The Host

Julie Rovner
KFF Health News

@jrovner

Read Julie's stories.

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

The 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

@AliceOllstein

Read Alice's stories

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

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

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

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

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Rachel Cohrs
Stat News

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Joanne Kenen
Johns Hopkins Bloomberg School of Public Health and Politico

@JoanneKenen

Read Joanne's stories

Sandhya Raman
CQ Roll Call

@SandhyaWrites

Read Sandhya's stories

Among the takeaways from this week’s episode:

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

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

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

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

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

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

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

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

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

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

Joanne Kenen: Hi, everybody.

Carey: Rachel Cohrs of Stat.

Cohrs: Morning, everyone.

Carey: And Sandhya Raman of CQ Roll Call.

Raman: Good morning.

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

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

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

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

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

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

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

Cohrs: I think they can do what they want.

Carey: That’s true.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Carey: Sandhya, what’s your extra credit?

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

Carey: Rachel.

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

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

Cohrs: @rachelcohrs.

Carey: Joanne?

Kenen: @JoanneKenen.

Carey: Sandhya.

Raman: @SandhyaWrites.

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

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In 2014, Lisa French had spinal surgery. Before the operation, she was told she would have to pay $1,337 in out-of-pocket costs and that her insurance would cover the rest. However, the hospital ended up sending French a bill for $229,000. When she didn’t pay, it sued her.

The case went all the way to the Colorado Supreme Court. In this episode of “An Arm and a Leg,” host Dan Weissmann finds out how the court ruled and how the decision is reshaping the fine print on hospital bills in ways that could cost patients a lot of money.

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Host and producer of "An Arm and a Leg." Previously, Dan was a staff reporter for Marketplace and Chicago's WBEZ. His work also appears on All Things Considered, Marketplace, the BBC, 99 Percent Invisible, and Reveal, from the Center for Investigative Reporting.

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Transcript: A $229,000 Medical Bill Goes to Court

Note: “An Arm and a Leg” uses speech-recognition software to generate transcripts, which may contain errors. Please use the transcript as a tool but check the corresponding audio before quoting the podcast.

Dan: Hey there–

Lisa French was a clerk for a trucking company in Denver. She’d been in a car crash, and her doctor told her that to keep her spine stable, she ought to get surgery.

She asked the folks at the hospital what it was gonna cost her, out of pocket. They ran her insurance and told her: Your end is going to be one thousand, three hundred thirty-six dollars, and ninety cents.

She said, thanks.

Then, she and her husband sat down at their kitchen table and talked it over: They had a rainy-day fund. A thousand dollars they’d socked away, they kept it at home, in cash. Were they ready to spend it all for this? 

They decided they were, and Lisa went to the hospital with a thousand dollars cash. 

She had the surgery, it went fine. The hospital had been expecting about 55 thousand dollars from Lisa’s insurance. They actually got more like 74 thousand.

But they decided that wasn’t enough. They decided they wanted their full sticker price: 303 thousand dollars. So they billed Lisa French for the rest: 229 thousand dollars.

And when they didn’t get it, they sued her.

Lisa French had her surgery in 2014. The court case finally got resolved last year, in 2022, by the Colorado Supreme Court.

If you’ve been listening to this show for a while, you probably remember: We have gotten VERY interested in understanding, when we get a wild medical bill, what legal rights do we have? How can we use those rights to fight back? Even on a small scale, like in small claims court? 

And even though Lisa French’s case is a LONG way from small claims court, it has a LOT to teach us about these questions.

This is An Arm and a Leg, a show about why health care costs so freaking much, and what we can maybe do about it. I’m Dan Weissmann. I’m a reporter, and I like a challenge. So our job on this show is to take one of the most enraging, terrifying, depressing parts of American life, and bring you something entertaining, empowering, and useful.

And I should say upfront: We won’t be hearing from Lisa French directly.

Her case made a lot of headlines– in 2018, when a jury heard it, in YEAR when an appeals court overturned the trial court, and last year when the state supreme court made its ruling.

Not in the kind of detail that we’re gonna go into, but come on: Who can resist the headline?

Male Anchor: Well, tonight we have a story of David versus Goliath. David being a woman who needed spinal surgery in 2014 Goliath, the hospital that charged her more than $200,000 to do it.

Dan: So over the years, a lot of reporters wanted a sound bite from Lisa French. Her attorney used to let her know when there was an inquiry, and she’d say yes or no.

Eventually, she told her lawyer: Don’t even tell me when they call anymore. I just want to live my life.

Fair enough.

So here’s who we’ve got.

Ted Lavender: I’m Ted Lavender. I’m an attorney in Atlanta, Georgia. I’ve been practicing law for 26 years,

Dan: And he spent several of those years representing Lisa French.

It’s probably worth answering one question up front: If Lisa French had to empty her family’s rainy-day fund to pay the hospital a thousand bucks, who’s paying the lawyer from Atlanta?

The insurance from her job. Which had played a role in starting the whole mess.

Ted Lavender: the company that she worked for had a health benefits plan that was slightly different than what you might call run of the mill health insurance.

Dan: It worked this way: They weren’t in-network with any hospitals. Instead, they’d just take whatever bill any hospital sent, make their own evaluation of what a fair price would be, and send the hospital a check.

It’s a somewhat unusual model– one survey says about 2 percent of employers use a plan like this– but Ted Lavender says it often works.

Ted Lavender: a very large percentage of the time , the hospital would accept the check and no one would hear anything more from the hospital, which in legal parlance would mean acceptance

Dan: And as a backstop, in case there was any trouble, the health plan would send a lawyer. That’s Ted.

And here’s what happened that led to all the trouble in Lisa French’s case: Whoever ran her insurance card at the hospital, they didn’t read it very carefully.

If they had, they would’ve seen a little logo under the insurance-company name that said, “provider only” — that is: This plan only has doctors and nurses and other PROVIDERS in network.

With hospitals, there’s no network, no “in-network rate.” We’ll just send a check for what we think is right.

The same health-benefits company has a different plan, one that does have a hospital network. You know how it is. Insurance companies, a million different plans, every one its own snowflake.

The hospital mistook Lisa French’s snowflake for another one, and that’s how they came up with that estimate.

Ted Lavender: based on their calculation, they expected to collect a total of

$56,000, the 1,336 from Ms. French and the remainder from her health plan.

Dan: And they presumably would’ve been happy with 56 thousand. But they got more. They got about 75 thousand dollars.

But once they got it, they wised up to the mistake they had made about Lisa French’s insurance. They had no agreement with the insurance plan to accept 56 thousand.

So, they decided: There’s no reason for us not to charge our full sticker price here.Three hundred and three thousand dollars.

So Lisa French had been expecting a bill for three hundred thirty-six dollars and ninety cents. That’s the difference between what she’d been quoted and the thousand dollars she’d paid in advance. But the bill she got wasn’t what she expected.

Ted Lavender: it turned out to be a whopper of a bill. We ended up with an itemized bill that showed every line item for every charge that totaled this

$303,000

And then at the bottom was, you know, subtracting the thousand she paid, subtracting the money the insurance paid, leaving a balance of 229,000 and change

Dan: Of course, Lisa French did not have 229 thousand dollars, or anything like it.

Ted Lavender: Eventually she got a visit from the sheriff who served her with a lawsuit and she was sued for that $229,000.

Dan: And that’s where Ted Lavender entered the scene.

The jury trial in 2018 took six days. As Ted Lavender says, it wasn’t exactly a splashy murder trial, in terms of drama.

Ted Lavender: this was a six day trial involving hospital billing. So, you know, there was no murder weapon. There was no aha, big, gotcha moment that was really exciting.

Dan: But Ted Lavender did his best. Like one time, when he got a hospital executive on the witness stand.

To stabilize Lisa French’s spine, surgeons had implanted 13 pieces of metal into her body. So Ted Lavender had the hospital executive walk the jury through the price for each of those bits of metal. Or actually, the prices..

Ted Lavender: And I first showed him the itemized bill and asked him to identify what they charged for these 13 pieces of hardware .

I had given him sort of an oversized calculator that was sitting there in front of him on the witness stand, admittedly, for some dramatic effect

And through adding these up on the itemized bill, he arrived at the number which was $197,000.

Dan: A hundred and ninety-seven thousand dollars. So that’s about two-thirds of the three hundred and three thousand dollars the hospital is trying to charge Lisa French.

And then the next thing I did was I handed in the 13 invoices that we had received from the hospital,

Dan: That is, Ted handed the guy the invoices the hospital had received — and paid — when it bought those bits of metal..

Ted Lavender: and I asked him to add up and tell this jury what did the hospital pay for these 13 pieces of hardware.

He’s adding, and he’s adding and he’s punching in numbers, and he’s turning pages and he’s adding, and he’s adding with each addition, with each plus the jury seemed to ease a little closer up to the front of their chair, and ultimately he arrived at the total, which was $31,000 and change.

Dan: So the hospital’s charging like six and a half times what they paid. And that’s two thirds of this 300 thousand dollar bill.

Ted Lavender: It just, you know, the jury seemingly did not like that.

Dan: So that was a good moment for Lisa French’s side. I mean getting the jury mad at the other side, that’s a win.

And the big calculator wasn’t Ted Lavender’s only visual: He also had a giant post-it note, where he wrote down, in magic marker, all the different prices the hospital accepted for the surgery, depending on who was paying.

Ted Lavender: and we got these numbers from the hospital, they would’ve accepted $146,000 from private insurance.

Dan: That’s less than half of what they were trying to charge Lisa French. And they accepted less than that — a LOT less — from government-funded insurance, like Medicare, Medicaid, or Tricare, which covers folks in the military.

Ted Lavender: The average of what they would’ve accepted for these. Procedures that Ms. French had were $63,199. Again, Ms. French and her insurance company combined paid almost $75,000.

Dan: You can hear that post-it rustling around. It was a good prop, he’s held onto it. So, he’d shown the jury that the hospital charged a HUGE markup, and that what they were suing Lisa French for was way, way more than they charged anybody else.

On the hospital’s side, they were like, Yeah, but this is our actual sticker price. And Lisa French signed a piece of paper that said she would pay “all charges of the hospital.”

So the hospital was like, yep, and these are our charges. That 303 thousand dollars, it comes from a list we keep. It’s called the chargemaster. That’s what Lisa French was signing up for.

And this became something the jury had to decide:

When Lisa French signed a piece of paper saying she’d pay “all charges of the hospital” — was she specifically agreeing to pay what was on the chargemaster?

And here’s one thing that might’ve made jurors a little skeptical on that score: The hospital never showed that chargemaster list to Lisa French. Not before her surgery, not after it. They said it was a trade secret.

Ted Lavender: they went all the way through trial. Never producing it though. We, we, we asked at the very beginning, once the lawsuit was filed, , basically you get to ask questions. Give me this information, give me information that supports your case or helps my case.

And we ask specifically for the charge master and they refuse to produce it on the basis that it was confidential and proprietary.

Dan: By withholding that list, the hospital may have helped Ted Lavender make his argument: How could Lisa French have known what she was signing up for, if she couldn’t see the prices?

Ted Lavender: if we can’t get it through our subpoena power, how in the world would Lisa Friendship been able to use it by, had she asked?

And admittedly she didn’t ask for it, but if she had, surely they wouldn’t have given it to her either.

Dan: In the end, the jury agreed: Lisa French had not specifically agreed to pay the hospital’s chargemaster prices.

And the only other alternative was: She agreed to pay something reasonable.

The jury decided she owed the hospital seven hundred seventy six dollars and 74 cents

Basically, that’s the three hundred and some left over from the original estimate, plus some extra — because she wound up staying in the hospital one night more than expected: She owed a fee for late check-out.

Of course the hospital did not take that lying down. They appealed the outcome– and won! Ted Lavender appealed that decision, which is how the case ended up in front of the Colorado Supreme Court.

We’ve actually got tape of those proceedings. They’re kinda juicy. Plus the outcome, and why it matters for the rest of us. That’s right after this.

This episode of An Arm and a Leg is produced in partnership with KFF Health News–formerly known as Kaiser Health News.

They’re a national newsroom producing in-depth journalism about health care in America. We’ll have more information about KFF Health News at the end of this episode.

OK, so Lisa French’s case was headed to the Colorado Supreme Court.

And here’s the big issue. Remember how the jury found that Lisa French hadn’t actually agreed to pay the hospital’s chargemaster price, the three hundred and three thousand dollars?

The hospital argued: The jury never should’ve been asked to consider that question.

The law — legal precedent — makes it open and shut: The appeals court had agreed. And it had cited other cases from courts around the country.

So when the hospital’s lawyer, Mike McConnell, got up to address the Supreme Court, he led with those citations.

Mike McConnell: All of the questions that you have raised have been addressed in more than a dozen cases around the country. carefully and thoroughly.

Justice Richard L. Gabriel: Well, let me push back on you. Good morning to you, Mr. McConnell.

Mike McConnell: Good morning.

