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The Health 202

A newsletter briefing on the health-care policy debate in Washington.

Can private citizens enforce an abortion ban? SCOTUS considers that today

The Health 202

A newsletter briefing on the health-care policy debate in Washington.

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Good morning, and we hope you don't have a case of the Mondays.

Below: Democrats are zeroing in on a potential drug pricing deal and Obamacare's annual open enrollment season launches today. But first:

It's SCOTUS day for Texas' abortion ban

It’s a massive day for abortions in Texas.

The Supreme Court is set to hear oral arguments today in two cases related to the nation’s most restrictive ban on the procedure.

Both are largely focused on the unique enforcement policy of Texas’s law, rather than on its substance, which bans abortions once a fetal heartbeat has been detected. 

But today's hearing kicks off the most dramatic month for reproductive rights at the Supreme Court in the last three decades, The Post’s Robert Barnes writes. On Dec. 1, the high court is slated to consider a Mississippi law barring most abortions after 15 weeks, providing a potential path to weaken Roe v. Wade’s nearly half-century-old abortion protections. 

  • The backdrop: In the Texas case, the justices left the state’s abortion ban in place 10 days ago.
  • The court decided against reconsidering Roe and another landmark abortion case from 1992 as part of today’s arguments.
  • Still, the justices’ decision may have huge implications for whether Texans can get an abortion. Doubts about whether Roe should remain as precedent "provide the background for the state’s law that has mostly shut down the availability of abortion in the nation’s second-largest state,” Robert writes.

Laurie Sobel, Kaiser Family Foundation

Here’s what you need to know:

1. Texas’s law is different than other abortion bans — and that’s made it especially tricky to challenge.

The court on Monday will hear a case brought by abortion providers and another from the Biden administration, to determine the role federal courts have in reviewing the law, Robert writes. Yet, the law was specifically designed to prevent courts from halting it before it took effect since it relies on an unusual enforcement mechanism.

  • Typically, abortion providers sue to stop state officials from enforcing bans they argue violate constitutional protections.
  • But instead, private citizens are charged with enforcing the new Texas law. Individuals can essentially sue anyone who helps a woman get an abortion, and a successful lawsuit gets them a reward of at least $10,000.

2. Critics of the law warn of potential far-reaching consequences.

Not only could more states turn to this enforcement mechanism to ban the procedure, some abortion rights advocates and experts argue it may open the door to cracking down on other contentious issues, like gun ownership.

  • “The stakes are really high,” said Laurie Sobel, an associate director at the Kaiser Family Foundation.

But in a reply brief, the architect of the law argues that the “slippery-slope” argument is “meritless.” 

  • “That does not portend that the states will use this tactic with regard to less controversial rights, or with regard to rights that enjoy strong and unflagging support on the Court.”

3. So, when will the justices issue their decision? 

That’s an open question. 

But court watchers expect a decision much faster than the justices' typical months-long turnaround time. The court arranged the most expedited schedule for briefing and oral arguments since Bush v. Gore, Amy Howe notes for SCOTUSblog. 

  • “I think it's fair to assume that it will be soon because I don't see why you would fast track this and then not have the decision until June,” said Mary Ziegler, a professor at Florida State University College of Law specializing in the history of abortion law.

Meanwhile, the justices are unlikely to even decide whether the Texas law is constitutional, since it’s honed in on roles of the federal courts in the dispute, Robert writes. But it could still have consequences for whether Texas residents can get abortions. 

  • The background: A panel of the conservative-leaning U.S. Court of Appeals for the 5th Circuit quickly reinstated the law in mid-October after a lower court judge briefly halted it.
  • “The Justice Department has asked [the justices] to invalidate the appeals court action, which would likely allow abortions after six weeks to resume while the litigation continues,” Robert writes.

On the Hill

Democrats appear closer to a deal to salvage their drug pricing ambitions

Lawmakers and aides worked through the weekend as they attempt to forge a potential agreement allowing Medicare to negotiate drug prices for the first time, according to three people with knowledge who spoke on the condition of anonymity to detail negotiations.

  • The policies on the table include allowing drug negotiation in Medicare for both drugs administered by doctors and bought at pharmacy counters with certain limitations; requiring drugmakers pay rebates when they increase prices faster than inflation, including in commercial markets; and a redesign of the program’s voluntary prescription drug benefit.

This comes after the Biden administration excluded drug pricing from a framework released Thursday outlining Democrats' $1.75 trillion social spending bill. The policy was left out because there weren’t enough votes to get something across the finish line, a senior administration official said at the time. 

