The Supreme Court could say as soon as Friday whether it will scrutinize two Indiana provisions prohibiting discrimination-based abortions and requiring fetal remains to be buried or cremated — a major indicator of how its new, conservative majority plans to approach the deeply controversial topic of abortion.
Activists on both sides of the issue are nervously eyeing newly minted Justice Brett Kavanaugh, who was fiercely opposed by abortion rights advocates during his confirmation hearings last fall under the assumption that he’d tilt the court in a more antiabortion direction and perhaps even open the door to reversing Roe v. Wade.
Should Kavanaugh shy away from reviewing the Indiana laws, it would certainly be a huge disappointment to abortion foes. President Trump’s promise to appoint judges opposing abortion rights was a key reason many voters backed him for president, even as he came under fire for derogatory remarks against women.
“We urge the court to grant the people of Indiana a hearing on these landmark pro-life laws,” said Marjorie Dannenfelser, president of the Susan B. Anthony List, a group that works to elect antiabortion women to public office. “The cruelty of abortion runs contrary to who we are as Americans.”
But Kavanaugh has so far leaned away from the topic. Last month, he joined the court’s four liberal justices, plus Chief Justice John Roberts, in declining to take up cases that could have opened the door for states to withhold Medicaid dollars from providers who also offer abortions. Four of the nine justices must consent in order for the Supreme Court to hear a case.
So it’s anybody’s guess as to whether Kavanaugh — presumably along with conservative Justices Roberts, Clarence Thomas, Neil Gorsuch and Samuel Alito — will be willing to wade into sticky questions such as whether Indiana and other states can ban a pregnant woman from obtaining an abortion who learns her child would be born with Down syndrome, another genetic illness or physical deformities.
This law, passed by Indiana in 2016 and signed by then-Gov. Mike Pence, also prohibits women from getting an abortion due to gender, race, color, national origin or ancestry. Furthermore, if the doctor performing the abortion knew these were motivating factors for the women, they would risk losing their medical license and could be subject to civil penalties.
The measure is among a variety of ways Republican-led states have tried to restrict abortion rights on the margins even as the 1973 Roe ruling prohibits them from banning the procedure entirely. Nearly all of the laws have been challenged, but only a few have won review by the Supreme Court (most prominently, a 2016 Supreme Court decision striking down some Texas requirements on abortion providers and the facilities they use).
And, now that Democrats have seized the House majority, abortion opponents’ hopes of accomplishing major goals such as defunding Planned Parenthood or passing a federal ban on abortion past 20 weeks of pregnancy have dimmed further. They’re refocusing their strategy on passing incremental legislation at the state level — and hoping it’s upheld by the courts.
But, at least in the case of Indiana, the rulings haven’t always gone their way.
A panel of three federal appeals judges, all notably appointed by Republicans, struck down both the abortion discrimination law and a measure requiring that fetal remains not taken home by the woman must be buried or cremated similar to dead bodies (although Judge Daniel Manion wrote in a dissent that he would have upheld the latter law.)
The ban on selective abortions, the judges said, runs contrary to Roe, which says states cannot prevent women from obtaining abortions before the point at which a fetus could survive if born. The provisions “clearly violate well-established Supreme Court precedent holding that a woman may terminate her pregnancy prior to viability,” Judge William Bauer wrote.
The two bills are not part and parcel. The Supreme Court could decide to hear one and not the other. But decisions on either measure from the highest court in the land could have ripple effects around the country because other states have made similar attempts.
Arkansas, North Carolina, Texas and Louisiana have also passed laws requiring burial or cremation of fetal remains. Eleven states besides Indiana have banned abortions based on either sex, race, genetic anomaly or some combination, according to the Guttmacher Institute, which supports abortion rights.
Courts have blocked many of those laws, but they’ve also opened more big questions about how far states can go in restricting access. They’ve gone way too far, according to the groups suing over the Indiana laws, which include the American Civil Liberties Union of Indiana and Planned Parenthood of Indiana and Kentucky.
“This law ignores long-settled precedent from the Supreme Court that a woman, not the legislature, gets to decide whether an abortion is the right decision for her and her family,” Ken Falk, legal director with the ACLU of Indiana, said in a statement.
