Here’s a question that spins both ways. Can liberal states target antiabortion counselors? Can conservative states target doctors who provide abortions?
Early next year, the Supreme Court will hear a high-profile lawsuit from dozens of “crisis pregnancy centers” that are suing the state of California over a law requiring them to publicly post or notify patients of the availability of low-cost or free abortions.
These centers say that California is violating their free-speech protections, while the state says it’s simply ensuring that basic health information is provided to women. At its heart, this case is about the speech of health professionals and the ability of the government to regulate it. The key question: Can a state compel doctors or counselors to promote certain things they may not personally agree with?
“Can the government compel people to speak a message they don’t agree with and then punish them if they don’t?” is how Denise Harle, legal counsel for the Alliance Defending Freedom, framed it to me.
The ADF represents more than 100 pregnancy centers petitioning the high court to reverse a decision by the U.S. Court of Appeals for the 9th Circuit in favor of California. The appeals court said that California has a right to regulate professional speech. And furthermore, the court noted, the law doesn’t require centers to advocate for abortions — only to say that they’re available.
Under the 2015 law, licensed health centers in California must either post or hand out a notice that says: “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care and abortion for eligible women.” The notice must also include the telephone number for the local county social services office.
This straightforward notice is perfectly within the bounds of what a state can require health providers to display, California Attorney General Xavier Becerra told me. The state says the wording is short, neutral and factual, neither advocating nor discouraging a woman from getting an abortion. And its defenders note that medical facilities are required to post all sorts of information, such as where parents can get a car seat installed.
“Trust is built on facts and knowledge, and it’s critical in making informed, healthy decisions,” Becerra said during a phone interview Tuesday. “So how do you trust anyone trying to give you information if they’re not giving you all the facts?”
The Center for Reproductive Rights:
Crisis Pregnancy Centers lie to patients and withhold information to restrict women's choices and autonomy. https://t.co/vblsKMPLuQ— Center for Reproductive Rights (@ReproRights) November 15, 2017
To Becerra’s point, when California legislators passed the Reproductive Freedom, Accountability, Comprehensive Care and Transparency (FACT) Act, they had in mind pregnancy centers across the state that counsel women against getting abortions. These centers often confuse, misinform and intimidate women about their options, preventing them from making fully informed decisions, supporters of the FACT Act said.
Licensed health centers must post the notice about the availability of low-cost abortions, contraception and prenatal care, and those that are unlicensed must acknowledge they are unlicensed.
“Here we have centers not even licensed and out there professing to dole out very crucial information and advice about a woman’s health,” Becerra said. “So, at minimum a woman should know whether a facility is licensed.”
The law applies to all licensed health facilities, yet the pregnancy centers say it's designed to target them because it exempts other types of facilities, such as those with Medicaid patients or health centers that have a relationship with the state. Pregnancy centers say it puts them in the awkward position of displaying the availability of a procedure -- abortion -- that they exist to advise women against. If they don't comply, they are fined.
“They are singling out people with a viewpoint, saying, 'We are going to compel you speak something you don’t agree with,' " Harle said.
Founder of antiabortion group Live Action:
Pro-life pregnancy centers are nonprofits on a mission to help women find alternatives to abortion. Forcing pro-life pregnancy centers to promote abortion is morally reprehensible and a naked abuse of government power by pro-abortion politicians. https://t.co/UbxGWfSGQC— Lila Rose (@LilaGraceRose) November 14, 2017
The American Center for Law and Justice:
The Supreme Court hasn’t publicly announced a date for oral arguments, but they probably will take place in February or March.
It’s a particularly interesting case because it raises questions about what doctors and counselors can be required by states to tell their patients. Both Republican-led and Democrat-led states have passed laws to this end.
Under an Illinois law that went into effect in January, providers must offer a “standard of care,” which includes telling patients of their medical option to get an abortion. Until it was struck by a court in 2014, a North Carolina law required doctors to perform an ultrasound and describe the image of the fetus to the woman before providing her with an abortion.
Both sides say their aim is simply to provide women with all the available information as they make such an important decision. But we’ll soon have a better idea of what the Supreme Court thinks about this sticky question.
PROGRAMMING NOTE: The Health 202 will be taking a hiatus for the rest of this week in the interest of turkey, board games and pie. And more pie. Have a yummy and thanks-filled holiday and we'll see you back here on Monday.
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AHH: Patient groups and some drug companies are campaigning against GOP efforts to roll back a tax credit for drugs that treat rare diseases, the Hill reports. The so-called orphan drug tax credit would be repealed in the tax overhail passed by the House last week, giving Republicans $54 billions in savings over a decade they can use to help pay for the whole thing.
"The credit, first enacted in 1983, is intended to spur the development of treatments for rare, or 'orphan,' diseases that affect fewer than 200,000 people," Peter Sullivan writes. "Patient groups fear that without the tax credit for 50 percent of the costs of research and testing, drug companies will cut back on developing drugs for rare diseases and focus on more common ailments."
“The Orphan Drug Tax Credit gives hope to the nearly 95 percent of individuals with rare diseases without a treatment that one day they too will have a treatment, or even cure,” more than 200 patient groups wrote in a letter to leaders on Capitol Hill. “We cannot afford to move backwards.”
Peter Saltonstall, president of the National Organization for Rare Disorders, predicted there will be a slowdown in the number of approved therapies if the credit is rolled back. His group points to a self-commissioned study finding that without the credit, 33 percent fewer orphan drugs would have been developed over the last 30 years.
OOF: More than 18,700 people have died in the last two years while waiting for a judge to make a decision about their federal disability benefits, our colleague Terrence McCoy reports in this deep dive. The surge in deaths corresponds to a rise in wait times for a disposition, Terrence reports. The national average wait time has jumped from 353 days in 2012 to a record high of 596 days this summer. In some areas, like northern Mississippi, Long Island and Miami, wait times are as long as 612, 720 and 759 days.
What’s taking so long? The short answer is there’s not enough money. Federal funding from the Social Security Administration has been stagnant, despite a spike in the number of people who receive retirement and disability benefits.
The longer answer, includes fewer supporting staff members helping judges...a recession that increased the number of applications and appeals....new regulation that requires additional medical evidence, lengthening the files judges have to read, Terrence writes. Add to this heightened scrutiny in the aftermath of a 2011 scandal in Huntington, W.Va., where one judge, who approved nearly everyone who came before him, was later convicted of taking $600,000 in bribes.
--As part of his multi-part report, Terrence details the story of Joe Stewart, who has waited 597 days for a hearing. On the day of Stewart's hearing, he took 15 pills in a single swallow and wore a long-sleeved shirt like his lawyer asked him to. He was heading to see Judge James Prothro, who had the 31st lowest approval rating among Social Security administrative law judges, according to a Washington Post analysis. Between January 2010 and April 2017, Prothro decided 2,610 cases, approving 27 percent of them. Stewart told his story, described in detail his pain, which originated from work installing vinyl siding in Webster County, Miss. And after an hour, the hearing was done. He may not get an answer about his benefits until February, Terrence writes.
Terrence tweeted some more details about this story:
And I can't stress enough this other fact of American disability: how much luck plays into things. Joe Stewart waited two years -- *two years* -- for this hearing, and this is what he found out right before it.https://t.co/nRKEHHvjvM pic.twitter.com/rkZ2ySHuWL— Terrence McCoy (@terrence_mccoy) November 21, 2017
These are heartbreaking stories, and they're all around us. Sadly, this is just one of many responses I'm getting right now. 👇👇👇 https://t.co/qDZiDX6miF— Terrence McCoy (@terrence_mccoy) November 21, 2017
If applicants want approval, they cannot work any job. They languish years without any money. People lose their cars, then their houses. Next comes bankruptcy. Marriages splinter.— Terrence McCoy (@terrence_mccoy) November 20, 2017
The reality: Extremely sick people waiting years – some dying – on the chance they’ll get medical help that isn’t possible because of poverty.— Terrence McCoy (@terrence_mccoy) November 20, 2017
OUCH: A 15-year study on emergency room visits finds that attempted suicides, drug overdoses, cutting and other types of self-injury have increased substantially among U.S. teenage girls while remaining fairly steady for teenage boys, the Associated Press reports. The increase was most sharp among girls ages 10 to 14, with the rate tripling to almost 318 visits per 100,000 girls between 2009 and 2015. Older teen girls had the highest rates overall, but the increase after 2008 was less steep.
