States led by Democrats appear to have won a hand in their effort to overturn a Trump administration crackdown on abortion providers, but the deck might be stacked against them.
A federal judge in Oregon yesterday indicated he would side with a group of 20 states and the American Medical Association challenging in separate lawsuits a Health and Human Services rule banning health centers that provide abortions or refer to another provider for abortions from participating in the Title X program, which controls federal family planning funds. U.S. District Judge Michael McShane, an Obama appointee, suggested he would halt the rule with a preliminary injunction issued by May 3 – the date the new rules are set to go into effect – although he didn’t say whether it would apply only to those states who have objected to it or nationwide.
“He basically determined the rule is contrary to law and that it, at a minimum, violates the Affordable Care Act,” Oregon Attorney General Ellen Rosenblum told me in a phone interview, adding that McShane described the rule as a “ham-fisted approach.”
The group of states, along with Planned Parenthood, the American Medical Association, several family planning associations and the states of California and Washington have filed half a dozen lawsuits over the proposed rules. They charge the rules will harm some of the 4 million mostly low-income women who benefit from the Title X program, by forcing clinics to close or limiting the ways they can counsel patients.
Today, a Trump appointee – Judge Lance Walker – will hear a similar case from the Maine Family Planning Association. And tomorrow, another Obama appointee, Judge Stanley Bastian, will consider two lawsuits brought by Washington state and the National Family Planning and Reproductive Health Association.
Yet the ban is similar to one already upheld by the Supreme Court back in the 1990s – and the court has only grown more conservative since then, with the addition of Trump appointees Neil Gorsuch and Brett Kavanaugh.
Maureen Ferguson, senior policy advisor with The Catholic Association, has said the rule “simply clarifies that abortion is not an appropriate method of family planning,” per this report from my colleague Ariana Eunjung Cha.
“The difference between the two is profound,” Ferguson said. “Title X money is appropriated by Congress for preventative family planning services, and was never meant to subsidize abortion clinics.”
The question here isn’t whether Title X dollars can be used for abortions because they can’t in the vast majority of cases. But for years, conservatives have argued the funds are fungible and shouldn’t be distributed to any health providers that also offer abortions. With this rule, the administration is trying to put more separation between taxpayer dollars and abortion providers – especially Planned Parenthood, the chain of clinics that Republicans tried to strip of Medicaid dollars during their failed Obamacare repeal effort of 2017.
Under the rules, providers that also perform abortions must ensure those facilities are physically and financially separate from the clinics that get Title X funds. The rules also prohibit recipients from referring pregnant women for abortions and do away with previous requirements that providers give “nondirective” counseling, meaning they could neither encourage nor discourage women from getting an abortion.
I detailed in this Health 202, the Supreme Court upheld similar – and slightly broader – restrictions from the Reagan administration in its 5-to-4 Rust v. Sullivan decision in 1991, although those regulations were never ultimately enacted.
But since that time, Congress has passed the Affordable Care Act, which give opponents of the rules hope they could prevail.
The ACA included language barring HHS from issuing any regulation that “interferes with communications regarding a full range of treatment options between the patient and the provider.” The 2010 health-care law also forbids regulations that create “unreasonable barriers to the ability of individuals to obtain appropriate medical care.”
Rosenblum told me the ACA language came up repeatedly during yesterday’s oral arguments. “We consider this a win,” she said.
Last month, HHS announced the Title X grantees under the new rules. Some Planned Parenthood clinics are still getting Title X funds, while others are being cut from the program.
Leana Wen, president of Planned Parenthood Federation of America, called it a “gag rule” that is “unethical, illegal and dangerous.”
“We cannot allow a world where people of color, people who live in rural areas and people with low incomes don’t have access to full, unbiased information from their doctor,” Wen said in a statement.
|You are reading The Health 202, our must-read newsletter on health policy.|
|Not a regular subscriber?|
AHH: Yesterday the Centers for Medicare and Medicaid Services proposed increasing reimbursements for a groundbreaking but costly cancer therapy used for patients whose blood cancers don’t respond to other treatments, my Post colleague Laurie McGinley reports.
CMS Administrator Seema Verma said the proposed changes are necessary because “Medicare’s antiquated payment systems” have not kept up with the development of “transformative technologies.”
"In particular, she said the agency was considering boosting reimbursements for a customized approach called CAR T-cell therapy, which has revolutionized the treatment of hard-to-treat pediatric leukemia and adult lymphoma," Laurie writes. "Hospitals have complained vociferously that they lose tens of thousands of dollars — and in some cases, hundreds of thousands — on each Medicare patient they treat."