Correction: The Indiana provisions are both included in a single law, not two laws as The Health 202 wrote originally.
|You are reading The Health 202, our must-read newsletter on health policy.|
|Not a regular subscriber?|
AHH: A majority of Democratic voters want lawmakers to take on a national health-care plan such as Medicare-for-all, while fewer than half say Congress should repeal and replace the Affordable Care Act, according to a new Harvard/Politico poll.
More than four in five Democratic voters called for a taxpayer-funded health-care plan. Furthermore, 60 percent of Republicans and 83 percent of Democrats supported a plan in which Americans under 65 have the option of buying into Medicare. Overall, 65 percent of people surveyed said they back a public health insurance option that competes with private payers, Politico’s Rachel Roubein writes.
Robert Blendon, a professor of health policy and political analysis at the Harvard T.H. Chan School of Public Health, told Rachel the poll’s findings on a Medicare buy-in option reflect support for “another option.” “In the mind of the person answering it, they're hearing choice. And that's not Medicare for All, which everybody in America has the same card,” he said.
OOF: For the 38 million low-income Americans who depend on food stamps, it’s not clear when the government shutdown may start to affect their benefits. The Trump administration won’t say how long it can keep doling out benefits during the stalemate, Politico’s Helena Bottemiller Evich reports.
“The USDA, which administers the food stamp program, has declined to answer questions about its reserves and would not provide an estimate of when the program would run out of funding,” Helena writes. “In the omnibus spending package passed early last year, Congress gave USDA $3 billion for the reserve fund and provided a longer leash … Some experts believe USDA's food stamp cushion could be closer to $6 billion, which would cover February, though Congress would need to come up with money beyond that point. It's also possible the department has extra funds it can use.”
But the program could be in limbo amid political maneuvering during the shutdown. “If the program is being used as a pawn in a broader political effort, that may be why they’re not answering questions about the basic numbers,” Kevin Concannon, a former Agriculture Department undersecretary for nutrition under President Barack Obama, told Helena. “They should be clear on that.”
OUCH: In this wrenching account in The Washington Post Magazine, Tiffany Stanley tells the story of Alec Raeshawn Smith, who was diagnosed with Type 1 diabetes at 23. After he went off his mother’s health insurance plan a few years later, he learned of the prohibitive costs of insulin in the hardest way imaginable. Nicole Smith-Holt helped her son look for an ACA health plan, but no affordable options were available to him, and he chose to opt out of insurance coverage all together.
“What Alec soon learned was just how much his insulin would end up costing: more than $1,000 a month. The price of insulin — once modest — has skyrocketed in recent years, making the lifesaving medication a significant, even burdensome, expense, especially for the uninsured and underinsured,” Tiffany writes. “At the time Alec discussed skipping insurance coverage, he told his mother, ‘It can’t be that bad.’ Within a month of going off her policy, he would be dead.”
The lifesaving drug has become unbearably expensive, and it can sometimes lead patients who struggle with the costs to ration their supply. “Did Alec die because he was rationing?” Tiffany writes. “The answer may never be absolutely clear, but his family is convinced that he was skimping on his doses.” Several people she interviewed described insulin as being like oxygen. "Scavenging for it invokes a primal fear, like the gasp you make just before you run out of air," she writes.
— Former Arizona Republican Sen. Jon Kyl, who was temporarily filling the seat previously held by late Sen. John McCain, has rejoined the lobbying firm where he worked prior to his brief return to Capitol Hill. Covington & Burling said Monday that Kyl returned to its public policy practice. He first joined the firm in 2013 and lobbied for the top drugmakers trade group, Pharmaceutical Research and Manufacturers of America, one of his biggest clients, as well as for other companies like Celgene and Qualcomm. Before his 2018 return to the Senate, Kyl also served as the sherpa for Kavanaugh during his confirmation process to the Supreme Court.
— In a zoom-in on what issues could emerge in forthcoming debates on House Democrats' Medicare-for-all legislation, HuffPost’s Jonathan Cohn outlines some questions to consider when talking about such a plan. Those issues include whether to eliminate private insurance altogether, including employer-sponsored coverage that remains mostly popular, how generous and comprehensive coverage and cost-sharing should be, and how government should regulate prices throughout the system and finance such a program.