  • The renewed effort to zero in on a deal includes not just Sen. Kyrsten Sinema (D-Ariz.), who had been critical of Democrats’ sweeping drug pricing plans, and Senate Budget Chairman Bernie Sanders (I-Vt.) but other rank-and-file members such as Sens. Amy Klobuchar (D-Minn.) and Mark Kelly (D-Ariz.). House Energy and Commerce Chairman Frank Pallone (D-N.J.) and House Speaker Nancy Pelosi, as well as others, have also been involved. Politico first reported the details.
  • House Democrats from some of the most vulnerable seats are urging leadership to include drug pricing measures in the bill. “Soon, we must go back to our districts and explain what we’ve done in Washington to make our constituents’ lives better,” the 15 frontline Democrats wrote in a letter Sunday. “We ran on upsetting the status quo and lowering out-of-pocket costs for healthcare and prescription drugs.”

Meanwhile, behind-the-scenes efforts continue to add back in other dropped policies. Our colleague Tony Romm has a deep dive into a last-ditch effort by Sen. Kirsten Gillibrand (D-N.Y.) and other women in Congress to provide paid family and medical leave to millions of Americans who don’t have it. 

Coronavirus

The FDA wants more time to review Moderna’s vaccine for teenagers

The Food and Drug Administration needs more time to review Moderna’s vaccine for adolescents between the ages of 12 and 17 before it makes a decision, The Post’s Laurie McGinley reports. The review is focused on rare cases of heart inflammation and may not be completed until January, Moderna said in a news release.

Here's what else you need to know:

  • White House press secretary Jen Psaki tested positive for covid-19 on Sunday, The Post’s Seung Min Kim reports. Psaki credited the vaccine for the fact that she is only experiencing mild symptoms.
  • Nearly 5 million people have died of the coronavirus worldwide, according to The Post's coronavirus tracker. And that's just the reported deaths. Experts believe the actual death toll is much higher.
  • The Centers for Disease Control and Prevention said Saturday that foreign-national children who have not been vaccinated will not need to self-quarantine following arrival in the United States, The Post’s Rachel Pannett reports
  • Intelligence agencies on Friday released an unclassified assessment on the pandemic’s origins, but it does little to provide definitive answers, The Post’s Shane Harris reports.

From our reporters' notebooks

Obamacare enrollment season kicks off

The enrollment season for Affordable Care Act health plans begins today, with the Biden administration considering the possibility of extending the sign-up period that is currently scheduled to run through Jan. 15.

In an interview with The Post’s Amy Goldstein, Health and Human Services Secretary Xavier Becerra suggested his department could lengthen the enrollment period in the 33 states relying on the federal online insurance exchange. 

  • “If we continue to see people enroll in robust numbers, we don’t want to cut it off,” he said. “If Americans continue to say, ‘We’ll enroll,’ we want them on board.”
  •  The other states run similar marketplaces on their own, and some are scheduled already to last further into the winter.

The health department hasn’t issued predictions for how many insurance shoppers may sign up during the ACA’s annual open enrollment. But Becerra said the hope is to continue to see an increasing number of Americans enroll. 

  • Roughly 2.8 million people signed up for Affordable Care Act plans during an unprecedented six-month special enrollment period President Biden launched shortly after assuming office.
  • The coronavirus relief package Congress passed in March increased federal subsidies for health plans’ monthly premiums to make them more affordable for lower-income consumers and extended the subsidies to more middle-income Americans for the first time. The recent boost in these tax credits would apply for three additional years under a revised framework Biden issued last week for a large social spending bill congressional Democrats are trying to complete.

Daybook

It's shaping up to be a busy week

If the Supreme Court’s abortion case today, and Democrats' mad rush to reach a deal aren’t enough, don't worry — there’s plenty more going on.

Tomorrow: We’ve got what appears to be a razor-tight election for Virginia’s governor. Abortion and coronavirus policies have emerged as prominent issues in the campaign between Glenn Youngkin (R) and Terry McAuliffe (D).

Also tomorrow: The CDC’s advisers will meet to discuss how Pfizer’s pediatric vaccine should be used in kids ages 5 to 11.

On Thursday: CDC Director Rochelle Walensky; acting FDA commissioner Janet Woodcock; Dawn O’Connell, assistant secretary for preparedness and response; and Biden’s chief medical adviser; Anthony Fauci will weigh in on the nation's coronavirus response in a hearing before the Senate HELP Committee.

Looking ahead: Biden faces a Nov. 15 deadline to announce his pick for FDA commissioner. The name to watch is former FDA commissioner Robert Califf.

Sugar rush

Thanks for reading! See y'all tomorrow.

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