HEALTH CARE BRIEFING: Birth Control Case on SCOTUS Watch

By Brandon Lee

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The U.S. Supreme Court is poised to cap a term like no other with potentially blockbuster decisions covering birth control, religious rights, and a swath of other politically charged controversies.

Justices will tackle their eight remaining cases starting today, when they issue opinions in July for the first time since 1996. The eight cases were heard in an extraordinary May argument session, held over phone due to the coronavirus pandemic. The justices could finish their work later in the week.

Together, the final opinions could rewrite the narrative of a Supreme Court term that so far has yet to produce the clear conservative shift some envisioned after two Trump nominees joined the court. The rulings will shape public perceptions of the court, and perhaps of President Donald Trump, heading into the November election.

The Trump administration is seeking to give employers and universities a broad right to claim a religious or moral exemption from the Obamacare requirement that they provide free birth control through their health-care plans. The opt-out would expand a narrower religious exemption from the Obama administration as part of the Affordable Care Act.

Although the case could turn on technical questions of federal administrative law, its symbolic and cultural implications loom much larger. And a high court blessing for Trump’s opt-out could mean tens of thousands of women would lose access to free contraceptives.

The administration is arguing alongside the Little Sisters of the Poor, an order of Catholic nuns that says it is trying to avoid having its employee health-care plan “hijacked” to provide birth-control coverage.

As in many of the court’s cases, Chief Justice John Roberts may wield the pivotal vote. During arguments in May, Roberts said the Trump exemption “reaches far beyond” the Little Sisters’ concerns. “In other words, not everybody who seeks the protection from coverage has those same objections,” he said. Read more from Greg Stohr.

  • Meanwhile, justices last week rebuffed abortion opponents by leaving intact a precedent allowing states and cities to prevent people from approaching women without consent as they are entering a clinic. Justices turned away two appeals that called for reconsidering the 2000 decision, which upheld Colorado’s 8-foot bubble zone around people when they’re near a clinic. Read more from Greg Stohr.

Happening on the Hill

Appropriations Markups This Week: The House Appropriations Agriculture-FDA Subcommittee and State and Foreign Operations Subcommittee will mark up its fiscal 2021 appropriations measures today.

  • The Labor-HHS-Education Subcommittee will mark up its bill tomorrow.
  • The Commerce-Justice-Science Subcommittee will mark up its bill on Wednesday.
  • The full committee will mark up the Agriculture-FDA bill Thursday.

The House’s fiscal 2021 Agriculture-FDA appropriations bill, released yesterday, would provide nearly $24 billion in discretionary funds, a $487 million increase over the fiscal 2020 level. The FDA would receive $3.2 billion in discretionary funding, a $40.8 million increase.

House Democrats’ fiscal 2021 State and Foreign Operations spending bill, also released yesterday, would set aside $10 billion for the coronavirus response and require Trump’s administration to send funds to the World Health Organization. The U.S. would be required to send $200 million to the World Health Organization within 60 days of enactment of the legislation, despite Trump’s decision to cut off funding for the group.

Coronavirus funding provisions include:

  • $2.5 billion for global health programs;
  • $1.5 billion for the Economic Support Fund;
  • Nearly $1.3 billion for international organizations and programs for the United Nations Global Humanitarian Response Plan;
  • Slightly more than $1.1 billion for International Disaster Assistance;
  • $955 million for diplomatic programs; and
  • $900 million for development assistance.

Read more from Jack Fitzpatrick.

Blunt Wants Details on Trump’s Vaccine Efforts: The Senate Appropriations Committee’s health panel wants answers from the Trump administration on its plan for developing a coronavirus vaccine and how much money agencies under the Health and Human Services Department need to respond to the virus. Sen. Roy Blunt (R-Mo.), chair of the Appropriations Labor-HHS-Education Subcommittee, said he wants in the next two weeks more clarity on who is in charge of what activities, what are the deadlines, and what do health agencies need to meet those deadline. Read more from Jeannie Baumann.

Biggs Says Trump Should Cease Task Force: An influential House Republican from a state enduring one of the worst Covid-19 spikes in the country is urging Trump to disband the White House coronavirus task force because, he argues, it’s hindering the U.S. economic recovery. Rep. Andy Biggs (Ariz.) said that the scientists on the Coronavirus Task Force, led by Vice President Mike Pence, are causing an unnecessary “panic.”

“It is imperative that President Trump is not undermined in his mission to return our economy to greatness,” Biggs said in a statement. “Dr. Anthony Fauci and Dr. Deborah Birx continue to contradict many of President Trump’s stated goals and actions for returning to normalcy as we know more about the Covid-19 outbreak.” Read more from Erik Wasson.

Tighter Rules Sought for Assisted Living Facilities: Sens. Elizabeth Warren (D-Mass.), Edward Markey (D-Mass.), and House Oversight and Reform Chairwoman Carolyn Maloney (D-N.Y.) introduced a bill Thursday to put in place national data collection and reporting requirements to make sure assisted living facilities adequately protect residents from Covid-19. The three also released a report showing high rates of coronavirus infection and deaths among assisted living residents, Kasia Klimasinska reports.

NIH Seeks Enough Tests to Reopen Sports: The National Institutes of Health is seeking to develop by this fall new coronavirus tests that will give results within an hour, potentially allowing sports leagues like the National Football League to check players before games. “This is a white knuckle goal,” NIH Director Francis Collins told a Senate Appropriations subcommittee on Thursday, adding that he hopes 1 million tests could be administered each day. Vivek Shankar has more.

