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The Health 202: Kavanaugh pick worries Obamacare and abortion-rights advocates

with Paulina Firozi


President Trump nominated Brett Kavanaugh to fill Justice Anthony M. Kennedy's vacant seat on the Supreme Court on July 9. (Video: Reuters, Photo: Bonnie Jo Mount/Reuters)

It was no surprise that when President Trump named Brett Kavanaugh to replace retiring Justice Anthony M. Kennedy last night, the immediate response was a blunt warning from Democrats and liberal activists that Roe v. Wade is now at risk.

Some may argue the president's pick could have been worse for those worried about abortion rights. Of the four people Trump is said to have considered for the job, some social conservatives expressed concerns about Kavanaugh's record on abortion rights and the Affordable Care Act. But the federal judge's rulings on those issues still give Democrats little confidence that he won’t be the fifth vote to send the court rightward, especially because Trump had vowed to appoint "pro-life justices" to the high court.

With abortion rights, Obamacare and even Medicaid on the line, Trump's choice has the potential to seriously alter health policy in the United States for generations -- something Democrats were quick to begin pounding:

In choosing Kavanaugh, 53, Trump picked someone with a long legal track record (he's currently a judge for the U.S. Court of Appeals for the D.C. Circuit). Yet, many of his health-related decisions are open to parsing from either side of the aisle and don't actually provide a clear insight into where he'd stand on the Supreme Court. 

Last fall, Kavanaugh "sided with the Trump administration in its refusal to 'facilitate' abortion services for a pregnant teen in immigration custody. Kavanaugh said the majority 'badly erred' and had created a new right for undocumented immigrant minors in custody to 'immediate abortion on demand'," our Post colleague Ann E. Marimow wrote. But some social conservatives were frustrated that Kavanaugh didn't go even further and say the girl didn't have a constitutional right to an abortion, which he did not conclude.

In many such cases Kavanaugh has managed to take the conservative position, yet do so in a way that makes him appear pragmatic over ideological. For instance, he dissented from an opinion to uphold the Affordable Care Act, "but he did so for technical and jurisdictional reasons instead of declaring the law unconstitutional, as ideological purists would have preferred," our Post colleagues Robert Costa and Josh Dawsey wrote last week. 

Some social conservatives worried ahead of the announcement that Kavanaugh wouldn't be conservative enough, noting these decisions and his establishment background working in President George W. Bush's White House. Former Virginia Attorney General Ken Cuccinelli told Politico that "Kavanaugh's just another Roberts," referring to Chief Justice John Roberts who conservatives still blame for upholding the ACA. 

But many conservatives cheered Trump's choice. Marjorie Dannenfelser, president of the antiabortion group, Susan B. Anthony's List, called Kavanaugh an "experienced, principled jurist with a strong record of protecting life and constitutional rights."

“SBA List is mobilizing the pro-life grassroots nationwide and in key Senate battleground states to urge the Senate to swiftly confirm Judge Kavanaugh," she said in a statement. "If every self-avowed pro-life senator votes the right way, Judge Kavanaugh will be confirmed easily."

Senators were just starting to digest the nomination they must confirm in the closely divided chamber, with 51 Republicans to 49 Democrats.

GOP Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska) -- the only two Senate Republicans who support abortion rights -- will certainly look to see if Kavanaugh's record is consistent with upholding Roe. Collins has said she won't support a nominee that breaks with precedent in the case, while Murkowski has indicated the nominee's rulings on reproductive rights are important but not the sole factor in her decision.

Read their statements below:

Meanwhile, Sen. Joe Manchin (D-W.Va.), another potential deciding vote, said in a statement that he wants to know where Kavanaugh would stand on keeping the part of Obamacare that requires insurance companies cover Americans with preexisting conditions. The issue could come before the high court because the Justice Department has said it won't defend the ACA from lawsuits by states that say it should not be considered constitutional now that the mandate to buy health insurance is no longer part of the law.

"The Supreme Court will ultimately decide if nearly 800,000 West Virginians with pre-existing conditions will lose their healthcare," Manchin said. "I look forward to meeting with Judge Kavanaugh, examining his rulings and making a determination of whether to provide my consent.”

The White House invited those three senators -- as well as two other key red-state Democratic Sen. Joe Donnelly (Ind.), Heidi Heitkamp (N.D.) and Doug Jones (Ala.)  -- to the announcement last night, but all of them demurred.

Activists gathered outside the Supreme Court Monday night ready to protest no matter who Trump picked. While most were there for the abortion fight, many warned that beyond the polarizing culture war set to ensue, Kavanaugh is more of a threat to health care generally. 

