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The Health 202
The Health 202

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

Classifying fentanyl analogues raise incarceration fears for some Democrats

Analysis by

with research by McKenzie Beard

May 25, 2023 at 7:42 a.m. EDT
The Health 202

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

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Today’s edition: Nikki Haley pledges to sign a federal abortion ban, but doesn’t say how many weeks into pregnancy. Most Medicaid enrollees aren’t aware that states can now disenroll them if they’re no longer eligible, as in pre-pandemic times. But first … 

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We’re watching vulnerable Democrats closely in today’s vote on fentanyl analogues

The House is slated to vote today on a Republican-led bill to permanently place fentanyl-like substances in a category reserved for the most dangerous drugs. 

GOP lawmakers and other supporters argue the measure is a critical tool to permanently crack down on copycat versions of fentanyl, a potent synthetic opioid that’s been a major driver of the nation’s drug crisis. 

The big question: How many Democrats will go for it?

The bill has garnered pushback from some prominent lawmakers in the party, as well as criminal justice organizations and civil rights groups. One particular concern: Repeating past mistakes. Such substances would be subject to mandatory minimums, and opponents said they worry about over-incarceration and that the legislation is too broad, potentially criminalizing compounds that turn out to be harmless or pose little risk for abuse. 

Yet, the measure is expected to get at least some bipartisan support and is a tough vote for moderate Democrats and those in swing districts. Two vulnerable Democrats — Reps. Angie Craig (Minn.) and Kim Schrier (Wash.) — voted to advance the legislation out of the House Energy and Commerce Committee this spring. In an interview, Craig said she planned to support the bill on the chamber floor today even though there are ways she believes it could be improved.

  • “We can’t let perfect be the enemy of good when we’re talking about literally thousands of Americans being poisoned to death with fentanyl every single year,” she said, adding she’s talked to others about the legislation and would be “surprised” if Democratic support wasn’t in the double digits.
  • “I do know that this is the beginning and not the end of the legislative process," Rep. Chris Pappas (D-N.H.), another vulnerable lawmaker, told our colleagues at The Early 202. “And so I think it’s important to move forward and see what the Senate can do.” 

Rep. Morgan Griffith (R-Va.), who introduced the bill: 

The details

Both parties have pledged to combat the country’s staggering overdose crisis with deaths topping 100,000 last year. But that doesn’t mean there’s agreement on what policies will have an impact. 

Flashback: In February 2018, the Trump administration temporarily classified fentanyl-related substances as Schedule I drugs, a category reserved for drugs with a high abuse potential and no accepted medical use. The designation lasted two years, and Congress has renewed the classification with the latest extension running through Dec. 31, 2024.

Enter the HALT Fentanyl Act: The bill on the floor today would do away with the need to pass extensions every so often, and instead permanently place fentanyl analogues in Schedule I.

But don’t forget the politics. Republicans have sought to paint the Biden administration as not doing enough to stop fentanyl at the border, while the White House maintains its putting immense resources toward the issue and that border patrol agents have seized thousands of pounds of fentanyl.

The dividing lines

The bill was introduced by Rep. H. Morgan Griffith (R-Va.), and top Republicans — such as House Majority Leader Steve Scalise (La.) — stumped for its passage in recent days. 

Griffith and Rep. Frank Pallone Jr. (N.J.), the ranking Democrat on the House Energy and Commerce Committee, have sparred over the legislation. 

During a House Rules Committee hearing Monday, Pallone expressed concern that the legislation triggers mandatory sentences among other issues. “I don’t think anything in this bill — because it just continues the status quo — is going to stop the problem of fentanyl coming into the United States, of overdoses, of deaths,” Pallone said. “There’s nothing in here that provides for treatment or more money for enforcement.”

On the other side: Griffith — who chairs the House Energy and Commerce oversight subcommittee — contended that his legislation isn’t the vehicle for changing mandatory minimums. “It’s a debate we as a society ought to have. It’s a debate that at some point this Congress ought to have,” but that conversation should take place in the Judiciary Committee, he said.

The Due Process Institute:

At the White House

So, where does the Biden administration stand? In September 2021, the White House issued recommendations to Congress on the fentanyl crisis, which included permanently scheduling such analogues. It also contained other policies, like excluding such substances from mandatory minimum penalties except in cases of death or serious bodily harm.

  • “It’s a fraught issue,” Regina LaBelle, who was serving as the acting White House drug czar at the time, told The Health 202. “There are very vocal advocates on both sides who are going to be speaking to members of Congress and feel really strongly. We had tried to reach a compromise.”

In a statement of administration policy issued Monday, the White House didn’t specify whether the president would sign or veto Griffith’s bill. But it did say the White House “has long supported” two key provisions of the bill: permanently classifying all fentanyl analogues as Schedule I drugs and expediting research into such substances. It also called on Congress to pass the recommendations issued in September 2021. 

The statement drew the ire of some criminal justice advocates. In a letter to Biden, over 20 groups expressed their displeasure that the White House didn’t “condemn the HALT Fentanyl Act’s expansion of mandatory minimums” and urged lawmakers to oppose the bill.

  • Asked to respond, an administration official wrote in an email that “as the Statement of Administration Policy made clear, Congress should pass all of the Administration’s 2021 recommendations in order to improve public safety and save lives.”

Reproductive wars

Haley pledges to sign federal abortion ban, underscores uphill battle in Congress

Nikki Haley committed to signing a federal ban on abortion if it were to reach her desk as president, though the 2024 Republican hopeful reiterated that it’s unlikely GOP lawmakers will win enough seats to pass abortion limits, Meg Kinnard and Holly Ramer report for the Associated Press. 

The former United Nations ambassador didn’t specify how many weeks into pregnancy she would support federal restrictions on abortion. Yet, Haley’s comments yesterday at St. Anselm College in New Hampshire are some of the most definitive answers she has provided about her position on federal restrictions since launching her campaign in February.  

Zooming out: Haley’s comments come as antiabortion activists are pressing Republican candidates to promise to limit abortions should they win the White House. One of the most influential groups, SBA Pro-Life America, has said it won’t back any 2024 presidential candidates who don’t support a federal minimum limit on abortion at no later than 15 weeks of pregnancy. 

Want to know more about where the 2024 presidential candidates stand on abortion? Read our colleague Colby Itkowitz’s breakdown here. 

Data point

Many Americans unaware that they could be disenrolled from Medicaid

Roughly two-thirds of all Medicaid enrollees aren’t aware that states have resumed disenrolling people from the safety net program if they no longer meet the eligibility requirements or fail to complete the renewal process, according to a survey published yesterday by KFF. 

Just 28 percent of respondents said they were aware of the change that took place on April 1, when pandemic-era rules preventing states from culling their Medicaid rolls expired. States are now working through the redetermination process, with nearly 73,000 people dropped from the health insurance program last month in Arkansas alone. 

The “unwinding” comes as roughly 8.3 percent of people under 65 are uninsured — a historically low number largely attributable to Medicaid’s continuous enrollment requirement and beefed-up subsidies made available through the Affordable Care Act’s insurance marketplaces starting in 2021, according to new estimates from the nonpartisan Congressional Budget Office. 

Congressional scorekeepers anticipate that the share of uninsured people in the United States will climb to 10.1 percent by 2033, particularly if the enhanced ACA tax credits expire. That would still be lower than the 2019 rate of about 12 percent, researchers note. 

Joan Alker, executive director of Georgetown University’s Center for Children and Families: 

In other health news

  • On the move: Matt Eyles is stepping down from his post as president and CEO of AHIP in October, the influential lobbying group announced yesterday. The major insurance trade group is beginning a search for his replacement.
  • The House Energy and Commerce Committee unanimously advanced a sweeping bill to extend expiring programs, such as funding for community health centers; beef up transparency into pharmacy middlemen; and a modest step to equalize some Medicare payments among various outpatient settings.
  • The number of ketamine seizures by federal, state and local law enforcement in the United States rose from 55 in 2017 to 247 in 2022 — a stark increase that has coincided with growing recreational demand for the psychedelic drug as a treatment for mental health ailments, The Post’s Daniel Gilbert reports, citing new research published yesterday in JAMA Psychiatry. 
  • In the last two fiscal years, federal judges considering appeals for benefits denied by Social Security have found fault with almost 6 in every 10 cases, including legal errors, inaccurate assessments of whether claimants can work, failures to consider medical evidence and factual mistakes, our colleague Lisa Rein reports.  

Health reads

In the “Wild West” of Outpatient Vascular Care, Doctors Can Reap Huge Payments as Patients Risk Life and Limb (By Annie Waldman | ProPublica)

DEA's failure to punish distributor blamed in opioid crisis raises revolving door questions (By Jim Mustian and Joshua Goodman | The Associated Press )

Indiana doctor faces discipline hearing over 10-year-old Ohio girl's abortion

Sugar rush

Thanks for reading! See y'all tomorrow.

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