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The Health 202

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

The fight over medication abortion is just getting started

The Health 202

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

Good morning, where today we’re reading why gaslighting is Merriam-Webster’s word of the year. Send other picks and news to rachel.roubein@washpost.com

Today’s edition: A top aide to HHS Secretary Xavier Becerra is departing the Biden administration at the end of the year, The Health 202 has learned. The federal health department proposed a rule to overhaul privacy protections for medical records of those treated for an addiction. But first …

What to watch in next year’s medication abortion fight

The fight over abortion pills is heating up, as conservatives turn their focus to medication abortion.

In the past two weeks: A conservative group sued the Food and Drug Administration in an effort to revoke approval of a drug used in medication abortions. A major antiabortion group launched an effort to use environmental rules to limit access to the pills. On the other side, nine Democratic senators are urging the FDA to quickly finish work to permanently make the pills more accessible. 

But such efforts are merely scratching the surface of the battles to come. Advocates on both sides of the debate say they expect the issue of medication abortion to explode into the limelight next year as most state legislatures convene for the first time since Roe v. Wade was overturned in June. 

Medication abortion accounted for more than half of all abortions in the United States even before the nation’s highest court overturned the constitutional right to an abortion. Abortion rights supporters are motivated to protect access to the pills, as antiabortion groups try to clamp down their use in a post-Roe world.

“From our discussions with state lawmakers and policy leaders, it's clear that this is the No. 1 issue for those who desire to protect life and women going into the 2023 state legislative sessions,” said Steven Aden, the chief legal officer and general counsel at the prominent antiabortion group Americans United for Life.

In the states

One top priority for antiabortion advocates: Increasing the number of states that require in-person medical screenings for medication abortions, per Stephen Billy, the vice president of state affairs at SBA Pro-Life America.

  • Roughly 18 states essentially ban the use of telehealth for medication abortion, such as requiring providers to be in the same room as the patient or an outright prohibition on obtaining the drugs through telemedicine, according to Elizabeth Nash, a principal policy associate at the Guttmacher Institute, a research group that supports abortion rights.
  • This number includes some states with abortion bans on the books, which are interpreted as restrictions on both medication and surgical abortions.

The crux of the issue boils down to this: In 2000, the FDA approved mifepristone for medication abortion, and the drug is used with a second pill, misoprostol, to induce what’s essentially a miscarriage. The agency has said the drugs are safe and effective for use in the first 10 weeks of pregnancy.

HHS officials and major medical societies such as the American Medical Association and the American College of Obstetricians and Gynecologists — say “robust evidence” shows the drug is safe. Antiabortion groups counter that there are medical risks associated with the drug. 

Meanwhile, Aden said that his group is repeatedly “asked by state lawmakers, how do we keep abortion pills from coming over our borders? And so we're looking very closely at that.”

Recent actions

Abortion pills were long expected to be the next frontier in the abortion wars — and the last few weeks are proof that the battle has begun. Here are a few examples:

A new lawsuit has some on edge. Abortion foes filed a lawsuit in federal court on Nov. 18 in a bid to reverse the FDA’s decades-old approval of mifepristone. 

The suit was filed by conservative group Alliance Defending Freedom on behalf of four antiabortion medical organizations and four doctors. It claims the agency lacked the authority to approve the drug, didn’t adequately study it and that the drug isn’t safe, The Post’s Laurie McGinley and Ariana Eunjung Cha reported.

Greer Donley, an associate professor of law at the University of Pittsburgh School of Law, called the claims “meritless.” But she told The Health 202 that the lawsuit worried her because any appeal would head to a conservative circuit court — and then could go to the Supreme Court. 

A win for Kansas abortion providers. A state judge blocked a law last week that prohibited doctors from providing medication abortion via telemedicine. The preliminary injunction came in response to a lawsuit filed by the Center for Reproductive Rights in 2019.

Focusing on wastewater. Antiabortion group Students for Life of America filed a citizen petition to the FDA asking for providers who prescribe the pills to be responsible for disposing of fetal tissue by treating it as medical waste.

Politico first reported the news, which Jenny Ma, senior counsel for the Center for Reproductive Rights, panned as “baseless” in comments to The Health 202. Students for Life chief media and policy strategist Kristi Hamrick countered that critics should then support an environmental assessment on whether abortion pills impact the nation’s waterways.

Agency alert

New this a.m.: Top HHS spokesperson to depart

Sarah Lovenheim, the Department of Health and Human Services’s top spokesperson, is planning to leave at the end of the year, according to two people at HHS with knowledge of the decision. 

