The Washington PostDemocracy Dies in Darkness
The Health 202

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

In his SOTU, Biden will call for plugging gaps in his health policies

The Health 202

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

Good morning! It’s State of the Union night. Tell us what you want to hear (and of course, tips are welcome, too):

Reading this online? Sign up for The Health 202 to get scoops and sharp analysis in your inbox each morning. 

Today’s edition: A federal judge sides with providers in a lawsuit over the administration’s surprise billing rules. In blue New Mexico, antiabortion activists push to restrict abortion in cities and counties. But first … 

On tap tonight: Biden will prod lawmakers to complete his health priorities

In his second State of the Union, President Biden will call on Congress to plug the gaps in his health-and-climate bill passed last year. 

Biden will prod lawmakers to extend Medicaid coverage to roughly 2.2 million adults. He’ll push for the cost of insulin to be capped at $35 per month for all Americans. And he’ll urge Congress to make permanent enhanced financial aid for those purchasing Obamacare plans.

But the reality is, none of those goals will get done in a newly divided Congress with Republicans controlling the House and a slim Democratic majority in the Senate. So instead, the speech will offer a glimpse of what a 2024 White House bid could look like with Biden touting his health accomplishments, while arguing more time is needed to see his agenda through. 

The details

Biden’s State of the Union last year came at an inflection point for his health agenda on Capitol Hill. His sweeping economic package was languishing, and the president pushed Congress to give him some health-care wins, even if smaller than originally envisioned. 

Democrats did just that last August. Lawmakers passed legislation allowing Medicare to negotiate drug prices for the first time, capping seniors’ out-of-pocket spending on medicines to $2,000 per year and more. Expect Biden to take a victory lap here, and attempt to sell the public on these newly passed policies, some of which haven’t yet been implemented.

Some of the provisions included in the initial versions of the bill were left on the cutting room floor, and now Biden will use the moment to ask Congress to finish the job. Here’s some of the policies he’s slated to name-check, according to a White House fact sheet:

  • Insulin price caps: Democrats had sought to impose a $35 monthly price cap on the cost of insulin for patients on Medicare and those with private plans. But Republican lawmakers blocked the part of the policy that would have extended the cap to private insurance coverage. In the State of the Union, Biden will push for expanding the price limit to all Americans. 
  • Medicaid expansion: Democrats crafted a policy in 2021 to expand the safety net program in the nearly dozen states where Republican officials have long refused the Affordable Care Act’s Medicaid expansion. But the policy wasn’t included in the party’s final economic package. Tonight, Biden will urge Congress to close the coverage gap. 
  • Obamacare subsidies: Last year, Democrats extended Obamacare’s beefed-up tax credits — which have reduced premiums for 13 million Americans — through 2025. Now, Biden will urge Congress to make the enhanced financial aid permanent, an ask he also had last year, as the uninsured rate sits at a record low. 

Larry Levitt, of the Kaiser Family Foundation:

There’s more

Aside from passing a major health bill, Biden has faced other challenges throughout his term, including the pandemic and the fallout of the Supreme Court’s decision to overturn Roe v. Wade. We’ll be listening closely to how Biden addresses both topics tonight. 

A pandemic milestone? During last year’s speech, a maskless Biden sought to reassure Americans that his effort to curb the pandemic had made them safer and laid out a road map aimed at moving the country past the crisis stage. This year, he’s coming before Congress a week after pledging to end the national emergencies to combat the coronavirus on May 11, a move we wouldn’t be surprised to see him promote tonight. 

How will Biden address abortion? Abortion rights groups will be watching his rhetoric closely. Some activists were disappointed with the White House’s initial response, but the administration has won praise in recent months for actions like expanding access to abortion pills and contraception. 

“It’s the first State of the Union since the Dobbs decision, and it is a pretty critical opportunity to make visible what the health crisis has looked like in different parts of the country, and the harm that patients are facing, the harm that providers are facing,” said Fatima Goss Graves, the president and CEO of the National Women's Law Center.

A few other notes:

  • Anita Dunn, a top White House aide, will preview Biden’s speech to Hill Democrats today, per our pals at The Early 202. 
  • The speech begins at 9 p.m. tonight.
  • Arkansas Gov. Sarah Huckabee Sanders, who previously served as former president Donald Trump’s press secretary, will deliver the Republican response.
  • Follow along with The Post’s coverage here, and ping us if you see any health policy-related guests: and 

In the courts

Judge sides with providers in surprise billing suit

A federal judge in Texas vacated portions of a rule that established the arbitration process in the No Surprises Act, a federal law aimed at shielding Americans from getting slapped with large bills when they unknowingly get care from an out-of-network provider,

Yesterday’s ruling by U.S. District Judge Jeremy Kernodle hands a victory to the Texas Medical Association in its extended legal fight against the Department of Health and Human Services over how to settle out-of-network billing disputes with insurers. 