"The list prices for the drugs are $373,000 or $475,000, depending on the illness for which they are used," Laurie notes. "Accompanying hospital care can double or triple the expense, especially for a patient with severe side effects who ends up in the intensive care unit, health providers say. Yet Medicare reimburses only a portion of that overall cost."
OOF: The drug industry almost as much on lobbying in the first quarter of 2019 as it did in the same three months last year, Bloomberg's Ben Brody reports. Pharmaceutical Research and Manufacturers of America, the trade group which represents 37 drug companies, spent $9.91 million from January through March, just shy of its record spending in the first quarter of 2018 and well above the $6.03 million it spent in last year's final quarter.
Ben also notes that several other major drug makers -- including AbbVie;AstraZeneca;Bayer;Biogen;Bristol-Myers Squibb; Merck & Co.; Novartis;Pfizer; and Sanofi -- all bolstered their first-quarter spending compared with the fourth quarter.
"Novartis hiked its spending an eye-popping 450 percent to $3.2 million from $580,000, and that figure was also about 5 percent above what it spent a year earlier," he writes. "Merck spent $2.74 million in the period, more than 200 percent more than in the last quarter of 2018, but that figure was down more than 17 percent compared with the year before, when it was one of several companies to set a group record....AstraZeneca, Biogen and Bristol-Myers all spent more than their year-earlier levels."
The spending comes as the Trump administration threatens to crack down on drug prices with some changes to Medicare programs that supply prescription drugs to seniors.
OUCH: Rochester Drug Cooperative has agreed to pay the government $ 20 million to settle claims it fueled the opioid epidemic, facing the first-ever criminal charges against a company for conspiring to illegally distribute opioids, my Post colleague Lenny Bernstein reports.
Yesterday, Rochester and two of its former executives were charged with three crimes, including conspiracy to distribute controlled narcotics for nonmedical reasons. "The company and one of the executives, former operations manager William Pietruszewski, did not dispute the charges, which include supplying 'tens of millions' of pills to drugstores from 2012 to 2017 that were used for illegal purposes," Lenny writes. "Pietruszewski agreed to plead guilty and cooperate with prosecutors, according to documents released Tuesday by federal authorities in Manhattan."
“This prosecution is the first of its kind: Executives of a pharmaceutical distributor and the distributor itself have been charged with drug trafficking — trafficking the same drugs that are fueling the opioid epidemic that is ravaging this country,” U.S. Attorney Geoffrey Berman said in a statement.
— Joe Grogan, who heads up the White House Domestic Policy Council, is the latest Trump administration official to slam Medicare-for-all. In an op-ed published by Real Clear Politics, Grogan blasted the plan proposed by Sen. Bernie Sanders (I-Vt.), writing that it "hurts seniors, eliminates private health insurance for nearly 180 million Americans, wipes out Medicare Advantage for over 22 million, and harms our economy for generations to come."
Grogan, a close ally of White House acting chief of staff Mick Mulvaney, was reportedly behind the administration's decision to refuse to defend the Affordable Care Act from a state-led lawsuit seeking to wipe out the entire law. Grogan, who we profiled in this Health 202, sided with Mulvaney and acting director of the Office of Management and Budget Russ Vought in urging the Justice Department to side with the states.
Grogan notably didn't mention trying to repeal the ACA -- although President Trump recently upped his calls for Congress to do so. Instead, Grogan wrote that the president "is working to protect people with pre-existing conditions, end surprise medical bills, increase the transparency of medical costs, lower drug prices, expand access to affordable coverage options, increase patient choice, stop the spread of HIV, end the opioid epidemic, transform kidney care, and accelerate therapies for pediatric cancer."
"As I’ve said in the past, if Bernie Sanders or his colleagues want to get serious about addressing any of these issues, they should know that the White House doors will always be open," Grogan wrote. "Let’s work together to confront the problems of health care affordability and access — and do it together, in a bipartisan fashion."
— A House hearing on Medicare-for-all legislation has been scheduled, marking the first time legislatiors are formally considering legislation to create a single-payer health-care system. Next Tuesday, the Rules Committee will examine the Medicare-for-all bill proposed by Rep. Pramila Jayapal (D-Wash.), which has more than 100 co-sponsors and is even more extensive than Sanders's first Medicare-for-all bill.
“It's a serious proposal that deserves serious consideration on Capitol Hill as we work toward universal coverage," Rules Committee Chairman Jim McGovern (D-Mass.), a co-sponsor of the Jayapal bill, said in a statement.
— A few more good reads from The Post and beyond: