Shifting the Healthcare Debate

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Welcome to Wednesday’s Overnight Health Care, where Democrats have won back the House, opening the door to a shift in the health care debate.

Here’s what we’ll be watching for on health care when the new Democratic House majority takes over:

  1. Oversight. Democrats are sure to launch investigations and hearings into all sorts of actions Republicans have taken that they think undermined the Affordable Care Act, from expanding skimpier short-term health insurance plans to cutting outreach efforts. They could also bring up different industry executives to testify, for example those from drug companies. We’ve seen some of this happen already with Martin Shkreli and Heather Bresch, but Democrats may want to go even further to shame the industry for high prices.
  2. Drug pricing. Speaking of which, legislation to fight high drug prices is an early priority for House Democrats. They think it could be an area for bipartisan support, as President Trump has also focused on the issue. Democratic Leader Nancy Pelosi said Tuesday she thinks there could be “common ground” with Trump on the idea, and Trump listed the issue as a possible area of cooperation Wednesday as well. But any drug pricing action always faces an uphill climb.
  3. Pre-existing condition protections. If a federal judge rules in favor of Texas and the other Republican state attorneys general challenging the law, Congress is going to need to have a backstop in place. Republicans in the Senate already passed their versions of such legislation, but left the door open to insurers charging higher premiums for people with pre-existing conditions. If the law’s protections are truly at risk, Senate Republicans will need to back up their campaign rhetoric with action.
  4. Medicare for All. The most sweeping change Democrats have discussed does not have any real chance of being enacted into law with a Republican Senate and president. But it’s worth watching whether liberal Democrats start planning and agitating for some action on Medicare for all, with hearings, revised legislation, etc.


Medicaid wins big at the polls

It was a big night for Medicaid. Three red states voted to expand Medicaid, giving health coverage to potentially hundreds of thousands of newly eligible people.

Idaho voters approved expansion with more than 61 percent of the vote, Utah passed expansion with 54 percent and Nebraska passed it with 53 percent. In Nebraska and Utah, the approval came despite opposition from the states’ Republican governors.

Democrats also won close gubernatorial races in Kansas and Wisconsin, putting expansion on the table. In Kansas, expansion legislation passed in 2017 but former Gov. Sam Brownback (R) vetoed it. In Wisconsin, Gov. Scott Walker (R) lost to Democrat Tony Evers, who campaigned on a platform that included expansion.


The Trump administration finalized two rules today making it easier for some employers to avoid complying with the Affordable Care Act’s contraception mandate. Here’s what they do:

  • The first rule provides an exemption to the mandate for entities that object to contraception based on their “sincerely held religious beliefs.”
  • The second rule gives ax exemption to nonprofits, small businesses and individuals that have non-religious, moral objections to the mandate.

These rules are largely similar to two interim final rules released by the administration last year. But the second rule was amended to state that the moral exemptions don’t apply to publicly traded businesses and government entities.

The rules take effect 60 days after their publication in the Federal Register.

Context: These rules are already the subject of multiple lawsuits against the administration. From National Women’s Law Center President Fatima Goss Graves:

“The Trump Administration decided to finalize these outrageous rules, despite several pending lawsuits and two federal courts blocking them. It’s clear that this Administration will stop at nothing to attack women’s health care… if the Administration thinks it can move these rules forward without a fight, they’re wrong.”


On the topic of abortion, two states last night laid the groundwork to ban abortion if the Supreme Court makes changes to Roe v. Wade.

Voters in Alabama and West Virginia approved sweeping amendments to state constitutions that could put major limitations on access to abortions if Roe v. Wade is overturned by the Supreme Court.

Alabama’s amendment makes it state policy to protect “the rights of unborn children” and “support the sanctity of unborn life.” It also says there are no constitutional protections for a woman’s right to an abortion.

Fifty-nine percent of voters approved the measure.

West Virginia narrowly passed a similar amendment that states nothing in the state Constitution “secures or protects a right to abortion or requires the funding of abortion.” That vote was 52 percent to 48 percent.

Read more here.



Abortion debate surfaces in California governor’s race

Abortion debate surfaces in California governor’s race

The nation’s divide over abortion rights is expected to be a telltale flashpoint between the two candidates for California governor who embrace starkly different views on the issue, even though protections for legal access to abortion have been cemented into state law for decades.

Staunchly anti-abortion and endorsed by organizations opposed to abortion, Republican John Cox argued in 2006 that cases of rape and incest should be no exception to a ban on abortion. Democrat Gavin Newsom wants to increase funding and accessibility for abortion and family planning and is strongly backed by Planned Parenthood, a frequent target of the Republican-led Congress and the Trump administration.

“I think anybody who has a rape and incest exception to abortion really hasn’t thought it through. Killing the baby is not going to absolve the crime of rape,” Cox said at the Conservative Political Action Conference in Washington 12 years before he finished in second place in the California primary.

Cox made the comment shortly before announcing an unsuccessful campaign for president. He also said he was “100% and proudly pro-life and I offer no apologies for it.”

With President Trump’s pending appointment to the U.S. Supreme Court rekindling the nation’s longstanding political clash over the issue, advocates on both sides foresee the court shifting to the right and a possible overturning of Roe vs. Wade, the landmark 1973 decision that guaranteed a nationwide right to abortion. Though just speculation ahead of having an actual nominee and confirmation hearings, a change in abortion rights probably would be tossed back into the mire of state politics.

“Depending on who Trump nominates, this issue starts to become an advantage to Democrats,” said Chapman University political scientist Lori Cox Han. “For John Cox, there’s really not any advantage at all.”
Though Cox in 2017 trumpeted his endorsement by the California Pro-Life Council and made his opposition to abortion clear, the issue has not been a major focal point of his campaign for governor. Instead, Cox has portrayed himself more as the conservative antidote to the policies of California Democrats that he says have wrought record poverty and homelessness and unaffordable housing and saddled residents with high taxes, including the recent increase in gas taxes.
It’s unlikely that Newsom or his supporters will let Cox’s past statements on abortion go unmentioned.
Cox has cited his Catholicism and also said his views on abortion were shaped after learning that his father “took advantage” of his mother before marrying her. The couple later divorced.
“She didn’t have the choice of an abortion because it wasn’t legal. If it had been, it might have been an easy decision to terminate me,” Cox wrote in “Politics, Inc.,” a political position paper that was published in 2006. “She didn’t, thank God, and so was born my absolute opposition to abortion on demand.”
Cox, a wealthy businessman from Rancho Santa Fe, also is a strong opponent of the death penalty.
“His personal positions on the death penalty and abortion are well known, but as Governor, he would abide by the law,” Cox campaign spokesman Matt Shupe said in an emailed statement to The Times.
Amy Everitt, director for NARAL Pro-Choice California, said the differences between the two candidates for governor who will be on the November ballot have never been more clear.
“John Cox, who’s never held elected office, has been consistent in one way, and that is as an anti-choice leader,” she said. “His values lie far outside mainstream California values.”
She said the group considers Newsom as someone who has been a strong supporter of abortion rights throughout his political career.
California’s lieutenant governor, formerly the mayor of San Francisco, boasted during the gubernatorial primary campaign about his efforts to raise money for Planned Parenthood to increase access to abortion and other healthcare services for women.

Newsom also has called for the state to increase Medi-Cal reimbursement rates to healthcare providers, including Planned Parenthood, and to provide a permanent $100-million allocation for reproductive healthcare from the money raised by Proposition 56, the tobacco tax increase approved by voters in 2016.

Newsom said California’s next governor needs to be a leader in defending abortion rights throughout the country.
“There’s a deliberative effort to roll back reproductive rights in the country, to attack women, to demean women,” Newsom said during a candidate forum sponsored by NARAL Pro-Choice California in January.
“You need leaders to step into that debate. You need to call it out. You need to explain it. You need to expose it.”
Organizers said Cox was invited to the NARAL event, but that he did not respond. It ultimately featured only Democratic candidates.
California first legalized abortion in 1967, years before the Roe vs. Wade decision, and those protections have since been expanded and solidified through legislative statute and rulings by the California Supreme Court. Those protections include the right for funding for abortions provided to women covered by the Medi-Cal program and the right of minors to obtain an abortion without parental consent.
Still, a California governor who opposes abortion possesses enough executive authority to, at the very least, disrupt access, said Susan Berke Fogel, director of the reproductive health and justice programs at the National Health Law Program in Los Angeles. The governor could appoint an anti-abortion director to the California Health and Human Services Agency and cut funding for state programs that help pay for abortions and provide access to birth control, she said.
The governor also appoints judges, including to the state Supreme Court, and could attempt to reshape the judiciary and subsequent legal decisions regarding abortion rights in California.

Decades ago, Republican Gov. George Deukmejian made several cuts to the state’s family-planning programs. Fogel doubts a similar move would survive a legal challenge, but that wouldn’t stop an activist anti-abortion governor from trying, and “it would be disruptive,” Fogel said.

Unlike the U.S. Constitution, California’s Constitution includes a clear-cut right to privacy, a legal foundation protecting a woman’s right to choose to have a child or a legal abortion.

Wynette Sills, director of the anti-abortion organization Californians for Life, agrees with Fogel that even if Roe vs. Wade was overturned, abortion would still be legal in the state.
Still, electing Cox to be the next governor would help prevent the Legislature from making abortion even more prevalent in California. Cox, for example, could use his veto power to reject Senate Bill 320, pending legislation that would require health clinics on University of California and California State University campuses to provide drugs prescribed for medication abortion by 2022.

“Reasonable citizens of California will agree that our state Legislature is to the far extreme in promoting abortion,” Sills said. “We are seeking a reasonable and critical balance to the aggressive abortion actions we’re seeing at the Capitol, and John Cox would provide that balance.”

Most Californians consider abortion to be a settled issue in the state, Han said. For years, they have rejected every attempt to chip away as those protections, including voting against statewide initiatives to require greater parental consent for minors seeking abortions.

A 2017 poll by the Public Policy Institute of California found that more than 70% of Californians believe government should not interfere with a woman’s access to abortion, compared with the 27% who wanted the government to pass more restrictions. That view was held across the political spectrum, including by a majority of Republicans, and the overall findings were consistent in surveys going back to 2000.


With Roe in the Balance, Two Republicans Hold High Court in Their Hands

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Justice Anthony M. Kennedy’s retirement announcement was less than a day old when liberal activists rallied on the steps of the Supreme Court on Thursday, invoking the names of two Republican senators who, they believe, hold the future of Roe v. Wade in their hands.

“Remember Susan Collins! Remember Lisa Murkowski!” Neera Tanden, president of the liberal Center for American Progress, exhorted the crowd. “If they claim to be pro-choice, choice is on the line with this decision.”

Ms. Collins, of Maine, and Ms. Murkowski, of Alaska, are powerful — and rare — creatures in Washington: moderate Republican women who favor abortion rights and are unafraid to break with their party. Their no votes helped sink the Republican repeal of the Affordable Care Act last year; both objected vociferously to a provision that would have stripped funding from Planned Parenthood Federation of America, the women’s health and reproductive rights organization.

Now, with President Trump’s pledge to nominate a “pro-life” jurist to replace the retiring Justice Kennedy, the senators are under pressure as never before. Much like Justice Kennedy, they are swing votes — not in a court case, but in a coming confirmation battle that will shape the Supreme Court, and American jurisprudence, for generations to come.

The math in the Senate tells the tale. With Senator John McCain, Republican of Arizona, undergoing cancer treatment, Republicans have the slimmest of majorities: 50-49. If every Democrat votes against a Trump nominee, it would take just one Republican defector to block confirmation. And with a filibuster no longer an option, Democrats are powerless to block a nominee on their own.

So within minutes of Justice Kennedy’s announcement on Wednesday, Democrats and their allies began looking toward Ms. Collins and Ms. Murkowski.

So did the White House. Ms. Collins and Ms. Murkowski were among a bipartisan group of six senators who met separately with Mr. Trump on Thursday night to talk about the court vacancy. Earlier Thursday, Ms. Collins said in an interview that she had taken a call from the White House counsel, Donald F. McGahn II, and that she urged him to look beyond the list of deeply conservative jurists that Mr. Trump has promised to pick from — a significant request, given that Senator Chuck Schumer of New York, the Democratic leader, has declared that Democrats will not back any nominee on that roster.

Mr. Schumer has also made clear that he will make the fate of Roe v. Wade, the 1973 landmark decision that established a constitutional right to abortion, the centerpiece of Democrats’ strategy to block any nominee they consider extreme. Ms. Collins, choosing her words carefully, suggested Roe would figure into her decision-making.

“I believe in precedent,” she said. “In my judgment, Roe v. Wade is settled law, and while I recognize that it is inappropriate to ask a nominee how he or she would rule in any future case, I would certainly ask what their view is on the role of precedent and whether they considered Roe v. Wade to be settled law.”

Both senators are well aware that, no matter how they vote, one side is going to be unhappy. Ms. Murkowski acknowledged feeling the weight of the moment.

“There’s pressure because of the gravity of such a nomination,” Ms. Murkowski told Politico. “I am not going to suggest that my opportunity as a senator in the advise-and-consent process is somehow or other short-cutted just because this is a Republican president and I’m a Republican.”

Senator Chris Murphy, Democrat of Connecticut, framed the situation for Ms. Murkowski and Ms. Collins this way: “This is a legacy vote. Very few people in the Senate, even those who’ve been here for a long time, will cast a more important vote than this.”

Liberal activists and Mr. Schumer have demanded that a nominee not be confirmed until after the November election, but Senator Mitch McConnell, the Republican leader, has promised a speedy process, with a confirmation vote by fall.

For Democrats, unified opposition will be difficult — especially in an election year when 10 Senate Democrats are up for re-election in states won by Mr. Trump. Three of those Democrats — Heidi Heitkamp of North Dakota, Joe Donnelly of Indiana and Joe Manchin of West Virginia — voted last year to confirm Justice Neil M. Gorsuch. So did Ms. Collins and Ms. Murkowski.

Since then, Justice Gorsuch has emerged as a consistent vote in the high court’s conservative bloc.

To say that tensions are high in the Senate around Supreme Court nominees would be an understatement. The wounds of 2016 remain raw and open. Democrats are still angry that Republicans, led by Mr. McConnell, blockaded President Barack Obama’s nominee, Judge Merrick B. Garland of the Federal Appeals Court here, by denying him a hearing — and giving Mr. Trump opportunity to put Justice Gorsuch on the court.

Ms. Murkowski sided with leadership then. But Ms. Collins broke ranks and called for Judge Garland to have a hearing — a moment she recalled on Thursday. “This is not a pleasant situation,” she said, referring to the Kennedy vacancy. “But it’s not strange to me.”

Neither Ms. Murkowski nor Ms. Collins face re-election this year, which gives them a measure of freedom in how they vote. Still, they are likely to face pressure back home. Eliza Townsend, executive director of the Maine Women’s Lobby, a women’s rights group, said her organization intended to step up its contacts with Ms. Collins.

“Maine people understand that this is for all the marbles,” she said. “This is a critical, critical moment.”

Both Ms. Murkowski and Ms. Collins have long been independent figures in the Senate. In 2010, when Ms. Murkowski ran for re-election, she lost in a primary to a Tea Party Republican. Instead of bowing out, she ran a write-in campaign — posing a challenge to voters who needed to know how to spell “Murkowski” — and won. The victory effectively freed her from party constraints.

Ms. Collins has a reputation for working across the aisle. In 2013, she led an effort among Senate women, including Ms. Murkowski, to put an end to that year’s government shutdown. As co-chairwoman of a bipartisan group called the “Common Sense Coalition,” she helped end this year’s shutdown as well.

Last week, she helped put together two ideological opposites, Senator Ted Cruz, Republican of Texas, and Senator Dianne Feinstein, Democrat of California, to work on immigration legislation.

Conservative advocates said Thursday that they were confident the two would confirm the president’s pick.

“We’ve seen from their statements that they both are very concerned about a judge that’s going to be fair, impartial and abide by the rule of law, and I think that’s exactly what we’re going to get: someone they both are just not comfortable with but very happy to vote for,” said Carrie Severino, chief counsel and policy director of Judicial Crisis Network, a conservative advocacy group.

With the Senate gone for its July 4 recess, Ms. Collins and Ms. Murkowski may get a little break. But once Mr. Trump names a nominee, the pressure will rise.

“These are two women who have been very clear, over many decades, that our constitutional right that protects women’s most important right of privacy — their right to reproductive rights — is important to them,” said Judith L. Lichtman, former president of the National Partnership for Women and Families, and a longtime Washington advocate for women’s rights. “And now they have a chance to prove it.”

‘Everyone is focused on Lisa and Susan’: The two most powerful senators in the fight to replace Kennedy

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The Democrats’ hopes of sinking President Trump’s upcoming nominee for the Supreme Court hinge on a pair of Republican women who have broken with their party over abortion and dismantling the Affordable Care Act.

With the GOP holding a 51-to-49 majority in the Senate, the votes of Sens. Lisa Murkowski (Alaska) and Susan Collins (Maine) will almost certainly be needed for Trump’s eventual nominee to be confirmed, making them the most influential senators in the battle to replace Justice Anthony M. Kennedy, who announced Wednesday that he is retiring.

Both will be the target of intense lobbying as Trump is expected to put forward a pick who would shift the court rightward, putting in play issues such as abortion, gay rights and the government’s role in health care.

The two senators are trying to play down their influence as the frenzy over the Supreme Court opening grows and the pressure on them builds.

“It’s been kind of interesting in this firestorm. Afterward, everyone is focused on Lisa and Susan,” Murkowski said in an interview Thursday. “If I were John or Jerry or Bill, I’d say, ‘Wait a minute. How come I’m not being viewed as an important voice in this process?’ ”

But Murkowski and Collins are the rare elected Republicans in Washington who support abortion rights and voted against repealing the Obama-era Affordable Care Act — issues Democrats are using to frame the battle over the Supreme Court nominee.

“A woman’s right to control her body is at stake with this next nominee,” said Sen. Dianne Feinstein (Calif.), who as the top Democrat on the Judiciary Committee will lead her party’s scrutiny of Trump’s nominee. Asked how much Collins and Murkowski should weigh abortion in their decision, Feinstein said, “That’s up to them. But for me, it’s huge. Because I know what life was like before and most young women don’t.”

Murkowski called the future of Roe v. Wade — the 1973 decision that legalized abortion nationwide — a “significant factor,” but she stressed that in no way will that landmark ruling be the sole factor for her.

“And I don’t think it should be the only factor for anybody,” Murkowski said. “It’s not as if those are the only matters that come before the Supreme Court.”

Collins said Thursday that although she wouldn’t ask Trump’s pick how he or she would rule on specific issues, she always presses judicial nominees about their views on legal precedent.

“I do get a sense from them on whether or not they respect precedent,” Collins said. “And from my perspective, Roe v. Wade is an important precedent and it is settled law.”

Republicans, well aware that Democrats will try to pin down Trump’s pick on contentious issues, are already making the case that any nominee should abide by the standard Justice Ruth Bader Ginsburg used during her 1993 hearings: To give “no hints, no forecasts, no previews” on how they might rule.

“I think the only thing that’s going to influence those two very good senators is . . . how they perform in the hearing,” said Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa). “Because Collins and Murkowski would obviously respect the Ginsburg rule.”

The scrutiny the two senators face is far from unfamiliar. Collins is one of a dwindling core of moderate Republicans who have been willing to defect from the party on contentious issues, including abortion and guns. And like Collins, Murkowski has an independent streak — one that helped her win reelection in 2010 through a write-in campaign after she lost in the GOP primary. Both senators also opposed the nomination of Betsy DeVos as education secretary, forcing Vice President Pence to cast the tie-breaking vote to confirm her.

But they have been consistent “yes” votes on Trump’s picks for federal courts.

The two senators have voted on five of the most recent Supreme Court justices, with Collins serving as a reliable “yes” while Murkowski rejected both of President Barack Obama’s nominees: Elena Kagan and Sonia Sotomayor.

Of the 25 names Trump has listed as potential justices, 17 have been confirmed by the Senate for federal judgeships, while two are pending. Murkowski has supported all of the candidates nominated during her time in the Senate while Collins voted against one: Judge William Pryor of the Court of Appeals for the 11th Circuit.

Groups that favor abortion rights have begun flooding Senate offices with phone calls and are widening the universe of targeted Republicans beyond Collins and Murkowski to Sen. Dean Heller (Nev.), the most politically vulnerable Senate Republican on the ballot this fall.

Ilyse Hogue, the president of NARAL Pro-Choice America, said calls from her group’s activists to Senate offices in the 24 hours after Kennedy’s retirement announcement Wednesday were three times the volume of the calls that resulted immediately after Neil M. Gorsuch was nominated in January 2017 to replace the late Antonin Scalia.

“Sens. Murkowski and Collins have already laid down the marker saying that they stand by Roe, they believe in legal access to abortion,” Hogue said. “It’s about upholding their word through this vote, and we’re going to make sure that the public support is there for them in their states and that there will be a lot of frustration and anger if they don’t.”

Public polling indicates a nation split over abortion. The most recent nonpartisan survey to ask whether the procedure should be legal in all or most cases is a Public Religion Research Institute poll in March, which found 54 percent of respondents saying that abortion should be legal in most or all cases vs. 43 percent saying it should be illegal in most or all cases.

Collins and Murkowski — as well as a small cadre of moderate Democratic senators — are likely to receive heavy attention from Trump administration officials as the White House tries to secure support for the president’s yet-to-be-named nominee.

The two Republicans, as well as Grassley and the three Democrats who voted in favor of Gorsuch, met with Trump on Wednesday evening at the White House to discuss the vacancy, White House press secretary Sarah Huckabee Sanders said.

Murkowski already had one suggestion for the administration: Consider people who may not be on the short­list crafted during Trump’s presidential campaign with heavy input from the Federalist Society. She said she wants a chance to weigh in on potential candidates.

“I don’t know how we got so wedded to that list. That was not created by senators here,” she said.

Marc Short, the White House’s director of legislative affairs, noted that he, Pence and White House counsel Donald McGahn had met with Collins, Murkowski and swing Democrats such as Sens. Joe Donnelly (Ind.) and Joe Manchin III (W.Va.) as they considered Gorsuch last year.

“I think that you will see continued White House outreach,” Short said. “Stay tuned on the specifics.”



‘What The Health?’ Podcast Turns 1. Justice Kennedy Retires. Now What?

KHN’s ‘What The Health?’ Podcast Turns 1. Justice Kennedy Retires. Now What?

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The retirement of Supreme Court Justice Anthony Kennedy has triggered a political earthquake in Washington, as Republicans see a chance to cement a conservative majority and Democrats fear a potential overturn of abortion rights and anti-discrimination laws, and even — possibly — challenges to the Affordable Care Act. Kennedy has been the deciding vote in dozens of cases over his long career on the high court, mostly siding with conservatives but crossing ideological lines often enough that liberals see him as the last bulwark against challenges from the right to many policies.

The Supreme Court made other health news this week, ruling that California cannot require anti-abortion “crisis pregnancy centers” to post signs informing women of their right to an abortion and telling them that financial help is available.

And this is a special week for us. It’s our first anniversary. This week’s panelists for KHN’s “What the Health?” are Julie Rovner of Kaiser Health News, Rebecca Adams of CQ Roll Call, Alice Ollstein of Talking Points Memo and Margot Sanger-Katz of The New York Times.

Among the takeaways from this week’s podcast:

  • Kennedy’s retirement will put all eyes on the Senate, where Republicans have a slim majority but have also changed the rules to allow confirmation with only 51 votes instead of the usual 60.
  • The fight over Kennedy’s replacement is likely to galvanize both Republicans and Democrats, but also put in the hot seat the two Republican female senators who have supported abortion rights — Susan Collins of Maine and Lisa Murkowski of Alaska.
  • This week’s primaries again put the spotlight on Democratic support of single-payer health proposals, as Alexandria Ocasio-Cortez upset the fourth-ranking Democrat in the House in New York and former NAACP head Ben Jealous won the Democratic nomination for governor in Maryland. But while Democrats have made clear that health is their top issue for the coming campaign, they have so far managed to paper over their intraparty differences on incremental versus wholesale change.
  • The California legislature could vote on a measure as soon as Thursday that would gut efforts by municipalities to put in place soda taxes. If it passes, it will mark a change in momentum away from the success of these measures across the country. The soda industry took a page from the tobacco companies in executing this plan.
  • The controversy surrounding the Trump administration’s immigration policy that separates children from their parents at the border continued to be a flashpoint this week. Health and Human Services Secretary Alex Azar was questioned about it on Capitol Hill during a hearing about drug pricing. Congressional Republicans find themselves in a difficult position. Many don’t want to defend the administration, but there doesn’t seem to be an avenue by which to move forward either.



