HEALTH CARE BRIEFING: Biden Races Anti-Roe Groups to Next Fight

The White House is racing against the anti-abortion movement, with everyone from Justice Clarence Thomas to the thousands of local organizations supporting Roe v. Wade’s demise all asking questions about what’s next.

Senior Biden administration officials are making the rounds to dial up the pressure on both health-care providers and insurance companies in the wake of the Supreme Court’s decision overturning Roe—including with forceful reminders that they still must comply with federal laws on contraception and emergency care, such as when a woman is having a miscarriage. The latter may include using mifepristone to alleviate a patient’s symptoms—a drug that’s now in conservatives’ crosshairs.

Those moves come as Thomas suggested in his concurring opinion striking down Roe that a constitutional right to contraception access, enshrined in the landmark 1965 Griswold v. Connecticut ruling, doesn’t really exist. Meanwhile, anti-abortion activists are internally split on whether abortions should be banned for rape and incest—and even when the woman’s life is in danger. Over a quarter of anti-Roe respondents said in a recent Morning Consult poll that abortion should be illegal in all cases.

• Contraception Coverage: The secretaries of Health and Human Services, Labor, and Treasury met with leading insurers on Monday to confirm that all patients on their plans can access birth control at no cost. The Affordable Care Act mandates all plans cover at least one type of contraception within each category designated by the FDA for free. Read more from Shira Stein.
• Mother’s Health: A top Medicare official said doctors must stabilize pregnant patients having a miscarriage or other health emergency, even if a state law bans its treatment. Medical providers have a “longstanding obligation” under the Emergency Medical Treatment and Labor Act, no matter what any state law says, CMS official Erin Richardson said. That would apply to the use of mifepristone to treat miscarriage patients, even if a state bans its use. Allie Reed and Tony Pugh have more.
• Conservatives’ Next Steps: Having won their decades-old dream, abortion opponents are finding they don’t all agree on what they should target next. Advocates have to hash out details on whether to ban mifepristone or undo exemptions to save the mother’s life. Gregory Korte and Laurel Brubaker Calkins have more.

The Biden administration’s post-Roe scramble offers a preview of the legal and political battles that could emerge between states and the federal government. And despite the dismal picture for abortion access nationwide, litigation to protect access is already erupting in US states following the Supreme Court decision.

• Louisiana, Utah: Judges in Louisiana and Utah temporarily blocked statewide abortion bans that were set to take effect after last week’s high court decision. Orders issued Monday keep the so-called trigger laws on hold into early July — and allow abortions to continue — while legal fights play out. Read more from Mary Anne Pazanowski and Malathi Nayak.
• Kentucky and Idaho: Abortion providers in Kentucky and Idaho sued the states Monday to invalidate total bans on abortion that allegedly violate the states’ constitutions, including provisions for the right to privacy. Read more from Pazanowski.
• Texas: The American Civil Liberties Union sued Texas Attorney General Ken Paxton and other officials to block enforcement of a looming ban on most abortions in the state following the Supreme Court decision. The ACLU’s filing in a state court in Houston argues that the state trigger law is “antiquated” and inconsistent with due process guarantees in the Texas constitution. Erik Larson has more.

MORE ON THE AFTERMATH OF ROE’S FALL:

• An idea the federal government isn’t looking at: allowing abortions to be performed on federal land inside a state’s borders. Vice President Kamala Harris dismissed the notion, saying on CNN: “It’s not right now what we are discussing.” Justin Sink has more.
• Elsewhere in the federal response to the ruling, the Office of Personnel Management said federal workers can use sick leave to travel for health care. OPM issued a FAQ document on Monday that does not explicitly mention abortion, but said employees who “find it necessary to travel longer distances” to receive health care can use their sick leave. Read more from Justin Sink.
• A California ballot proposal approved Monday will ask voters to enshrine reproductive rights in the state’s Constitution, one of a flurry of abortion protection measures advancing in the state Legislature. Joyce E. Cutler has more.
• As the post-Roe era of privacy takes shape, databases kept by anti-abortion facilities—which may lure in women with free pregnancy tests but later pressure them against getting an abortion—could put visitors in legal jeopardy if their information get turned over to state governments. Doctors also warned such centers are now spreading dangerous misinformation and are targeting their advertisements to teens on platforms like TikTok and Instagram. Read more from Margi Murphy.
• The decision to have an abortion, which future Rep. Marie Newman (D-Ill.) made as a 19-year old, has become current and relevant nearly four decades later in her re-election effort. “I thought it was time as a member of Congress to speak out and let folks know that it’s a common medical procedure and people should not feel shamed,” she told BGOV in an interview ahead of Tuesday’s primary against fellow Rep. Sean Casten (D-Ill.). Read more from Stephen Joyce.
• Related: Pro-Abortion Group Gets New Top Lawyer Amid ‘Trigger’ Law Fights

Also From Federal Courts

SCOTUS Rules for Doctors on ‘Pill Mill’ Prosecution Proof: The US Supreme Court sided with doctors seeking a higher burden of proof in prosecutions for distributing controlled substances like opioids. In a unanimous decision Monday, the court rejected the government’s attempt to make it easier to convict physicians it says acted more like drug dealers in prescribing opioids. Lydia Wheeler and Jordan S. Rubin have more.

SCOTUS Rejects Look at Anthem, Express Scripts Case: A case asking whether insurers and pharmacy benefit managers face Employee Retirement Income Security Act liability when negotiating drug prices won’t get US Supreme Court review, the justices announced Monday, following the federal government’s advice to skip the case involving Anthem and Express Scripts. Jacklyn Wille has more.

Federal Worker Vaccine Challenge Gets Rehearing: Dozens of federal workers will get another chance to prevent the Biden administration from enforcing its Covid-19 vaccination requirement against them, a New Orleans-based federal appeals court said. The Fifth Circuit granted their petition to rehear the case by the full court, Patrick Dorrian reports.

More Legal Headlines:

• Bayer Loses Again as High Court Allows Roundup Award
• UnitedHealth Sued Over Lucrative Method for Recouping Benefits

What Else to Know Today

Tuesday’s Hill Hearings:

• The House Energy and Commerce Oversight and Investigations Subcommittee holds a Tuesday hearing on oversight of Medicare Advantage plans. HHS Assistant Inspector General Erin Bliss and other federal oversight officials are scheduled to testify. Ahead of the panel hearing, Better Medicare Alliance sent a letter to the Centers for Medicare & Medicaid Services in support of the program. Find the letter here.
• BGOV Calendar: See the full week of events.

Covid Survivors Push Issue in Midterms: Covid survivors who have experienced lingering, sometimes-debilitating symptoms after contracting the virus or who’ve lost loved ones to it, are hoping to make their mark on the 2022 elections. Covid Survivors for Change, a network of survivors and deceased victims’ relatives that first launched as a kind of group therapy, will host their biannual summit Wednesday, focused on making their issues a part of the November races, Alex Ruoff reports.

“Our goal is to get elected officials to think about this community and to have a plan for this community,” Chris Kocher, who runs the group, said. He’s hoping to get those most-effected by Covid to engage with elected officials and candidates for office at town halls and meetings. Kocher said he hopes they’ll start demanding that a Covid response plan be a part of every candidate’s platform.

Kocher’s group has been advocating for a slew of issues, from asking Congress for more Covid response money to a nonpartisan probe of the US response to the pandemic. The group also calls for benefits and support programs for children who’ve lost parents to Covid. Find a link to the summit here.

HHS Prodded to Seek Breach Reporting Feedback: HHS agreed to solicit feedback on its data breach reporting system after a federal government watchdog suggested it get input on obstacles the health care industry faces. The number of data breaches reported to HHS has spiked since 2015 as doctors, insurers, and others in the industry have grappled with cybersecurity threats from hacking or unauthorized access to information, the Government Accountability Office said. Andrea Vittorio has more.

Opponents Question Legality of IRS’s Obamacare Plan: The IRS lacks the legal authority for its proposal that would expand the number of family members eligible for ACA subsidies, opponents told the agency. But speakers representing patient groups said at an agency hearing that the proposed rule could benefit more than 5 million Americans, and that it’s in fully line with the intent of the Affordable Care Act to provide high-quality, affordable health insurance. Read more from Sara Hansard.

Gay Elders Face Nursing Care Challenges: As the generation of LGBTQ people forged by the AIDS epidemic and drastic cultural shifts of the 1980s and 90s enters its retirement years, demands that nursing homes take additional steps to ensure security and compassionate care are increasing. Over 60% of older LGBTQ adults surveyed expressed concerns about treatment in long-term care settings, such as independent or assisted living care facilities. Read more from Ayanna Alexander.

More Headlines:

• Two People Convicted for $1.4B Health Care Fraud Scheme: DOJ

With assistance from Alex Ruoff

To contact the reporter on this story: Brandon Lee in Washington at blee@bgov.com

To contact the editors responsible for this story: Giuseppe Macri at gmacri@bgov.com; Michaela Ross at mross@bgov.com