Such details are still up in the air and haven’t been worked out even in existing Medicare-for-all proposals, Jonathan writes, adding “that’s particularly true when it comes to money questions.” “They don’t need all the specifics now. Medicare for All isn’t going to become law as long as Republicans control the Senate and Donald Trump is the president,” he writes. “Meanwhile, the lawmakers and staff working on plans have already done more thinking than their conservative counterparts did about mythical, ultimately ill-fated Obamacare replacements.”
— FDA Commissioner Scott Gottlieb said the agency approved or tentatively approved more than 2,000 generic drugs from 2017 through 2018, with a record of 128 approved in both October and November.
In calendar years 2017-18, #FDA approved or tentatively approved more than 2,000 generic drugs. #FDA will continue its focus on approving high-quality, lower cost, safe and effective generics for Americans as well as helping to create competition in the marketplace.— Scott Gottlieb, M.D. (@SGottliebFDA) January 7, 2019
November 2018 and October 2018 saw the same record-breaking generic drug approval totals: 128 each in those months. We are still tallying final numbers for December and will share soon.— Scott Gottlieb, M.D. (@SGottliebFDA) January 7, 2019
He also said last year was a “record" year for novel drug approvals, or approvals of drugs that have never been approved or marketed in the United States. Among the new drugs FDA’s Center for Drug Evaluation and Research approved were the first new treatment in more than a decade for pain associated with endometriosis and a new non-opioid drug meant to help opioid withdrawal symptoms, according to a report issued Monday by the agency.
THREAD: 2018 was a year of many drug-related firsts for #FDA and record novel drug approvals. Many will have a significant impact on improving health. We've outlined details on the new products in our "New Drug Therapy Approvals" report issued today https://t.co/AhBDbbp23R 1/4 pic.twitter.com/9bsUesJvnV— Scott Gottlieb, M.D. (@SGottliebFDA) January 7, 2019
— Seven former FDA commissioners, nearly every one who has run the agency in the recent past, wrote in two newly published papers the FDA should become independent, Stat’s Ike Swetlitz reports.
The former commissioners argue that as part of the Health and Human Services department, the FDA is not fully able to serve its role to protect public health.
“This is really a plea to reduce the short-term political influence in favor of long-term policy,” co-author of the papers and former commissioner from 2016 to 2017 Dr. Robert Califf told Ike.
“Four of the FDA’s most recent commissioners all admitted to STAT the push for independence is still in its infancy, even after years of consideration,” he writes. “They acknowledged that though they’ve been batting around the ideas together since 2016, modifying the agency’s structure — which would require a change to federal law — is unlikely to happen any time soon.”
— In an op-ed in USA Today, drug-pricing expert Ted Slafsky expressed skepticism that lawmakers would be able tackle “anything ambitious” on the issue of prescription drug prices but acknowledged that “there’s new momentum for change.” Slafsky, former president and chief executive of 340B Health -- a group representing hospitals and health systems -- suggested that requiring list prices in television ads, allowing direct government negotiation of drug prices, issuing drug coverage restrictions, weakening drugmaker monopolies and allowing people to buy drugs from other countries are possible future areas the new Congress may tackle.
“Is there anything that will definitely happen in 2019?” he writes. “In 2018, the drug industry spent a potentially record sum lobbying Congress. There is a 100 percent guarantee they will surpass that milestone this year.”
— And here are a few more good reads from The Post and beyond:
- The 37th annual J.P. Morgan Healthcare Conference continues in San Francisco.
- A joint meeting of the FDA’s Arthritis Advisory Committee and the Drug Safety and Risk Management Advisory Committee is scheduled for Friday.
- Brookings India and Tufts University hold a roundtable on ‘Opportunities for India Beyond 2019: The Future of Health and Geopolitics’ on Jan. 15.
- Politico hosts an event on health care innovators on Jan. 16.
This 149-year-old law is why we have government shutdowns
At a roundtable organized by Sen. Chris Van Hollen (D-Md.), a group of federal employees called on Trump to stop playing politics and put them back to work: