The Health 202: Democrats face tricky questions about state laws expanding access to late-term abortion

THE PROGNOSIS

State efforts to expand access to late-term abortion are creating some political headaches for Democrats as Republicans seek to paint them as out of step with voters on the issue ahead of the 2020 elections.

Democratic leaders in Congress and those seeking the presidential nomination haven’t appeared eager to discuss a new law in New York and stalled legislation in Virginia making it easier for a woman to obtain a third-trimester abortion — a procedure that, while exceedingly rare, is nonetheless opposed by an overwhelming majority of Americans.

Measures to expand abortion rights, which are also in the works in New Mexico and Rhode Island, reflect the growing polarization between the two parties on the abortion issue, as states led by Republicans have sought to restrict abortion rights while states helmed by Democrats have boosted access to it. The stark partisan divides stand in contrast with the more measured views held by the public, which generally supports abortion rights in the early but not late part of a woman’s pregnancy.

Deepening the rift is a newly cemented conservative majority on the Supreme Court, which last week blocked Louisiana abortion restrictions from taking effect but is viewed as a potential threat to the 1973 Roe v. Wade ruling that established a right to abortion.

Democrats believe that Republicans are on the wrong side of the issue following the election of President Trump, who has embraced the antiabortion rights cause, and have moved urgently since Brett M. Kavanaugh’s appointment to the high court to lock in protections for the procedure because they believe its legality may be at risk. But Republicans see a political opening as, they argue, some states have passed laws out of sync with most Americans.

Most of the candidates for the 2020 Democratic nomination skipped over specifics when asked by The Washington Post’s Annie Linskey and Ariana Eunjung Cha whether there should be any restrictions on late-term abortions. Instead, candidates mainly expressed a general support for the ability of women to obtain abortions or offered ideas for how to lower the abortion rate.

“There is zero place for politicians to be involved in these very complicated medical decisions, and they should only be made between a woman and her doctor — period, full stop,” Sen. Kirsten Gillibrand (D-N.Y.) told my colleagues in an email.

Gillibrand tweeted this the day New York Gov. Andrew Cuomo (D) signed an abortion rights bill into law, but she didn’t mention the law specifically:

Andrew Yang, an entrepreneur seeking the nomination, said there would be “fewer women who would feel that they need to get an abortion” if the country had more economic security. Marianne Williamson, an author who is one of the lesser-known Democratic candidates, told Annie and Ariana she favors abortion rights but believes allowing a late-term abortion only to address the woman’s mental health would be too permissive.

“Mental health, that would be problematic for me,” Williamson said. “Because mental health can be so broadly defined.”

A spokesman for House Speaker Nancy Pelosi (D-Calif.) didn’t respond when we asked whether Pelosi supports fewer restrictions on abortion in New York’s Reproductive Health Act. When asked by reporters about controversial comments by Virginia Gov. Ralph Northam (D) about Virginia’s measure, Pelosi said she didn’t know what Northam had said.

By contrast Republicans, who themselves have moved in some states to ban abortions as early as six weeks of pregnancy, have eagerly highlighted the late-term abortion measures, saying they’d allow the procedure up to the point of birth and even characterizing those measures as permitting infanticide.

“To hear it described by the governor of Virginia in the way he described it was grisly and alarming, I think, to most people, and it woke a sleeping giant,” House Minority Whip Steve Scalise (R-La.) said of Northam’s comments in a recent radio interview.

New York’s law decriminalizes an act of violence causing death to a fetus and allows abortions to be performed up until birth if a woman’s health, not just her life, is in jeopardy. It also repeals a section of public health law that required abortions after 12 weeks to be performed in a hospital and that an additional physician be present for abortions after 20 weeks to care for infants born alive after a botched abortion.

The Virginia measure, which was tabled by legislators, would have required just one doctor to sign off on a late-term abortion instead of three. It also would have removed from existing law language allowing late-term abortions only when the pregnancy “substantially or irredeemably” harms a mother’s health.

Trump described the New York law in his State of the Union address as allowing “a baby to be ripped from the mother’s womb moments before birth.” Senior White House adviser Kellyanne Conway told The Post’s Juliet Eilperin and Michael Scherer that Democrats could lose races over appearing too extreme on abortion.

“The Democratic Party runs a huge risk if they continue to go all in on abortion because they can alienate those male and female voters in states that President Obama won both times and President Trump won in 2016,” Conway said.

Conway added that in those states “someone who calls themselves pro-choice” may not be willing to accept a “definition of pro-choice that says it means abortion is for anyone, anytime and anywhere.”

Reports over the weekend that an abortion charge was dropped in Queens against a man accused of fatally stabbing his 14-weeks-pregnant girlfriend reignited criticism by abortion foes who said the measure would eliminate criminal penalties for pregnancies lost due to violence.

Dennis Poust, director of communications for the New York State Catholic Conference:

“White House aides recently discussed the advantage of forcing Democratic candidates to make their views clear on abortions late in pregnancy,” Juliet and Michael write. “They noted that Democrats chose not make abortion a national issue in last year’s congressional elections, even as they fielded a record number of female candidates and aggressively courted female voters.”

“What makes it qualitatively different is the Democrats overplaying their hand on late-term abortion,” said Ralph Reed, chairman of the conservative Faith and Freedom Coalition. “The leftward lurch under Trump has brought into real relief the Democratic Party’s real extreme position — namely, abortion through the ninth month of pregnancy, in some cases up to the moment of birth.”

AHH, OOF and OUCH

AHH: The Food and Drug Administration announced a plan to crack down on the $50 billion-a-year dietary supplement industry, warning that as the number of supplements has boomed, there has also been an increase in products with unlisted drug ingredients and drugs marketed with misleading claims.

The agency said it sent 12 warning letters and five advisory letters earlier this month to companies selling dozens of products with unapproved drugs or that are making illegal claims about treating Alzheimer’s disease or other conditions, our Post colleague Laurie McGinley reports.

“Under the 1994 law, dietary supplements are regulated as food and, therefore, are not subject to premarket approval or the kind of safety and effectiveness testing required for drugs,” Laurie writes. “Since the law was enacted, the industry has grown from 4,000 products and $4 billion a year in sales to as many as 80,000 products and $50 billion in sales.”

FDA Commissione Scott Gottlieb tweeted this yesterday:

In an interview, Gottlieb told Laurie that most supplement makers are responsible but that the industry’s growth has enabled “bad actors” to sell products with unproven claims. “I’m concerned that changes in the supplement market may have outpaced the evolution of our own policies and our capacity to manage emerging risks,” he said.

OOF:  Utah’s Republican Gov. Gary Herbert has signed into law a plan that scales back the Medicaid expansion voters approved in November, just hours after the state Senate passed the legislation. The bill proposes to expand coverage to about 50,000 fewer people than Proposition 3, the ballot measure voters passed with 53 percent support in November.

Herbert said the measure “balances Utah’s sense of compassion and frugality.” 

“Utah’s plan expands Medicaid only to people earning up to the poverty line and wants the federal government to pay the state the more generous reimbursement reserved for a full expansion under the ACA,” our Post colleague Amy Goldstein reports. “The expansion would broaden coverage beyond the state’s stringent limit of parents earning up to 60 percent of the poverty level and no other adults unless they are homeless.”

The move may have ripple effects beyond the deep-red state. “The actions of Utah’s lawmakers are testing the legitimacy of the citizen initiative, a staple of small-d democracy in about half the states,” she writes. “Idaho lawmakers also are considering restrictions to a Medicaid expansion approved by voters there. Maine residents approved a similar ballot initiative in 2017 but had to wait for the arrival of a Democratic governor for the expansion to begin this month.”

Expansion advocates warn Utah’s plan may lead to litigation, if the federal government goes along with the state’s request for partial Medicaid expansion.

Jonathan Schleifer, executive director of the Fairness Project, which helped fund multiple states’ expansion efforts, said Utah lawmakers are “trampling on the clear will of voters, and it’s stripping tens of thousands of Utahns of access to care in the process. It seems many members have forgotten they’re supposed to work for the people of Utah — not special interests or extreme ideologues.”

OUCH: The number of children using tobacco products is growing. Last year, there were 4.9 million high school and middle school students using tobacco products, up from 3.6 million in 2017, according to public health officials.

That growth, Axios’s Eileen Drage O’Reilly reports, is driven mainly by a spike in youth e-cigarette use.

Anne Schuchat, principal deputy director of the Centers for Disease Control and Prevention, told Eileen that e-cigarettes were the most popular among high school students for the fifth year in a row, with 1.5 million more kids using the products in 2018.

Gottlieb told Axios the FDA will “have to reconsider our enforcement policy” if use rates continue to rise. 

Gottlieb tweeted following the release of data: 

TRUMP TEMPERATURE

— U.S. Chamber of Commerce President Thomas J. Donohue is pushing back against the Trump administration’s proposal to peg what Medicare pays for drugs to a new international index of drug prices in other countries with similar economies, warning it would limit seniors’ access to innovative treatments and calling it an “assault on the free enterprise system.”

“By letting foreign governments set prices here in America, HHS’ new rule would suffocate innovation and preclude the discovery of lifesaving medications,” Donohue writes in a memo on the Chamber’s website. “To find cures, pharmaceuticals must invest billions of dollars in research and development. Businesses can usually make this money back when the drug goes to market — but they wouldn’t be able to if the federal government forced them to set prices well below market value.”

He said the change would force companies to spend less on research and development, leading to fewer treatment options.

The Health 202 wrote last month about how pharmaceutical companies, as well as other big health industry players, have criticized the Trump administration’s effort to lower Medicare drug spending.

— The Trump administration has released two proposals that would give patients easier access to their own health records, the Wall Street Journal’s Anna Wilde Mathews reports.

One of the proposed rules would make sure patients could access all the information in a health-care provider’s electronic record, like doctors’ notes, without being charged. “Today, hospitals generally offer online patient portals, but these often lack material such as doctor notes, imaging scans and genetic-testing data,” Anna reports. And sometimes, patients are charged to retrieve that data.

The proposed rules would also call on insurers with government-sponsored plans, like Medicare Advantage or Affordable Care Act exchange coverage, to “open up new digital pathways to claims data for consumers, including information on costs of services,” Anna reports. And companies like Apple that are creating resources for patients to store medical information on their phones and other digital devices, could benefit from such a proposal.

Seema Verma, administrator of the Centers for Medicare and Medicaid Services, said employer plans would be encouraged to offer a similar resource.

“Patients have really lost in the system,” Verma said. “Today, instead of filing cabinets and paper silos, we now have electronic silos” to complicate patient access to health data.

HEALTH ON THE HILL

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— Sen. Kamala Harris (D-Calif.) is the latest Democratic presidential hopeful calling for marijuana to be legalized at the federal level, and her support signals a shift in how politicians are talking about marijuana policy.

“I believe we need to legalize marijuana,” she said during an interview on New York City-based radio show “The Breakfast Club.” She added there would need to be research on the impact of smoking on a developing brain and on measuring impairment for regulating use while driving.  

But Harris dismissed rumors that she doesn’t support legalization.

“That’s not true,” she said. “Half my family is from Jamaica; are you kidding me?” She said she smoked pot herself in college — “and I inhaled,” she joked.

“Harris’s unflinching support for legalization shows the dramatic evolution in the ease in which politicians talk about pot now,” our Post colleague Colby Itkowitz writes. “Whereas once policymakers decried marijuana as a gateway drug, Harris defended its use by saying, ‘It gives a lot of people joy.’ ”

Colby adds: “Sen. Cory Booker (D-N.J.) has sponsored legislation to end the federal prohibition on marijuana use. His co-sponsors include primary contenders Harris, Sen. Elizabeth Warren (D-Mass.) and Sen. Kirsten Gillibrand (D-N.Y.).”

— And here are a few more good reads: 

AGENCY ALERT

MEDICAL MISSIVES

INDUSTRY RX

STATE SCAN

DAYBOOK

Today

  • Health and Human Services Secretary Alex Azar and Centers for Medicare and Medicaid Services Administrator Seema Verma deliver the keynote address at the 2019 HIMSS Annual Conference in Orlando, Fla. 
  • FDA Commissioner Scott Gottlieb is set to testify before a House Appropriations subcommittee.
  • The House Ways and Means Committee holds a hearing on the rising cost of prescription drugs.
  • The House Judiciary Committee holds a hearing on the Trump administration’s family separation policy.
  • The Senate Health, Education, Labor and Pensions Committee holds a hearing on managing pain during the opioid crisis.

Coming Up

  • The House Energy and Commerce Subcommittee on Health holds a hearing on the ACA and protections for preexisting conditions on Wednesday. 

SUGAR RUSH

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