Is it a gag rule after all? A closer look at changes to Title X funding regarding abortion.

The Trump administration has released the language of a proposed rule on federal family planning funding, and abortion rights activists are raising alarm about it.

When health officials revealed Friday that they would be filing a change to which clinics would be eligible for funding, they emphasized that it was not a “gag rule.” Instead, they said they were proposing to strip away a current mandate. It requires organizations that receive Title X funding to counsel women about abortion and provide them with referrals to abortion services. Under the new rules, a provider wouldn’t have to talk about abortion at all.

This was part of a plan that would require “a bright line of physical as well as financial separation” between Title X family planning programs and ones in which abortion is “supported or referred for as a method of family planning.”

“Contrary to recent media reports,” the White House said in a statement that day, “HHS’s proposal does not include the so-called ‘gag rule’ on counseling about abortion.” The statement contrasted the new rule with a Reagan administration policy in 1988 that banned any mention of abortion.

The Department of Health and Human Services declined to make the full proposed rule available last week, but it was posted on the HHS website Tuesday. It’s consistent with the message the administration provided Friday but is more explicit about what can and cannot be said.

Page 119 states that “A Title X project may not perform, promote, refer for, or support, abortion as a method of family planning, nor take any other affirmative action to assist a patient to secure such an abortion.”

The one exception is if a woman “clearly states that she has already decided to have an abortion.” In this situation, a doctor or other provider should provide “a list of licensed, qualified comprehensive health service providers (some, but not all, of which also provide abortion, in addition to comprehensive prenatal care.)”

So is it or isn’t it a “gag rule”?

HHS’s view is that there is a difference between counseling and referrals. Counseling — as long as it is not “directive” or expressing an opinion — is allowed. It stated that referrals for abortion are, “by definition, directive” and, therefore, not allowed under its new interpretation of a 2000 regulation that pregnancy counseling be nondirective.

Planned Parenthood, which serves about 41 percent of the patients who receive services through Title X, and other groups that support abortion rights, beg to differ. On Wednesday, Planned Parenthood started a #NoGagRule campaign that will include a rally in front of the U.S. Capitol at 5:30 p.m.

“This is one of the largest-scale and most dangerous attacks we’ve seen on women’s rights and reproductive health care in this country. This policy is straight out of the Handmaid’s Tale — yet, it’s taking effect in America in 2018,” Dawn Laguens, executive vice president for Planned Parenthood Federation of America, said in a statement that referenced Margaret Atwood’s dystopian novel.

Georgeanne Usova, legislative counsel with the American Civil Liberties Union, said the policy is “putting the health and lives of countless people at risk in service of this administration’s extreme antiabortion agenda.”

Likewise Jenn Conti, a fellow with Physicians for Reproductive Health, said the ” ‘gag rule’ is not only unconscionable, but it undermines medical ethics by allowing health-care professionals to withhold accurate and timely medical information from patients.”



HHS loses abortion lawsuit

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The D.C. Circuit Court of Appeals yesterday rebuffed the Trump administration’s effort to stop an undocumented teenager from getting an abortion, likely bringing an end to one of the stranger legal sagas of the Trump administration so far.

The D.C. Circuit ordered the Health and Human Services Department to let the woman visit an abortion provider immediately, saying the department had violated her constitutional right to obtain an abortion by refusing to let her leave the detention facility where she’s being held.

Go deeperRead the court’s 6-3 decision.

What’s next: HHS can leave it here, or appeal to the Supreme Court.

Be smart: File this case as potential fodder for future Supreme Court confirmation hearings. Because the ruling came from the full D.C. Circuit, it involves several judges who could be future Supreme Court nominees. The majority included Judges Sri Srinivasan and Patricia Millett, both of whom are seen as potential SCOTUS contenders under a Democratic president.