HEALTH CARE BRIEFING: Barrett Pressed on Abortion, Health Care

Democrats grilled U.S. Supreme Court nominee Amy Coney Barrett about abortion rights, health-care law, guns and election disputes but ended a marathon day of testimony having made little progress derailing her likely Senate confirmation and a strengthened conservative majority on the court.

Barrett refused to say yesterday whether she would disqualify herself from impending presidential election disputes. She offered no hints on how she would vote should the court reconsider Roe v. Wade, although she said she doesn’t consider that landmark abortion-rights ruling a “super-precedent” that would be unthinkable to overturn.

Barrett told senators she made no promises to President Donald Trump about how she would vote on an ACA case the Supreme Court will hear a week after Election Day. She said her previous criticisms of rulings backing Obamacare weren’t pertinent to the latest case. Trump is urging the Supreme Court to invalidate the law, an outcome that almost certainly would require her vote.

“I have had no conversations with the president or any of his staff on how I might rule in that case,” Barrett said. “It would be a gross violation of judicial independence for me to make a such a commitment or for me to be asked about that case and how I would rule.”

Democrats may not be able to achieve much more than aiming pointed questions at Barrett — and hoping their skepticism will resonate with voters — since Senate Republicans have the numbers and the determination to confirm her before the Nov. 3 election. Barrett declined to answer questions on some issues she has expressed personal opinions on in the past, such as abortion rights, or on what she would do regarding other matters likely to come before the Supreme Court.

The committee’s top Democrat, Dianne Feinstein (D-Calif.), began her questioning by relaying details about women in the 1950s who had dangerous procedures and sometimes harmed themselves to end pregnancies because abortion was illegal. Feinstein pressed Barrett, a devout Catholic, about whether she would uphold reproductive-rights precedents including Roe v. Wade, which legalized abortion in all 50 states but permitted restrictions in the second and third trimesters. Barrett’s mentor, the late Justice Antonin Scalia, was critical of the ruling.

“Do you agree with Justice Scalia’s view that Roe was wrongly decided?” Feinstein asked.

“I completely understand why you are asking the question, but again I can’t pre-commit or say yes, I’m going in with some agenda, because I’m not. I don’t have an agenda,” Barrett replied. “I have an agenda to stick to the rule of law and decide cases as they come.” Read more from Greg Stohr and Laura Litvan.

Related: Barrett’s Answers Leave Little for Democrats to Use Against Her

Also Happening on the Hill

Democrats Question Legality of Drug Discount Cards: House Ways and Meanse Chairman Richard Neal (D-Mass.), House Energy and Commerce Chairman Frank Pallone (D-N.J.), and Senate Finance ranking member Ron Wyden (D-Ore.) pressed the Trump Administration for more info on the plan to send $200 to Medicare beneficiaries ahead of the election. The lawmakers wrote to Government Accountability Office Comptroller General Gene Dodaro requesting a review of the legality of the program. They also voiced their concerns in a letter to HHS Secretary Alex Azar, accusing Trump of “attempting to buy votes just weeks before the election using taxpayer dollars.”

Health Insurance Coverage Hearing: The Ways and Means Oversight Subcommittee plans a hearing next Tuesday taking aim at the administration on health care issues. The Oct. 20 hearing is titled “Maximizing Health Coverage Enrollment Amidst Administration Sabotage.”

The Coronavirus Pandemic

Race for Virus Cure Hits Reality: The sprint to find medical breakthroughs to contain Covid-19 stumbled this week, as a pair of pharmaceutical giants working to develop treatments and vaccines suffered setbacks in the clinic. Yesterday, Eli Lilly said that enrollment in a government-sponsored clinical trial of its antibody therapy had been paused out of safety concerns. That came less than 24 hours after Johnson & Johnson said research on its experimental vaccine was paused after a study volunteer fell ill.

The developments are likely to heighten worry that the pursuit of products to prevent and treat infections is moving too quickly. Regulators and drugmakers have faced questions about whether political pressure was overwhelming scientific rigor ahead of the presidential election on Nov. 3. Last week, Trump, trailing in the polls, touted antibody treatments as a cure, and his administration has pushed hard for the rapid approval of the treatments and a vaccine. However, the trial complications are happening in an environment of intense scrutiny, executives and industry observers said, and the highly public nature of the hunt for vaccines and treatments is magnifying events that in other studies would be considered routine. Read more from Riley Griffin and Michelle Fay Cortez.

