the things they’re throwing at the wall.

Rovner: Yeah, just because nothing changes for now doesn’t mean that nothing is going to change. And we will obviously keep a very close eye on this. So last week we talked about a controversy surrounding one of the scientific studies that [District] Judge [Matthew] Kacsmaryk, the lower-court judge, relied on in his ruling. The study was by the Charlotte Lozier Institute. It found that women who had medical abortions were more likely to go to a hospital emergency room within 30 days than women who had surgical procedures. And we talked about how that paper is currently under review by the publisher of the journal the paper appeared in. During the discussion, I apparently misspoke about the paper’s findings, suggesting that it was just the raw number of ER visits that rose along with increased use of medication abortion rather than the rate of the visits. But nonetheless, this study is very much an outlier in three decades of research into the safety of the drug. And I say three decades because it was available in Europe many years before it was available in the United States. And the drug has otherwise been found to have very few serious complications, right?

Luthra: Right. I think you’re absolutely correct, Julie. The study remains an outlier. There remain serious methodological questions about how it came to its findings. And we have an incredibly rich body of research that continues to grow, that shows exactly what you said, which is that the complication rate for medication abortions remains incredibly low. Most people do not require follow-up medical care, especially not in an emergency room. And the reliance on that study in particular was quite striking because of what an outlier it is in the larger medical body of research.

Rovner: And it didn’t actually come up in the appeals court ruling, although they did say, and fair point, they acknowledged that the complication, the serious complication rate, is very low. But if it’s being used by a lot of people and we now know that medication abortion is more than half of all abortions, a very small percentage of a whole lot of people is still a fair number of people. Whether that is enough people to actually create the kind of havoc in emergency rooms that’s been suggested is a different question. But I think that the appeals court justices were fairly careful in the way they worded that. So the mifepristone ruling was not the only news this week about a Texas abortion case. Another Texas abortion case in front of Judge Kacsmaryk in fact: He held a hearing earlier this week in a case brought by the state of Texas to require Planned Parenthood to pay back more than a billion dollars in Medicaid reimbursements, not for abortions, but for family planning and other medical services covered by Medicaid. This one is a weird case even by Texas standards, right?

Ollstein: Yeah, and I’ll say that they’re suing them for more than a billion dollars, but they were only paid by Medicaid in the lower millions. You know, 17-ish million is what Planned Parenthood told me. So, the 1.8 billion is for penalties and damages. They’re accusing them of defrauding the state. So, there has been a many-years’ fight over Planned Parenthood’s participation in Medicaid in Texas specifically, also in other states. Planned Parenthood says that, you know, because lower courts for years blocked the state’s attempt to kick them out of Medicaid, they were perfectly allowed to continue providing nonabortion services, like contraception, tests, whatever, and be reimbursed for that. And the state coming back later and saying that they knowingly defrauded the Medicaid program, they see it as a political attack on them and their ability to keep providing services in the state.

Rovner: There was a court stay on Texas’ desire to kick them out of the Medicaid program, right, so at least at the time it was legal for them to bill Medicaid, and Texas paid the Medicaid claims that they billed, right?

Luthra: I think it’s also helpful to situate this in just a really long history of Texas doing whatever it can to get Planned Parenthood away from government dollars, including turning down millions in federal funding, starting their own state health program for reproductive health, just so that they could have the legal authority to not include Planned Parenthood. This is not really new, but it just is so striking because of the money at stake, because of sort of the tactics, and because of the implications in a world where Planned Parenthood isn’t even providing abortions in Texas anymore.

Rovner: This goes back probably before some of you guys were born, the efforts to sort of defund Planned Parenthood from state and federal dollars, even in states where Planned Parenthood never provided abortions. And there are a number of states where they never provided abortions. But there is a line in the Medicaid statute itself about free choice of providers for patients, and that’s what has been relied on. Lower courts have relied on that for years and years. Congress tried to change it and couldn’t. Texas is actually, I think, the first state that’s ever successfully gotten a court ruling that said they can cut Planned Parenthood out of their Medicaid program. So, it was not odd for Planned Parenthood, while this litigation was going on, to say, “We’re just going to continue to provide women who come to us with family planning and other health care services that we’ve been providing under Medicaid for generations.” But now we’ll see what Judge Kacsmaryk has to say. And then I imagine this will get appealed and we will see where this one ends up, too. Well, finally this week in reproductive health, the American College of Obstetricians and Gynecologists announced the introduction of an online abortion training program, which has been a year in the making, that will give all OB-GYN residents, even in states with abortion bans, access to at least the basics in abortion care and in caring for early pregnancy loss, which is all often the same care. But I have to wonder whether this is going to make students any more willing to do their residencies in states that effectively restrict the rights to practice medicine according to evidence-based standards. I know we’ve talked about this before, but we’re looking at what could be a serious shortage of just women’s reproductive health care in general in abortion ban states, right, if the supply of students wanting to go there to do their residencies and hence stay on afterwards is going to start to dry up?

Ollstein: I mean, it’s already happening for sure. Applications are going down in these ban states. And, you know, when I saw the online curriculum, that’s better than nothing. But all the medical students and residents I’ve spoken to really stress that, in order to be trained and, for some specialties, board-certified, you need practical experience; you need to personally participate in many, many, many abortions to be fully qualified as a physician. And they really stress that the more you do, the more different complications you’re able to observe. And if you only do a few or none and just do online curriculum, you’re not going to be really prepared for a miscarriage situation or any of the many things that could come up in the future. And these could be life-or-death moments. And so to not have people trained and ready to respond in certain states where it’s already hard to recruit people because of, you know, it’s just seen as a less desirable place to be, this is yet another factor. On top of that, you have state attorneys general who have been very litigious and threatening to providers. And so, I’m hearing that that fear is making people not want to practice in particular states.

Luthra: And I think another factor that we don’t often sort of say out loud, but that’s really relevant when it comes to OB-GYNs in training, is that the majority of OB-GYNs are women. And given the age of when people finish medical school, etc., many of them are pursuing residency when they’re at a stage in their life where they might consider getting pregnant, which means that the risks are not just professional or educational; in many cases they are quite personal, and that’s a factor that many people are considering as well.

Rovner: And even the male OB-GYNs in training, many of them are married to women and, again, same age, thinking about, it’s time to start a family. Also, it’s not just the residents themselves, but the residents’ families. I’ve seen that sort of from both sides. We should point out, I mean, there are training programs now and they’re obviously — you know, it’s only been a year, so it’s hard to sort of create these things out of whole cloth — but where residents can travel to other states to get some hands-on experience and training that they want. But again, one of the things we forget sometimes about residents is they don’t earn a lot of money and it’s a disruption. I mean, it’s hard enough to move to a place to do your residency; to then have to sort of pick up and move someplace else for a couple of months to do a rotation is not terribly convenient either. So this is obviously still all being sorted out. But the education of sort of the next generation of reproductive health providers is definitely under question here, right?

Ollstein: And it’s not just the time needed; it’s often the money, because if these people are doing their residency at a public university hospital in a ban state, that public university hospital, under the state law, is afraid to give any money to support them going to another state for training. And so often people either have to apply for grants from foundations to cover that expense or even pay out of their own pockets. So, it’s a real heavy lift.

Rovner: It is. Well, in other news, and there is other news this week, President [Joe] Biden is taking a victory lap as the Inflation Reduction Act, that omnibus health-slash-energy-slash-tax bill, turns 1. But the fate of the highest-profile health policy in that law, calling for Medicare to negotiate the prices of some very expensive drugs, is still in some doubt, as drugmakers sue to try to block the program. Sarah, where is this, and when do we expect to get that list of the first 10 drugs the government wants to negotiate the price of? That’s due soon, right?

Karlin-Smith: Right. So the list is due by Sept. 1 at the latest. So that is a week, I think, from this Friday, or no, a little bit longer than that. But the expectation, I think, is we may get it before Sept. 1, because that’s the Friday before Labor Day weekend.

Rovner: Oh, I don’t know. They love to drop stuff the Friday before Labor Day.

Karlin-Smith: Sometimes they do, and sometimes they also want to take a break too. So, we’re expecting that list of 10 drugs, which would be — their negotiated prices would go into effect in 2026. There’s lots of reasonably well-educated guesses of what those drugs are, because the law sort of lays out how they select them and we have a general sense of how much money is spent on certain drugs in the U.S. and so forth. But Medicare has the most up-to-date data. So, there are still companies that kind of have a sense of, “Oh, I might be on the edge,” depending on how their sales have been in Medicare the past few years. So, people are really curious.

Rovner: Coincidentally or not so coincidentally, I’ve seen some of the speculation, and it is all of the drugs that you see all of those ads for, if you watch, if you still watch, you know, commercial television, on the news or on cable TV. I mean, there are so many ads, and it’s like, surprise, these are all the drugs that are on the likely list that Medicare is going to want to do something about the price of. I assume that is not a coincidence. I’m being snide.

Karlin-Smith: I think some of it is, right, to qualify for the list, you have to be in sort of the top spending categories. And part of that means you’re most likely to have to treat large populations of people. So when you get to drugs like that, like anticoagulants — I think there’s a few expected to be up there — blood thinners, some anti-diabetic medicines, trying to think of some of the other examples. These are kind of mass-market drugs that a lot of people, particularly in the Medicare population, need these medicines. Some cancer medicines, anti-inflammatory drugs. So, it’s not particularly surprising that you would see advertisements for them. And in a lot of cases, too, these are drugs that have some amount of brand competition for them. So, there are two newer blood thinners that might be on there. So, you know, that tends to lead to advertisement when there’s competition in a space. Same for the diabetes medicines and the anti-inflammatories; there’s a lot of expensive biologics in that space that compete.

Rovner: Well, when I’m in charge of the FDA, they’re not going to be able to use, like, songs from the ’60s and ’70s anymore, because that just makes me crazy. Well, meanwhile, in something related to this, drug shortages seem to be getting worse. There’s a new survey from the American Society of Health-System Pharmacists that found that 99% of the 1,100 hospital pharmacists that responded said they were currently managing drug shortages, and one-third said those shortages are forcing them to ration, delay, or cancel treatment. And these aren’t minor drugs. They include cancer chemotherapies, anesthesia drugs, other things that can be difficult to get but important when you need them. Sarah, is this a manufacturing problem, or a marketing problem, or both? I mean, why are drug shortages so much worse now? It’s not all supply chain, is it?

Karlin-Smith: There’s some supply chain, and I think there’s still some supply chain issues that started during covid that are still impacting people. There are manufacturing concerns, depending on the company. You know, drug shortages have gotten a lot of attention recently, but really for probably the past decade or so that I’ve been covering the drug industry and following shortages, the reasons have tended to be the same: They tend to be older, sterile, injectable drugs that are harder to make. But yet, because they have gone generic, the prices have gone down so low that players tend to leave. So only a few players stay in the market because of the pricing situation. So then if they have any manufacturing problem, it can very easily lead to a shortage. Generic companies argue that, you know, there’s just not a lot of incentive for them to invest in redundancy or certain even manufacturing capabilities that might help prevent shortages. So, for better or worse, there really hasn’t been a lot of change in the reasons for these shortages over the years; it’s just that they keep happening.

Rovner: Yeah, well, it’s funny. Matthew Herper over at Stat News has kind of a provocative piece about all of this, suggesting, as you say, that the shortages right now are, in large part, due to the incentives to find the cheapest generics, but that this new Medicare negotiation process — which includes a different clock; it will be based on time on the market rather than time under patent — could encourage drugmakers to do the opposite thing, to sit on new drugs until they can test for all possible uses because they don’t want to bring them to market until they think they can make the most money, because that’s going to determine how long before there can be competition. I mean, is this ever really going to work, being a purely capitalist market?

Karlin-Smith: I mean, there are definitely people, you know, in the shortage space that have argued that some of the current shortages make a good case for public manufacturing of drugs. And actually, it might surprise some people, but the U.S. has engaged in the past in public manufacturing. There are some efforts going on now, like in California; they’re looking into some public manufacturing. So that’s on the generic side. On some of the other situations that Matthew Herper is describing with the IRA, it’s a bit more complicated because essentially the IRA does give companies some amount of time on the market without negotiation. But a lot of drugs, they have all these multiple indications. And so companies are just trying to figure out potentially how they can game their products to make the most amount of money before they’re subject to negotiation. And I know Medicare is quite aware of some of this stuff and is thinking about how they can set up their regulations to protect against that. But not everything is within their control. So we’ll see what happens, because there is concern, you know, particularly I think in the orphan or rare disease space, that a company may delay getting a rare disease indication based on when they think they might get subject to drug negotiations.

Rovner: Every time you think, Oh, they can just lower the price of drugs, it’s super, super complicated. All right. Well, finally this week, there’s something I’ve been trying to get to for a couple of weeks: Before Congress left for the August recess, it passed, on a bipartisan vote, a bill that could finally dethrone UNOS, the United Network for Organ Sharing. UNOS has been the outside organization handling the collection and distribution of human organs for transplant since the federal government began the federal transplant program in 1984. Over the years, UNOS has been roundly criticized for its handling, or mishandling, of the system. But the legislation that originally created the federal organ transplant program had been interpreted not to allow anyone else to compete for the contract to run the network. So, this legislation changes that, for the first time letting other entities see if they can do a better job so maybe fewer people will die waiting for transplanted organs. This feels a lot more important than the attention that it got, I think because there was so much else happening as Congress was leaving town. Or does it feel important to me because I spent so many years and so many hours watching Congress fight over this?

Karlin-Smith: I think it is important. There’s certainly been a lot of big exposés of problems in the system over the years. And there’s also been a lot of, when I’ve covered this more closely in the past, like, tensions between different parts of the country in sort of figuring out how organs are allocated and which parts of regions get impacted or not. So there has always been, like, political dynamics here. I think the underlying thing to watch with this overhaul is that part of what goes on here is we just don’t have enough organs for the number of people that need it. So, you can certainly make improvements and make sure that all the organs we have get to people and get done in the fairest way possible, because there have been lots of concerns around equity issues, particularly that Black people and other people of different ethnicities have not been, you know, getting the organs they deserve. But the question becomes, you know, can anybody do anything about a shortage of organs, and how do you really handle that? I think there’s always going to be tensions on this topic if you don’t have enough organs.

Rovner: Yeah, these were the ultimate formula fights, if you will. You know, it’s usually over money. In the ’90s and early 2000s, it was literally over organs, over, you know, how far you could ship donated organs and whether the large transplant centers should keep more because they do more organ transplants and therefore are more likely to have success. And boy, this fight has been going on for a very long time, but this is at least a step, I think, towards resolving it. All right. Well, that is this week’s news. We will take a quick break and then we will come back and do our extra credit. Hey, “What the Health?” listeners, you already know that few things in health care are ever simple. So, if you like our show, I recommend you also listen to “Tradeoffs,” a podcast that goes even deeper into our costly, complicated, and often counterintuitive health care system, hosted by longtime health care journalist and friend Dan Gorenstein. “Tradeoffs” digs into the evidence and research data behind health care policies and tells the stories of real people impacted by decisions made in C-suites, doctor’s offices, and even Congress. You can subscribe to “Tradeoffs” wherever you get your podcasts. OK, we are back and it’s time for our extra credit segment. That’s when we each recommend a story we read this week we think you should read too. As always, don’t worry if you miss it; we will post the links on the podcast page at kffhealthnews.org and in our show notes on your phone or other mobile device. Shefali, why don’t you go first this week?

Luthra: My piece is from The Atlantic, by Annie Lowrey. The headline is “Right Price, Wrong Politics.” It is incredibly smart. It is about how there is all this conversation about people wanting to move to states where they have access to health care protected, whether that is abortion or gender-affirming care, etc., etc. There is one problem, which is that those states are largely ones where it is much more expensive to live, because of housing prices. And if you want to live in a place where you can afford a home, those are often the states with restrictions on health care. I love this piece. I think there is so much conversation about, Why don’t people simply move to a place where state laws reflect what they would like? And the answer is it’s really not attainable for most people. And I think she does a great job of explaining why that is and putting it in the context of policy choices and not just sort of individual human elements.