Ban on Online E-Cigarettes Sales to Minors Passes: The Senate passed a bill by unanimous consent to bar online sales of e-cigarettes to minors by applying the same protections already put in place for regular cigarettes and smokeless tobacco products. The measure (S. 1253) would force e-cigarette retailers to verify the age of customers for all purchases and require an adult with ID to be present for delivery. Read more from Alex Ruoff.

Virus & Artificial Intelligence: The House Financial Services Task Force on Artificial Intelligence plans a virtual hearing on Wednesday on how artificial intelligence can be used to track Covid-19 and assist in vaccine development.

National Virus Response: The House Homeland Security Committee holds a virtual hearing Wednesday to examine the national response to the pandemic and another on Friday to examine the unequal impacts of the virus.

Research & Development: The House Budget Committee on Wednesday will discuss the federal role in research and development.

More Headlines:

Vaccine & Treatment Efforts

U.S. Should Build Up Antibody Therapy Supply, Ex-FDA Chief Says: The U.S. should be building up reserves of therapeutic antibodies now ahead of any potential approval or emergency use authorization to treat the coronavirus, said the former head of the FDA. “We need a more coordinated national strategy around this,” ex-FDA Commissioner Scott Gottlieb said on CBS’s “Face the Nation” yesterday. Read more from Cristin Flanagan.

Trade Groups Push for Mask Guidelines: Top Washington trade groups called on Trump, Vice President Mike Pence and governors to issue guidelines on mask requirements, citing the economic risk from the accelerating spread of Covid-19. A letter from the U.S. Chamber of Commerce, the National Retail Federation, Business Roundtable and others came a day after Trump offered limited praise for wearing masks but suggested they need not be required. The president has put little emphasis on masks despite evidence they can help combat the spread of the virus. Read more from Ben Brody.

  • As coronavirus case numbers and deaths continue to climb, face coverings have become the center of a heated political debate. While most American adults said they’ve used a mask while in public spaces over the last month, there were differences across partisan, generational, and geographic lines, according to polling data. While 88% of Democrats reported wearing a mask at least some of the time, just 72% of Republicans said the same. Breanna T. Bradham has more.

U.S. Issues New Coronavirus Safety Guidance: The departments of Transportation, Homeland Security, and Health and Human Services last week issued joint guidance for the air travel industry to “better protect passengers, crew, and other airport workers from the COVID-19 pandemic,” as the economy reopens, according to a statement from the agencies.

While Homeland Security Chairman Bennie G. Thompson (D-Miss.) praised the agencies for the guidance, he called for further steps because “this strategy simply lacks teeth.”

The guidance “contains only recommendations for airports and airlines, when mandates would be more effective in some cases. It seems the Trump Administration has again tried to sidestep political controversy by avoiding clearly needed mandates, such as requirements for masks on airplanes and in airports,” he said in a statement.

National Academies Eyed for Vaccine Rollout: The U.S. plan for distributing hundreds of millions of Covid-19 vaccines will likely rely on an outside advisory committee to figure out how to do it in a fair way. National Institutes of Health Director Francis Collins told a Senate spending panel Thursday his agency and the CDC are in talks with the National Academy of Medicine to form a panel by Labor Day to craft guidelines for ethical vaccine distribution. Jeannie Baumann has more.

Data Lacking From States on Protective Gear: The Trump administration is lacking a crucial piece of information when it comes to the supply of personal protective equipment like gloves and N95 respirators—what states have. John Polowczyk, head of the White House Supply Chain Task Force, told lawmakers Thursday at a House Select Coronavirus Crisis Subcommittee hearing that he’s not receiving regular reports from states and territories about supplies they’re buying and storing. Read more from Shira Stein.

Testing Contractors Needed, CDC Says: The Trump administration is seeking a private company that can deploy emergency response teams to collect samples and test people for Covid-19, the General Services Administration said. The U.S. Centers for Disease Control and Prevention said on Wednesday that it’s seeking proposals from potential contractors to create teams to work independently or with the CDC to collect samples from patients, process tests, and report results. Read more from Shira Stein.

Hydroxychloroquine to Get More Scrutiny: The antimalarial drug that Trump touted for Covid-19 is getting another chance, as a global clinical trial will try to determine the treatment’s effectiveness in preventing coronavirus infection. A trial led by Bangkok-based Mahidol Oxford Tropical Medicine Research Unit is recruiting health workers in contact with Covid-19 patients to explore whether hydroxychloroquine, as well as its sister drug chloroquine, can stop the illness. Read more from Siraphob Thanthong-Knight.

  • Separately, the World Health Organization halted one of the clinical trials of hydroxychloroquine and lopinavir/ritonavir, accepting a steering committee recommendation. The WHO set up the “Solidarity Trial” to find a treatment for patients in hospitals, but interim results showed the two drugs did little to reduce mortality rates, while not adding to the risk of death. Read more.

Gilead Drug Wins European Authorization: Gilead Sciences’ remdesivir won conditional marketing authorization from the European Medicines Agency for treating Covid-19 in patients with pneumonia who are receiving supplemental oxygen. The drug, which will carry the brand name of Veklury, was cleared for treatment of adults and adolescents age 12 and older and weighing at least 88 pounds, California-based Gilead said in a statement. Read more.

More Headlines:

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; Zachary Sherwood at zsherwood@bgov.com; Michaela Ross at mross@bgov.com

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