Hi there. I’m Sam Whitehead, a reporter with KFF Health News based outside Atlanta. I frequently cover access to reproductive health care across the South, where just a single state (Florida) currently protects the right to access birth control. Read on to find out how state-level protections like this could soon matter more, and if you have tips, send them to swhitehead@kff.org.
Today’s edition: Legislation that seeks to boost competition in the prescription drug market sailed through the Senate. Abortion rights supporters scored a win in the courts in New York. But first …
If federal guardrails on birth control coverage don’t hold, access could be all over the map
A lawsuit winding its way through the courts could undermine the power of federal agencies to mandate the services health insurance providers must cover. And that could threaten access to free birth control for millions of Americans.
Advertisem*nt
The case is called Braidwood Management Inc. v. Becerra, and it was brought by plaintiffs looking to strike down Obamacare’s requirements that private insurers cover certain kinds of preventive care without cost sharing. (Think everything from no-cost cancer screenings to free IUDs.)
Studies have shown the requirements to cover preventive care have increased consumers’ use of short- and long-term birth control methods.
Without those nationwide standards, the United States would return to a “wild West” dynamic “in which insurers and employers pick and choose which services they want to cover or which services they want to charge for,” said Zachary Baron, a health policy researcher at Georgetown Law.
The plaintiffs, a group of individuals and Christian-owned businesses, argue the three groups that set coverage standards — including an independent advisory panel to the Health Resources and Services Administration — haven’t been properly appointed by Congress.
In June, the U.S. Court of Appeals for the 5th Circuit issued a self-described “mixed bag” of an opinion. It agreed that one body hadn’t been properly appointed, making its recommendations since the Affordable Care Act became law unconstitutional. But the court said only the plaintiffs get to ignore its standards.
The appeals court sent questions about the other two groups — including the advisory panel to HRSA that makes recommendations on contraception — back to a lower court to consider.
The case is likely headed back to U.S. District Judge Reed O’Connor. O’Connor’s previous ruling that one body hadn’t been properly appointed was supported by the appeals court. His remedy — blocking its mandates nationwide — wasn’t.
O’Connor is notoriously hostile to the ACA — he struck down the law in 2018. The Supreme Court later overturned that ruling.
Advertisem*nt
And that makes reproductive rights advocates nervous.
O’Connor “is someone who is willing to impose remedies where he takes access to care away from everybody in the country,” said Gretchen Borchelt, vice president of reproductive rights and health at the National Women’s Law Center.
A lack of federal requirements for birth control coverage would leave it up to the states to mandate what insurers have to provide. Fourteen states and D.C. currently protect the right to contraception.
But states can go only so far with those rules, because of a federal law that prevents them from regulating employer-funded health plans, which cover about 65 percent of workers.
“If the plaintiffs win here, it would leave significant gaps in coverage that states would be unable to fill,” Baron said.
KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF — an independent source of health policy research, polling and journalism.
On the Hill
Bill to boost competition in drug market breezes through Senate
The Senate unanimously passed the Affordable Prescriptions for Patients Act, which seeks to curb anticompetitive practices in the drug market. The bill now heads to the House for consideration.
Advertisem*nt
The details: Spearheaded by Sens. John Cornyn (R-Tex.) and Richard Blumenthal (D-Conn.), the legislation aims to crack down on “patent thickets” that delay competition by limiting how many patents a manufacturer can contest in scenarios outlined in the bill.
Hardworking Americans in Texas and across the country pay too much for prescription drugs.
— Senator John Cornyn (@JohnCornyn) July 11, 2024
I want to put a stop to it.
Today the Senate passed my bipartisan Affordable Prescriptions for Patients Act, which would help lower drug prices.
Learn more ⬇️…
correction
An earlier version of this newsletter incorrectly said that the Affordable Prescriptions for Patients Act targets “product hopping,” a tactic in which pharmaceutical companies extend their monopoly on a brand-name drug by slightly altering it just before a generic version becomes available. The provision was stripped from the final bill passed by the Senate. The newsletter has been corrected.
Meanwhile …
The Senate Appropriations Committee unanimously advanced bipartisan legislation to fund the Food and Drug Administration in fiscal 2025.
A closer look: The bill allocates $6.87 billion for the FDA, including $3.544 billion in discretionary funding — a $22 million increase over fiscal 2024. Key provisions include:
- A $3 million boost for the Neurology Drug Program
- $2 million in new funding for the Tobacco Task Force
- $55 million to continue implementing the 21st Century Cures Act
Next steps: The measure must first pass the full Senate and then be reconciled with the House version. Republican leaders in the lower chamber are aiming to move their funding bill on the floor at the end of the month, which proposes $6.75 billion for the FDA with $3.5 billion in direct appropriations.
Advertisem*nt
In other news from Capitol Hill …
- OB-GYNs and other health-care providers are leaving states with abortion bans, while wait times in states where the procedure is protected have grown longer, according to a new report from Sen. Maria Cantwell (D-Wash.), Senate Majority Leader Charles E. Schumer (D-N.Y.), and 14 women Democratic senators.
- Democratic Reps. Jamie Raskin (Md.) and Maxwell Frost (Fla.) are asking a government watchdog to investigate the amount of federal funding directed toward crisis pregnancy centers, which aim to dissuade women from having abortions.
- Republican Reps. Roger Marshall (Kan.) and Joni Ernst (Iowa) proposed an amendment to the National Defense Authorization Act that would prohibit spending on “gain-of-function research of concern” from the Departments of Defense and Energy, per the Washington Examiner’s Gabrielle M. Etzel.
State scan
New York’s expanded Equal Rights Amendment to appear on November ballot
New York’s highest court has paved the way for a proposed constitutional amendment to appear on November’s ballot. The measure seeks to prohibit discrimination based on “gender identity” and “pregnancy outcomes,” and safeguard reproductive care from governmental restrictions.
Key context: A Republican state lawmaker had sued to block the question, arguing that Democrats had made a procedural error when they initially approved it during a special legislative session in 2022. The high court dismissed the suit, upholding a June ruling that found no major constitutional issues at stake.
The bigger picture: The ruling hands a win to Democrats, who are betting the ballot measure will energize their base ahead of the November elections. Republicans, meanwhile, are aiming to highlight new protections they argue the amendment could extend to transgender minors, while also raising concerns about potential impacts on parental rights.
— Kathy Hochul (@KathyHochul) July 11, 2024This is a win for all New Yorkers.
Protecting reproductive rights and freedoms is more important than ever. In New York, we’re fighting back and that starts by passing the Equal Rights Amendment this November. https://t.co/8I12FIZoKX
In other health news
- The Food and Drug Administration finalized recommendations for designing clinical trials measuring the safety and effectiveness of devices to treat opioid use disorder.
- The Centers for Disease Control and Prevention is funding a new Implementation Center Program that will support public health agencies as they modernize their data systems.
- Federal authorities are investigating Steward Health Care for potential fraud and Foreign Corrupt Practices Act violations. The company, which owns dozens of hospitals in the United States and three in Malta, recently filed for bankruptcy, Pat Milton and Michael Kaplan report for CBS News.
- Research into chronic conditions affecting women is significantly lacking, according to a new report from the National Academies of Sciences, Engineering and Medicine that calls on the National Institutes of Health and other agencies to do more to investigate issues that lead to worse medical treatment for women, per The Post’s Sabrina Malhi.
Quote of the week
“We’ve started to think about these as public health issues and disasters on the scale of earthquakes or hurricanes.”
— Jeff Tully, a co-director of the Center for Healthcare Cybersecurity at the University of California at San Diego, on cyberattacks targeting health systems.
Health reads
1 in 10 people infected during pregnancy develop long covid, study finds (By Sabrina Malhi | The Washington Post)
Sugar rush
THE PLAGUE HAS RETURNED pic.twitter.com/Vk0rQyOU0H
— Dave Jorgenson (@davejorgenson) July 10, 2024
Thanks for reading! Not a subscriber? Sign up here.