As President Trump announced his nominee for the Supreme Court, senators and activists demonstrated outside the Supreme Court building in Washington. (Video: Jordan Frasier/The Washington Post)

Post columnist Dana Milbank, a veteran observer of official Washington, believes Trump actually wants Obamacare front and center in the confirmation process. He writes: "Kavanaugh is a polarizing figure in the health-care debate. Among the things that distinguish him from the other finalists on Trump’s list is his expansive view of executive power — he argued that a president could decline to enforce a statute such as Obamacare even if a court upholds its constitutionality — and his dissent in a 2011 case in which others on his appellate court upheld the constitutionality of the Affordable Care Act."

As the Senate directs all of its attention to Kavanaugh from now until the midterm elections, you can expect a renewed fight over Obamacare, which is already in a weakened state despite Republican failure to repeal and replace it entirely.  And we'll be watching closely to see how Democrats and Republicans use the threat to the health-care law to their political advantage on the campaign trail. 


AHH: Now for some welcome amazing news: All 12 boys and their soccer coach were rescued from the Thai cave they'd been stranded in for more than two weeks as of early Tuesday morning.

The boys rescued are reportedly in good health, our Post colleague Shibani Mahtani writes: “Doctors have treated the boys and now all of them are okay and cheerful, and are talking normally,” said Jesada Chokedamrongsuk, from the Thai Ministry of Public Health. One of the boys initially had a heartbeat that was too slow, and some had low white blood cell counts, but they have since been stabilized. Two have been treated for minor lung infections, doctors added. They were all treated for rabies, in case of bats in the cave, and tetanus, and set up with IV drips.

The boys' soccer coach, a novice monk, is credited with keeping the boys calm and in good spirits during their more than two weeks trapped in the flooded cave. It's been reported that he led them in meditation, which studies have shown has the ability to relax both the mind and body in times of stress. 

The Associated Press last week reported on the boys' mental health both inside the cave and what they'll need once they emerge:

"Thailand’s Department of Mental Health said hospitals are making preparations to care for the boys’ and will monitor them until their mental health is fully regained. They are also working with the families to prepare for how to interact with the boys once they get out, such as not digging for details about what they endured."

While the boys will need monitoring for post-traumatic stress, this story, which gripped the world with fear, but also hope, has the happiest possible ending.

OOF: The Trump administration will miss a court-ordered deadline today to reunite immigrant families it separated at the border. A federal judge had called on the administration to reunite about 100 children under 5-years-old with their parents, but a government attorney said Monday that less than half of the ordered migrant children will be reunited by the deadline, HuffPost’s Elise Foley reports. This group of more than 45 children who won’t yet be reunited includes “nine children whose parent was already deported, nine whose parent was released into the U.S. and 12 whose parent is in criminal custody,” Elise writes.

But 54 kids under age 5 will be reunited with their families by today's deadline, and the judge praised that "real progress," per CNN.

Elise breaks down all the information about the status of reunifying children under 5 via the Justice Department:

U.S. District Judge Dana Sabraw did not formally extend the government’s deadline to reunite the children, Elise notes, asking for updated information on the reunification progress yesterday and again this morning.

OUCH: Thousands of food stamp-recipients could lose the ability to use the benefits at farmers markets nationwide because of an Austin-based company's decision to suspend its service at the end of the month.

The Novo Dia Group processes about 40 percent of the SNAP transactions in markets across the country, Jane Black and Leah Douglas report for The Post. When the service shuts down on July 31, it will leave about 1,700 of the 7,000 markets in the United States that offer SNAP with no such service to serve low-income customers who use SNAP benefits.

Jane and Leah explain that a solution won’t be as simple as just using a different app: “Novo Dia’s Mobile Market Plus software is the only one that works on Apple products and that also processes SNAP incentives.”

Josh Wiles, Novo Dia’s founder and president, explained some of the reasons behind the shutdown include high costs related to the strict regulation of SNAP transactions, low profits and the decision by the administrator of the SNAP equipment program to work with electronic-payment giant First Data over Novo Dia.

“The loss of the Novo Dia’s platform is a huge step back for our industry,” Ben Feldman, policy director for the Farmers Market Coalitions said. “Farmers markets have been at the forefront of innovative efforts to support healthy food access among low-income shoppers while increasing farmer prosperity. This situation highlights the need for a long term, reliable, affordable solution for the redemption of SNAP and other forms of electronic payments at farmers markets.”


— Yesterday, in a blow to the Trump administration, a federal judge in California denied the request to detain migrant families indefinitely after they’ve been taken at the border, and called it an attempt by the administration to “light a match,” to a previous settlement that set standards for detaining children, our colleague Meagan Flynn reports.

“[U.S. District Judge Dolly Gee]'s ruling guts a significant portion of President Trump’s June executive order that, after a nationwide outcry, ended mass family separations at the border in exchange for mass family detentions,” Meagan writes. The order called on Attorney General Jeff Sessions to shift the 1997 settlement agreement, called the Flores Agreement, so that families could be detained indefinitely while they went through a court process.

“It is apparent that Defendants’ Application is a cynical attempt . . . to shift responsibility to the Judiciary for over 20 years of congressional inaction and ill-considered Executive action that have led to the current stalemate,” the judge ruled.

“Gee’s ruling leaves the Trump administration sandwiched between court rulings and leaves the so-called ‘zero-tolerance’ policy in limbo,” Meagan continues. “The administration is both unable to keep families detained long-term and is also unable to separate families because of a preliminary injunction in San Diego, setting a deadline for reunifications and requiring the 102 youngest children to be reunited with their parents by Tuesday.” The administration has not said whether it will appeal the ruling.

— An extensive look from BuzzFeed News found that a Department of Homeland Security policy quietly introduced by the administration has led to the detention of pregnant women at the border, shifting the practice under the Obama administration not to detain pregnant women except in extreme situations.

“The new ICE directive states that women are not to be held into their third trimester and that ICE is responsible for 'ensuring pregnant detainees receive appropriate medical care including effectuating transfers to facilities that are able to provide appropriate medical treatment,'” BuzzFeed’s Ema O’Connor and Nidhi Prakash report. “But BuzzFeed News has found evidence that that directive is not being carried out. Instead, women in immigration detention are often denied adequate medical care, even when in dire need of it, are shackled around the stomach while being transported between facilities, and have been physically and psychologically mistreated.”

Ema and Nidhi report that interviews and written statements show a few of the women who have been detained by ICE and Customs and Border Protection described physical abuse and being ignored as they were miscarrying and while they needed response to other medical emergencies.

— The report about U.S. officials attempting to weaken an international resolution to encourage mothers to breast feed sparked outrage among public-health advocates. But our colleagues Carolyn Y. Johnson and Amanda Erickson report it’s part of a long history of the government siding with the industry when it comes to global public health.

The New York Times first reported that U.S. delegates threatened Ecuador with economic consequences when the nation said it would introduce a resolution at the World Health Assembly to promote breast-feeding. Trump dismissed the report in a tweet on Monday, claiming that the resolution would have limited access to breast milk alternatives:

In a statement, Department of Health and Human Services spokeswoman Caitlin Oakley insisted the United States has "a long history of supporting mothers and breast-feeding around the world…The issues being debated were not about whether one supports breast-feeding.”

“But advocates said that the incident was a throwback to a time when the U.S. government defied the world to protect the infant formula industry,” Carolyn and Amanda write. “In 1981, the World Health Organization passed a code to combat the aggressive advertising of breast milk substitutes and provision of free formula to new mothers, after a rise in infant mortality, malnutrition and diarrhea thought to be related to the use of formula mixed with contaminated water. The U.S. was the sole dissenting vote out of 118 countries, after an intense lobbying campaign by U.S. manufacturers of infant formula to defeat the provision.”

“Over the years, U.S. support of breast-feeding has increased, and its hostility to the code of marketing restrictions has softened, several nutrition experts said,” they continue. “Which is why the events earlier this year came as such a surprise.”

— Trump specifically called out drugmaker Pfizer in a tweet yesterday saying the company and others “should be ashamed” for hiking drug prices.

The president’s tweet appeared to follow a Financial Times report on Pfizer increasing the prices on about 100 drugs, The Post’s Damian Paletta reports.

“This was the second time in recent weeks that Trump has vowed retaliation against a large, publicly traded company that he accused of doing something that ran counter to his agenda,” Damian writes. “Trump appears to have long harbored a distrust of the pharmaceutical industry, but so far he has done little to crack down on these companies since taking office. Nine days before he was sworn in last year, he said he wanted to pursue the creation of a bidding process for drugs in a way to push prices down.”

Pfizer spokesman Dean Mastrojohn told The Post the company’s “price list remains unchanged for the majority of our medicines.”

Trump vowed during his 2016 campaign to negotiate lower prices but Damian notes he “opted against taking this step earlier this year, opting instead to release multiple ideas in a 44-page document that his advisers argued could eventually lower prices if implemented.” But so far, no such price decreases have taken plan, either as a result of the administration’s blueprint or following a remark from the president in May that there would be “voluntary, massive drops in prices” from drugmakers within two weeks. It’s been 40 days since that comment.