Lovenheim, the assistant secretary for public affairs, has been with the federal health department for nearly two years, overseeing roughly 85 people. The scope of the team’s work has included rolling out the 988 mental health crisis line, boosting Obamacare enrollment and responding to the monkeypox outbreak. 

Lovenheim has been a trusted aide to HHS Secretary Xavier Becerra for years. She previously served as his special assistant for strategic communications during his time as California’s attorney general, overseeing strategy around Becerra’s court battles with the Trump administration, such as over defending the Affordable Care Act. She previously worked with Becerra when he was chair of the House Democratic Caucus. Her health portfolio has also included working at a nonprofit to help young adults sign up for health coverage.

Early this year, White House officials had been frustrated with Becerra’s handling of the pandemic, prompting internal discussions about potentially replacing him, The Post reported. Our colleague Dan Diamond reported last month that Lovenheim rebutted assertions that Becerra could leave after the midterms

Meanwhile, there have been two recent additions to the HHS Public Affairs Office

  • Samira Burns is now the deputy assistant secretary for public affairs for human services. She was previously at the Administration for Children and Families.
  • John Kraus is serving as the deputy assistant secretary for public affairs for public health. He most recently worked in the office of Sen. Tammy Baldwin (D-Wis.).

Patient privacy

HHS proposes new record-sharing rule for substance use treatment

The federal health department proposed a new rule yesterday that would make it easier to coordinate the care of patients in treatment for substance use disorder. 

The proposed changes are aimed at better aligning the privacy protections for handling addiction treatment records with the Health Insurance Portability and Accountability Act (HIPAA), as required by Congress under 2020’s Coronavirus Aid, Relief and Economic Security Act

The details: Under the proposed rule, patients would be able to sign one release for a provider’s future use and disclosure of their medical records. Currently, patient consent is needed each time records are shared, which can slow down treatment and inhibit care, Bloomberg News reports. 

Additionally, the changes would give HHS new enforcement authority over opioid treatment programs, as well as establish a patient’s right to know who their medical records have been shared with and the power to request restrictions on what providers are allowed to disclose. The proposed rule will be open for public comment for 60 days.

Industry Rx

Malpractice at community health centers is costing the federal government millions

The federal government paid out roughly $410 million across 485 malpractice cases involving community health centers across the country from 2018 through 2021. But none of those facilities, nor their doctors, paid anything. Rather, U.S. taxpayers footed the bill, Kaiser Health News reports. 

The details: There are about 1,375 federally qualified health centers across the nation, which, in exchange for annual federal grants and higher reimbursements from Medicaid and Medicare, aren’t allowed to turn any patients away regardless of whether they have health coverage. 

Under federal law, the government covers their legal liabilities. That means that the centers and their employees can receive immunity from medical malpractice lawsuits, and the federal government pays for settlements or court judgments, KHN’s Phil Galewitz and Bram Sable-Smith write. 

Ben Money, a senior vice president for the National Association of Community Health Centers, defended the protections, saying that the process improves the quality of health centers by allowing them to direct scarce operating dollars toward the needs of patients versus pricey malpractice coverage. 

But despite hefty payouts of taxpayer dollars, the public often isn’t aware of such allegations. 

That’s because the facilities and their employees aren’t named as defendants in the lawsuits, and the government doesn’t announce when it pays to settle cases or court judgments. Many of the lawsuits against the centers during the four-year period involved allegations of misdiagnosis or dental errors, with the largest awards going toward birth injuries or cases involving children, according to data from the Health Resources and Services Administration.

More from KHN:

In other health news

  • The World Health Organization announced yesterday that it will adopt “mpox” as the preferred name for monkeypox and urged others to do the same in an effort to destigmatize the disease.
  • Hospitals postponed some elective surgeries in Houston yesterday following a weekend power outage at a water purification site that resulted in an order to boil tap water before use, our colleague Molly Hennessy-Fiske reports.
  • Some Democratic Senate leaders are pushing to add a bipartisan bill that would give pregnant workers more job protections to a package that Congress is attempting to pass before it breaks for Christmas, Politico reports.

Health reads

Surprise medical billing disputes pile up as lawsuit unfolds (By Allie Reed | Bloomberg Law )

Community health groups that played crucial role during Covid-19 pandemic say they're being left out of government funding (By Elizabeth Cohen and Lauren Mascarenhas | CNN)

Fentanyl's scourge plainly visible on streets of Los Angeles (By Jae C. Hong and Brian Melley | Associated Press)

Sugar rush

Thanks for reading! See y'all tomorrow.

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