HEALTH CARE BRIEFING: House Appropriators Jump in Abortion Fight

Progressive firebrands are ramping up their rhetoric in demanding the Biden administration be more aggressive on protecting abortion rights in the US following the Supreme Court’s overturning of Roe v. Wade. Their calls come as the White House insists its hands are largely tied, and as House appropriators this week were only able to make largely symbolic moves on abortion in the face of unanimous Republican opposition in the Senate.

• Liberal Democrats are venting frustration with what they see as President Joe Biden’s underwhelming response to the end of nationwide abortion rights, as Biden has repeatedly stressed there is little they can do unless more candidates who back abortion rights are elected to Congress.
• But for progressive stalwarts, such as Sen. Elizabeth Warren (D-Mass.) and Rep. Alexandria Ocasio-Cortez (D-N.Y.) that’s not enough: They want the president to take dramatic action to ensure abortion access across the nation, even if it means court challenges and legislative battles that the White House would almost surely lose. Read more from Josh Wingrove.

Meanwhile, Democratic appropriators are also wading into the fight through spending bills. Today, the House Appropriations Committee will mark up its fiscal 2023 Labor-Health and Human Services-Education funding bill without the Hyde amendment that bars federal funds for most abortions. Ending Hyde would open legal pathways for the White House to facilitate abortion access nationwide, but will face unanimous opposition from Republicans in the Senate, where 60 votes are needed.

Today’s vote comes after the Appropriations Committee on Wednesday advanced a bill to fund the State Department that would strip longstanding restrictions on foreign aid funds for abortion, as Democrats aim to undo decades-old restrictions on abortion funding. The $64.6 billion State-Foreign Operations fiscal 2023 spending bill, which members voted 32-24 in favor, would do away with a ban on foreign aid funding to pay for abortion.

• In a 23-32 vote, members rejected an amendment by Rep. Ashley Hinson (R-Iowa) to add the ban on funds to pay for abortions and to strike Democrats’ measure to codify the end of the Mexico City policy. The Mexico City policy blocks foreign non-governmental groups that receive US aid from performing or promoting abortions.
• But key House Democrats pushed back on Republicans’ claims such measures were longstanding and have been critical to past funding agreements. “You know what else was longstanding? Roe v. Wade,” Rep. Lois Frankel (D-Fla.) said. Appropriations Chair Rosa DeLauro (D-Conn.) echoed that sentiment. But as with undoing Hyde, any effort to nix the Mexico City policy permanently will face a wall of GOP opposition in the Senate. Read more from Jack Fitzpatrick.

Christina Banoub breaks down the Mexico City policy and the Hyde amendment in a BGOV OnPoint.

Texas, Tennessee Get Approval on Abortion Bans: Two federal appeals courts gave Texas and Tennessee green lights to crack down on abortion following the Supreme Court’s June 24 decision that there’s no federal constitutional right to end a pregnancy. The Fifth Circuit vacated a lower court’s order blocking Texas’ fetal remains disposal laws. Separately, the US Court of Appeals for the Sixth Circuit ended a pause barring Tennessee from barring most abortions after six weeks, Mary Anne Pazanowski reports.

• Health-care lawyers are being flooded with calls in the wake of the Supreme Court decision. Hospitals, health systems, telehealth providers, and doctors are looking for answers about whether Texas’s abortion law could come to other states, whether their health plans could be seen as aiding and abetting abortion, what privacy risks patients could face, and how the ruling will affect the care they can provide pregnant patients. Allie Reed and Christopher Brown have more.
• Meanwhile, the fight to preserve abortion access moved into two more states, as Ohio providers and Wisconsin officials asked their courts to weigh in on the issue. The ACLU and Planned Parenthood filed suit in Ohio’s Supreme Court Thursday on behalf of abortion clinics, while Wisconsin Attorney General Josh Kaul (D) sued state lawmakers in a state court, arguing that a criminal abortion measure is unenforceable. Mary Anne Pazanowski has more.
• Doctors and other health-care providers cannot disclose information about a patient’s pregnancy or abortion unless state laws or a court require them to do so, the HHS said Wednesday. Doctors have expressed concerns about their obligation to disclose patient’s medical information under the Health Insurance Portability and Accountability Act following the high court’s ruling. A handful of states have laws requiring disclosure to law enforcement of any injury that appears related to a criminal offense. Read more from Shira Stein.
• Related: Delaware Statute Preempts City’s Fetal Remains Disposal Law

MORE ON THE FALL OF ROE:

• Senate Minority Leader Mitch McConnell said his move to block former President Barack Obama from filling a Supreme Court vacancy after conservative Justice Antonin Scalia died in 2016 directly brought the overturning of Roe. “It’s the single-most consequential decision I’ve made in my public career,” McConnell (R-Ky.) said Wednesday. Read more from Laura Litvan.