Rovner: I was super jealous of this piece. It was like, Oh, yeah, of course. Alice.

Ollstein: I chose a piece by a couple of my colleagues, and it’s called “We’re on the Cusp of Another Psychedelic Era. But This Time Washington Is Along for the Ride.” And it’s about how much bipartisan support there is in Congress right now for making psychedelics more available as medicine to treat things like PTSD [post-traumatic stress disorder] or depression. There are just a lot more clinical trials going on right now and just support for making them available through the VA [Department of Veterans Affairs] as sort of a test of how a broader population might respond. You know, we’re talking about things like psilocybin, things like ketamine, things like ecstasy, that have shown a lot of promise in having a therapeutic benefit for mental health conditions that have resisted other forms of treatment. So, fascinating stuff.

Rovner: It is. Sarah.

Karlin-Smith: I took a look at a piece in MIT Tech Review called “Microplastics Are Everywhere. What Does That Mean for Our Immune Systems?” And it just does a good job of helping you understand what the research has shown about how these very tiny particles may impact your immune cells and then impact our ability to fight off diseases and maybe even lead to more challenges with antibiotics and antibiotic resistance. And I’ve been fascinated by all the coverage of this, because this — huge problem and, you know, they talk about them being in our air and in the deepest part of the ocean. And, you know, it’s just one of those things that we have to kind of grapple with as a society, like health, economic consequences, and so forth. So, it’s worth looking at.

Rovner: More things to keep us awake at night.

Karlin-Smith: Exactly.

Karlin-Smith: A list of more things to keep us awake at night. My story this week is one of the most talked about on social media. It’s from Time, and it’s called “She Wasn’t Able to Get an Abortion. Now She’s a Mom. Soon She’ll Start 7th Grade,” by Charlotte Alter. And as the headline indicates, it’s kind of a gutting piece about a 12-year-old in Mississippi who was raped in her own yard, was too scared to tell anyone, and ended up having a baby at age 13. It’s another story about all those things that are, quote, “made up,” or not supposed to happen. Except they did. She might have been eligible for a rape exception, except there are no abortion providers left in the state, and her mother didn’t know that rape exceptions were a possibility. In the end, the closest place for her to have gotten an abortion was Chicago, which was too far and too expensive for her family. So now she has a son while she’s going to middle school. I’m sure we will see more of these as time progresses. All right. That is our show for this week. As always, if you enjoy the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left us a review; that helps other people find us too. Special thanks, as always, to our amazing engineer, Francis Ying. And as always, you can email us your comments or questions. We’re at whatthehealth@kff.org. Or you can tweet me or X me or whatever. I’m still there, @jrovner, also on Bluesky and Threads. Shefali?

Luthra: I’m @shefalil.

Rovner: Alice.

Ollstein: @AliceOllstein.

Rovner: Sarah.

Karlin-Smith: I’m @SarahKarlin or @sarahkarlin-smith.

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.

It took more than two years, but the Biden administration has finally kept a promise made by then-candidate Joe Biden to roll back the Trump administration’s expansion of short-term, limited-duration health plans. The plans have been controversial because, while they offer lower premiums than more comprehensive health plans, they offer far fewer benefits and are not subject to the consumer protections of the Affordable Care Act.

Also this week, the FDA for the first time approved the over-the-counter sale of a hormonal birth control pill. With more states imposing restrictions on abortion, backers of the move say making it easier to prevent pregnancy is necessary now more than ever.

This week’s panelists are Julie Rovner of KFF Health News, Alice Miranda Ollstein of Politico, Amy Goldstein of The Washington Post, and Rachel Cohrs of Stat.

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Alice Miranda Ollstein
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Amy Goldstein
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Rachel Cohrs
Stat News

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Among the takeaways from this week’s episode:

• The FDA’s much-anticipated approval of the first over-the-counter hormonal birth control pill followed the advice of its outside advisory committee. The pill, Opill, will be available on shelves without age restrictions.
• The Biden administration announced moves to limit so-called junk plans on insurance marketplaces. The Trump administration had dropped many restrictions on the plans, which were originally intended to be used for short-term coverage gaps.
• As the nation continues to settle into a post-Dobbs patchwork of abortion laws, the Iowa Legislature approved a six-week ban on the procedure. And an Idaho law offers a key test of cross-border policing of abortion seekers, as other states watch how it unfolds.
• In other news, Georgia’s Medicaid work requirements took effect July 1, implementing new restrictions on who is eligible for the state-federal program for people with low incomes or disabilities. And the Supreme Court’s decision on affirmative action has the potential to shape the health care workforce, which research shows could have implications for the quality of patient care and health outcomes.

Also this week, Rovner interviews KFF Health News’ Bram Sable-Smith, who reported and wrote the latest KFF Health News-NPR “Bill of the Month” feature, about a patient who lacked a permanent mailing address and never got the hospital bills from an emergency surgery — but did receive a summons after she was sued for the debt. If you have an outrageous or exorbitant medical bill you want to share with us, you can do that here.

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

Julie Rovner: KFF Health News’ “Doctor Lands in the Doghouse After Giving Covid Vaccine Waivers Too Freely,” by Brett Kelman.  

Rachel Cohrs: ProPublica’s “How Often Do Health Insurers Say No to Patients? No One Knows,” by Robin Fields, and Stat’s “How UnitedHealth’s Acquisition of a Popular Medicare Advantage Algorithm Sparked Internal Dissent Over Denied Care,” by Casey Ross and Bob Herman.  

Amy Goldstein: The New York Times’ “Medicare Advantage Plans Offer Few Psychiatrists,” by Reed Abelson.  

Alice Miranda Ollstein: The Wall Street Journal’s “America Is Wrapped in Miles of Toxic Lead Cables,” by Susan Pulliam, Shalini Ramachandran, John West, Coulter Jones, and Thomas Gryta.  

Also mentioned in this week’s episode:

• Stat’s “How One Medical School Became Remarkably Diverse — Without Considering Race in Admissions,” by Usha Lee McFarling.
• The New York Times’ “With End of Affirmative Action, a Push for a New Tool: Adversity Scores, by Stephanie Saul.

click to open the transcript

Transcript: The Long Road to Reining In Short-Term Plans 

KFF Health News’ ‘What the Health?’Episode Title: The Long Road to Reining In Short-Term PlansEpisode Number: 305Published: July 13, 2023

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

Julie Rovner: Hello and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent 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 13, at 10 a.m. As always, news happens fast and things might have changed by the time you hear this. So here we go. Today we are joined via video conference by Alice Miranda Ollstein of Politico.

Alice Miranda Ollstein: Good morning.

Rovner: Rachel Cohrs of Stat News.

Rachel Cohrs: Hi, everybody.

Rovner: And Amy Goldstein of The Washington Post.

Goldstein: Good to be with you.

Rovner: Later in this episode, we’ll have my interview with KFF Health News’ Bram Sable-Smith, who wrote the latest KFF Health News-NPR “Bill of the Month.” The hospital that provided care to this month’s patient couldn’t find her to send her a bill, but the debt collectors sure could. But first, this week’s news. Actually, it’s more like the last month’s news because we actually haven’t talked about news in a while. So we’re going to try to hit a bunch of items in sort of a lightning round. Let’s start with something we knew was coming. We just didn’t know exactly when. Last week, the Biden administration finally cracked down on short-term health plans. Those are the ones that are not subject to the strict rules of the Affordable Care Act. Amy, you wrote about this. What are short-term plans, and why have they been so controversial?

Goldstein: Well, short-term plans — they’re called short-term limited-duration plans, and really terrible argot, but that’s their name. They’ve been around as an alternative to plans that are meeting the rules of the Affordable Care Act. They were originally designed for people to use as small bridges between, say, when they lost a job and they were about to get a new job and they needed something in the interim to provide health coverage. Republicans, during the time that they were trying very hard several years ago to get rid of as much as the Affordable Care Act as they could — they didn’t succeed at a lot of that, but they did succeed during the Trump administration at lengthening the time that people could have these plans. So they extended them from what had been a three-month maximum during the latter part of the [Barack] Obama administration to 12 months, and then they were renewable for up to three years. And Democrats began calling these “junk plans,” saying that people didn’t exactly know what they were buying, that the premiums were low but the benefits were small and if people got sick and really needed a lot of care they could be stuck paying for a lot of it on their own.

Rovner: And these were the very plans that the ACA was kind of designed to get rid of, right, where people would say, I have this great health plan, it only costs me $50 a month — but by the way, it only provides $500 worth of care.

Goldstein: Well, there’s that. And the other thing that the ACA was designed to do is treat people with preexisting conditions equally. And these plans do not have to do that. Some do, but they’re not required to. So President [Joe] Biden, since he was candidate Biden running for the 2020 election, has been saying for quite a while that he was going to knock down the duration of these plans, and some of his fellow Democrats have been leaning on him: “Why haven’t you done it yet?” And last week, he finally did. He didn’t bring it exactly to where the Obama administration had it, but he brought them down to three months with a one-month extension, so a total of four months.

Rovner: And I guess the resistance here is that they’re still kind of popular, right, for people who think they would rather pay very low premiums for very few benefits?

Goldstein: Well, the catch is that we don’t really know how popular they are because there aren’t very reliable data on how many people have these. But the presumption is that some people like them.

Rovner: All right, well we will see what happens with this time they’re trying to crack down. Let us move on to abortion and reproductive rights. We will start with the breaking news. The Food and Drug Administration just this morning approved Opill, which is the first over-the-counter birth control pill. Alice, we’ve known this was coming, right?

Ollstein: Yes, we did. We thought it would be a little later in the summer. But the decision itself reflects what the FDA’s outside advisory panel strongly recommended, which is to make these pills available over the counter without a prescription and without an age restriction, which was one looming question over this process.

Rovner: Yeah, I guess, Rachel, I mean, the issue here has been can women be trusted enough to know when they shouldn’t take birth control pills because they are contraindicated for some people?

Rachel Cohrs: Right. And I think that certainly it’s important to read through the information. There’s a question as to whether women will do that. And one part of the release that stood out to me is that the specific type of pill that this is requires women to take it around the same time every day, which is not necessarily the case for all birth control pills. And I think there’s a little bit more flexibility than there used to be with this kind of pill. But it is just important that all of this communication happens. And if there’s not a doctor or pharmacist in the middle, I think it will be kind of interesting to see how this plays out in the real world.

Rovner: Well, while this could definitely help people prevent pregnancy who don’t want to get pregnant, there’s certainly a lot of action still in the states around abortion. We’re going to start in Iowa, which since the last time we spoke has done basically a 360 on abortion. Last month, the state Supreme Court deadlocked on whether to reinstate a 2018 ban on almost all abortions. That left a lower court order blocking the ban intact, so abortion remained legal in Iowa. But anti-abortion Gov. Kim Reynolds refused to take no for an answer. She called a special session of the state legislature, which on Tuesday essentially repassed the 2018 ban. It’s supposed to take effect as soon as the governor signs it, which could be as soon as Friday. But first it goes back to court, right, Alice?

Ollstein: Right. As with all of these things, there’s just a lot of back-and-forth before it’s final. Groups have already filed a lawsuit. And, you know, because the courts’ sort of mixed treatment of the previous version of this, we sort of don’t know what’s going to happen. But the law could go into effect and then be blocked by courts later or it could be blocked before it goes into effect. There’s a lot of different ways this could go, but this is one of several states where new restrictions are coming online. We’re more than a year out from the Dobbs decision now, and things are not settled at all. Things are still flipping back and forth in different states.

Rovner: Yeah, there’s a lot of states where old restrictions came into effect and then were blocked and now they’re putting new restrictions and they might be blocked. Well, turning to another “I” state, this time Idaho, where the legislature this spring passed a first-in-the-nation bill attempting to criminalize the act of helping a minor cross state lines for an abortion, even if the abortion is legal in the state the minor travels to. Now, abortion rights supporters have filed a first-in-the-nation lawsuit to block the first-in-the-nation law. This could have really big ramifications. This is different from a lot of what’s going on in a lot of the other states, right?

Ollstein: Yeah. Over the last year, there’s been a lot of fear on the left of states reaching across their borders to try to police abortion. And it hasn’t really happened yet that we have seen. And so this, I think, is a key test of whether more states will attempt to go in this direction. You know, a lot of blue states passed sort of shield laws for patients, for providers, for data, out of fear that more red states would attempt more cross-border policing. But that really hasn’t materialized broadly yet.

Rovner: I remember Missouri was the one that was talking about it, right, to make it a crime if —

Ollstein: Right.

Rovner: I know they didn’t do it, but they were talking about if women went particularly to Illinois, which is now one of these abortion havens, and came back, they would try to prosecute them, although that never really came to be.

Ollstein: Exactly. And so it’s interesting that even really conservative states with big Republican majorities, most have not gone down this road yet. And so I imagine a lot of them are watching how this case goes.

Rovner: Well, as long as we’re talking about states that start with “I,” let’s turn to Indiana, where Planned Parenthood reports that all of their appointments for abortions are taken between now and when that state’s near-total ban takes effect in a few weeks. This points out something I think often gets missed in these sort of score card maps of states that have bans and restrictions, which is there’s a lot of states where abortion is technically still legal but realistically not available, right?

Ollstein: The difference between being technically legal and available is nothing new. This was true prior to Dobbs as well. There were lots of states that only had one abortion clinic for the entire state. There were, like, six of those. And so, you know, you may have the right to have the procedure on paper, but if there’s only one place you could go and you’re not able to physically get there or they don’t have an appointment within the time window you need, you’re out of luck; that right isn’t, you know, meaningful for you. And so that’s becoming, you know, more true as abortion access is eliminated in a lot of the country and more and more people are depending on fewer and fewer states.

Rovner: And fewer and fewer clinics in fewer and fewer states. Well, finally, an update on the one-man nomination blockade by Alabama Republican Sen. Tommy Tuberville, who we talked about in March. He has stopped approval of basically all Defense Department personnel moves, including routine promotions, in protest of the Biden administration’s policy of providing leave and travel expenses for servicewomen to get abortions if they’re stationed in states where it’s illegal. Now, for the first time in more than 150 years, the Marine Corps has no approved commandant. Any idea which side’s going to back down here? Rachel, this is backing up the entire legislative calendar in the Senate, right?

Cohrs: It is. And I think some of the coverage this week has highlighted just how there hasn’t really been a willingness among Republican leadership to really put the pressure on Tuberville. But honestly, I don’t know when this stops for him. Having temporary leadership in all these positions isn’t kind of the impetus for him to say that he’s made his point. And I think there are also questions about — there may be more education required about exactly what the difference is between a temporary leader and a permanently installed leader. Obviously, the decisions that they’re making every day are life-and-death and are different than the leadership positions we see over at something like the NIH [National Institutes of Health], where, you know, I think it is —

Rovner: Which is also held up. But that’s another story.

Cohrs: Right, another story. But I just don’t see where this ends quite yet, unless there’s some will from Republican leadership to really bring him in line. And they just haven’t summoned that yet.

Rovner: I imagine there’ll be a vote on this when they get to the defense bill, right, which —the defense authorization, which is going to come up, I think, in both houses in the coming weeks. I mean, one would think that if there’s a vote and he loses, he might back down. I’m just guessing here. I guess we’ll have to wait and see what happens with that. All right. Well, it’s also been a busy couple of weeks in other social policy. On the one hand, a new federal law took effect that makes it easier for people to get accommodations to be able to do their jobs while pregnant. And Maine is going to start offering paid family and parental leave, although not until 2026. That makes it the 13th state to enact such a policy. On the other hand, Georgia is the first state to implement work requirements for Medicaid. Amy, the last time we discussed this, federal judges had tossed out Medicaid work requirements and Republicans in Congress were unsuccessful in getting those requirements back into the debt ceiling compromise. So how come Georgia gets to do this?

Goldstein: Well, I’ve begun to think of Medicaid work requirements as whack-a-mole, if you remember the arcade game in which you knock down an animal with a mallet only to have it pop up unexpectedly somewhere else. So, as you say, work requirements was something that Republicans were very eager to institute in 2017, 2018, when the Trump administration’s Center for Medicare & Medicaid Services encouraged states to adopt them. And there were basically plans to give people Medicaid at the time, mainly people in Medicaid expansion groups, if they worked or went to school or did community service for at least 80 hours a month. As you say, that was knocked down both by a district court and then a federal circuit court. And it looked like that was that, particularly when the Biden administration came along and undid the Trump administration’s regulation that had allowed states to submit proposals, the waivers for these kinds of plans. Well, lo and behold, Georgia said they wanted to do this. They said they wanted to do it in a little bit different way, because, for the first time ever, Georgia was going to be a partial expansion state for Medicaid, allowing people to get onto Medicaid if they had incomes up to the poverty level but not up to the full expansion poverty level that the ACA allows. And the Biden administration didn’t like that so much. And that partial expansion was to be twinned with work requirements. The Biden administration didn’t —

Rovner: For that expansion group, though, right? Not for everybody.

Goldstein: Just for that partial expansion group. The Biden administration didn’t like that so much. But last summer, a judge in Georgia said, no, she thinks this is OK. And the reason was that, unlike the other states, if this was pegged to a partial expansion, any expansion with work requirements would increase the number of people with Medicaid. So that was sort of in her judge judgment — I shouldn’t say the judge’s judgment — consistent with the purposes of the program. So Georgia has gone ahead, and the beginning of this month they allowed people to start enrolling in something called Georgia Pathways to Coverage. And we’ll have to see how it goes.

Rovner: Yeah. And just to be clear, I mean, Alice, you did some stellar work back a couple of years ago about Arkansas, about people losing coverage because of the work requirements, even if they were working, just because of how hard it was to report the work hours, right?

Ollstein: Absolutely. I mean, it’s kind of what we’re seeing now with the Medicaid unwinding, is that, you know, people just aren’t able to know what’s going on, aren’t able to be reached, fall through the cracks, can’t navigate the bureaucracy, and lose coverage that they should be entitled to. So we saw that happen, and I think to Amy’s point, the administration seems to be taking a very different stance on states like Arkansas, you know, which already had expanded Medicaid and then went to impose a work requirement, whereas Georgia didn’t have it before and this is kind of a compromise because it’s like, well, more people will be insured if we allow this to go forward total, you know, so maybe it’s better than nothing, although a lot of folks on the left are very opposed to the concept of work requirements, citing data that the people who are on Medicaid who can work are already working — the vast, vast, vast majority. And those who are not working, either they are caring for a child or someone with disability, or they themselves have a disability, or they’re a student. You know, there’s all these categories of why folks are unable to work.

Rovner: But in this expansion group, one would assume that if they’re earning up to the federal poverty line, they have some source of income. So one would assume that many of them are working. But I think it’ll be really interesting for researchers to watch to see, you know, a sort of a proof of concept in either direction with this.

Goldstein: And let me quickly mention a couple of things. Georgia’s rules are actually in some ways the same as what other states had tried to do previously. But in other ways, this is the strictest set of work requirements that anyone has tried in a couple of ways: People have to meet these work requirements up to age 64, which is older than other states had done for the most part. There’s also no exemption if you’re taking care of a child or taking care of an older family member. So how well people, in addition to the bureaucratic hoops that Alice was talking about, which are of grave concern to some of the people who oppose this in Georgia — there’s also a question of who’s going to actually be able to qualify for this.

Rovner: While we are on the subject of court decisions, one of the odd court decisions that I think has happened over the past few weeks is a federal district court decision out of Louisiana barring many officials in the Biden administration, including the surgeon general and the head of the CDC [Centers for Disease Control and Prevention], from talking to social media sites, particularly about things like medical misinformation. This feels like something I had not seen before in terms of actually trying to ban the administration from talking to private companies based on First Amendment concerns, which is what this is.

Cohrs: Right. Well, I mean, the First Amendment protects speech from interference from the government —

Rovner: Right

Cohrs: — which has always been, you know, this gray area with these independent platforms. And I think this issue, you know, has obviously become highly politicized. It came up several times when Rochelle Walensky, the former CDC director, was testifying on the Hill. So I think certainly we’ve seen this trend overall in these highly political court decisions and this strategy that certain litigants are taking where they’re trying to find defendants in a certain jurisdiction that’s going to be advantageous to them. So it will certainly be interesting to see how this plays out in the future and makes its way through the court system, but certainly is an eye-popping precedent. Like you mentioned, we don’t usually see something like this.

Rovner: And I wanted to mention, I think also because this is yet another of these judges that the right has found that are likely to agree with them. Like we’ve seen now: The judges in Texas, we now have one in Louisiana. Sort of kind of watch that docket. While we are still on the subject of courts, 2023 was the first year in the last decade or so that there was not a major health-related decision in the last big cases decided by the Supreme Court. But it seems like one of those non-health cases, the one essentially striking down affirmative action, might have some major implications for health care after all, particularly for medical education, right?

Cohrs: Yes. Some of my colleagues did some I think great follow-up reporting on this. And I think the idea is that there has been research that has shown that when patients are able to see a doctor of their same racial background, that it does have positive implications for their care. And there has also been studies of schools where there have been bans on race-conscious admissions showing that there is a decrease in medical school students from underrepresented backgrounds traditionally. And so I think that cause and effect is concerning for people, that if there are fewer medical students — there already aren’t a representative amount — from underrepresented groups, that could trickle down to, again, just exacerbating so many of these inequities that we see in health care provision. I know there was just a big study on the maternal mortality outcomes that came out recently as well. And I think all of these things are tied together. And I think Axios reported on one interesting potential loophole, was using proxy measures, like where someone went to school or their parents’ background, something like that, to try to ensure diversity from that lens. But I think it certainly is going to make these medical schools recalculate how they’re doing admissions and make some hard choices about how to maintain diversity that can be beneficial for patients.

Rovner: One thing that I think has come up in all of these discussions is the fact that the University of California-Davis has done an interesting job of creating a very diverse medical school class, even though race-conscious admissions have been banned in California for years. So I think a lot of schools are going to be looking sort of to see what UC Davis has done and perhaps emulate that. And I will put one of the UC Davis stories in the show notes for everybody. All right. Finally in this week’s news, the drug industry has filed a lawsuit challenging the Medicare drug price negotiation program that’s just now starting to get off the ground. Rachel, you wrote about this. How does pharma think it can block price-setting for Medicare that Medicare does for pretty much everything else that Medicare pays for? They set prices for hospitals and doctors and medical equipment. Why are drugmakers thinking that they’re special?

Cohrs: Right. So, again, this is four lawsuits as well, not just one: two from two trade groups and two drugmakers. And they’re each kind of using different arguments. But I think the big picture here is if the government called it price-setting, I don’t think pharma would have as much of an argument, but they’re calling it a negotiation. And I think one of the drugmakers’ key claims is that by signing these contracts to enter into this process, they’re tacitly admitting that this price that they come up with in this process is, quote-unquote, “fair.” And, you know, they don’t want to agree to that because then it makes the price that they’re charging everyone else look unfair on the other side of the coin. And I think there’s also these really high penalties for these companies who decide not to participate; I mean, tens of millions of dollars on the first day is the kind of number that we’re seeing for some of these companies that have filed lawsuits. And I think there’s also the option for them to take all of their drugs off of the market. But I think there’s a question with the timeline of whether they could have even done that before the law was passed. So the big picture from the drugmaker side of things is that the penalties are so high for them not to participate and that the government is framing this as a negotiation when it really is just price-setting, like Medicare does in so many other areas. So I think one interesting development that happened this week was that the [U.S.] Chamber of Commerce filed a motion for a preliminary injunction, which could make all of these lawsuits move much faster and really put a stop to the program. We hadn’t seen either of these lawsuits request a motion like that. And I think they requested a ruling by Oct. 1, which is when the first kind of round of 10 drugmakers would have had to sign their contracts with Medicare. So I think this certainly is picking up speed and urgency as we’re moving toward that Sept. 1 selection date.

Rovner: I didn’t even notice. Are these lawsuits all filed here in Washington, D.C., or —

Cohrs: No, they are not. As we’ve seen, the drugmakers are very strategic in where they filed. I think Merck did file in D.C., but the chamber filed in Ohio; it had some of their local chapters join in as well. I think we saw another company file in New Jersey. So I think they are kind of hedging their bets and trying to get rulings from as many different jurisdictions as they can.

Rovner: Find a judge who’s willing to slap an injunction on this whole thing.

Cohrs: Yes.

Rovner: Which we will talk about when and if it happens. All right. That is this week’s news, or at least as much as we have time to get to. Now, we will play my “Bill of the Month” interview with Bram Sable-Smith, and then we will be back with our extra credits. We are pleased to welcome back to the podcast Bram Sable-Smith, who reported and wrote the latest KFF Health News-NPR “Bill of the Month.” Bram, so nice to see you again.

Bram Sable-Smith: Always a pleasure to be here.

Rovner: So, this month’s patient was, like a lot of young people, an uninsured 23-year-old when she ended up in the emergency room. Tell us who she is and what kind of medical care she needed and got.

Sable-Smith: Yeah, that’s right. Her name was Bethany Birch. And, in addition to being uninsured, she was also unemployed at the time, and she had had pain in her diaphragm for eight months. It prevented her from eating. She lost about 25 pounds in that time. And when she went to the emergency room, she found out she needed her gallbladder removed.

Rovner: And got it, right?

Sable-Smith: And got it. Yeah, she got that surgery almost immediately. Because she hadn’t been eating food — her food resistance — it meant she could get in for surgery right away.

Rovner: And that cured her? Yes?

Sable-Smith: It did cure her. Yes, she felt a lot better.

Rovner: So now we’re talking about the bill. The hospital tried to send her the bill, but apparently it couldn’t find her. Is this a common thing, and why couldn’t they find her? One presumes she gave them an address when she presented at the emergency room.

Sable-Smith: She did give them an address, but by the time she was discharged, she had lost her housing. Her home situation was unstable. So just that brief visit to the hospital, by the time she left, she had no more house to live in. And she did end up crashing with her family for several months. And, eventually, she did update her address with the post office. But by the time she had done that, it was after the hospital had sent the three bills to her for her visit.

Rovner: So the hospital doesn’t get any response, and they do what we know hospitals do. They sued for nonpayment. And the debt collection firm did manage to find her. So then what happened?

Sable-Smith: Well, she went to court, and like so many people who end up in court with medical debt, she did not have a lawyer representing her. She met with a representative from the debt collection firm, and she worked out a payment plan to pay her bill, plus court costs, in $100 monthly installments. But at the time, Tennessee had a default interest rate on judgments like the one that Bethany had of 7%. So the judge tacked on a 7% interest rate to her bill.

Rovner: So, yeah, and that was presumably a lot for her to carry. What finally happened with the bill?

Sable-Smith: Well, she paid her $100 monthly payments for over four years. It totaled about $5,200 she paid in that time. But at the same time, the interest rate was accruing. And so she owed an additional $2,700 on top of the initial bill that she had gotten. From her perspective, it was just impossible. She wasn’t digging out of this debt. So she started getting help from a family friend, who’s a billing expert, who took on her case. They asked the hospital and the debt collection firm to settle her debt because she had already paid so much. But they were unsuccessful in doing so. They sent their bill to us. We started reporting the story. Then they asked again to settle her debt by paying an additional $100 on top of what she had already paid. And this time they agreed. And so she settled her debt and she got a balance-zero statement.

Rovner: Amazing how just one phone call from us can do some work. Now, as somebody who is unemployed and, as you pointed out, uninsured at the time she got the care, Bethany should have been eligible for the hospital’s financial assistance policy. Why didn’t she get help before the debt ballooned with court costs and all that interest?

Sable-Smith: Well, the simple answer is that she never applied. But, as we know, it’s much more complicated than that. So given her status as single, uninsured, unemployed, it’s very possible that she would have qualified for financial help, maybe even for free care altogether. But the onus was on her as a patient to apply. And we know her situation was unstable. You know, she went through a period of homelessness. She didn’t have a lot of expendable money at the time. It’s a long process to apply for these programs. There’s a lot of forms. It can be cumbersome. And that prevents a lot of people from applying to these programs. So advocates push for something called presumptive eligibility, where the hospital takes the onus of applying away from patients and they automatically put them through the process. And this hospital that Bethany went to, they actually have switched to that presumptive eligibility model, just not in time to help her case.

Rovner: So what’s the takeaway here? I guess everybody has to be a proactive patient, not just with your medical care, but especially with your bills. What happens to a patient who finds themselves in a similar situation?

Sable-Smith: Well, you know, from a consumer standpoint like that, one takeaway is to ask for financial help. A lot more people qualify than you might think. You might not think you qualify, but it’s very possible you could. And then from a policy perspective, hospitals switching to presumptive eligibility — that’s something that they’re able to do. And also, some states have pushed to ban or even limit interest payments on this kind of medical debt. So that’s something that other people are considering as well.

Rovner: Or you can write to us, and we will show you how in our show notes.

Sable-Smith: That’s always a possibility, too.

Rovner: Bram Sable-Smith, thank you so much.

Sable-Smith: Yeah, thanks for having me.

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

Cohrs: OK, I’m cheating a little bit and I’m doing a double feature. So the first story for my extra credit is headlined “How Often Do Health Insurers Say No to Patients? No One Knows.” It’s in ProPublica by Robin Fields, and I think it’s just a great feature on the idea that Obamacare entitled the government and patients to more information about how often insurers deny care to patients. And the government hasn’t really pursued that information. And even, like, state health insurance commissions aren’t providing the information they’re collecting. And Robin just had such a difficult time getting any sort of information from anyone, even though we’re legally entitled to it. So I thought that was just kind of a great highlight of this next area of criticism of the health insurance industry, which, and I think that —

Rovner: I would say, all this focus on premiums and not as much focus on what you actually get for those premiums.

Cohrs: Exactly. So true. I think there’ve been some high-profile examples, great reporting. And I thought that meshed well with some reporting from my colleagues Casey Ross and Bob Herman, who wrote a follow-up to some of their prior reporting titled “How UnitedHealth’s Acquisition of a Popular Medicare Advantage Algorithm Sparked Internal Dissent Over Denied Care.” Again, looking at how algorithms in this one privatized Medicare program, which is growing in size and enrollment across the country, was actually overruling clinicians’ decisions about how long patients should be receiving care in facilities. And if the algorithm says they should be done, then they’re done. And I think it definitely sparked some concerns from people in the company who were willing to speak to them just because they were so concerned about this trend.

Rovner: Alice.

Ollstein: I have a very impressive investigation from The Wall Street Journal. There are five bylines, and we will post the link. This is about lead-covered telecom cables owned by AT&T, Verizon, other companies that have been left to decay and leach into the environment all around the country. This documents how the companies knew about them but have not moved to clean them up and get rid of them. They are impacting water sources. They are near playgrounds where children are, and it goes into the very disturbing health impacts of lead exposure. This is something the country has made a lot of progress on when it comes to paint and other sources, but obviously we still have a long way to go.

Rovner: Yeah, because there’s not enough things to be worried about environmentally, here is something else. It is very good reporting.

Rovner: Amy.

Goldstein: My extra credit this week is from The New York Times, by Reed Abelson, with the headline “Medicare Advantage Plans Offer Few Psychiatrists.” And this isn’t a giant story, but I think it is at the nexus of two very important questions: one, the long-standing question of whether privatized Medicare is better or worse for people who are older Americans on Medicare than the traditional version of Medicare; and the question of are people getting enough access to mental health care? And I guess what struck me is that there’s been so much attention lately to the question of access to mental health services for younger Americans, and this looked at the question of access to mental health services for older Americans. And what this story, based on a study, talks about is that the study found that more than half of the counties, the researchers who did this study found, is that those counties did not have a single psychiatrist participating in Medicare Advantage and that a lot of these plans have what’s called “narrow” or “skinny” networks, where a very small fraction of the available psychiatrists in a community were in that plan’s network. Now, [there are] people who are criticizing that study saying, well, you can’t look at just psychiatrists; there are other people who provide competent mental health care. But I think it just raises the question of who is getting what they need.

Rovner: Indeed. Well, my story this week is also about just plain good reporting. It’s called “Doctor Lands in the Doghouse After Giving Covid Vaccine Waivers Too Freely.” It’s by Brett Kelman of KFF Health News. But it’s about some old-fashioned reporting by another outlet, Nashville’s NewsChannel 5. It seemed that during the height of the covid vaccine rollout, when lots of places were requiring proof of vaccines and lots of people didn’t want to get them, the doctor in question, named Robert Coble, was providing waivers through a website without much —OK, any — oversight. How did they prove it? By obtaining a waiver for a reporter’s black Labrador retriever, Charlie. Earlier this spring, Coble quietly surrendered his medical license to the state Department of Health. Journalism works. OK, that is our show for this week. As always, if you enjoy the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left us a review; that helps other people find us too. Special thanks, as always, to our producer, Francis Ying. Also as always, you can email us your comments or questions. We’re at whatthehealth@kff.org. Or you can still tweet me. I’m @jrovner. I’m on Threads too, @julie.rovner.

Rovner: Amy.

Goldstein: I’m @goldsteinamy.

Rovner: Rachel.

Cohrs: I’m @rachelcohrs on Twitter and @rachelcohrsreporter on Threads.

Rovner: Alice.

Ollstein: @AliceOllstein.

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.

It’s an understatement to say a lot has happened in the year since the Supreme Court overturned the nationwide right to abortion in its decision in Dobbs v. Jackson Women’s Health Organization.

But while many of the subsequent legislative and court actions to either ban or preserve access to abortion were predicted, the decision has had other, sometimes far-reaching consequences.

In this special episode of KFF Health News’ “What the Health?” four reporters who have closely covered the issue — host and KFF Health News chief Washington correspondent Julie Rovner, Alice Miranda Ollstein of Politico, Shefali Luthra of The 19th, and Sandhya Raman of CQ Roll Call — try to condense all that has happened since the nationwide right to abortion was revoked.

Panelists

Shefali Luthra
The 19th

@shefalil

Read Shefali's stories

Alice Miranda Ollstein
Politico

@AliceOllstein

Read Alice's stories

Sandhya Raman
CQ Roll Call

@SandhyaWrites

Read Sandhya's stories

Among the takeaways from this week’s episode:

• In the Dobbs ruling last year, some justices said the decision would settle the issue of abortion in the courts. That has turned out not to be the case; jurisprudence about abortion access continues, largely in state courts.
• President Joe Biden has issued executive orders to preserve access to reproductive health care, including recently by directing federal agencies to find ways to increase access to contraception. But not all of the administration’s calls have translated into federal action, and some progressive groups are disappointed the Biden administration has not gone further in protecting abortion care.
• Perhaps the most significant action in Congress has been Sen. Tommy Tuberville (R-Ala.) blocking Pentagon nominations over a Defense Department policy supporting the ability of troops and their dependents to travel for abortion care. So far he has held up more than 250 nominations amid accusations that he is undermining national security.
• After Dobbs, there was anxiety in Democratic-run states that abortion restrictions would seep across state borders and lead to interstate prosecutions targeting abortion care. Those concerns have, so far, not materialized. Meanwhile, some states are attempting more roundabout ways to ban abortion, such as requiring all abortions be performed in hospitals when there are no hospitals in the state that perform the procedure.
• Polls show voters are now more supportive of abortion access than they have been in many years; more opposed to second-trimester bans; and more likely to identify abortion as a key priority when they vote. Health care providers are finding themselves pressed into advocacy or choosing to move to other states, potentially creating long-term care deserts.
• Plus, our panel of reporters reflects on one thing that will stick with them from their experiences covering abortion in the first year after the overturning of Roe v. Wade.

Also this week, Rovner interviews Alina Salganicoff, senior vice president and director for Women’s Health Policy at KFF. For KFF research and resources on reproductive health, click here.

Plus, for “extra credit,” the panelists suggest the favorite abortion-related stories they wrote in the past year they think you should read, too:

Julie Rovner: KFF Health News’ “Three Things About the Abortion Debate That Many People Get Wrong,” by Julie Rovner.

Shefali Luthra: The 19th’s “93 Days: The Summer America Lost Roe v. Wade,” by Shefali Luthra.

Alice Miranda Ollstein: Politico’s “Kansas’ Abortion Vote Kicks Off New Post-Roe Era,” by Alice Miranda Ollstein.

Sandhya Raman: Roll Call’s “Conservatives Use Abortion Strategies in Fight Over Trans Care,” by Sandhya Raman.

click to open the transcript

Transcript: A Year Without Roe

KFF Health News’ ‘What the Health?’

Episode Title: A Year Without Roe

Episode Number: 304

Published: June 29, 2023

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

Julie Rovner: Hello and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent at KFF Health News. We’re back in Washington this week, joined by some of the best and smartest health reporters. We’re taping this week on Thursday, June 29, at 10 a.m. As always, news happens fast and things might have changed by the time you hear this. So here we go. We are joined today via video conference by Alice Miranda Ollstein of Politico.

Alice Miranda Ollstein: Good morning.

Rovner: Shefali Luthra of The 19th.

Luthra: Hello.

Rovner: And Sandhya Raman of CQ Roll Call.

Raman: Good morning.

Rovner: So after last week’s special with the current and two former Health and Human Services secretaries, which I hope you all enjoyed, we have another special episode for you this week, one year after Roe fell. Saturday, June 24, marked a year since the Supreme Court overturned the nationwide right to abortion with its decision in Dobbs v. Jackson Women’s Health Organization. We’re going to start with an interview with my KFF colleague Alina Salganicoff, all about the work KFF has done on this topic over the last year. Spoiler alert: It’s been a lot. Then we’ll have our regular panel discussion. So, without further ado, here is the interview. I am pleased to welcome to the podcast my colleague Alina Salganicoff, senior vice president and director of Women’s Health Policy here at KFF. Alina, welcome to “What the Health?”

Alina Salganicoff: Thank you. Delighted to be here.

Rovner: So it’s an understatement to say that a lot has happened on the women’s health front in the year since the Supreme Court decided Dobbs. But I think your group has produced an enormous volume of information that a lot of journalists and researchers have already used to help paint a picture of those changes. For those who haven’t taken a stroll through the resources available at kff.org/womens-health-policy, give us an idea of what can be found there.

Salganicoff: Well, we have been collecting a tremendous amount of information. Most recently we released a survey of OB-GYNs on their experiences pre- and post-Dobbs and really found some very, I think, alarming findings in terms of the impact of Dobbs on clinical care. We’re also tracking abortion coverage, as well as tracking the availability of abortion at the state level, and we do that routinely. We have a litigation tracker that tracks litigation at the federal and the state level, and that’s just been a very active part of our portfolio and analysis as well. And that’s just an example of a few things that we have going on. But we also have an abortion dashboard, where we provide up-to-date information and analysis and data, not only for work that KFF has been doing, but also synthesis and analysis of other work that’s going on in the field.

Rovner: This is information that, I will confess, a lot of reporters have been using over the course of the year. So thank you for that. How would you describe the state of abortion rights in the U.S. a year post the overturn of Roe?

Salganicoff: Well, that’s a huge question. The answer, of course, truly depends on where you live. In states where abortion is banned, access has been all but eliminated, except for in the rarest circumstances. And honestly, in most cases, even women who qualify for those exceptions have nowhere to go or aren’t being served. In many other states, there are restrictions, particularly those with gestational bans that restrict where people seeking abortion can go. And even in states that uphold abortion rights, people may still need to travel far for abortions, even if … and maybe not even have access to telehealth abortions where they live.

Rovner: So I know this is an even harder question. Can you take 30 seconds to tell us what you think the biggest difference has been compared to a year ago, or I guess it’s now a year and a week ago?

Salganicoff: Well, that is a big ask, Julie. But I will say, for those who live in states where abortion is banned or greatly restricted, this is where you really see the biggest change. And this has, as we anticipated, disproportionately affected pregnant people of color, those who are young and low-income. But also, abortion bans have made it more dangerous for pregnant women and others to have a baby or to get needed medical care. Those seeking abortions have been the hardest hit, but they’re not the only group. And I think also that there’s growing awareness and acceptance that abortion cannot be relegated to the shadows of health care or banned without having broad repercussions on other aspects of health care. Maternity care, emergency care, treatment for cancer and autoimmune disease have all been impacted as well.

Rovner: Yeah, I think that’s been a big revelation for a lot of people, that lots of pregnant women who worked hard to get pregnant and are trying to have babies but have problems in their pregnancy are caught in some of these restrictions, even if unintentionally.

Salganicoff: Absolutely. And I think that the issue of the large disparities we have in this nation on maternal mortality really has brought this issue much more into the limelight, and really seeing how abortion is going to be connected to maternal mortality in this country.

Rovner: So, like me, you’ve been doing this work for a long time now. What surprised you most about the fallout from a year without Roe?

Salganicoff: Right. Well, when Roe fell, I think many of us anticipated in a short time half the states would ban abortion. And while that has happened in 14 states, legal challenges, along with ballot initiatives and elections, have made it clear that there is a will to maintain abortion access in many places where we didn’t think that was possible. Kansas, Kentucky, Michigan, they’re all great examples of that, but they’re not the only states. The other, I think, has been the issue of the FDA and mifepristone, where the Supreme Court has temporarily blocked the lower-court ruling that would have essentially overturned the FDA’s scientific assessment of the safety and effectiveness of the drug, as well as the guardrails that are necessary for dispensing. But that case is not resolved. And then, finally, we have the issue of the Comstock Act, which is also related to that, which is an anti-vice law from 1873 that holds the potential, if enforced, to block the distribution of not only mifepristone but potentially anything that’s used with the intent to perform an abortion. That doesn’t mean just mailing the pill from the clinician to the patient, but also distributing the medication. And it’s going to affect states across the country, not just those where abortion is banned.

Rovner: So lots more to watch. One of your reports that surprised me was how many abortion restrictions there are in states even where abortion isn’t banned, and what we think of as pretty blue, like Massachusetts and Maryland. What kind of restrictions still exist in places that are otherwise considered abortion-destination states?

Salganicoff: Yes, that’s some work that we’ve recently done some analysis on. Yeah. Even if abortion is not legally banned, states can establish regulations and other requirements that effectively restrict access. In states like Maryland and Massachusetts, those are parental consent, or notification, laws. But there are other requirements such as waiting periods, ultrasound requirements, as well as laws that only permit those who have medical degrees to perform or dispense medication abortion pills, even though we know that advanced-practice clinicians, like physician assistants or nurse-midwives, can safely perform these procedures. That makes it harder for people, even in those states, as well as those who travel to get access to abortion.

Rovner: So, presumably, abortion rights advocates have work to do in many states, not just ones with bans.

Salganicoff: That’s right.

Rovner: I think another thing that came as a surprise to me, and we’ve already mentioned this briefly, is how health care for women that is not abortion has been affected. What are doctors telling you?

Salganicoff: Yeah. We recently did a survey of OB-GYNs, and I’ve also been out in the field in several conferences and meetings. And, you know, there’s been a lot of attention recently to the issue of miscarriage management, but also dealing with pregnancy in general and possibly also in the context of cancer care, care for chronic diseases, and emergency care. For example, there have been concerns about access to drugs like methotrexate, which is an abortifacient. It’s used to treat ectopic pregnancies, but it’s also used to treat cancer and autoimmune disease. And we’ve been seeing and hearing at least anecdotal reports about difficulties in accessing that drug. Our OB-GYN survey finds that clinicians are really worried about maternal mortality, their ability to provide care that meets the standards of care — medical care and the norms — and also to provide miscarriage care. That should worry not only those who can get pregnant, but many others as well.

Rovner: So what are you working on now that we should keep an eye out for?

Salganicoff: Well, of course, we’re laser-focused on tracking and analyzing the broader implications of the Dobbs ruling on abortion access. But we’re also focused on contraceptive access as well. And I think that hasn’t gotten nearly as much attention. There’s the issue of how Title X, which is the federal family planning program, is going to proceed in light of a federal decision to withhold the Title X grants for Oklahoma and Tennessee, states that are refusing to follow the requirement that Title X patients be given nondirective pregnancy counseling and referral. So this is an area that I think is going to get some attention on the Hill and in the courts, and I think other states are watching that. The other issue … are developments around emergency contraception and the real confusion that our polling has really documented about whether it’s legal and available. And we actually saw in our OB-GYN survey very low rates of physicians providing emergency contraception to their patients. And then finally, where all eyes are, of course, on the FDA for their decision about the over-the-counter status of an oral contraceptive pill. And we’re going to be looking at how that’s all going to roll out in the pharmacies, as well as whether there’s going to be an opportunity to provide insurance coverage for that newly available method.

Rovner: Lots more to come. I guess we’ll have to do this again next year. Alina Salganicoff, thank you so much for joining us.

Salganicoff: Thank you for inviting me. It’s been a pleasure.

Rovner: OK. We are back and I’m so pleased to have three of my favorite reproductive health specialists at the table today, who have spent a lot of the last year reporting from around the country and, in some cases, around the world. Alice, Shefali, Sandhya: Thank you all for being here. So I want to start with the people who are most affected by the Supreme Court’s action last year. What has happened to women seeking abortions since last year and women seeking other types of health care, too, for that matter?

Luthra: I think the data is pretty compelling, right? We can look at the WeCount numbers that just came out right before the anniversary. The number of recorded legal abortions has fallen quite precipitously. We have seen thousands fewer people get abortions. We’ve also seen dramatic increases in people traveling for care, going to Florida, to Illinois, to North Carolina, among many others. And what those numbers don’t always tell us is how difficult that journey is, how expensive it is. I think a lot about this study from when SB 8, the Texas six-week abortion ban, took effect, and they found there that some of the people who were traveling out of state, it took them so much money they couldn’t afford food for a week and then they ate whatever they could; they couldn’t afford dog food because it was just that difficult of a trip. And what we’re seeing is just people are, in some cases, accessing health care and other cases they are not. And it is becoming a lot harder and in some cases life-threatening. We’re all hearing the stories about people experiencing pregnancy complications and not being able to get timely care flying across several states while afraid they could go into premature labor on the plane.

Ollstein: Everything Shefali said is true. I also think that we need to put our critical hats on when we look at some of this early, preliminary data that’s coming out. It just takes time to get very solid, reliable data. And while the WeCount report is helpful, it has a lot of holes in it, and it makes estimates, and it doesn’t include people who are obtaining mifepristone and self-managing their abortions outside the medical system. You know, it doesn’t include data from certain providers and certain states. And so I think it will just take time to get a really accurate picture of what’s going on. We are sort of cobbling it together. You know, we have providers in blue states reporting how much increase they’re seeing in people coming in. We get some data from groups like Aid Access that mail the pills about the demand they are seeing. But there are a lot of people who aren’t going to show up in any of those counts. And we just sort of don’t know what’s happening to that, other than anecdotally, based on our reporting on the ground. And so I think, yes, there are a lot of people obtaining pills, there are a lot of people traveling, and there are a lot of people for whom neither of those are possible options and that they are going forward with pregnancies that they otherwise would have terminated.

Rovner: I think one of my biggest takeaways from the last year is the broader understanding of how common pregnancy complications are. I think a lot of people did not expect to see so many women with wanted pregnancies have difficulty getting care that they needed. I think people didn’t realize how common pregnancy complications are; they affect about 8% of pregnancies, or that’s 1 in every 12.5. That is a lot of people. And of course, as we all know, maternal mortality and morbidity in this country is embarrassingly high compared to other industrialized countries. I think people, particularly in the anti-abortion movement, used to talk about, you know, these serious pregnancy complications as being extremely rare. They just aren’t. I think we’re finally starting to see people talk about that.

Raman: You know, the past year I’ve seen so much more in the public consciousness about miscarriage management, which is something that we’ve all covered in the past, but it’s not something that I think has been talked about as much, brought up as much, some of the complications there. And especially when the treatment for miscarriages in many cases is very similar to what is done for abortions, and just some of the difficulties that different folks have been experiencing being able to get that care for miscarriages even if they are not seeking an abortion and it’s a wanted pregnancy. I think that has really come to light a lot as well.

Rovner: So the Supreme Court majority, I think in their majority opinion, sort of said they hoped that this would be the last word on abortion for a while. It obviously was not. So let let’s do a quick review of what’s happened in the courts since Dobbs was decided last year. I guess the big one that we’re waiting on is the case of mifepristone, the abortion pill, right?

Ollstein: That’s the main federal one, although there are some other ones. But as we all sort of knew at the time, this is really a state-by-state fight. And the state-level cases are still continuing to play out. You know, just recently there were some major rulings, in Wyoming, in South Carolina. We’re waiting on Iowa. There was this declaration by the justices that overturned Roe v. Wade that this would sort of “settle the issue,” quote-unquote. And it is extremely unsettled.

Rovner: It is. And of course we should mention that a lot of these state cases are  because even though the Supreme Court ruled that the federal Constitution doesn’t have any right to abortion, a lot of states say that their state constitutions do.

Luthra: And the South Carolina one is particularly interesting because, in January, we had the state Supreme Court say that their constitution did not allow for a six-week ban. And just this week, that same Supreme Court, with one change in membership, heard almost the same version, a slightly different six-week ban, and there is a good chance they uphold it, which really speaks to not only the role of the courts in dictating abortion rights on a state-by-state level, but also the role of individual changes in the makeup of those courts and how just this one really small thing, like someone aging out of being on the state Supreme Court, can change access for thousands of people.

Ollstein: And state constitutions, even though they don’t have the word “abortion,” often are way more protective of abortion than people might have predicted. To Shefali’s point, that goes to which judges are interpreting it. But also you have some of these rulings in states we think of as very far to the right that are surprisingly protective of abortion. And I think that fight is continuing to play out. And I’m sure we’re going to get into later the attempts to insert language into the state constitutions that’s explicitly protective of abortion.

Luthra: One element on the federal courts that I think is worth flagging that is relevant to this mifepristone case as well, right — which, to recap, is currently at the 5th Circuit; they are debating whether to take mifepristone off the market, to impose more restrictions on how it’s prescribed. This will probably end up at the Supreme Court again, maybe within the year. But dormant in that case, and something that a lot of scholars have talked about, is this new legal questioning around the Comstock Act, this very old anti-obscenity law used in the past to censor Walt Whitman, to ban “Ulysses,” all sorts of crazy things, and is now being argued as a legal vehicle to end access not only to mifepristone, but to anything that can be mailed for an abortion. And scholars are quite critical of these arguments, but there is a reasonable chance that they come up again and again, and that, given the right case, the right lawyers, the right justices, that a case based on this reading of the Comstock Act could be used to argue for and potentially even implement a national abortion ban through the federal courts without using Congress.

Rovner: Yeah. Mary Ziegler, who’s been on this podcast, who’s one of the top abortion history scholars and a law professor, has been talking about this a lot. You know, everybody is sort of talking about whether or not they can implement or pass a national abortion ban. She says, depending on how they interpret Comstock, there already is, in theory, a national abortion ban. And it wouldn’t just be pills. It would be anything that’s mailed that really has to do with abortion, right?

Ollstein: Yeah. I also just want to go back to the mifepristone case and note that there’s not just one; there’s, like, five — five that I that I know of, maybe even more. The main one that could decide the federal regulation at the FDA level of mifepristone; there are several groups of states saying, Hey, if there’s a federal ban, it shouldn’t apply to us; and then there are two lawsuits that are attempting to challenge state-level bans on the drugs as violating the rights either of doctors and patients or of the pharmaceutical companies. So there are so many different permutations and ways this could go. It’s not just, you know, an up or down vote.

Rovner: Yeah, it’s definitely a full-employment-for-lawyers decision.

Ollstein: And health care reporters.

Rovner: And health care reporters. Well, I want to talk about the administration a little bit. President Biden has been both praised by abortion rights supporters for his administration’s support of abortion rights and chided for his personal reluctance to talk about an issue he is clearly not very comfortable with. What has the administration done in this arena, besides everybody paying attention to what President Biden does or doesn’t say himself?

Raman: I would boil down what I guess the president has done has been the three executive orders that he’s done since the Dobbs decision. So we had two last year that were more focused on abortion and things that he was asking various agencies and departments to do there. And then most recently, last week, we had one that was focused on birth control and contraception, broadening accessibility there. And I think the trick here is that all of these points within the executive order are calling on the agencies and departments to consider doing this, consider doing that. And while some of those things have come to fruition — we’ve had, you know, the VA [Department of Veterans Affairs] and the Department of Defense have changed their policies to kind of make access easier — we’ve also had certain things that have been outlined there not come out. We had in I think the first or second one last year that they had asked CMS [the Centers for Medicare & Medicaid Services] to find ways to make it so that there could be, you know, an 1115 waiver for Medicaid programs to cover out-of-state patients. And states haven’t really jumped at that or figured out a way for that to work out. So it’s a mixed bag.

Luthra: I think another sort of interesting element — for everything the administration has done, tried to expand access to mifepristone in pharmacies, tried to use EMTALA [the Emergency Medical Treatment and Labor Act], the emergency medication law, to help people get abortions when they are needed for life-threatening situations in hospitals, it feels like there is always a Republican response that is quite effective in, if not neutering, then quite weakening that. And we’ve seen that with the Texas attorney general, potentially someday soon former attorney general, suing to challenge the EMTALA regs that we’ve seen that in the —

Rovner: He’s being impeached, for those of you who have not kept up — that the Texas attorney general. So we’re waiting for the trial of that impeachment.

Luthra: Yeah, we’ve seen like Alice’s really great reporting on the efforts by Republican attorneys general, including in blue states, to limit access to mifepristone in pharmacies, right, sort of going directly against what the administration is trying to do and what it sort of gets to is: For everything that they try, it is hard to see in reality how much of an impact it will make and can make on the ground in expanding access to abortion.

Ollstein: Oh, yes. And we should say that there are, you know, progressive advocacy groups who are disappointed and think the administration has not tried everything it could be trying. And so, you know, the administration has been touting everything it’s doing. And like we have said, some of it has made an impact, particularly defending these policies in court and stopping them from being struck down. But there is a lot of frustration. You know, I’ve heard specific calls for more to be done through Medicaid, more to be done in terms of exploring whether abortion providers could operate on federal land, even in red states. There’s just a lot of areas, and this administration is pretty cautious. And, you know, we can see, because of all the legal challenges, why that is. An adverse legal ruling could be damaging going forward. But, you know, I do want to note that there are pro-abortion rights advocacy groups who are not satisfied with the level of effort from the Biden administration so far.

Rovner: Frustrated, I think, is the accurate word there. Well, let us move to Congress because that’s relevant to what we were just talking about. As we have discussed on this podcast many times, Congress is pretty much gridlocked on all issues involving reproductive health. There are not 60 votes in the Senate for anything on either side, but there’s been some action in Congress the last year, right, Sandhya?

Raman: Yeah, I would say 1) historically, there’s rarely much movement on abortion policy in Congress. It’s just someone bringing something up a lot for messaging. But I think the main thing that that has had an effect is [Republican] Sen. [Tommy] Tuberville from Alabama has been holding up Pentagon nominations over the Department of Defense’s abortion policy, which allows service members who are stationed somewhere where abortion is not legal to be able to take off time and travel somewhere to get that abortion. And this has been holding up over 250 nominations so far. It’s been a big issue given that, I think, there have been folks from either side and former defense officials have said this is a matter of national security, that we’re not able to get this done over one person.

Rovner: This is a big deal that’s been kind of flying under the radar for two or three months now, right?

Ollstein: They’re at a total impasse.

Raman: Yeah, I think that the latest is mainly that, you know, Sen. [Joni] Ernst [R-Iowa] does want to have a vote on this when the NDAA goes to the Senate floor.

Rovner: The defense authorization — the annual defense authorization bill.

Raman: Right.

Rovner: Yes.

Raman: To kind of have a vote on that and try to get that. But they’re at an impasse right now. And it’s kind of unusual. I mean, it’s something that — people have held up nominations, but I think this in particular is a pretty interesting one.

Rovner: Yeah, I know the secretary of defense is very upset about it. It really is a matter of national security and they really haven’t been able to work this out. You know, we know, as we mentioned, Congress can’t sort of do anything. There is not a supermajority to either tighten federal abortion restrictions or loosen them. But one of the things that might have happened and that anti-abortion legislators talked about early in the year were things to better support pregnant women or pregnant women who’ve then had children, and trying to support those children. Even things like Title X, like contraception, Head Start, expanded Medicaid for maternal health for a year. We actually haven’t seen very much of that happening either, have we?

Ollstein: No, we have not. I will say we have in some states; some states that are very conservative have — they say it’s specifically because of the elimination of abortion access — moved to have more funding for moms and babies and even contraception. And so you have seen that. But no, at the federal level, it is running right into this anxiety about debt and spending and not wanting to open the pocketbooks on that front. I also think it’s interesting that House Republicans have not really used their majority to vote on an abortion ban. In a sense, it’s kind of a free vote for them because it won’t become law. And it’s just interesting and speaks to the tricky politics that they haven’t even done a symbolic vote. Meanwhile, you’ve had Senate Democrats do a bunch of symbolic votes to try to make Republicans uncomfortable with the issue. But again, these are all just sort of show votes that are not going to become law.

Rovner: Yeah, somebody should total up the show votes at some point over the last 10 years. I bet it would be a lot.

Raman: I will say that, you know, the one thing that I will acknowledge on a federal level is that, you know, when we had the omnibus last year, they did make the 12-month postpartum Medicaid pilot coverage permanent. And I think that will be a big thing, given that so many states have so quickly adopted the pilot of that. So that would see something that that there can be an effect, but —

Rovner: But it is still optional. States don’t have to — I mean right now —

Raman: It is still optional.

Rovner: Standard Medicaid cuts off new moms after 60 days, is that right?

Raman: Yeah, But I mean, it’s hard. I mean, I think it’s A) kind of what Alice said with the funding and the fact that we’re working with less than we had before. But also, if you look at the language of a lot of the bills that have been introduced that kind of focus on some of these things, you know, whether it’s different things for new moms — a lot of it has language that will polarize the other side. I think that if you see some of the packages and bills that have been put out by Republicans, there’s funding or redirecting resources for crisis pregnancy resource centers, which, you know, Democrats are not in favor of given that they don’t support abortion. And then we also have, I think, a lot of the Democrats’ bills might not specifically carve out certain things. I think that they “butt heads” …[unintelligible] … I think you have to kind of water it down, the language. And we haven’t really seen something that kind of can appeal to everyone kind of come forward, and also that doesn’t cost money. And finding that happy medium is very difficult.

Rovner: And ever was. Well, Congress hasn’t been able to do very much, but state legislatures have been really busy, right? I mean, and it’s more than just, you know, bans, working on different variations of bans. We’ve seen some very, sort of, creative ideas, right?

Luthra: It’s been fascinating to see what’s happening on the state level. One thread I actually thought of during Sandhya’s remarks was the expansion of crisis pregnancy centers, in particular in states with abortion bans, right? Putting more state funding to support them, which, for a reminder, they not only don’t support abortion; many of them don’t actually employ qualified medical personnel and are not bound by HIPAA [Health Insurance Portability and Accountability Act]. We have that lawsuit from this week where the woman said she went to a crisis pregnancy center, and they missed her ectopic pregnancy. So, quite dangerous. But beyond that, what’s really interesting is Republicans in state legislatures seem like they are really trying to figure out how to navigate these tricky abortion politics, and they’re not quite sure how to go about doing it, which is why we saw the six-week abortion ban pass in Florida and in South Carolina. And then we saw differences in other states, right? North Carolina did the 12-week ban, which is being litigated right now. And what clinics are actually more concerned about there is a requirement for two in-person visits separated by three days, which they say will just make the procedure unaffordable. We saw Nebraska do a 12-week ban as well, sort of concerned that six weeks appears too extreme now that voters are responding to abortion bans. And the other thing that is just really, really interesting is: We saw at the beginning of the year some pre-filing of bills around the fetal personhood movement, around ways to try and criminalize the morning-after pill or IUDs [intrauterine devices], trying to consider whether you make the person who gets an abortion liable herself. None of those have really taken off yet, and it seems that it’s because that is a bridge that, for many in the movement, is still too far — just this concern that then they would really have to say it is not just that we are trying to quote-unquote “protect the pregnant person,” but we actually think abortion is murder itself. And so I think that will be a really interesting battle within anti-abortion lawmakers, to see how that ends up in the coming years.

Rovner: And that’s a battle that goes back like a decade and a half now. They still aren’t quite there. I think the other thing that we saw a lot of that hasn’t really come to pass are bills to try to ban travel, to try to ban pregnant women from going to other states to obtain abortions, which strikes me as something — strikes many people as something that seems probably not constitutional, but not to say that they won’t try.

Ollstein: Yeah, I think we’ve seen Idaho go the furthest down this road. Missouri was also sort of exploring it, putting a toe in the water, but it never really went anywhere. But I totally agree, Julie. I think there was so much anxiety over this past year about red states trying to reach across their borders in different ways to police abortion, whether it’s suing doctors or trying to ban travel or obtaining people’s medical records or — there was just a lot of anxiety, and you saw that reflected in what blue states passed. Blue states passed a lot of protections to stop those sort of cross-border prosecutions. But we haven’t seen the cross-border prosecutions. That hasn’t really come to fruition yet and may or may not going forward. So it’s interesting because a lot of fears of what would happen when Roe fell have played out exactly as predicted and this is one that kind of hasn’t. Two other really quick state-level things that I wanted to flag that I just think are interesting and are examples of conservatives trying to get very creative and not do just a straightforward ban. I would flag Utah is trying to ban abortion by banning abortion clinics and saying it has to only take place in hospitals. Twist: No hospital in the state will do abortions because they’re religiously affiliated. So that’s sort of a total ban in practicality, if not in name. That’s been enjoined in court. And then in Wyoming, they’ve tried to ban the pills. And pills are what people use because there are no facilities that perform abortions. And so these are ways they’re trying to get creative and do it in different ways. That has been enjoined, too. So we’ll see. But it’s very like, throw everything at the wall and see what sticks.

Rovner: And I would add to that, although I think we haven’t really talked about it on the podcast — is some cities now trying to create bans. So even within blue states there would be bans in red cities, which is another complicated legal thing.

Raman: I looked up some Guttmacher Institute data and we had fewer abortion laws adopted last year compared to the year before. It was 50 last year versus 108 the year before. And, you know, the Dobbs decision dropped after some of these states had gone out of session. But the one thing that I thought — that resonated with me because, you know, A) a lot of these states, maybe they’ve implemented wider bans or they were able to bring back older laws, but it was a drop in the number that we were seeing. And the thing that I have kind of taken away from this year is that the states that we’ve been talking about before — you know, North Carolina, South Carolina, and Florida — that are implementing these, or trying to, much stronger abortion bans are the ones that have been kind of the safe havens, quote-unquote, since the news dropped, where if you live elsewhere in the South, you are trying to go to one of these states to get an abortion. So it’s kind of like a whack-a-mole and that these are the places that have been seeing an influx of patients, especially Florida, that, you know, these are — the cracking-down there to kind of minimize that.

Rovner: So, and to go back to what we said at the beginning, that just makes abortion more expensive for people who have to leave their own state to go somewhere else. Well, we’ve been kind of dancing around this a little bit. But one of the reasons that states have not done some of the things that we thought they might do is that voters have not reacted the way we expected or, I don’t know, the way some people expected. I mean, it’s been surprising. Somebody summarize for us what voters have done on this issue in the last year.

Ollstein: Every time voters have been able to weigh in directly, they have weighed in directly against restrictions and for protections — you know, broadly. Because of that, you have a lot more activists in states trying to set up these votes for later this year, next year, the following years. Every state has different rules around this, and some states don’t allow it at all. But because of just the sweep of the pro-abortion rights side last year in six states —

Rovner: Including some pretty red states like Kentucky and Kansas.

Ollstein: Including some very red states. Yeah, although, you know, it’s a good reminder that, you know, we think in terms of red state, blue state. But, you know, it’s really nuanced. I mean, Kansas has a Democratic governor. Kentucky has a Democratic governor. But, yes, these are states that voted for Trump, have an overwhelmingly Republican state legislature. So it’s how you look at things. But, yes, very conservative, very religious. And both the vote results, but also reporting, polling, focus groups, show that even people who self-identify as very conservative and even personally anti-abortion, a lot of them are not supportive of laws that are this restrictive and think that this should be someone’s personal choice. So I think that’s why these campaigns that really had a conservative-friendly message of getting the government out of your personal business were so successful.

Luthra: And what’s been striking has been seeing the polling just in general around abortion rights. It’s been fairly stagnant up until last year. And basically every big polling organization has seen a shift, and voters are more supportive now of abortion rights than they were before, more opposed in some cases, even to, like, the second-trimester bans, which in the past were a bit more popular, and also in some cases more likely to place this as a high priority for voting. And that will be really interesting to see, especially next year, when we have more abortion rights ballot initiatives, as Alice mentioned, but also more candidates, including the president, running on abortion specifically, and seeing whether this particular issue does influence voters to become, in particular, more Democratic than they otherwise might have been.

Rovner: Yeah, it’s funny; abortion has been a big voting issue for the anti-abortion movement for years, which is how they got to this point basically. It has not been a huge issue for those who support abortion rights because a lot of people thought Roe would never go away, so they didn’t need to vote on it. And I think that’s going to be sort of a big realization. And next year is going to be the first presidential election since Roe went away. Before we leave the states, I would flag, though, the fact that, Alice, you were saying that because of the success of some of these state ballot initiatives, there are other states that are trying to do it, but there are also efforts to stop states that are trying to do it. I’m thinking mostly of Ohio and Missouri, in particular, which has a bizarre fight going on.

Ollstein: Yeah, absolutely. And those are the most immediate ones. But lots of red states took up bills this year to make direct ballot initiatives harder in lots of different ways — either, you know, raising the number of signatures that need to be collected, having weird geographical requirements for where the signatures are collected, and then the main one, which is in play in Ohio, is this question of requiring a supermajority vote to pass instead of just a bare majority. And so Ohio Republican legislators are setting up this August special vote on whether to raise the threshold from 50 to 60% to approve a ballot initiative. And they have been on the record about this specifically aimed at making sure the vote to restore abortion access in the state can’t pass in the fall. And then in Missouri, there’s all sorts of different things in play, some weird stuff, but —

Rovner: I think I can explain Missouri. The state attorney general is trying to make the state auditor change his estimate of how much it would cost if they were to pass this ballot measure expanding abortion access. And I think that the state auditor has said it would cost something like $51,000 or $51 million and that the state attorney general wants to make him increase that by a factor of 10 or a hundred. I mean, there’s just this huge fight. And of course, that would have to go on the ballot measure. So if the anti-abortion attorney general thinks if people go to the polls and see that this is going to cost millions or hundreds of millions or billions of dollars, they’re less likely to vote for it. And so that fight sort of continues. And I believe it has not been resolved yet.

Raman: And they’re both from the same party, which I think just makes it more interesting.

Rovner: Yeah. But you know, this is the first time I can remember a fight, a big important fight, between a state auditor and a state attorney general. I want to talk a little bit about what’s happened to doctors and other health professionals, because they’re kind of caught in the middle here. I mean, they had not been — I’ve written at length about the AMA [American Medical Association]’s sort of checkered history of trying to be on every single side of this issue over the years. But now we’re seeing doctors put in some pretty hairy positions, right?

Luthra: One thing I’ve been really struck by is talking to a lot of — and this is especially doctors, but true probably of all health professionals, is this idea that they didn’t have to take a position on abortion before, so many of them simply didn’t. They were happy to sort of think of it in a silo separate from the rest of their jobs. And that was because, like you said, Julie, they weren’t concerned about losing Roe. And now that we’re in this world, many of them have been really stunned to see what the consequences are, and a lot have described to me this feeling of being sort of called to political activism that they did not expect, did not train for, it’s not the job that they have — but being really pushed to talk about abortion in a way they otherwise wouldn’t have. And what we’ve also seen, of course, is many moving from states that have bans on abortion. Many of those states that have bans on abortion are also passing bans on gender-affirming care for minors, which puts even more doctors, nurses, med students, residents in a bind. We should also note that the health care workforce is a majority woman workforce, and so many of them feel personally affected by these laws as well and are factoring that in their decisions as to whether to practice. And it’s still quite early to say what the implications will be. But there is a lot of real concern in these states that already were these, you know, lower-health-care-access states, especially in rural areas, losing even more health care professionals because of the bans they’ve put in place.

Ollstein: Doctors are becoming more vocal. I think a lot of players in the medical space that haven’t been as vocal about this are weighing in, telling state legislatures, “You’re putting our members in danger.” And so I completely agree. And I think that a lot of this anxiety seems to be from the medical community, like, If we accept this intrusion into our work, what’s next? What else will state legislators who are not doctors try to dictate that we can and can’t do? And so there’s sort of a sense of, If we don’t stand up to this, we’re sort of opening the door to a lot more intrusion into the patient-provider relationship.

Raman: So I have done a lot of looking at the long-term. I’ve been following, since last year, kind of the steps with workforce because I think, for context, we’re expected in a few years to have a shortage of obstetrics providers already, given a higher percentage of women of reproductive age and a lot of folks just leaving that workforce altogether. And I have been kind of curious how this is going to affect that. And I think some of the takeaways, I think, to echo Shefali, is A) it’s early. So it’s hard to go through the data and see what is because of this, what’s because of that. But I think one thing that I’ve noticed is that it hasn’t been just obstetrics or just emergency room or family medicine. I’ve been hearing from folks in all sorts of specialties, even if they aren’t even related to this, because wherever you do your training, it might affect your family or yourself. And that is something that I’ve heard come up — you know, harassment and is there options for themselves? And I think also just unclarity in the laws. I’ve heard multiple either folks training to be physicians or who have just become them say that they didn’t go to school to become a lawyer; they went to school to become a health care provider. And having to have that intermediary and consult the legal team of the hospital in between is just very difficult for them to do their care. But datawise, I think that we had, according to the AMA, a drop in residency apps for obstetrics and gynecology, and it was higher in the more restrictive states, but it also dropped some in the states that are more progressive on abortion, like it dropped in California. So it’s kind of hard to tell so soon what that could mean. But I think if you look at what happened in Texas, which had pretty flat numbers before SB 8, and then they had a huge drop after that law was implemented and who was applying to go there, and they have the third most programs in the country — like, that can provide some clues that we could see kind of further on as we keep looking. But yeah, a lot of it’s not going to be felt for a while.

Rovner: I think two really important points there, though, is one is that it’s not just restricted to the specialties that we would think because, as you point out, health care, particularly graduating medical students, are now majority women and they are mostly of childbearing age, so they are concerned about themselves and their families. And if they’re men, they likely have partners, so they’re still considered worried about themselves and their families. So it can be kind of a big deal. And the other one, of course, is that where medical students train after medical school, where they do their residencies, is very, very indicative of where they’re going to end up practicing. So if you don’t have people training in those states, you’re going to have fewer people practicing in those states. And that we do know from way, way, way back. So I think that’s also going to be an issue going forward. Well, we are running out of time, but I wanted to go around the table once really quickly and say you’ve all been obviously very steeped in this for the last year. I want everybody to tell us sort of the one thing that’s going to stick with you most from reporting over the course of this first year without Roe. Shefali, why don’t you start?

Luthra: I think the thing that will stick with me this year and probably the rest of my life is hearing from the people who have tried to get abortions in states where they cannot, whether that was because of a wanted pregnancy that went wrong, whether that was to save their own lives, whether that was because they already had two kids and didn’t want another or they didn’t want any kids. And just the themes that you keep hearing from them, right? The anger; the betrayal; the feeling like they are less of a person because they can’t get this in their home state; the financial distress that they go through; and, in many cases, the isolation, because they have no one they can talk to about this. It’s really, really striking to hear those stories. And I think they’re some of the most important things that we as reporters can hear about and that our readers can see and internalize and think about when they conceive of what abortion bans mean.

Rovner: Sandhya.

Raman: I think the thing that sticks with me is just really how far the reverberations from this decision have gone. You know, what really comes to mind is last year when I was at an international family planning conference, this woman from a Kenyan nonprofit said to me, “You know, when the U.S. sneezes, the rest of the countries catch a cold.” And I think that was really striking and just seeing how far a U.S. court case can be felt around the world, whether it is countries that have made more progressive abortion laws or more restrictive abortion laws, kind of in the light of something the U.S. does, and just kind of how something that I think is easy to think of as just here, how that can have an effect on other leaders and the people there, or just countries that rely on the U.S. for a variety of things. So that, that really sticks with me.

Rovner: Alice.

Ollstein: Yeah. In traveling, it’s just been really striking to see how abortion bans have had these knock-on effects and limited the availability of other kinds of health care, whether that’s by putting clinics out of business or causing an exodus of doctors and residents and medical students from particular parts of the country that already were experiencing shortages and really just making these medical deserts, and particularly maternal health deserts, that were already there even worse, and just meeting people who were telling me, “I was told it would be, you know, a four-month wait just to get an IUD.” You know, these are people who are trying to prevent an unwanted pregnancy. And there’s just nowhere for them to go in a lot of places in the country, more than we think. And so just looking at people who are not pregnant, are not seeking an abortion, are also being hit by these legal changes.

Rovner: I’ve been struck just by how accurate a lot of the predictions were about what would happen if Roe went down. I mean, there were things that were unexpected. But I think most of the things, particularly the red state, blue state, have and have-not, have been exactly what people predicted would happen. All right. It is time for our extra credit segment. That’s normally when we each recommend a story we read this week that we think you should read too. This week, though, I’ve asked the panelists to choose their favorite story about reproductive health that they have written in this past year. 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. Sandhya, why don’t you go first this week?

Raman: So the story I picked is called “Conservatives Use Abortion Strategies in Fight Over Trans Care,” and I wrote this for Roll Call in February. What I did was kind of take a look at how we got to the Dobbs decision in the first place, is after the passing of legislation and the litigation and a number of state abortion laws and how those parallels are pretty striking to what’s been happening with trans health right now that has been really ramping up as a political messaging issue. And so, you know, in some cases it’s been very clear, where they’ve been putting language about abortion and gender-affirming care in the same bill, or restrictions there. But I think there are a lot of parallels that I was kind of finding in that, you know, starting with minors and then scaling up in restrictions or looking at science that’s odds with major medical organizations or messaging on safety or looking to penalize doctors or just, like, amplifying very rare cases of regret — that kind of thing. And so looking forward, that’s something that just keeps resonating with me as something to watch, that the abortion blueprint is not unique. It’s going to be there for other things.

Rovner: Alice.

Ollstein: So I chose the piece I did from the ground in Kansas when they voted. They were the first state where voters could weigh in directly on abortion access post-Roe, and it just revealed so many things that continue to be true for the states that are voting on this. It was just such a clear preview of what was to come. It was the flood of out-of-state money and staff on both sides. It was just how heated it got on the ground. It was the attempts by Republican state legislatures to structurally make it harder for folks to vote and more likely for things to go their way. And yet it was a blowout vote for the pro-abortion rights side in the end. And that was just such a preview of what was to come on both sides, and just being there on the ground and being able to see this and to see how people were feeling when the Dobbs decision was so fresh will really stay with me.

Rovner: Shefali.

Luthra: My story published in May at the anniversary of the Dobbs leak. It’s called “93 Days: The Summer America Lost Roe v. Wade.” And for this, it was an oral history that my editor and I had talked about. And we spent a few months working on it, talking to a dozen different folks about what it was like to live through last summer, from the Dobbs leak to the Dobbs decision up to the Kansas election. And there are stories from doctors; from politicians; from activists; people who organized on the Kansas abortion rights initiative; lawmakers who talked about their experience of learning of the decision; Kristan Hawkins, the head of Students for Life. But the people whose stories I think are most worth reading are the, I think it was three women I spoke to, who talked about their experiences navigating abortion, including one woman who was trying to schedule her abortion. She was in line at Disney when the decision came out and she found out her appointment had been canceled. She was never able to get another one and she had a baby soon afterward. There was another who was taking her medication abortion pills at home when the decision was revealed, and she wasn’t sure if she was breaking the law by taking misoprostol in her bathtub. And I think these stories just — they really cemented for me that this is not only the world that we live in, but that these are the real-life implications on the people who are affected. And I just always really love getting a chance to tell those stories.

Rovner: Well, my story is a piece that I wrote last July, so almost a year ago, called “Three Things About the Abortion Debate That Many People Get Wrong.” And one myth, of course, is that abortion bans and restrictions would only affect people seeking abortions, which we now know in sometimes horrifying detail is not true. Women with very wanted pregnancies gone wrong are also caught in the crossfire, and, as we said, forced to travel long distances or wait until they are literally at death’s door to get needed care. But it’s worth reminding people about the other two myths. One is that Congress could have codified abortion rights at any time since Roe but never really tried very hard, and the other one that Congress could have acted in 2022 — the end of last year — when Democrats still had majorities, albeit very tiny ones, in the House and Senate. In fact, Congress never had the votes to enshrine abortion rights for the entire life of Roe. There were several attempts to do that, many of which I personally covered. And to those who think Congress could have done something last year, I ask, “Have you met Democratic Senators Joe Manchin and Kyrsten Sinema?” That wasn’t going to happen either. All right. Well, that is our show for this week. As always, if you enjoy the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left us a review; that helps other people find us, too. Special thanks, as always, to our producer, Francis Ying. Also as always, you can email us your comments or questions. We’re at whatthehealth@kff.org. Or you can tweet me. I’m @jrovner.

Rovner: Shefali?

Luthra: I’m @shefalil.

Rovner: Sandhya.

Raman: I’m @SandhyaWrites.

Rovner: Alice.

Ollstein: @AliceOllstein.

Rovner: We are taking next week off for the Fourth of July holiday, so we will be back in your feed with our regular news update on July 13. Until then, be healthy.

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

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

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

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

Panelists

Sandhya Raman
CQ Roll Call

@SandhyaWrites

Read Sandhya's stories

Rachel Roubein
The Washington Post

@rachel_roubein

Read Rachel's stories

Victoria Knight
Axios

@victoriaregisk

Read Victoria's stories

Among the takeaways from this week’s episode:

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

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

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

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

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

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

Also mentioned in this week’s episode:

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

click to open the transcript

Transcript: The Abortion Pill Goes Back to Court

KFF Health News’ ‘What the Health?’

Episode Title: The Abortion Pill Goes Back to Court

Episode Number: 298

Published: May 18, 2023

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

Julie Rovner: Hello and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent at KFF Health News. And I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, May 18, at 10 a.m. As always, news happens fast and things might have changed by the time you hear this. So here we go. We are joined today via video conference by Rachel Roubein of The Washington Post.

Rachel Roubein: Hi. Thanks for having me.

Rovner: Victoria Knight of Axios.

Victoria Knight: Hi. Good morning.

Rovner: And Sandhya Raman of CQ Roll Call.

Sandhya Raman: Hi, and good morning, everyone.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Roubein: Yeah, it does include PrEP.

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

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

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

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

Roubein: Millions of them.

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

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

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

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

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

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

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

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

Rovner: So we’re noticing.

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

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

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

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

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

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

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

Rovner: Rachel.

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

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

Raman: @SandhyaWrites.

Rovner: Rachel.

Roubein: @rachel_roubein.

Rovner: Victoria.

Knight: @victoriaregisk.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PBMs Evolve From Minnows to Whales

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What’s the Remedy?

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

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

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

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

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

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

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

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

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

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

The partisan fight in Congress over how to raise the nation’s debt ceiling to prevent a default has accelerated, as the U.S. Treasury predicted the borrowing limit could be reached as soon as June 1. On the table, potentially, are large cuts to federal spending programs, including major health programs.

Meanwhile, legislators in two conservative states, South Carolina and Nebraska, narrowly declined to pass very strict abortion bans, as some Republicans are apparently getting cold feet about the impact on care for pregnant women in their states.

This week’s panelists are Julie Rovner of KFF Health News, Joanne Kenen of the Johns Hopkins Bloomberg School of Public Health and Politico, Rachel Cohrs of Stat, and Alice Miranda Ollstein of Politico.

Panelists

Alice Miranda Ollstein
Politico

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Rachel Cohrs
Stat News

@rachelcohrs

Read Rachel's stories

Joanne Kenen
Johns Hopkins Bloomberg School of Public Health and Politico

@JoanneKenen

Read Joanne's stories

Among the takeaways from this week’s episode:

• The United States is approaching its debt limit — much sooner than expected. And it is unclear how, or if, lawmakers can resolve their differences over the budget before the nation defaults on its debts. Details of the hastily constructed House Republican proposal are coming to light, including apparently inadvertent potential cuts to veterans’ benefits and a lack of exemptions protecting those who are disabled from losing Medicaid and nutrition benefits under proposed work requirements.
• A seemingly routine markup of a key Senate drug pricing package devolved this week as it became clear the committee’s leadership team, under Sen. Bernie Sanders (I-Vt.), had not completed its due diligence to ensure members were informed and on board with the legislation. The Senate Health, Education, Labor and Pensions Committee plans to revisit the package next week, hoping to send it to the full Senate for a vote.
• In more abortion news, Republican lawmakers in North Carolina have agreed on a new, 12-week ban, which would further cut already bare-bones access to the procedure in the South. And federal investigations into two hospitals that refused emergency care to a pregnant woman in distress are raising the prospect of yet another abortion-related showdown over states’ rights before the Supreme Court.
• The number of deaths from covid-19 continues to dwindle. The public health emergency expires next week, and mask mandates are being dropped by health care facilities. There continue to be issues tallying cases and guiding prevention efforts. What’s clear is the coronavirus is not now and may never be gone, but things are getting better from a public health standpoint.
• The surgeon general has issued recommendations to combat the growing public health crisis of loneliness. Structural problems that contribute, like the lack of paid leave and few communal gathering spaces, may be ripe for government intervention. But while health experts frame loneliness as a societal-level problem, the federal government’s advice largely targets individual behaviors.

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

Julie Rovner: The Washington Post’s “Dog-Walking Injuries May Be More Common Than You Think,” by Lindsey Bever.

Joanne Kenen: The Atlantic’s “There Is No Stopping the Allergy Apocalypse,” by Yasmin Tayag.

Rachel Cohrs: ProPublica’s “This Pharmacist Said Prisoners Wouldn’t Feel Pain During Lethal Injection. Then Some Shook and Gasped for Air,” by Lauren Gill and Daniel Moritz-Rabson.

Alice Miranda Ollstein: The Wall Street Journal’s “Patients Lose Access to Free Medicines Amid Spat Between Drugmakers, Health Plans,” by Peter Loftus and Joseph Walker.

Also mentioned in this week’s episode:

• The New York Times’ “Surgeon General: We Have Become a Lonely Nation. It’s Time to Fix That,” by Vivek H. Murthy.
• “What the Health?” podcast, July 7, 2022: “A Chat With the Surgeon General on Health Worker Burnout.”
• KFF Health News’ “After Idaho’s Strict Abortion Ban, OB-GYNs Stage a Quick Exodus,” by Sarah Varney.
• Politico’s “‘You Can’t Hide Things’: Feinstein, Old Age and Removing Senators,” by Joanne Kenen.

Click to open the transcript

Transcript: Health Programs Are at Risk as Debt Ceiling Cave-In Looms

KFF Health News’ ‘What the Health?’

Episode Title: Health Programs Are at Risk as Debt Ceiling Cave-In Looms

Episode Number: 296

Published: May 4, 2023

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

Julie Rovner: Hello and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent at KFF Health News. And I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, May 4, 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 Joanne Kenen of the Johns Hopkins Bloomberg School of Public Health and Politico.

Joanne Kenen: Hey, everybody.

Rovner: Rachel Cohrs of Stat News.

Rachel Cohrs: Good morning.

Rovner: And Alice Miranda Ollstein of Politico.

Ollstein: Hello.

Rovner: So plenty of news this week. We’re going to dive right in. We’re going to start again this week with the nation’s debt limit, which Treasury Secretary Janet Yellen warned this week could be reached as soon as June 1. That’s a lot earlier than I think most people had been banking on. And if Congress doesn’t act to raise it by then, the U.S. could default on its debts for the first time in history. Do we have any feel yet for how this gets untangled now that we know — I think there are, what, eight days left where both the House and the Senate will be in session?

Ollstein: You said it caught all of us by surprise. It seems to have caught lawmakers by surprise as well. They seem to have thought they had a lot more time to fight and blow smoke at one another, and they really don’t. And there has not been a clear path forward. There are efforts to get Mitch McConnell more involved. He has sort of said, “Ah, you people figure this out. You know, whatever House Republicans and the White House can agree on, the Senate will pass.” And he’s been trying to stay out of it. But now both Republicans and Democrats want him to weigh in. He’s seen as maybe a little more reasonable than some of the House Republicans to some of the players, and so —

Rovner: He may be one of the few Republicans who understands that it would be very, very bad to default.

Ollstein: Right. You have a lot of House Republicans saying it wouldn’t be so bad — the tough medicine for Washington spending, etc. So, you know, if I were to bet money, which I wouldn’t, I would bet on some sort of short-term punt; I mean, we’re really coming up to the deadline, and that’s what Congress loves to do.

Rovner: Yeah, I do too.

Kenen: I agree with Alice. You know, I think if the deadline had been a couple of months from now — they really didn’t want to do a punt. I mean, I think they wanted to walk up to the cliff and cut some kind of deal at the last hour. But I think this caught everybody off guard, including possibly Janet Yellen. So I think it’s much more likely there’ll be a short-term postponement. I think the Democrats would like to tie it to the regular budget talks for the end of the fiscal year. I’m not sure the Republicans will consider September 30 short-term. It might be shorter than that. Of course, we could have another one. But I think Alice’s instincts are right here.

Rovner: Yeah, I do too. I mean, the best thing Congress does is kick the can down the road. They do it every year with all kinds of things. Sorry, Rachel, I interrupted you.

Cohrs: Oh, no, that’s all right. I was just going to flag that the date to watch next week is May 9, when I think they’re all supposed to kind of get in a room together and start this conversation. So I think we’ll hopefully have a readout. I don’t know that they’re going to solve everything in that meeting, but we’ll at least get a sense of where everyone’s coming from and just how acrimonious things really are. So, yeah, those will kick off in earnest.

Rovner: Yeah. Well, one thing the Democrats are talking about is a discharge petition in the House, which is a rarely successful but not all that little-used way to bring a bill to the floor over the objections of the party in charge. Is there any chance that this is going to work this time?

Kenen: That’s one reason the Republicans might not want an extension, because they probably couldn’t do it in the next two or three weeks. There’s a slight chance they could do it in early to mid-June. The Democrats need five Republicans to sign on to that. I would think that if any Republicans are willing to sign on to that, they’re not going to say it in public, so we won’t know who they are, but the chances of it working improve if there’s an extension; the chances of it working are still not great, but I don’t think it’s impossible. I do not think it’s impossible, because there are Republicans who understand that defaulting is not a good idea.

Rovner: This has been painted this week as, Oh, this is a secret idea. It’s like, it’s not, but the actual discharge petition, you get to sign it not anonymously, but no one knows who’s signing on. It’s not like co-sponsoring a regular bill.

Kenen: But stuff gets out. I mean, there’s no such thing as a secret on the Hill.

Rovner: But technically, when you sign it, it’s not an obvious public thing that you’re supporting it, so we will — we’ll have to see. Well, we know that Republicans are demanding deep, in some cases very deep, cuts to federal spending with their bill to raise the debt ceiling. We’re finding out just how deep some of the cuts would be. One possible piece of fallout I think Republicans didn’t bargain for: They say they intended to exempt veterans from the cuts, but apparently the bill doesn’t actually do that, which has already prompted cries of outrage from very powerful veterans groups. This is the danger of these really broadly written bills, right, is that you can sort of actually accidentally end up sweeping in things you didn’t mean to.

Cohrs: Right. Well, this bill came together very quickly, and Kevin McCarthy was dealing with a lot of competing factions and trying to make everyone happy on issues like energy credits, that kind of thing. And obviously this didn’t get attention before. And I think that that’s just kind of a symptom that isn’t infrequent in Washington, where things come together really quickly, and sometimes there are some unintended consequences, but I think that’s one of the functions of kind of the news cycle in Washington especially, is to bring attention to some of these things before they become law. So the rhetoric has been very fiery, but again, there’s a possibility that it could be worked out at a later date if for some reason the final deal ends up looking something like the Republican bill, which is not necessarily the case.

Rovner: Once upon a time — and we’ll talk about this next — we had something called regular order, where bills went through the committee process, there was a committee report, and people had time to look at them before they came to the floor. And now it’s sort of like a fish. If you leave it out too long, it’s going to start to smell. So you got to catch it and pass it right away. Well, before we get to that, another change that those people who wrote the Republican bill probably didn’t intend: The requirement for states to institute work requirements for those who get Medicaid and/or food stamps — something that states cannot opt out of, we are told — does not include exemptions for people with disabilities. In other words, they would be required to work if they are of the age. Even those who’ve been getting, you know, disability benefits for years would have to be recertified as quote “unfit to work” by a doctor, or else they would have their benefits terminated. I would imagine that states would be among those joining the uproar with this. They have enough to do with redeterminations right now from people who got on Medicaid during the pandemic. The last thing they need is to have to basically redetermine every single person who’s already been determined to have a disability.

Kenen: And it’s a burden for the disabled too, even if the states are willing to do it. Bureaucracies are hard to deal with, and people would get lost in the shuffle. There’s absolutely no question that disabled people would get lost in the shuffle given the system they’ve set up.

Ollstein: Yes, this is a perfect example of how people fall through the cracks, and especially because a lot of the mechanisms that states set up to do this, we’ve seen, are not fully accessible for people with disabilities. Some of them have audio-only options. Some of them have online-only options. It’s very hard for people to — even if they know about it, which they might not — to navigate this and become certified. And so there is a fair amount of data out there that the projected savings from policies like work requirements don’t come from more people working; they come from people getting kicked off the rolls who maybe shouldn’t be, should be fully eligible for benefits.

Kenen: And it’s not just physical disability. I mean, there’s all sorts of developmental disabilities — people who really aren’t going to be able to navigate the system. It’s just — it may not be what they intended, it may be what they intended, who knows. But it’s not a viable approach.

Rovner: Yeah. Meanwhile, even if the Democrats could sneak a bill out of the House with a little bit of moderate Republican support, there’s no guarantee it could get through the Senate, where West Virginia’s Joe Manchin says he supports at least some budget cuts and work requirements and where the absence of California’s Dianne Feinstein, who is 89 and has been away from Washington since February, trying to recover from a case of shingles, has loomed large in a body where the elected majority only has 51 votes. Joanne, you wrote about the sticky problem of senators of an advanced age. Feinstein is far from the first, but is there anything that can be done about this when, you know, one of our older senators is out for a long time?

Kenen: There is no institutional solution to an incapacitated senator. And in addition to the magazine piece I wrote about this yesterday for Politico Magazine, I also wrote about last night in Politico Nightly sort of going back to the history until the 1940s. I mean, there have been people, a handful, but people out for like three or four years. The only tool is an expulsion vote, and that is not used. You need two-thirds vote, and you can’t get that. It was used during the Civil War, where there were I think it was 14 senators from Confederate states who didn’t sort of get that they were supposed to leave once the Civil War started, so they got expelled. Other than that, there’s only been one case, and it was for treason, in the 1790s. So they’re not going to start expelling senators who have strokes or who have dementia or who have other ailments. That’s just not going to happen. But that means they’re stuck with them. And it’s not just Feinstein. I mean, there have been other impaired senators, and there will be more impaired senators in the future. There’s no equivalent to the 25th Amendment, for which the vice president and the cabinet can remove a president. The Senate has no mechanism other than behind-the-scenes cajoling. And, you know, we have seen Dianne Feinstein — she didn’t even announce she wasn’t running for reelection until other people announced they were running for her seat. But it’s like 50-50 Senate — if it’s 47-53 and one is sick, it doesn’t matter so much. If it’s 50-50 or 51-49, it matters a lot.

Rovner: Yeah, and that’s what I was going to say. I mean, you and I remember when Tim Johnson from South Dakota had, what was it, an aneurysm?

Kenen: I think he had a stroke, right?

Rovner: Yeah. It took him a year to come back, which he did eventually.

Kenen: Well, we both covered Strom Thurmond, who, you know, was clearly not —

Rovner: —he was not all there —

Kenen: — situational awareness for quite a few years. I mean, it was very clear, you know, as I mention in this story, that, you know, instead of the staff following his orders, he was following the staff’s orders and he was not cognizant of Senate proceedings or what was going on.

Rovner: Yeah, that’s for sure.

Kenen: But there also are some who are really fine. I mean, we know some who are 80, 88 — you know, in their 80s who are totally alert. And so an age cutoff is also problematic. That doesn’t work either.

Rovner: Right. Ted Kennedy was, you know, right there until he wasn’t. So I’m amazed at the at how some of these 80-something-year-old senators have more energy than I do. Well, elsewhere on Capitol Hill, we talked about the bipartisan drug price bill last week in the Senate that was supposed to be marked up and sent to the floor this week, which did not happen. Rachel, how did what should have been a fairly routine committee vote get so messed up?

Cohrs: Yeah, it was a — it was a meltdown. We haven’t seen something like this in quite a — a couple of years, I think, on the Hill, where Chairman Bernie Sanders’ first major, you know, health care markup. And I think it just became clear that they had not done due diligence down the dais and had buy-in on these bills, but also the amendment process, which sounds like a procedural complaint but it really — there were some substantive changes in these amendments, and it was obvious from the markup that senators were confused about who supported what and what could get the support of the caucus. And those conversations in the Lamar Alexander, you know, iteration of this committee happened before. So I think it, you know, was a lesson certainly for everyone that there does need to be — I don’t know, it’s hard to draw the line between kind of regular order, where every senator can offer an amendment, and what passes. And it’s just another symptom of that issue in Congress where even sometimes popular things that an individual senator might support — they could pass on their own — that throwing off the dynamics of packages that they’re trying to put together. So I think they are hoping to give it another shot next week after a hearing with executives from insulin manufacturers and pharmacy benefit managers. But it was pretty embarrassing this week.

Rovner: Yeah. I was going to say, I mean normally these things are negotiated out behind the scenes so by the time you actually — if you’re going to have a markup; sometimes markups get canceled at the last minute because they haven’t been able to work things out behind the scenes. Correct me if I’m wrong, but Bernie Sanders has not been chairman before of a major legislative committee, right? He was chairman of the Budget Committee, but they don’t do this kind of take up a bill and make amendments.

Kenen: I don’t remember, but he was a lead author of the bipartisan veterans bill. So he has — it’s probably his biggest legislative achievement in the Senate. And that was a major bipartisan bill. So he does know how these things work.

Rovner: Right. He knows how to negotiate.

Kenen: It just didn’t work.

Rovner: Yeah, I think this came as a surprise — a committee like this that’s really busy with legislation and that does legislation that frequently gets amended and changed before it goes to the floor. I am told he was indeed chairman of Veterans’ Affairs, but they don’t do as much legislation as the HELP Committee. I think this was perhaps his first outing. Maybe he learned some important lessons about how this committee actually works and how it should go on. All right. Rachel, you said that there’s going to be a hearing and then they’re going to try this markup again. So we’ll see if they get through this in the May work period, as they call it.

Kenen: Maybe they’ll come out holding hands.

Rovner: I want to turn to abortion. It seems that maybe, possibly, the tide in states is turning against passage of the broadest possible bans. In the same day last week we saw sweeping abortion restrictions turned back, though barely, by lawmakers in both South Carolina and Nebraska. And in North Carolina, where Republicans just got a supermajority big enough to override the state’s Democratic governor’s veto, lawmakers are now looking at a 12-week ban rather than the six-week or total ban that was expected. Alice, is this a trend or kind of an anomaly?

Ollstein: Every state is different, and you still have folks pushing for total or near-total bans in a lot of states. And I will say that in North Carolina specifically, a 12-week ban will have a big impact, because that is the state where a lot of people throughout the entire South are going right now, so they’re getting incoming folks from Texas, Oklahoma, Alabama, Louisiana. So it’s one of the sort of last havens in the entire southeast area, and so even a restriction to 12 weeks, you know, we know that the vast majority of abortions happen before that point, but with fewer and fewer places for people to go, wait times are longer, people are pushed later into pregnancy who want to terminate a pregnancy sooner. And so it could be a big deal. This has also been kind of a crazy saga in North Carolina, with a single lawmaker switching parties and that being what is likely to enable this to pass.

Rovner: Yeah, a Democrat turned Republican for reasons that I think have not been made totally clear yet, but giving the Republicans this veto-proof majority.

Kenen: They’ve got the veto-proof majority. I did read one report saying there was one vote in question. It might be this lawmaker who turned, whether she’s for 12-week or whether she’s for 15 or 20 or whatever else. So it’ll certainly pass. I don’t have firsthand knowledge of this, but I did read one story that said there’s some question about they might be one short of the veto-proof majority. So we’ll just have to wait and see.

Rovner: Yeah, North Carolina is obviously a state that’s continuing. So my colleague and sometime podcast panelist Sarah Varney has a story this week out of Idaho, where doctors who treat pregnant women are leaving the state and hospitals are closing maternity wards because they can no longer staff them. It’s a very good story, but what grabbed me most was a line from an Idaho state representative who voted for the ban, Republican Mark Sauter. He told Sarah, quote, “he hadn’t thought very much about the state abortion ban other than I’m a pro-life guy and I ran that way.” He said it wasn’t until he had dinner with the wife of a hospital emergency room doctor that he realized what the ban was doing to doctors and hospitals in the state and to pregnant women who were not trying to have abortions. Are we starting to see more of that, Alice? I’ve seen, you know, a few Republicans here and there saying that — now that they’re seeing what’s playing out — they’re not so sure these really dramatic bans are the way to go.

Ollstein: Yeah, I will say we are seeing more and more of that. I’ve done some reporting on Tennessee, where some of the Republicans who voted for the state’s near-total ban are expressing regret and saying that there have been unintended consequences for people in obstetric emergency situations. You know, they said they didn’t realize how this would be a chilling effect on doctors providing care in more than just so-called elective abortion situations. But it does seem that those Republicans who are speaking out in that way are still in the majority. The party overall is still pushing for these restrictions. They’re also accusing medical groups of misinterpreting them. So we are seeing this play out. For instance, you know, in Tennessee, there was a push to include more exceptions in the ban, alter enforcement so that doctors wouldn’t be afraid to perform care in emergency situations, and a lot of that was rejected. What they ended up passing didn’t go as far as what the medical groups say is needed to protect pregnant people.

Rovner: It’s important to point out that the groups on the other side, the anti-abortion groups, have not backed off. They are still — and these are the groups that have supported most of these pro-life Republicans who are in these state legislatures. So were they to, you know, even support more exemptions that would, you know, turn them against important supporters that they have, so I think it’s this —

Ollstein: —right—

Rovner: —sort of balancing act going on.

Ollstein: Plus, we’ve seen even in the states that have exemptions, people are not able to use them in a lot of circumstances. That’s why you have a lot of pro-abortion rights groups, including medical groups, saying exemptions may give the appearance of being more compassionate but are not really navigable in practice.

Rovner: Right. I mean, we’ve had all these stories every week of how near death does a pregnant woman have to be before doctors are not afraid to treat her because they will be dragged into court or put in jail?

Ollstein: Right.

Rovner: So this continues. Well, the other big story of the week has to do with exactly that. The federal Department of Health and Human Services has opened an investigation into two hospitals, one each in Missouri and Kansas, that federal officials say violated the federal emergency medical care law by refusing to perform an abortion on a woman in medical distress. If the hospitals don’t prove that they will comply with the law, they could face fines or worse, be banned from participation in Medicare and Medicaid. I can’t help but think this is the kind of fight that’s going to end up at the Supreme Court, right? I mean, this whole, if you have a state law that conflicts with federal law, what do you do?

Ollstein: Yeah, we’re seeing that both in the EMTALA space [Emergency Medical Treatment and Labor Act] and in the drug space. We’re seeing a lot of state-federal conflicts being tested in court, sort of for the first time in the abortion question. So we also, in addition to these new federal actions, you know, we still have cases playing out related to abortion and emergency care in a few other states. So I think this will continue, and I think that you’re really seeing that exactly the letter of the law is one thing, and the chilling effect is another thing. And how doctors point out if a lot of these state abortion bans are structured around what’s called an affirmative defense, which means that doctors have to cross their fingers and provide the care and know that if they get sued, they can mount a defense that, you know, this was necessary to save someone’s life. Now, doctors point out that a lot of people are not willing to do that and a lot of people are afraid to do that; they don’t have the resources to do it. Plus, in the medical space, when you apply for licenses or things in the future, it doesn’t just say, “Were you ever convicted of something?” It says, “Were you ever charged with something?” So even if the charges are dropped, it still remains on their record forever.

Rovner: Yeah, and they have malpractice premiums. I mean, there’s a whole lot of things that this will impact. Well, I want to talk about covid, because we haven’t talked about covid in a couple of weeks. It is still with us. Ask people who went to the big CDC conference last week; I think they’ve had, what, 35 cases out of that conference? Yet the public health emergency officially ends on May 11, which will trigger all manner of changes. We’re already seeing states disenrolling people for Medicaid now that they’re allowed to redetermine eligibility again, including some people who say they’re still eligible, as we talked about a little bit earlier. We’re also seeing vaccine mandates lifted. Does this mean that the pandemic is really over? It obviously is a major signal, right, even if covid is still around?

Kenen: It means it’s legally over. It doesn’t mean it’s biologically over. But it is clearly better. I mean, will we have more surges next winter or over some kind of holiday gathering? You know, it’s not gone and it’s probably never going to be gone. However, we also don’t know how many cases there really are because not everybody tests or they don’t realize that cold is covid or they test at home and don’t report it. So the caseload is murky, but we sure note that the death toll is the lowest it’s been in two years, and I think it’s under 200 a day — and I’d have to double check that — but it’s really dropped and it’s continuing to drop. So even though there’s concern about whether we still need some of these protections, and I personally think we do need some of them in some places, the bottom line is, are people dying the way they were dying? No. That is — you know, I’ve watched that death toll drop over the last couple of weeks; it’s consistent and it’s significant. And so we should all be grateful for that. But whether it stays low without some of these measures and access to testing and access to shots and — and people are confused, you know, like, Oh, the shots aren’t going to be free or they are going to be free or I don’t need one. I mean, that whole murkiness on the part of the public — I mean, I have friends who are quite well aware of things. I mean, I have friends who just got covid the other day and, you know, said, “Well, you know, I’m not going to — I’m not really, really sick, so I don’t need Paxlovid.” And I said, “You know, you really need to call your doctor and talk about that.” So her doctor gave her Paxlovid — so she actually had a risk factor, so, two risk factors. So it’s not over, but we also have to acknowledge that it’s better than many people thought it would be by May 2023.

Rovner: Yeah, I know. I mean, the big complaints I’m seeing are people with chronic illnesses who worry that masks are no longer required in health care facilities, and that that seems to upset them.

Kenen: I mean, I think if you were to ask a doctor, I would hope that you could ask your doctor to put on a mask in a certain situation. And that doesn’t work in a hospital where lots of people around, but the doctors I’ve been to recently have also worn masks and —

Rovner: Yeah, mine too.

Kenen: Luckily, we do know now that if you wear a good mask, an N95, properly, it is not perfect, but you still can protect yourself by wearing a mask. You know, I take public transport and I wear masks in public transport, and I still avoid certain settings, and I worry more about the people who are at risk and they don’t understand that the shots are still free; they don’t know how to get medication; they don’t — there’s just a lot of stuff out there that we have communicated so poorly. And the lack of a public health emergency, with both the resources and the messaging — I worry about that.

Rovner: And as we pointed out, people losing their health insurance, whether, you know —

Kenen: That’s a whole other —

Rovner: Yeah, rightly or not. I mean, you know, whether they’re no longer eligible.

Kenen: Most are, but they’re still, you know — falling through the cracks is a major theme in American health care.

Rovner: It is. Well, finally this week, the U.S. surgeon general, Vivek Murthy, wants us to be less lonely. Really. The health effects of loneliness have been a signature issue for Dr. Murthy. We talked about it at some length in a podcast last summer. I will be sure to add the link to that in the show notes. But now, instead of just describing how loneliness is bad for your health — and trust me, loneliness is bad for your health — the surgeon general’s office has issued a new bulletin with how Americans can make themselves less lonely. It’s not exactly rocket science. It recommends spending more time in person with friends and less time online. But does highlighting the issue make it easier to deal with? I mean, this is not one of the traditional public health issues that we’ve talked about over the years.

Ollstein: I’m very interested to see where this conversation goes, because it’s already sort of feeling like a lot of other public health conversations in the U.S. in that they describe this huge, existential, population-level problem, but the solutions pushed are very individual and very like, you have to change your lifestyle, you have to log off, you have to join more community groups. And it’s like, if this is a massive societal problem, shouldn’t there be bigger, broader policy responses?

Kenen: You can’t mandate someone going out for coffee —

Ollstein: —exactly—

Kenen: —three times a week. I mean, this one —

Ollstein: Exactly. You can’t boostrap loneliness.

Kenen: This one, I think — I think it validates people’s feelings. I mean, I think people who are feeling isolated —I mean, we had loneliness before the pandemic, but the pandemic has changed how we live and how we socialize. And if — I think it’s sort of telling people, you know, if you’re feeling this way, it is real and it’s common, and other people are feeling that way, too, so pick up the phone. And maybe those of us who are more extroverted will reach out to people we know who are more isolated. So, I mean, I’m not sure what HHS or the surgeon general can do to make people spend time with one another.

Ollstein: Well, there are structural factors in loneliness. There are economic factors. There is, you know, a lack of paid time off. There are a lack of public spaces where people can gather, you know, in a safe and pleasant way. You know, other countries do tons of things. You know, there are programs in other countries that encourage teens, that finance and support teens forming garage bands, in Scandinavian countries. I mean, there are there are policy responses, and maybe some of them are already being tried out at like the city level in a lot of places. But I’m not hearing a lot other than telling people to make individual life changes, which may not be possible.

Rovner: But although I was going to point out that one of the reasons that this is becoming a bigger issue is that the number of Americans living alone has gone up. You know, and again, Joanne, this was way before the pandemic, but it’s more likely — people are more in a position to be lonely, basically. I mean, it’s going to affect a larger part of the population, so —

Kenen: And some of the things that Alice suggested are policies that are being worked on because of, you know, social determinants and other things: recreation, housing. Those things are happening at both the state and federal level. So they would help loneliness, but I don’t think you’re going to see them branded as a loneliness — national loneliness program. But, you know, the demographics of this country — you know, families are scattered. Zoom is great, you know, but Zoom isn’t real life. And there are more people who are single, there are more people who are widowed, there are more people who never married, there are more people who are divorced, the elderly cohort. Many people live alone, and teens and kids have had a hard time in the last couple years. So I think on one level it’s easy for people to make fun of it because, you know, we’re coming out of this pandemic and the surgeon general’s talking about loneliness. On the other hand, there are millions or tens of millions of people who are lonely. And I think this does sort of help people understand that there are things to be done about it that — I don’t think individual action is always a bad thing. I mean, encouraging people to think about the people in their lives who might be lonely is probably a good thing. It’s social cohesion. I mean, Republicans can make that case, right, that we have to, you know, everybody needs to pick up a telephone or go for a walk and knock on a door.

Rovner: Yeah, they do. I mean, Republicans are big on doing things at the community level. That’s the idea, is let’s have government at the lowest level possible. Well, this will be an interesting issue to watch and see if it catches on more with the public health community. All right. That is this week’s news. Now it is time for our extra credit segment. That’s when we each recommend a story we read this week we think you should read too. As always, don’t worry if you miss it. We will post the links on the podcast page at KFF Health News and in our show notes on your phone or other mobile device. Rachel, why don’t you go first this week?

Cohrs: My story is in ProPublica and the headline is “This Pharmacist Said Prisoners Wouldn’t Feel Pain During Lethal Injection. Then Some Shook and Gasped for Air,” by Lauren Gill and Daniel Moritz-Rabson. And I think it’s just a story about this ongoing issue of expert testimony in criminal justice settings. And obviously these are really important questions about medications that, you know, are used for lethal injections and how they work and just how, you know, people are responding to them in the moment. And I mean, it’s just such an important issue that gets overlooked in the pharmaceutical space sometimes. And yeah, I think it’s just something that is very sobering, and it’s just a really important read.

Rovner: Yeah. I mean, there’s been a lot about doctors and the ethics of participating in these. This is the first time I’ve seen a story about pharmacists. Joanne?

Kenen: Well, I saw this one in The Atlantic. It’s by Yasmin Tayag, and I couldn’t resist the headline: “There Is No Stopping the Allergy Apocalypse.” Basically, because of climate change, allergies are getting worse. If you have allergies, you already know that. If you think you don’t have allergies, you’re probably wrong; you’re probably about to get them. They take a little while to show up. So it’s not in one region; it’s everywhere. So, you know, we’re all going to be wheezing, coughing, sneezing, sniffling a lot more than we’re used to, including if you were not previously a wheezer, cougher, or sniffler.

Rovner: Oh, I can’t wait. Alice.

Ollstein: So I have a piece from The Wall Street Journal called “Patients Lose Access to Free Medicines Amid Spat Between Drugmakers, Health Plans,” by Peter Loftus and Joseph Walker. And it is some really tragic stories about folks who are seeing their monthly costs for medications they depend on to live shoot up. In one instance in the story, what he has to pay per month shot up from 15 to more than 12,000. And so you have the drugmakers, the insurance companies, and the middlemen pointing fingers at each other and saying, you know, “This is your fault, this is your fault, this is your fault.” And meanwhile, patients are suffering. So, really interesting story, hope it leads to some action to help folks.

Rovner: I was going to say, maybe the HELP Committee will get its act together, because it’s trying to work on this.

Ollstein: Yeah.

Rovner: Well, my story is from The Washington Post, and it’s called “Dog-Walking Injuries May Be More Common Than You Think,” by Lindsey Bever. And it’s about a study from Johns Hopkins, including your colleagues, Joanne, that found that nearly half a million people were treated in U.S. emergency rooms for an injury sustained while walking a dog on a leash. Not surprisingly, most were women and older adults, who are most likely to be pulled down by a very strong dog. The three most diagnosed injuries were finger fractures, traumatic brain injuries, and shoulder injuries. As a part-time dog trainer in my other life, here are my two biggest tips, other than training your dog to walk politely on a leash: Don’t use retractable leashes; they can actually cut off a finger if it gets caught in one. And never wrap the leash around your hand or your wrist. So that is my medical advice for this week. And 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 ever-patient producer, Francis Ying. Also, as always, you can email us your comments or questions. We’re at whatthehealth@kff.org. Or you can tweet me, as long as Twitter’s still there. I’m @jrovner. Joanne?

Kenen: @JoanneKenen.

Rovner: Alice.

Ollstein: @AliceOllstein.

Rovner: Rachel.

Cohrs: @rachelcohrs.

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

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