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The Health 202

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

The fight isn't necessarily over even when voters approve a ballot measure

The Health 202

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

Good morning, and happy Monday, where there will be a lot of waiting on Capitol Hill this week. Got tips on a bill to fund the government? Send those to

Today’s edition: Congress is exploring whether to eliminate a coronavirus vaccine mandate for the military. The Biden administration is planning to end the public health emergency for monkeypox. But first … 

Sometimes GOP governors, state legislatures and private industries resist new policies voters adopt at the ballot box

Even when voters overwhelmingly approve a ballot measure, that doesn’t mean the fight is over. 

Advocates for progressive ballot initiatives say they now plan for beyond Election Day, preparing to defend voter-approved measures and ensure state officials implement them as required. That’s because some Republican governors, state legislatures and private industries have sued, attempted to undermine or slow-walked new policies voters adopt at the ballot box. 

This dynamic was on full display last week when R.J. Reynolds and other tobacco companies filed a request asking the Supreme Court to impose an emergency order stopping California from enforcing a ban on flavored tobacco products, which nearly two-thirds of state residents supported in the November elections. 

  • “One of the things that we think is really important to look at is the entire 360 life cycle of a ballot measure,” said Chris Melody Fields Figueredo, the executive director of Ballot Initiative Strategy Center, which helps with liberal ballot measures. “Yes, you can have a victory at the ballot, but that next critical step is the post-election implementation.”

Some of that work comes in the form of crafting a legal strategy so the ballot measure can sustain a challenge, or having conversations with state lawmakers and agency officials charged with funding or carrying out the voter-passed initiative. 

The advice to groups supporting ballot measures comes on the heels of high-profile attempts to change or roll back ballot measures. In South Dakota, Gov. Kristi L. Noem (R) instigated a successful challenge to a 2020 ballot measure approving recreational marijuana. Republican officials have been slow to roll out Medicaid expansion in Nebraska; initially refused to fund the expansion of the safety net program in Missouri; and tried to add work requirements or other policies to the Obamacare program in Idaho

In California

Matthew Myers, the head of the Campaign for Tobacco-Free Kids, said he expected tobacco companies to file a lawsuit against the ballot measure banning flavored products, referring to the court challenge as a “Hail Mary.”

“Our lawyers had frankly reached out to California state officials to A) urge them to be ready and B) to understand the seriousness — and they do — and to offer our assistance and the assistance of other public health leaders,” said Myers, who said some of the informal conversations occurred in advance of the lawsuit.

The tobacco companies argue the state doesn’t have the power to enact such a ban. Rather, such a prohibition falls to the federal government, they contended in their filing to the Supreme Court. R.J. Reynolds didn’t immediately return a request for comment. 

Meanwhile, the California Department of Public Health says it’s still working on plans to implement the ban, which is anticipated to go into effect no later than Dec. 21, while awaiting word from the nation’s highest court. The state’s tobacco control program launched a cessation campaign aimed at helping those who want to quit and could be impacted by the policy — which the state legislature originally passed in 2020 — and plans to launch additional messaging once the election results are certified and the legal challenges are resolved, the department said in a statement. 


In South Dakota: Last month, the state became the seventh Republican-leaning state where voters adopted Medicaid expansion. Medicaid advocates are hoping to avoid efforts by other Republican governors to undermine the expansion, as well as previous legal fights in the state. In 2021, the South Dakota Supreme Court ruled against a voter-approved initiative to legalize recreational marijuana after Noem instigated a court fight. Marijuana advocates put a similar question to voters again this year, but it failed.

“Every attempt was made to prevent there being a problem,” said Deb Fischer-Clemens, who is a contract lobbyist with Avera Health. 

When the campaign drafted the constitutional amendment, it put in place strict deadlines: The state must send its Medicaid expansion plan amendment to the federal government by March 1 and begin providing benefits by July 1. Fischer-Clemens said she expects the state to fully implement the expansion, but will be keeping an eye on it and plans to stay in contact with state lawmakers. 

  • In a statement, South Dakota’s Department of Social Services said coverage will begin July 1. DSS has formed a leadership team to oversee the implementation of necessary policy and systems changes,” and anticipates “needing a significant number of additional staff and technology resources for implementation.”
  • At a September gubernatorial debate, Noem — who has opposed expansion — said the ballot measure “appears to be written constitutionally, so if the people pass it, it will be implemented.” A spokesperson for her office said the governor will discuss Medicaid expansion in her annual budget address Tuesday.

In Kentucky: Abortion rights advocates are aiming to capitalize on the defeat of an amendment that would have explicitly stated that nothing in the state constitution creates the right to an abortion. 

The vote was crucial to allowing a legal challenge against the state’s near-total bans on abortions to go forward, as the state’s Republican attorney general has argued the outcome of the ballot measure should have “no bearing” on the court’s decision. Abortion rights supporters say the vote is an important datapoint to have in their arsenal as state lawmakers convene next year.

“Polling can have its variety of flaws, but there’s nothing that can be debated about this vote,” said Tamarra Wieder, state director for Planned Parenthood Alliance Advocates.

On the Hill

Congress eyes end to military coronavirus vaccine mandate

Congress is considering rolling back the military’s coronavirus vaccine mandate for service members as part of the roughly $800 billion bill to reauthorize the Pentagon, a concession meant to win over Republican votes on the vital end-of-year package, The Post’s Tony Romm reports. 

House Minority Leader Kevin McCarthy (R-Calif.) claimed yesterday on Fox News that he had worked out an agreement directly with President Biden.

White House officials later disputed that characterization. “Leader McCarthy raised this with the President, and the President told him he would consider it. The Secretary of Defense has recommended retaining the mandate, and the President supports his position,” spokeswoman Olivia Dalton said in a statement. “Discussions about the [National Defense Authorization Act] are ongoing.”

Rep. Adam Smith (D-Wash.), chairman of the House Armed Services Committee, acknowledged that lawmakers are discussing lifting the policy for a compromise version of the bill, but said a final decision hasn’t been made yetPolitico reports. 

Key context: Repealing the policy would be a victory for Republicans, who have argued that mandates governing troops, health-care workers and others amount to federal overreach. With the military, in particular, Republicans assert that the policies have harmed recruitment and forced the discharge of thousands of service members, Tony writes. 

More from McCarthy:

White House prescriptions

Biden administration poised to lift monkeypox emergency declaration

The Biden administration plans to end the public health emergency for mpox, the virus formerly known as monkeypox, that fueled a record outbreak earlier this year, our colleague Fenit Nirappil reports.

“Given the low number of cases today, [the Department of Health and Human Services] does not expect that it needs to renew the emergency declaration when it ends on January 31, 2023,” HHS Secretary Xavier Becerra said in a statement Friday.

Health officials stressed that the move doesn’t mean that the threat of mpox has passed. Rather, the virus no longer necessitates an emergency status, which the administration sought in August to unlock additional funding, flexibility and resources to fight the disease. Today, fewer than 10 cases per day are being reported, compared with more than 450 a day in early August.

Zooming out: Nearly 30,000 Americans have been infected with mpox since the start of the global outbreak in the spring. Cases have been largely concentrated in gay men who contracted the virus during sex, and ultimately hasn’t spread widely among the broader public as authorities feared. 

Ronald Klain, White House chief of staff:


Coronavirus hospitalizations are rising amid the holiday season

Coronavirus hospitalizations reached their highest level in three months last week, further straining health systems already contending with waves of patients stricken with RSV and influenza infections, The Post’s Fenit Nirappil and Jacqueline Dupree write.

Hospitalizations had stagnated in recent months, but started rising in the days leading up to the Thanksgiving holiday, with daily new hospital admissions now above 9,000 after hovering between 5,000 and 7,000 for much of the fall. More than 35,000 patients are being treated for the coronavirus nationwide, according to The Post’s data tracker.

In other health news

  • The generic drug industry’s lobbying group, the Association for Accessible Medicines, fired president Dan Leonard on Friday. David Gaugh will transition from his post as executive vice president of sciences and regulatory affairs to be the interim head of AAM, Stat’s John Wilkerson writes. 
  • In Indiana: A second judge on Friday blocked the state from enforcing its near-total ban on abortion after Jewish, Muslim and other non-Christian women challenged it in a lawsuit arguing that the measure infringes on religious freedoms, Reuters reports. 
  • Federal prosecutors arrested and charged a Texas man with making a death threat against a physician who cares for gender-nonconforming children, as threats against providers who work with LGBT youth have risen recently, our colleague Leo Sands reports. 


Tuesday: The Post is hosting a discussion with Francis Collins, special adviser to the president and former director of the National Institutes of Health, and other public health experts on building trust in science following the coronavirus pandemic.

Wednesday: The House Veterans’ Affairs Committee is meeting to examine the implementation of legislation extending disability benefits to service members exposed to toxic substances; the House Judiciary Committee will mark up the Preventing Suicide Through Voluntary Firearm Purchase Delay Act, among other legislation.

Thursday: Early 202 co-author Leigh Ann Caldwell is sitting down with actor Seth Rogen and filmmaker Lauren Miller Rogen to talk about their caregiving advocacy and the prospects for bipartisan legislation on the issue in the new Congress.

Health reads

For prolific covid scammer, first came the cash. Then came the chase. (By Yeganeh Torbati and Ope Adetayo | The Washington Post)

Billions in Covid Aid Went to Hospitals That Didn’t Need It (By Melanie Evans, Liz Essley Whyte and Tom McGinty | The Wall Street Journal)

Drugs killed 8 friends, one by one, in a tragedy seen across the U.S. (By Lenny Bernstein and Jordan-Marie Smith | The Washington Post)

Sugar rush

Thanks for reading! See y'all tomorrow.