Medicare Prepares Rule for Covid Vaccine Access: The Centers for Medicare & Medicaid Services has a plan to ensure full payment for and speedy access to new Covid-19 vaccines and treatments for Medicare beneficiaries, agency Administrator Seema Verma said yesterday at a virtual conference.

Although Congress has made clear it wants Medicare to cover the cost of a Covid-19 vaccine without cost-sharing, Verma said it can take one to three years to work out payment issues for vaccines and other treatments due to agency’s “very deliberative processes,” which, “unfortunately, can delay putting access to important treatments, innovative technology in the hands of our beneficiaries.”

So the agency is working on a rule to address this “because we want to make sure that our payment policies aren’t standing in the way of beneficiaries having access to the latest treatments,” Verma said in an interview with former CMS Administrator Mark McClellan during the Health Care Payment Learning and Action Network Virtual Summit. Read more from Tony Pugh.

Unemployed Can Tap Medicaid for Covid-19: Unemployed Covid-19 patients could rely on Medicaid to avoid out-of-pocket costs for treatments, under a proposal being lobbied by the biotech industry, Jeannie Baumann reports. The Biotechnology Industry Organization wants to include in the House-passed stimulus bill (H.R. 6800) a provision for no cost sharing for therapeutics to treat Covid-19. Lawmakers and the Trump administration have already agreed to cover the cost of vaccines, and this provision aims to provide similar coverage to treatments such as Gilead’s remdesivir or the anti-inflammatory dexamethasone.

“We are working to see if there are ways to expand Medicaid in states So that those were recently unemployed could have access to Medicaid and therefore Covid therapeutics, If they were to become ill,” BIO CEO Michelle McMurry-Heath said at the Milken Institute’s Global Conference on Monday.

According to a bill summary, section 30104 would eliminate cost-sharing for Medicaid beneficiaries for Covid-19 treatment and vaccines during as long as Covid-19 public health emergency continues. Section 30105 would allow “individuals whom states opt to cover through the new Medicaid eligibility pathway will be able to receive treatment for COVID-19 without cost-sharing during the COVID-19 public health emergency.”

Related: Trump, Republicans Divided on Stimulus as Pelosi Demands Revamp

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What Else to Know

Verma Talks Payment Models: The Trump administration is considering using pandemic-style waivers that provide greater regulatory flexibility for health-care providers as a way to encourage greater participation in Medicare alternative payment models. Verma said yesterday the agency will also look at adjusting provider performance thresholds, or benchmarks; introducing more mandatory payment models; and requiring providers to take more financial risk in order to improve the performance of alternative payment models in traditional Medicare.

Alternative payment models provide incentive payments to medical providers who offer high-quality, cost-efficient care. The Center for Medicare and Medicaid Innovation develops the models, which are designed to move fee-for-service Medicare more toward value-based care, in which reimbursement is determined by patient outcomes and cost efficiency rather than the volume of services provided. “CMS is deeply committed to value-based care. And we are determined to make these models work for providers, payers, patients, and our entire health-care system,” Verma said yesterday. Read more from Tony Pugh.

Facebook to Block Ads Discouraging Vaccinations: Facebook will reject ads that discourage people from getting vaccines, citing a new policy meant to prevent “harm” to public health efforts. Facebook already forbids ads that promote vaccine hoaxes or misinformation about vaccines. The company will also put educational material about the flu shot in users’ feeds. “Public health officials recommend that most people get a flu shot every year. This year, they think it is especially important to minimize the risk of concurrent flu and Covid-19,” Facebook wrote in a blog post yesterday. Read more from Kurt Wagner.

ASAM Updates Marijuana Status Recommendation: The American Society of Addiction Medicine is recommending the federal government remove marijuana from Schedule 1 and decriminalize it, according to an updated public policy statement.

More Headlines:

Supreme Court Won’t Review Who Can Sue Over Medicaid Providers

Indiana, Abortion Providers Split Pretrial Ruling in Challenge

Texas Law Restricting Abortion Procedure Nixed by Appeals Court

SCOTUS Won’t Upend Ruling Requiring Inmate Sex Reassignment

Amgen Patent Properly Nixed Based on What Antibodies Are ‘Human’

Fertility Tracking Apps Get Tough Look From States Over Privacy

With assistance from Jeannie Baumann and Alex Ruoff

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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