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The Health 202

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

Georgia judge blocks 'heartbeat' abortion ban because it was passed under Roe

The Health 202

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

Welcome to Wednesday’s Health 202, where (in non-health news) we’re reading Elon Musk’s midnight ultimatum to Twitter employees. Send tips and news of all kinds to rachel.roubein@washpost.com

Today’s edition: Sen. Bill Cassidy (R-La.) told us he’d take the top Republican spot on the Senate HELP Committee if it’s open to him. The Food and Drug Administration appears poised to allow the sale of some opioid overdose reversal medication over-the-counter. But first … 

It could be months before women in Georgia get a final decision on when abortion is allowed

A judge overturned Georgia’s near-total ban on abortion yesterday, prompting clinics to work quickly to determine when they can resume offering the procedure even after fetal cardiac activity is detected.

What happened: The state’s ban on abortion once a doctor detects a “heartbeat” has been in effect since July. But a Fulton County judge ruled yesterday that two key parts of the law “were plainly unconstitutional when drafted, voted upon, and enacted,” and thus, the law can’t be enforced. That’s because the state passed the ban before the Supreme Court’s June decision to gut Roe v. Wade, overturning federal abortion protections.

Within hours, clinic operators and their legal teams began discussing how soon they could begin offering abortions up to 22 weeks of pregnancy, which was the state’s previous threshold. At the same time, the state’s Republican attorney general immediately filed an appeal to the Georgia Supreme Court, Kim Bellware and I reported.

State Rep. Josh McLaurin (D):

Providers scramble

The decision yesterday came as a surprise to abortion providers in the state. 

When she heard the news, Amy Kennedy, the vice president of external affairs for Planned Parenthood Southeast Advocates, said she jumped out of her seat and screamed while on a call. The Planned Parenthood affiliate runs four clinics in Georgia and is working with its operations and legal team to determine when to resume services with the hope of doing so “immediately.” She said the organization’s patient access center was “flooded” with calls Tuesday afternoon since the ruling came out.

The legal team at Carafem, which operates a network of abortion clinics and telehealth services and has one location in Atlanta, started analyzing the ruling shortly after it came down.

“We’re listening carefully right now to our legal advisers who are helping us look through the verdict today, and we really do hope that we’ll be able to restart services quickly,” said Melissa Grant, Carafem’s chief operating officer. But she added that Carafem needed “a little bit of time to regroup” before its facilities can provide abortions further in pregnancy.

The pushback

National antiabortion groups and politicians slammed the ruling as judicial activism. 

  • Andrew Isenhour, a spokesman for Georgia Gov. Brian Kemp (R), said in a statement that the ruling “places the personal beliefs of a judge over the will of the legislature and people of Georgia.”
  • Marjorie Dannenfelser, the president of SBA Pro-Life America, said in a statement that the judge was “ignoring the will of the voters and imposing his own pro-abortion bias on Georgia instead.”

Kemp — who won reelection last week — could face pressure from antiabortion advocates to pursue new restrictions once the legislature reconvenes next year. Georgia’s abortion law was among the strictest in the country when Kemp signed it in 2019, but it was blocked from taking effect until the Supreme Court overturned Roe v. Wade over the summer. Now other nearby states have near-total bans on the procedure. 

In Kentucky

The state Supreme Court heard oral arguments yesterday over whether Kentucky’s near-total ban on abortion should remain in place while a court challenge plays out. It was the first test to the state’s restrictions on the procedure since Kentucky voters defeated an antiabortion amendment last week.

How the arguments were framed: The amendment to explicitly state that nothing in the state constitution creates a right to an abortion failed at the ballot box. And that means Kentucky’s constitution is “neutral on the issue of abortion,” leaving the issue to the General Assembly, said Matthew Kuhn, the state’s solicitor general. That notion received pushback from ​​​​​Deputy Chief Justice Lisabeth T. Hughes, who called the ballot initiative vote “the purest form of democracy.”

Heather Gatnarek, an attorney with the American Civil Liberties Union of Kentucky, contended that the right to privacy has been consistently recognized within the state’s constitution, and that it can be interpreted broadly to include abortion. 

  • The court is ultimately charged with considering “at what point in pregnancy does the state’s interest in protecting potential fetal life become compelling enough to outweigh an individual’s rights to make their own determinations about their bodies,” she said.

When will a decision come down? Legal experts told Kim it may take between one and three weeks before there’s a ruling. 

Kentucky Attorney General Daniel Cameron (R):

On the Hill

Sen. Cassidy expresses interest in top Republican health panel slot

Sen. Rand Paul (R-Ky.) hasn’t yet said whether he wants the top GOP spot on the Senate’s sweeping health committee or chief oversight panel. 

If Paul opts for the Senate Homeland Security and Governmental Affairs Committee, Sen. Bill Cassidy (R-La.) would likely be next in line to be the leading Republican on the Senate HELP Committee. The gastroenterologist, who’s known for being a health policy wonk, told The Health 202 he would take the ranking member position if Paul declines, saying he’d be like a “kid in a candy store.”

His top priorities would include oversight over the Biden administration’s implementation of a law to stop surprise medical bills — which he argued hasn’t been carried out as intended — and various legislation to lower the price of prescription drugs that he’s introduced. 

Agency alert

FDA appears poised to approve opioid reversal drug for over-the-counter use

The Food and Drug Administration is encouraging pharmaceutical companies to submit applications for nonprescription versions of the overdose reversal medication naloxone as the Biden administration grapples with curbing the country’s high rate of overdose-related deaths. 

A preliminary assessment from the agency indicates that nasal sprays containing up to 4 milligrams naloxone, as well as autoinjectors that administer up to a 2 milligram dose of the drug, may be safe and effective for over-the-counter use. But the agency needs more data before it makes a final determination. 

Key context: Every state and Washington, D.C., have already enacted some form of legislation to increase access to naloxone, such as authorizing pharmacists and licensed practitioners to dispense the drug to anyone who is at risk for an opioid overdose or have a statewide standing order allowing for naloxone. The FDA’s idea behind over-the-counter use is to simplify a national patchwork of laws and make the medication more consistently available.

Rahul Gupta, White House director of national drug control policy:

In other FDA news …

  • The FDA granted emergency use authorization for Roche’s monkeypox test yesterday, which will be limited to laboratories that meet the agency’s requirement for moderate or high complexity tests.
  • The agency also outlined measures it’s considering implementing to prevent powdered infant formula from cronobacter, following the recall of Abbott Nutrition’s products earlier this year. Policies include requiring providers to report cases of bacterial infection to public health authorities.

In the courts

Walmart agrees to opioid settlement

Walmart will pay $3.1 billion to dozens of states, cities and Native American tribes to settle virtually all lawsuits alleging its pharmacies fueled the nationwide opioid epidemic, our colleagues Jacob Bogage and Meryl Kornfield report.

The tentative agreement comes after two of the country’s largest pharmacy chains, CVS and Walgreens, announced earlier this month that they would pay more than $10 billion combined to resolve similar multistate litigation.

The retail giants have been accused of dispensing the highly addictive pain pills despite the red flags that allowed them to be siphoned onto the black market; they in turn have blamed doctors for overprescribing the pills. There was no admission of wrongdoing under the terms of their settlements.

Next steps: The Walmart deal must be formally approved by Judge Dan Aaron Polster of the Northern District of Ohio. If finalized, Walmart said it would pay out most of the settlement within one year of the effective date of the agreement.

The funds will be distributed across state, local and Indigenous governments for opioid addiction treatment, recovery and abatement, officials said. The settlement also includes court-ordered remedial measures for the retail chain, including “robust oversight to prevent fraudulent prescriptions and flag suspicious prescriptions.”

New York Attorney General Letitia James (D):

In other health news

  • A federal judge struck down a Trump-era policy used by U.S. border officials to quickly expel migrants because of the coronavirus pandemic, saying the ban had little proven benefit to public health even as it shunted migrants to dangerous places, The Post’s Maria Sacchetti and Spencer S. Hsu write.
  • Senate Republicans and 12 Democrats approved a joint resolution yesterday that would terminate the national emergency status of the coronavirus pandemic. President Biden has said he would veto the resolution if it were to pass both chambers of Congress.
  • The White House finalized its request to Congress for roughly $10 billion in public health funds this fall. That includes $9.25 billion for coronavirus response efforts and about $750 million to combat diseases like hepatitis C and monkeypox, our colleague Dan Diamond reports.
  • New Jersey Democrats are preparing a constitutional amendment guaranteeing the right to an abortion in the state with the goal of putting the question on voters ballots next year, per Politico.

Health reads

Decades of neglect in nursing homes spur Biden plan for staff mandates (By Christopher Rowland | The Washington Post)

Senate: Migrants subject to unnecessary medical procedures (The Associated Press)

Children’s National doctors rally over working conditions amid RSV surge (By Jenna Portnoy | The Washington Post)

Sugar rush

Thanks for reading! See y'all tomorrow.

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