The association argued in its lawsuit that the department’s mechanisms for arbitrating payments unfairly favor insurers, even after the Biden administration revised the rule. Kernodle agreed, finding that the rule “conflicts with the unambiguous terms of the Act” and sided with providers who argued it relied too heavily on the qualifying payment account — or the median in-network rate for a specific service in the same region — in resolving payment disputes. 

Reproductive wars

In blue New Mexico, antiabortion activists use small towns to push additional bans

Conservative local governments in several New Mexico cities and counties located near the Texas border have passed ordinances in recent months restricting abortion providers and medications, even though the state’s attorney general says they run afoul of state law, The Post’s Karin Brulliard reports.

The details: The measures don’t outright ban abortions, instead, saying licensed businesses — such as abortion clinics or pharmacies — must comply with federal law. That includes the 150-year-old Comstock Act, which local officials argue prohibits mailing abortion medications and supplies.

Antiabortion advocates view the small-town strategy as an opportunity to restrict abortion access on a larger scale. They’re particularly interested in border states like New Mexico, which have become regional hot spots for those traveling across state lines for the procedure after the Supreme Court overturned Roe v. Wade last June.

  • “This is possible everywhere,” said Mark Lee Dickson, a Texas antiabortion activist who has instigated the ordinances in dozens of cities nationwide. “I do believe that this fight could end up changing the landscape of abortion in America.”

His argument has been rejected by New Mexico and the Justice Department, which weighed in on the statute in a recent legal opinion. Last month, Attorney General Raúl Torrez (D) asked the state Supreme Court to nullify the ordinances and rule that abortion is protected under the state constitution. Torrez, who made abortion rights a centerpiece of his 2022 campaign, also says the state alone has the power to regulate medical matters.

New Mexico Attorney General Raúl Torrez (D): 

In other news …

A federal judge in Washington, D.C., suggested yesterday that the federal right to abortion might be protected by the Constitution’s 13th Amendment despite the Supreme Court’s ruling overturning Roe, Kyle Cheney and Josh Gerstein report for Politico.

In a pending case against 10 antiabortion activists, U.S. District Judge Colleen Kollar-Kotelly said that the high court’s ruling concluded only that the 14th Amendment included no right to abortion, but stopped short of definitively ruling out other aspects of the Constitution that might apply.

Kollar-Kotelly noted in her order that some legal scholars suggest that the 13th Amendment, which abolished slavery and “involuntary servitude,” provides that right. Now, she’s asking the parties in the criminal case to present arguments exploring the issue by mid-March, specifically whether any other provision in the Constitution “could confer a right to abortion.”

Agency alert

CDC: Black and Hispanic patients at a greater risk for dialysis infections

Patients with end-stage kidney disease who need regular dialysis treatments are 100 times more likely to experience preventable bloodstream infections than the general U.S. population, according to new data from the Centers for Disease Control and Prevention

Rates of infection are highest among some racial minority groups, with Hispanic adults facing a 40 percent higher risk of developing staph bloodstream infections than their White peers, the agency concluded in an analysis of surveillance data from 2017 to 2020.  

Dialysis can be risky, and infections are a leading cause of death for patients undergoing the treatment. That’s because dialysis relies on the use of catheters and needles to circulate a patient’s blood through a machine to clean it, opening the door for bacteria and other germs to enter their bloodstream in the process, the CDC said. 

In other health news

  • The law and lobbying firm DLA Piper has hired Richard Burr, a former Republican senator from North Carolina who served as the ranking Republican for the chamber’s health committee last Congress, per The Early 202. (He’s barred from lobbying for two years.)
  • On tap Thursday: The House Energy and Commerce Committee will meet to markup the panel’s authorization and oversight plans for the next two years, such as probing gain-of-function research, the fentanyl crisis, price transparency and more, Chair Cathy McMorris Rodgers (R-Wash.) announced yesterday. 
  • New York City, which once had some of the nation’s strictest coronavirus vaccination rules, will no longer require the shots for municipal employees starting Feb. 10, Mayor Eric Adams (D) announced yesterday. 
  • Long-sought vaccines for the respiratory syncytial virus are finally on the horizon, but a glitch in congressional language could make it difficult for infants from low-income families to get the shot through the federal government’s Vaccines for Children program, Kaiser Health News reports. 

Health reads

Biden’s Top Covid Adviser Wishes He Had Tangled With Tucker Carlson (By Adam Cancryn | Politico)

Patients needing home IV nutrition fear dangerous shortages (By Arthur Allen | Kaiser Health News)

'Died suddenly' posts twist tragedies to push vaccine lies (By Ali Swenson and Angelo Fichera | The Associated Press)

Sugar rush

Thanks for reading! See y'all tomorrow.