HEALTH CARE BRIEFING: Judges Slow Bans as Biden Eyes Roe Options


By Brandon Lee

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The nation’s post-Roe v. Wade landscape is whipsawing between concessions by the Biden administration over its few avenues to protect abortion rights and advocates’ back-to-back legal—if only temporary—victories in Texas, Louisiana, and Utah to halt enforcement of those states’ abortion restrictions.

The picture is equally mixed on Capitol Hill, where Democrats are seeking to push through protections for women who travel across state lines to get an abortion and to protect sensitive health data that may incriminate them, but are also finding themselves running into a perennial foe: the Hyde amendment, which bans federal funding for most abortions.

All the while, more and more eyes are focusing on mifepristone, the drug used to induce an abortion. Some conservatives see that drug as a natural next target in their crusade against abortion access, with expectations for state laws regulating mifepristone and lawsuits challenging them. Mississippi currently faces a suit from GenBioPro, the manufacturer of generic mifepristone, over that exact issue.

Health and Human Services Secretary Xavier Becerra announced that his agency plans to assure availability of abortion medication. But he acknowledged: “We can’t tell you there’s a silver bullet.” Read more from Shira Stein.

In Congress, Democrats like Sens. Elizabeth Warren (D-Mass.) and Patty Murray (D-Wash.) as well as Rep. Alexandria Ocasio-Cortez (D-N.Y.) have also urged Biden to act more forcefully. Weeks before the June 24 ruling, 25 Senate Democrats sent Biden a six-point plan to mobilize the government to protect abortion access as GOP-led states enact or plan bans or new restrictions. Some of those ideas include protections and assistance through:

  • Legislation: Speaker Nancy Pelosi (D-Calif.) told members that her chamber would explore legislation to protect personal data in reproductive health apps and reinforce the right of Americans to travel freely throughout the country without interference. But legislation would need 10 Senate Republicans to bypass a filibuster.
  • Federal Land: The senators want the government to “analyze the types of reproductive health services that could be provided on federal property.” But the White House has said that move could put women at legal risk if they aren’t federal employees.
  • Travel Vouchers: Progressives called for Biden’s administration to “explore” providing travel vouchers and other support for individuals seeking services in states where it is legal. That move likely would draw a court challenge citing the Hyde Amendment, which bans federal funding for most abortions. Diego Areas Munhoz has more.

Legislation that did make progress yesterday came in the form of an amendment blocking Justice Department funds from being used to prosecute women who get an abortion out-of-state. The Appropriations Committee voted 32-23 in favor of the language from Rep. Debbie Wasserman Schultz (D-Fla.). Lawmakers added the text to the annual fiscal 2023 Commerce-Justice-Science spending bill. It doesn’t bar prosecution by state officials. Read more from Jack Fitzpatrick.

  • Democrats and civil rights groups are also maneuvering to tie abortion rights to the protection of sensitive data—while not jeopardizing Congress’ push to pass landmark bipartisan privacy legislation. The end of Roe thrust data protections into the limelight, as web browsing histories, electronic health records, and location data could be used to incriminate people seeking abortions. Read more from Maria Curi.

The relatively conciliatory mood in the Biden administration on abortion rights contrasts with a tranche of temporary yet meaningful victories in Texas, Louisiana, and Utah courts for pro-choice advocates. A Texas judge temporarily sided with pro-access groups challenging a state law from the 1920s banning all abortions. The judge permitted abortions up to six weeks of pregnancy to resume in Texas for now, the Center for Reproductive Rights said.

Several state constitutions contain explicit privacy rights that some say could apply to abortion—a question now up to state supreme courts to decide. In addition, some state constitutions have language protecting “natural” and “inherent” rights, or rights to bodily autonomy and personal decision-making that could be construed to uphold abortion access, Amy Myrick, a senior attorney for the Center for Reproductive Rights, said. Mary Anne Pazanowski has more.

  • The Texas ruling bars the state from bringing criminal charges against doctors, clinics and others who facilitate abortions until the judge determines if the long-dormant law was resuscitated by the US Supreme Court. The case was filed earlier this week by the CRR and the American Civil Liberties Union. The order essentially returns Texas to the same abortion rules it had prior to the Supreme Court’s decision. Read more from Laurel Calkins.
  • Whole Woman’s Health said it will resume abortion services at its four clinics in Texas after the judge’s decision. But the clinics will only be able to offer abortions in cases where fetal cardiac activity can’t be detected—usually no more than six weeks into a pregnancy. “We now have the opportunity to open our doors in Texas before the trigger ban takes effect,” Amy Hagstrom Miller, president of Whole Woman’s Health, said, Brendan Walsh reports.
  • Meanwhile in Arizona, a state law that could subject abortion providers to criminal prosecution under a series of statutes will be the subject of a July 8 hearing in the state’s federal trial court. Known as the interpretation policy, the provision requires that all Arizona laws be “interpreted and construed” to “acknowledge” the rights of fertilized eggs, embryos, and fetuses at any stage of development. Read more from Pazanowski.

MORE ON POST-ROE FALLOUT:

  • The Pentagon said the Supreme Court ruling will have a limited impact on the Department of Defense’s existing policies although it will have “significant implications” on its service members and other beneficiaries. “The court’s decision does not prohibit the department from continuing to perform covered abortions, consistent with federal law,” according to a memo by Under Secretary Gilbert Cisneros Jr. Bill Faries has more.
  • CVS Health and Rite Aid pharmacies are limiting purchases of emergency contraceptive pills as demand for the medication surged. CVS is temporarily restricting purchases to three pills per customer to ensure equitable access and consistent supply on store shelves, a spokesperson said Monday. Fiona Rutherford and Allison Nicole Smith have more.
  • Employers might find themselves in the crosshairs of state efforts to crack down on abortion in the wake of the court ruling eliminating federal guarantees for abortion rights. Many large companies have pledged to pay travel costs for staff seeking abortions in states where they’re legal. But some states ban assisting somebody to get an abortion. Chris Marr and Robert Iafolla have more.

OTHER HEADLINES ON ABORTION:

Happening on the Hill

Wednesday’s Hearings:

  • The House Energy and Commerce Health Subcommittee holds a Wednesday hearing on investments in public health and medical research.
  • The House Science Investigations and Oversight Subcommittee holds a Wednesday hearing on privacy rights amid advancements in biometric data.
  • BGOV Calendar: See the full week of events.

Lawmakers Target Foreign Influence in NIH Research: Foreign interference in federally funded research remains a challenge, but some higher education advocates warn that a slew of proposals may cause more compliance pitfalls for research institutions if the disclosure rules are inconsistent across the government. The House Energy and Commerce health panel will hold a hearing today to look at a trio of bills to curb undue foreign influence in NIH-funded research:

  • H.R. 5442, which would require the Department of Health and Human Services to track potential cases, the number of cases that resulted in misconduct, and actions taken to mitigate foreign influence in an annual report Congress;
  • H.R. 5478, which would mandate scientists funded by the National Institutes of Health to disclose any participation in foreign talent programs; and
  • H.R. 6305, which would require the HHS to work with the Federal Bureau of Investigation, national security adviser, and the director of national intelligence to assess and manage national security risks.

Undue foreign influence was one of the biggest challenges facing the NIH prior to the pandemic, flagging hundreds of scientists with potential inappropriate ties to foreign governments. Read more from Jeannie Baumann.

  • Also before the panel is a clinical trial diversity bill to require researchers to submit “measurable goals” in their grant applications to recruit and retain trial participants who reflect the race, ethnicity, age, and sex of the patient or general population, Baumann reports.

Transit Groups Stymie Breastfeeding Protections: Lingering concerns from the transportation sector are threatening to derail a bill to expand workplace protections for nursing parents. Lawmakers have been pushing for years to expand on-the-job pumping protections to more workers, legislation some say is particularly needed now that formula is scarce and the lingering effects of the pandemic have increased the need to entice parents back into the workforce. But Sen. Cynthia Lummis (R-Wyo.) blocked legislation meant to do that last week. Read more from Lillianna Byington and Paige Smith.

Rein In Private Medicare Plan Abuses, Watchdogs Say: Government watchdog officials Tuesday called on Congress to take more steps to rein in abuses by private Medicare managed care plans. At a House Energy and Commerce oversight hearing, officials from the HHS Office of Inspector General, the General Accountability Office, and the Medicare Payment Advisory Commission all said more congressional oversight is needed over Medicare Advantage. Tony Pugh has more.

What Else to Know Today

US Health Officials Announce New Monkeypox Vaccination Plan: The Biden administration unveiled a new plan to vaccinate eligible Americans against monkeypox, prioritizing those who have been exposed to the virus in states with the highest infection rates. Hundreds of thousands of doses of the Jynneos vaccine from Bavarian Nordic A/S will be made available under the administration’s new plan through a tiered-allocation system, the US Department of Health and Human Services said Tuesday. Read more from Madison Muller.

Juul Says FDA Caved to Political Pressure: Juul Labs said the Food and Drug Administration bowed to political pressure by ordering the e-cigarette maker last week to remove its products from store shelves, and the company asked a federal appeals court to halt the ban while it fights it in court. Read more from Sabrina Willmer.

  • The FDA order to Juul to take its products off shelves in the US threatens to undercut the company’s defense in a sprawling legal fight over its youth marketing practices. But it also raises the risk of scant payoffs for those suing if Juul ultimately loses. Read more from Malathi Nayak.

Shots Should Get Omicron-Targeted Update, FDA Panel Says: Covid shots from Pfizer-BioNTech and Moderna should be updated to include components to target the omicron variant, the strain of the virus that causes most of the world’s cases, advisers to federal regulators said. Members of the FDA’s advisory panel voted 19-2 on Tuesday in favor of recommending adding an omicron-specific element to the shots. Fiona Rutherford has more.

  • Meanwhile, Elmo—Sesame Street’s iconic red Muppet—got his Covid shot in a public service announcement released by the US Centers for Disease Control and Prevention on Tuesday. The video comes just days after the vaccinations became available for kids five years and younger. Read more from Carrington York.

States’ Request to Defend Trump Immigration Rule Denied: The request by Texas and 13 other states to intervene in a suit to defend the Trump-era “public charge rule” that reduced the benefits available to immigrants was denied by the Seventh Circuit. The rule expanded a law that permits the government to deny admission to an immigrant who receives public benefits “for more than 12 months in aggregate within any 36-month period.” Bernie Pazanowski has more.

Research Tech Spurs Plan to Revamp Integrity Rules: Research misconduct regulations at the HHS will undergo their first makeover under a plan by the Biden administration to account for changes in technology. Administered by the HHS Office of Research Integrity, the regulations define misconduct on research as fabricating data, tampering with existing data, or plagiarism. Read more from Jeannie Baumann.

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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

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