Also on Lawmakers’ Radars

Thursday’s Hearings:

• The House Appropriations Committee holds a Thursday markup of the Labor-HHS-Education spending bill for fiscal 2023.
• BGOV Calendar: See the full week of events.

Approps Report Targets Long Covid: The committee report for the Labor-HHS-Education fiscal 2023 spending bill urges the National Institutes of Health to conduct clinical trials to eventually improve symptoms for those with long Covid. The report also encourages NIH to fund cannabis research “to study efficacy of cannabinoid therapies for patients” and to support research on the health effects of marijuana. Jack Fitzpatrick has more.

Key Republican Calls for More NIH Scrutiny: The NIH could face more scrutiny from the House Energy and Commerce ranking member after Cathy McMorris Rodgers (R-Wash.) called for more oversight in a hearing Wednesday. House Republicans have repeatedly complained the office has been uncooperative about investigations over the origins of Covid-19.

An aide to Subcommittee Chair Anna Eshoo (D-Calif.) confirmed to Bloomberg Law’s Jeannie Baumann that she’s open to a hearing. About half the bills considered during the hearing on Wednesday pertained to NIH-related items, including three bills to curb foreign interference. McMorris Rodgers said she hopes she and Eshoo “can work in a bipartisan way to look at NIH and rebuild trust that the NIH has broken.” The NIH did not immediately respond to a request for comment.

FDA User Fee Bills Advance With Key Differences—OnPoint: The five-year authorization of Food and Drug Administration user fees, which fund a significant part of its drug and device approval programs, is set to expire on Sept. 30. The Senate Health, Education, Labor, and Pensions Committee’s version and the House-passed version differ in several key areas. BGOV’s Christina Banoub breaks them down in an OnPoint.

What Else to Know Today

Pfizer, BioNTech to Get $3.2 Billion From US in Vaccine Deal: The US agreed to pay vaccine partners Pfizer and BioNTech $3.2 billion in a deal for 105 million of their messenger RNA shots against Covid-19. The deal is for doses for adults, children and infants, and may include some shots that target the omicron variant, according to a statement from the companies. Read more from Riley Griffin.

• Meanwhile, pediatricians and their health-care systems are preparing to head off confusion about how many Covid-19 vaccine doses infants and toddlers need as they aim to ramp up inoculations for the youngest Americans. Read more from Jeannie Baumann.
• Separately, Anthony Fauci, chief medical adviser to Biden, suffered a rebound of Covid symptoms after taking Pfizer’s antiviral Paxlovid. Riley Griffin has more.

Related:

• Lilly to Sell 150,000 More Doses of Covid Antibody to US
• OSHA to Extend Temporary Covid Rule as Permanent Bid Stalls

Nursing Homes Face Tougher Inspections: The Biden administration moved Wednesday to require state inspectors of nursing homes to incorporate a facility’s self-reported staffing data into their inspections starting Oct. 24 to help identify noncompliance with federal staffing requirements for nurses. Read more from Tony Pugh.

Rural Hospital Safety Proposal Approved: A proposal to set health and safety standards for rural emergency hospitals cleared White House review and could publish at any time. Rural emergency hospitals, a new type of Medicare provider, are open 24/7 for outpatient care but offer no inpatient services. Read more from Allie Reed.

Pill Mill Ruling Raises Burden for Opioid Cases Against Doctors: Doctors prescribing controlled substances can breathe a sigh of relief thanks to a Supreme Court decision in favor of two physicians who had been charged with peddling opioids. The justices this week upped the burden of proof for prosecutors looking to hold physicians accountable for their role in fueling America’s opioid crisis. Read more from Ian Lopez.

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With assistance from Jeannie Baumann and Jack Fitzpatrick

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