The study by the CDC was published Tuesday in the Journal of the American Medical Association. The researchers analyzed 2001-2015 data on nonfatal self-inflicted injuries treated in emergency rooms among those ages 10 to 24, the AP reports. Researchers wrote that the trend parallels rising reports of teen depression and suicide. Drug overdoses and other self-poisonings were the most common method of self-harm among both girls and boys, followed by intentional cutting with sharp objects, the AP reports.
--Here's a positive signal for the GOP effort to pass a massive tax cut package next week: Sen. Lisa Murkowski (R-Alaska) said she supports its component repealing the Affordable Care Act's individual mandate to buy health insurance. “I believe that the federal government should not force anyone to buy something they do not wish to buy, in order to avoid being taxed,” Murkowski wrote in an opinion piece published Tuesday by the Fairbanks Daily News-Miner.
Murkowski noted that she voted against previous GOP health-care bills that would have dramatically whittled down government health benefits in the form of marketplace subsidies and Medicaid coverage. But repealing the mandate wouldn't reduce benefits for anyone, she wrote -- it would just allow people to opt out if health coverage was still too expensive for them.
"The ACA has helped many people in our state and across the country. There is no question about that," Murkowski wrote. "It is important to emphasize that eliminating this tax penalty does not take care away from anyone. Instead, it provides important relief to those who have been penalized for choosing not to buy unaffordable insurance."
"Repealing the individual mandate simply restores to people the freedom to choose," she continued. "Nothing else about the structure of the ACA would be changed. If you currently get tax credits to help pay for your insurance, you could still receive those credits if you choose to buy an exchange plan. If you are enrolled on Medicaid or received coverage under Medicaid expansion, you could still be enrolled if you choose to be. The only difference would be is if you choose to not buy health insurance, the government would not levy a tax on you."
Politico's Seung Min Kim:
This does NOT mean Murkowski has decided on tax bill, spox says she will review bill over Thanksgiving https://t.co/8kWLjfmcat— Seung Min Kim (@seungminkim) November 22, 2017
Politico's Dan Diamond:
Where Senate GOP stands on tax bill— Dan Diamond (@ddiamond) November 22, 2017
Ron Johnson: ❌
3 GOPers saying ❌ stops bill.
Charles Gaba, who tracks Obamacare enrollment at ACASignups.net:
--We've written a lot on these pages about the dire state of opioid abuse in the United States. But how many Americans are on prescription opioids for chronic pain? About 8 million people are on long-term opioid therapy regimens and as many as one million are taking dangerously high doses, according to a report by Bloomberg. That included about half a million Medicare patients last year.
There's a growing recognition that, while abuse is a complicated problem, it partially stems from rampant over-perscription by doctors, leading to crack down by the federal government. In 2016, the CDC issued guidelines for treatment, warning doctors against prescribing high doses of opioids when possible. Such guidelines may be working. Prescriptions for dangerous, high-dose opioids in 2015 were 41 percent lower than their peak in 2010. But there's still a ways to go in educating doctors.
“With most medical and government resources focused on treatment for more obvious drug abusers, few formal programs exist to help patients dependent on opioids,” Bloomberg reports. “Experts who have studied opioid dependence say that, in some cases, it’s too risky to reduce doses until complex psychological problems are under control. But that message isn’t always getting through to doctors.”
“We have created this monster, and we think we can stop this by just stopping opioids,” addiction medicine specialist Ajay Manhapra told Bloomberg.
A few more good reads from The Post and beyond:
- The Senate Health, Education, Labor and Pensions Committee holds a hearing on the nomination of Alex Azar to serve as the Secretary of Health and Human Services on November 29.
"It’s a big bird": President Trump pardons his first Thanksgiving turkey:
President Trump jokes he won't revoke President Obama's 2016 Thanksgiving turkey pardon:
From The Post's Alexandra Petri, here are three strategies to get you through Thanksgiving:
Here's why it’s so hard to report sexual harassment in Congress:
Here's a running list of sexual misconduct allegations: