HEALTH CARE BRIEFING: Abortion Providers Halt Texas Enforcement

Texas abortion providers won a temporary restraining order against Texas Right to Life and its associates Friday, blocking them from suing providers and health care workers at Planned Parenthood health centers in the state under a new law.

Planned Parenthood sued the anti-abortion group in state court to stop the group from enforcing Texas’ new six-week abortion ban.

Texas’ six-week law creates a “probable, irreparable, and imminent injury in the interim” for Planned Parenthood, its physicians, staff, and patients throughout Texas, Judge Maya Guerra Gamble of the Texas District Court for Travis County wrote in the temporary restraining order. Providers would have no adequate legal remedy for that injury if they’re subjected to private enforcement lawsuits against them, Gamble said.

The order applies to Texas Right to Life and Planned Parenthood centers in the state.

The providers challenged the law’s most unusual aspect—its delegation of enforcement power to private citizens, meaning that anyone, anywhere can sue, in Texas state court, an alleged abortion provider who violates the six-week ban. The law entitles a winning plaintiff to $10,000 per abortion, plus costs and attorneys’ fees.

This is one of about a dozen suits that have been filed in Texas state court challenging S.B 8 so far, Texas Right to Life’s John Seago told Bloomberg Law earlier Friday. Read more from Mary Anne Pazanowski.

DOJ Exploring Options Against Texas Law: Attorney General Merrick B. Garland said the DOJ will challenge Texas SB8 in order to protect the constitutional rights of women and other persons, in an emailed statement from the U.S. Department of Justice. Garland added the department will use powers under the FACE Act to provide support from federal law enforcement when an abortion clinic or reproductive health center is under attack, Sunil Kesur reports.

President Joe Biden had on Friday said the DOJ may be able to “limit” the Texas law. “I was told that there are possibilities within the existing law to have the Justice Department look and see whether there are things that can be done that can limit the independent action of individuals and enforcing a federal—a state law,” Biden told reporters at the White House. “I don’t know enough to give you an answer yet. I’ve asked that to be checked.”

Biden’s gender policy council and officials from the White House counsel’s office met with abortion rights advocates Friday to hear their views, White House spokeswoman Karine Jean-Pierre told reporters, Jennifer Epstein and Jennifer Jacobs report.

Texas Ban May Spur Tele-Abortions: A national non-profit called Plan C is working to increase access to abortion pills and information on how to get and use them. While Plan C says such guidance is needed more than ever in Texas now that the state has banned most abortions after six weeks, pregnant Texans soon will face another hurdle: The state is about to ban medication abortions.

“We absolutely expect to see an increase in inquiries to our website in Texas,” as well as more requests for abortion pills from other sites that sell them, said Plan C co-founder Elisa Wells. The Covid-19 pandemic and its dramatic rise in telemedicine has accelerated the move toward “medication abortions” via virtual visits, so the patient never has to leave home. “The standard of care with respect to abortion care changed almost overnight because of the pandemic,” Wells said.

But these nonprofits can’t work in Texas or states with similar laws: 19 states ban telemedicine abortions, and Texas lawmakers have gone one step further and explicitly prohibited providers from mailing pills. The latter bill, passed by the legislature last week, is on the desk of Gov. Greg Abbott (R). Read more from Carey Goldberg and Catarina Saraiva.

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Happening on the Hill

Expanding Medicare Eligibility: More than 125 Democratic House lawmakers — led by Reps. Pramila Jayapal (Wash.), Conor Lamb (Pa.), Joe Neguse (Colo.), Susan Wild (Pa.), Haley Stevens (Mich.), and Debbie Dingell (Mich.) — are backing legislation that would lower the Medicare eligibility age to 60 from 65. The effort would expand Medicare to at least 23 million people.

Nursing Home Management, Accountability Overhaul: Reps. Frank Pallone, Jr. (D-N.J.) and Richard E. Neal (D-Mass.) unveiled legislation that would update federal nursing home policy by putting in place minimum staffing standards and provide additional resources for their staff. “The COVID-19 pandemic was a wake-up call that we must do more to protect people in nursing homes. This legislation will increase oversight of nursing homes and provide the resources necessary to improve the quality of care across the nation,” Pallone said in a statement.

The Coronavirus Pandemic

Fauci Says Covid Boosters Likely to Start With Pfizer: Biden’s chief medical adviser said U.S. booster shots against Covid-19 are likely to start only with the vaccine by Pfizer and BioNTech, while the Moderna shot may be delayed. “The bottom line is very likely at least part of the plan will be implemented, but ultimately the entire plan will be,” Anthony Fauci said Sunday on CBS’s “Face the Nation.”

Fauci’s comments may lead to more clarity on the administration’s stance after Biden ran into resistance by medical experts who advise U.S. regulators over what they view as political interference in the review process. While Biden has set a Sept. 20 target for kicking off the booster campaign, safety and efficacy data require signoff by the U.S. Centers for Disease Control and Prevention and the Food and Drug Administration. Read more from Ian Fisher.

  • U.S. health regulators are seeking additional coronavirus booster shot data from Moderna, people familiar with the matter say. Moderna announced Friday that it had “completed” its submission of data to the FDA for authorization of boosters. The FDA has been seeking more data as Moderna’s submission rolled in, the people added. In particular, the FDA is looking for more information on the efficacy of a 100-microgram dose—the same as the first two shots people received—not just the 50-microgram booster submitted by Moderna as a potential booster, one of the people said. Read more from Josh Wingrove.

White House Taps Vaccine Leader for Pandemic Preparedness: The U.S. government’s director for Covid-19 vaccine development has been tapped by the White House to take on a role focused on preparing for future pandemics. Matthew Hepburn, the director of Covid-19 vaccine development for the Countermeasures Acceleration Group, formerly known as Operation Warp Speed, is preparing to take on the new position Oct. 1, according to people familiar with the matter. Hepburn will focus on the development of vaccines, therapies and tests to tackle pandemic threats, reporting directly to Office of Science and Technology Policy Director Eric Lander, said the people, who asked not to be named as details of the appointment are not yet public. Read more from Riley Griffin.

  • Meanwhile, the administration on Friday unveiled a $65.3 billion plan to prepare for future pandemics threats. The proposal announced by the White House OSTP and National Security Council focuses on protecting the U.S. against potentially catastrophic biological threats, including those that are naturally occurring, accidental or deliberately set in motion by bad actors. “There’s a reasonable likelihood that another serious pandemic that could be worse than Covid-19 will occur soon, and possibly even within the next decade,” Lander said in a briefing with reporters. “For the first time in the nation’s history, we have the opportunity—due to these kinds of advances in science and technology—not just to refill stockpiles, but transform our capabilities.” Read more from Riley Griffin and Shira Stein.

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What Else to Know

Medicare Health Quality Measures Get Closer Look: The Covid-19 pandemic is the nudge the Medicare and Medicaid agency needed to rethink what quality measures it asks providers to report, health policy experts said. The industry is questioning the utility of having so many quality measures at a moment when doctors and resources are stretched thin. Providers said the measures can be easy to game and arduous to report, and they’re expensive for themselves and the government. Studies have shown some measures may not lead to higher quality care.

The Centers for Medicare & Medicaid Services spent more than $1.3 billion on quality measure development between 2008 and 2018, according to a 2020 study published in the JAMA Network Open. The measures translate to more than $15.4 billion in spending for physicians, with providers in common specialties spending more than 15 hours per physician per week on quality reporting, according to a 2016 study published by Health Affairs. Read more from Allie Reed.

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With assistance from Katrice Eborn

To contact the reporter on this story: Zachary Sherwood in Washington at zsherwood@bgov.com

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

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