— In a speech yesterday, HHS Secretary Alex Azar promised that a “change is coming” to the drug-pricing system, specifically criticizing the recent spikes in costs. During his remarks, which followed Trump’s tweet about Pfizer, Azar said “drug companies that recently increased prices will be remembered for creating a tipping point in U.S. drug pricing policy.”

“Change is coming to prescription drug pricing, whether it’s painful or not for pharmaceutical companies,” he said during the 340B Coalition summer conference, according to the Washington Examiner.

“Most significantly, we are examining whether we need to disrupt the entire system of rebates, which drives list prices ever higher while patients keep paying more,” he continued. “Eliminating rebates within the Medicare program, pushing the system toward fixed-price discounts, is well within our administrative powers.”


— The Centers for Medicare and Medicaid Services abandoned a “value-based” plan to pay for a half-million dollar cancer therapy depending on how well the treatment worked, Politico’s Sarah Karlin-Smith and David Pittman report. The deal with Swiss drug giant Novartis for its Kymriah therapy would have fit in with the administration’s call for “value-based” arrangements as one effort to lower drug costs, but was dropped over concerns with the company’s role in the deal.

“The Centers for Medicare and Medicaid Services touted how the ‘pay-for-performance’ arrangement would save lives and cut Medicare and Medicaid spending right after the FDA approved the company’s $475,000 gene therapy to treat kids and young adults with leukemia,” Sarah and David report. “Seven months later, CMS pulled out. Though the agency won’t say why, emails obtained by POLITICO show that administration lawyers expressed discomfort over how much Novartis itself was influencing the arrangement, including giving advice on the payment criteria for Kymriah.”

Novartis also insists there is no connection between CMS’ planned deal with the company and the company’s payment of $1.2 million to Trump’s longtime lawyer Michael Cohen, and there’s “no indication Cohen played any role in the Kymriah deal,” per Sarah and David.

The stymied deal “illustrates how difficult it is to figure out how much government health programs should pay for expensive treatments whose long-term benefits are still unclear,” they write.


— The left-leaning Americans for Tax Fairness has released a report sounding the alarm on the windfall benefiting the pharmaceutical industry following last year’s Republican tax cut. The coalition criticizes companies for not sharing the benefits with employees and consumers.

“The group released a report calculating that five companies it analyzed would save a combined $6 billion in 2018 — and that 10 would save $76 billion in taxes on offshore revenue,” Stat News’s Lev Facher reports. “Instead of passing those savings on to consumers or hiking employee wages, most companies have favored major stock buybacks or raising dividends. Drug prices have also continued to increase.”

The report indicated that some companies, such as Pfizer and Merck, have given employees bonuses as a result of the tax cuts, Lev writes.

“Even as drug companies reap tens of billions of dollars in tax savings under the new tax law, they retain a free hand to continue jacking up prescription drug prices,” the coalition said in its report. “And contrary to ‘trickle down’ claims that huge tax cuts will benefit the employees of these pharmaceutical giants, evidence so far shows the companies are sharing relatively little with their workers.”

— And here are a few more good reads from The Post and beyond: 


Maine House sustains LePage veto of Medicaid expansion funding (Portland Press Herald)


State Prisons Fail To Offer Cure To 144,000 Inmates With Deadly Hepatitis C (Kaiser Health News)

Autism, 10 other conditions now qualify patients for medical marijuana (Detroit Free Press)

This is how police killings affect black mental health (Erin B. Logan)


A research biologist was raped and killed 24 years ago. Police say attacker may have looked like this. (Dan Morse)


‘I Couldn’t Tell Anyone’: Women Around the World Reveal Intimate Stories of Abortion (The New York Times)



  • The 340B Coalition Summer Conference continues.
    The Senate Veterans Committee holds a hearing to consider the nomination of Robert Wilkie to be VA secretary.
    The Pew Charitable Trusts holds an live webcast on state efforts to lower drug costs.

Coming Up

  • The House Energy and Commerce Subcommittee on Digital Commerce and Consumer Protection holds a hearing on examining drug-impaired driving on Wednesday.
  • The American Hospital Association holds a webinar on “An Innovative Way to Manage Radiation Dose Compliance Across Your Enterprise” on Thursday.
  • AHIP holds a webinar on value-based care on Thursday.
  • The Brookings Institution holds an event on “(De)stabilizing the ACA’s individual market: A view from the states” on Friday.

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