Dan: This is Justice Richard L Gabriel, stepping right in. He notes that these dozen other decisions all rest on one original case, from 2008, where a court had said: We can’t intervene in health care pricing. Courts shouldn’t try. Health care is too complicated.

Justice Gabriel wasn’t convinced.

Justice Richard L. Gabriel: I guess the question I have is why, you know? I, you know, we may not be the smartest people in the world, but this is a contract and why should the hospital industry— different than any other industry on the planet —have different rules for contract principles?

Dan: The hospital lawyer argued that hospitals couldn’t predict everything that would happen in a patient’s care. In fact, the hospital can’t even control it: Only physicians can decide what treatment to order.

Mike McConnell: You can, uh, I guess imagine that hospitals ought to be able to predict in advance what a particular physician is going to order for a particular patient. Um, and, uh, perhaps, you know, obviously you feel that is the way it ought to be. It is not the way it is, but now

Justice Melissa Hart: Mr. Mr. McConnell, I’m sorry, to interrupt…

Dan: Here’s justice Melissa Hart breaking in

Justice Melissa Hart: …the hospital did provide an estimate in this case. They did calculate what they thought this was going to cost and tell her that. So it is, it seems false to me that they can’t do it. Of course, they can’t predict with absolute certainty. In this case, she had the extra night stay in the hospital and she paid for that. But they can predict in a case like this, and they do.

Dan: The justices didn’t seem super-persuaded by McConnell’s response to that. And that left one more big question in front of the justices.

When Lisa French signed a document promising to pay “all charges,” was she definitely agreeing to pay three hundred and three thousand dollars? Or 229 after insurance.

The appeals court found that the chargemaster rate — the 303 thousand — had been “incorporated by reference” to the document she’d signed, officially called the “hospital services agreement.”

The supreme court wasn’t convinced. Here’s Justice Richard Gabriel again.

Justice Richard L. Gabriel: There’s no reference to the charge master on the face of the hospital services agreement.

How could she have assented to something she never even knew existed?

Dan: And here’s how the hospital’s lawyer responded.

Mike McConnell: When she read the provision, all charges not otherwise paid by insurance. She understood that the hospital charges would, she was responsible for paying the hospital charges that her insurance company did it,

Justice Richard L. Gabriel: Whatever it was. They could have charged her a billion dollars and she’s your position to be she’s bound because she agreed. All charges means all charges.

Dan: Huh! There wasn’t a real comeback to that.

The Supreme Court ruled against the hospital, unanimously. Specifically, they ruled that the chargemaster– the 303 thousand dollars– had not been “incorporated by reference” to the piece of paper Lisa French had signed.

She didn’t know those chargemaster list prices even existed. How could she agree to pay them?

So that meant, the court ruled that, quote, “the hospital services agreements left the price term open.”

Which is language that may ring a bell, if you’ve been listening to this show. It’s a legal principle — a bedrock of contract law:

How the law treats an open-price contract — a contract that doesn’t specify a price term.

Here’s a refresher on that principle from Ted Lavender.

Ted Lavender: if you go to McDonald’s and order a, a quarter pounder with cheese and you know, value meal number three, they tell you the price and that is the price that you have to pay. And then they give you your meal.

You enter that contract with an actual price term

Dan: But you can also enter an open-price contract — a contract without a price term.

Ted Lavender: if you have a contract without a price term, without a specific price in it, then the law infer into that contract a reasonable price.

Dan: In other words, a contract with the price term OPEN is not a blank check. I don’t have to pay whatever number the other side makes up.

And that’s what the Colorado Supreme Court found here.

They ruled that, quote, “principles of contract law can certainly be applied to hospital-patient contracts.” They say, a court may have ruled otherwise in 2008, and other courts may have cited that opinion. We disagree.

The Colorado Supreme Court is saying, even in health care, when no price is specified– when the price term is open– you have the right to a reasonable price.

Yes!

And that’s why Lisa French’s case is so interesting to us, here on this show.

Because we’ve talked here about using this legal principle to fight back against outrageous bills.

We’ve heard from one guy, Jeffrey Fox, who actually took a hospital to small claims court to enforce his right to a reasonable price. And won.

We’ve heard from a listener who tried and failed, but said, more of us should try this.

And this Colorado decision seems like good news for anybody interested in doing something like that.

But honestly, it also raises a few concerns that I had not known about before. First:

Well, there ARE all those other cases out there, in other states, that follow the 2008 case, the one that says health care is too complicated for courts to get into.

And yeah, here’s Colorado saying, “No it isn’t.”

But courts in other states aren’t bound by Colorado’s decision. Hm. And second: there’s also something the Colorado court DIDN’T decide:

What if the paper Lisa French signed had specified, “I agree to pay the hospital’s CHARGEMASTER rates?” Could she be required to pay them then? Even if they were a billion dollars?

In their decision, The Colorado court wrote that the chargemaster rates are “increasingly arbitrary” and “inflated” and “have lost any direct connection to hospitals actual cost.”

So Ted Lavender thinks they might’ve said, No, we can’t be held to a billion dollars, just by adding the word “chargemaster.”

Ted Lavender: I think they would’ve answered that. No, but they did not come right out and actually answer that.

Dan: Because they didn’t HAVE to answer that question.

Ted Lavender: Courts routinely, in fact, it’s almost an objective of appeals courts. They answer as few a number of questions as possible to get to an answer. ,

Dan: So the Colorado court simpley ruled that in Lisa French’s case, the chargemaster rates weren’t “incorporated by reference” into papers she signed.

Those papers didn’t didn’t mention the chargemaster at all– and the hospital kept that chargemaster as a trade secret. Open, shut.

But… hospitals aren’t supposed to keep those rates secret anymore. For the last couple of years, thanks to an executive order from the Trump administration, federal rules have required them to post their chargemaster to the internet.

And so I had all that in mind when I heard from a listener in Atlanta.

Cindi Gatton: my name is Cindy Gatton and I’ve been an independent patient advocate for 11 years now.

Dan: Cindi’s job is helping people deal with medical bills, but she had actually written to me about her experience as a patient.

Before a medical appointment, she got the usual forms online, including one for “Patient Financial Agreement and Responsibilities”

Cindi Gatton: so I thought, you know what? I’m gonna print it and just see exactly what it says. And I’m reading through the thing it says, patient understands and agrees that he, she will be charge. The Piedmont Healthcare Standard charge master rates for all services not covered by a payer or that are self-pay.

I’ve never seen that before, and it shocked me that there was a reference to charge master rates in the financial disclosure.

Dan: And Cindi has been dealing with medical bills full-time for a decade. She’s seen a lot. So when she says it’s new, and that it’s shocking, that seems worth noting.

Cindi Gatton: it just feels wrong to me. It feels really wrong because it, it reminds me of, you know, you, you go to a website and they give you their terms and conditions. Nobody reads those. I don’t read them. You click yes so that you can move on with what it is you wanna do, which is to get care, to be seen by the doctor to, you know, have your procedure.

And I don’t know this, this feels, um, it feels manipulative to me

Dan: Yeah, and to me, it feels ominous. Like lawyers who work for hospitals have been paying attention to the Lisa French decision and thinking:

There’s a wedge here maybe we could exploit. Like, if we get you to sign a document that says “chargemaster” on it, we’re getting you to sign away your right to a reasonable price. After all, the court in Colorado didn’t come out and say that wouldn’t be kosher.

So, where I’m landing at the end of this story is: I’ve got a couple big homework assignments:

First, if I’m interested in seeing how we can use our legal rights to fight back against outrageous, unreasonable bills — and I am —

I need to learn more about which states recognize our rights to a reasonable price in health care, and which ones … maybe don’t. I’m on it, and if you’ve got any tips, please bring them.

That’s the first assignment, and for the second, I’d love your help: How many hospitals are using this “chargemaster” language these days in those financial responsbility documents they ask us to sign?

Do me a favor: See if you can get a copy of that document from any hospital system or doctor group where you get seen. And send me a copy of it?

Redact anything you need to. And also know: we’re not aiming to share this with anybody outside our reporting team.

Here’s what happened when I tried this.

A hospital where I get seen uses a portal called MyChart– a lot of hospitals use it. I just logged on to MyChart there, and I did a little digging around. I found a link to something called “My Documents.” And I found a form there called Universal Consent.”

It has stuff about financial responsibility.

It doesn’t mention chargemaster rates. But it’s a year old. It also says it’s expired.

And here’s an idea I got from Cindi, which I’m gonna try– and which seems worth passing around.

When Cindi found that chargemaster language in the document from her Hospital, here’s what she did. She printed it out and changed it:

Cindi Gatton: what I did is instead of the standard charge master rates, I drew a line through it and I wrote in two x Medicare rates.

Dan: In other words, instead of saying “I’ll pay the chargemaster rates,” it says, “I’ll pay two times the Medicare rate.”

We’ve heard about this strategy before, from former ProPublica reporter Marshall Allen, who wrote about it in his book, “Never Pay the First Bill.”

Here’s the rationale. Medicare pays less than most commercial insurance; hospitals say that at least sometimes they lose money on Medicare. Doubling it seems … generous enough. But it also sets a limit.

So that’s what Cindi wrote on her printout.

Cindi Gatton: I have been taking it with me when I go to be seen that if they ask me for the document that I can say, you know, here it is.

Dan: So far, she says, nobody’s asked for it.

And, I don’t think anybody will be confused, but just to make sure, I’ll say: This isn’t legal advice. I’m not a lawyer. Cindi’s not a lawyer.

She’s just a person going to the doctor, doing her best not to leave too many openings where she could get really screwed. And I’m gonna try following her example.

And I’ve got another request for you: If you try this trick of printing the thing out, exxing out the chargemaster language and writing 2 x medicare rates– LET ME KNOW WHAT HAPPENS, OK?

The place to do all this is on our website at arm and a leg show dot com, slash contact. That’s arm and a leg show dot com, slash, contact.

You are this show’s secret weapon. You’re our eyes and ears. Cindi Gatton’s a listener who got in touch.

How did I first learn about Lisa French’s case? Email from a listener. [Thank you, Terry N, for that note last year! Took us a minute, but we got to this.]

Thank you for listening. You absolutely rule. I’ll catch you soon.

Till then, take care of yourself.

This episode of An Arm and a Leg was produced by me, Dan Weissmann, with help from Emily Pisacreta, and edited by Afi Yellow-Duke.

Daisy Rosario is our consulting managing producer. Adam Raymonda is our audio wizard. Our music is by Dave Winer and Blue Dot Sessions.

Gabrielle Healy is our managing editor for audience. She edits the First Aid Kit Newsletter.

Bea Bosco is our consulting director of operations. Sarah Ballema is our operations manager.

An Arm and a Leg is produced in partnership with KFF Health News–formerly known as Kaiser Health News.

That’s a national newsroom producing in-depth journalism about health care in America, and a core program at KFF — an independent source of health policy research, polling, and journalism.

And yes, you did hear the name Kaiser in there, and no: KFF isn’t affiliated with the health care giant Kaiser Permanente. You can learn more about KFF Health News at arm and a leg show dot com, slash KFF.

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Thanks to Public Narrative — That’s a Chicago-based group that helps journalists and nonprofits tell better stories– for serving as our fiscal sponsor, allowing us to accept tax-exempt donations. You can learn more about Public Narrative at www dot public narrative dot org.

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The Host

Julie Rovner
KFF Health News

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

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

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

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

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

Panelists

Sarah Karlin-Smith
Pink Sheet

@SarahKarlin

Read Sarah's stories

Victoria Knight
Axios

@victoriaregisk

Read Victoria's stories

Shefali Luthra
The 19th

@Shefalil

Read Shefali's stories

Among the takeaways from this week’s episode:

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

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

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

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

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

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

Click to open the transcript

Transcript: The Confusing Fate of the Abortion Pill

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

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

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

Victoria Knight: Good morning.

Rovner: Sarah Karlin-Smith of the Pink Sheet.

Sarah Karlin-Smith: Hi, Julie.

Rovner: And Shefali Luthra of The 19th.

Shefali Luthra: Hello.

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

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

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

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

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

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

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

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

Rovner: I think it was last week.

Karlin-Smith: Time. Time —

Rovner: Time is a very flat circle right now.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rovner: For Medicaid.

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

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

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

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

Knight: — expelled —

Rovner: —evicted from the Tennessee state legislature and then reappointed and yeah, I mean, that — people may not remember, that’s actually over a gun demonstration or a lack-of-gun-legislation demonstration. So who knows whether anyone will find something to do about it. All right. That is the news for this week. Now it’s time for our extra credit segment. That’s when we each recommend a story we read this week we think you should read too. As always, don’t worry if you miss it. We will post the links on the podcast page at khn.org and in our show notes on your phone or other mobile device. Sarah, why don’t you go first this week?

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

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

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

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

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

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

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

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

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

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

Knight: @victoriaregisk.

Rovner: Sarah?

Karlin-Smith: @SarahKarlin.

Rovner: Shefali.

Luthra: @shefalil.

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

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

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

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

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

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Sarah Karlin-Smith
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Alice Miranda Ollstein
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Among the takeaways from this week’s episode:

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

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

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

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

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

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

Also mentioned in this week’s podcast:

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

click to open the transcript

Transcript: Judging the Abortion Pill

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

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

Julie Rovner: Hello and welcome back to KHN’s “What the Health?” I’m Julie Rovner, chief Washington correspondent at Kaiser Health News. And I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, March 16, at 10 a.m. As always, news happens fast, and things might have changed by the time you hear this. So here we go. We are joined today via video conference by Alice Miranda Ollstein of Politico.

Alice Miranda Ollstein: Good morning.

Rovner: Jessie Hellmann of CQ Roll Call.

Jessie Hellmann: Hello.

Rovner: And Sarah Karlin-Smith the Pink Sheet.

Sarah Karlin-Smith: Hi, Julie.

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

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

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

Ollstein: Exactly.

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

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

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

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

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

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

Rovner: It’s a stomach ulcer drug.

Ollstein: Exactly.

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

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

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

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

Rovner: How the tech companies react.

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

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

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

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

Hellmann: Yeah.

Rovner: Is that basically where we are?

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

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

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

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

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

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

Karlin-Smith: Right.

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

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

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

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

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

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

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

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

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

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

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

Rovner: And got pulled off the market.

Karlin-Smith: Right.

Ollstein: For killing people.

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

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

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

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

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

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

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

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

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

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

Rovner: I remember when most of the health beat was actually refereeing these disputes between pieces of the medical establishment, so … there are other things that the administration is busy with in the health care realm. Well, that is the news for this week. Now it is time for our extra-credit segment — that’s where we each recommend a story we read this week we think you should read, too. As always, don’t worry if you miss it. We will post the links on the podcast page at khn.org and in our show notes on your phone or other mobile device. Sarah, why don’t you go first this week?

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

Rovner: Indeed. Jessie.

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

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

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

Rovner: Deaths from law enforcement. Not from cigarettes.

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

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

Ollstein: @AliceOllstein

Rovner: Sarah?

Karlin-Smith: @SarahKarlin

Rovner: Jessie.

Hellmann: @jessiehellmann

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

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

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

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

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

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Rachel Cohrs
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Sarah Karlin-Smith
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Alice Miranda Ollstein
Politico

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Read Alice's stories

Among the takeaways from this week’s episode:

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

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

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

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

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

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

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

Also mentioned in this week’s podcast:

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

click to open the transcript

Transcript: A Health-Heavy State of the Union

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

Julie Rovner: Hello and welcome back to KHN’s “What the Health?” I’m Julie Rovner, chief Washington correspondent at Kaiser Health News. And I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, Feb. 9, at 10 a.m. As always, news happens fast, and things might have changed by the time you hear this. So here we go. We are joined today via video conference by Alice Miranda Ollstein of Politico.

Alice Miranda Ollstein: Good morning.

Rovner: Rachel Cohrs of Stat News.

Rachel Cohrs: Hi, everybody.

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

Sarah Karlin-Smith: Hi, Julie.

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

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

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

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

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

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

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

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

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

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

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

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

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

Rovner: In a minute.

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

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

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

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

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

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

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

Rovner: They’re being sued.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Katherine Baicker: Thank you so much.

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

Baicker: It’s a pleasure.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Baicker: I hope sooner than that.

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

Baicker: My pleasure.

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

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

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

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

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

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

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

OK. That is our show for this week. As always, if you enjoyed the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left us a review — that helps other people find us, too. Special thanks, as always, to our ever-patient producer, Francis Ying. Also, as always, you can email us your comments or questions. We’re at whatthehealth — all one word — @kff.org. Or you can tweet me as long as Twitter is still up. I’m @jrovner. Alice?

Ollstein: @AliceOllstein

Rovner: Rachel

Cohrs: @rachelcohrs

Rovner: Sarah.

Karlin-Smith: @SarahKarlin

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

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

The abortion debate has changed dramatically in the seven months since the Supreme Court overturned Roe v. Wade and its nationwide right to abortion. Nearly half the states have banned or restricted the procedure, even though the public, at the ballot box, continues to show support for abortion rights.

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

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

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Alice Miranda Ollstein
Politico

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Sandhya Raman
CQ Roll Call

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Read Sandhya's stories

Sarah Varney
KHN

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Read Sarah's stories

Among the takeaways from this week’s episode:

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

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

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

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

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

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

Also mentioned in this week’s podcast:

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

Click to open the transcript

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rovner: Most of the surrounding states, too.

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

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

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

Rovner: True.

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

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

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

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

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

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

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

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

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

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

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

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

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

Rovner: Yeah. Sandhya.

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

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

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

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

All right. That is our show for this week. As always, if you enjoyed the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left us a review; that helps other people find us, too. Special thanks, as always, to our ever-patient producer, Francis Ying. Also, as always, you can email us your comments or questions. We’re at whatthehealth — all one word — @kff.org. Or you can tweet me. I’m @jrovner. Sandhya?

Raman: @SandhyaWrites

Rovner: Alice?

Ollstein: @AliceOllstein

Rovner: Sarah.

Varney: And @SarahVarney4

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

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

The abortion debate has changed dramatically in the seven months since the Supreme Court overturned Roe v. Wade and its nationwide right to abortion. Nearly half the states have banned or restricted the procedure, even though the public, at the ballot box, continues to show support for abortion rights.

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

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

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Alice Miranda Ollstein
Politico

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Sandhya Raman
CQ Roll Call

@SandhyaWrites

Read Sandhya's stories

Sarah Varney
KHN

@sarahvarney4

Read Sarah's stories

Among the takeaways from this week’s episode:

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

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

Click to open the transcript

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

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

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

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

Alice Miranda Ollstein: Good morning.

Rovner: Sandhya Raman of CQ Roll Call.

Sandhya Raman: Good morning.

Rovner: And my KHN colleague Sarah Varney.

Sarah Varney: Hey.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rovner: We will definitely have you back.

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

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

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

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

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

Rovner: And yet … 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Raman: Yes, yes.

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

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

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

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

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

Varney: Can I just add something? 

Rovner: Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Solo necesitaba a una persona a mi lado”

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

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

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

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

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

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

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

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

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

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

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

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

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

Algunas cárceles prueban nuevas estrategias

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

— Dr. Raghu Venugopal, Toronto

A Plea for Sane Prices

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

— Terrence Campbell, Pocatello, Idaho

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

— Ed Gaines (@EdGainesIII) October 25, 2022

— Ed Gaines, Greensboro, North Carolina

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

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

— Dr. Charles Beemer, Arvada, Colorado

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

— Shashank Bhat (@shashank_ps) October 26, 2022

— Shashank Bhat, San Francisco

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

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

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

— Philip Solomon, Richmond, Virginia

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

— Barry Ritholtz (@ritholtz) October 31, 2022

— Barry Ritholtz, New York City

Patients as Watchdogs

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

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

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

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

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

Again, thank you for your excellent reporting.

— Karl D. Lehman, Atlanta

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

— Brian Murphy (@NorwoodCDI) October 26, 2022

— Brian Murphy, Austin, Texas

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

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

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

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

— Fred Burkacki, Sarasota, Florida 

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

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

— Amanda Oglesby, Neptune, New Jersey

‘Bill of the Month’ Pays Off

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

— Cynthia McBride, University Place, Washington

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

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

— Erica Warner, Boston

Removing Barriers to Benefits

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

— Lorrie Crabtree, Los Angeles

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

— Ron Chusid (@RonChusid) November 10, 2022

— Ron Chusid, Muskegon, Michigan

Vaccine Injuries Deserve Attention, Too

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

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

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

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

There have been a few articles, such as …

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

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

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

— Kathy Zelenka, Port Angeles, Washington

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

— Matthew Guldin (@MRG_1977) November 11, 2022

— Matthew Guldin, West Chester, Pennsylvania

More on Mammograms

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

— Digna Irizarry Cassens, Yucca Valley, California

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

— Patricia Clark (@patriciaclarkmd) October 27, 2022

— Patricia Clark, Scottsdale, Arizona

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

— Elsie Spry, Wexford, Pennsylvania

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

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

— Donald H. Polite, Milwaukee

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

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

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

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

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

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

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

— Crispin Teufel, CEO of Lincare, Clearwater, Florida

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

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

— Ashley Moore, San Francisco

The Tall and the Short of BMI

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

— Sue Robinson, Hanover, Pennsylvania

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

— Steve Clark (@blindbites) October 10, 2022

— Steve Clark, Lee’s Summit, Missouri

Caring for Nurses’ Mental Health

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

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

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

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

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

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

— Deane Bowers, Seabrook Island, South Carolina

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

— EAPA (@EAPA) October 27, 2022

— Employee Assistance Professionals Association, Arlington, Virginia

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

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