Kaiser Health News

A GOP talking point suggests birth control is not at risk — but evidence suggests otherwise

“In no way, shape, or form is access to contraception limited or at risk of being limited.”

Rep. Kat Cammack (R-Fla.), co-chair, Congressional Pro-Life Caucus on the floor of the U.S. House, July 21, 2022

Republicans who oppose abortion have new talking points — birth control will remain easily available in the wake of the Supreme Court’s decision overturning the federal right to abortion, and when Democrats say otherwise, they are just trying to scare voters.

Variations on this claim were made by a series of Republicans on the House floor July 21 during debate on a bill that would add a right to contraception to federal law. Democrats advanced the bill as a way to ensure the availability of birth control before some abortion opponents have a chance to see whether the Supreme Court will overturn that right, too.

“This bill is completely unnecessary,” said Rep. Kat Cammack (R-Fla.), a co-chair of the Congressional Pro-Life Caucus. “In no way, shape, or form is access to contraception limited or at risk of being limited. The liberal majority is clearly trying to stoke fears and mislead the American people, once again, because in their minds stoking fear is clearly the only way that they can win.”

We reached out to Cammack’s office to inquire about the basis for this statement but did not receive a response.

Similar claims were made in the Senate as it declined to take up the House bill on July 27. “This idea that we ought to spend scarce time here in the Congress, which we have in limited supply, reaffirming rights that already exist is a clear political narrative designed to divert the American people’s attention from things that really are at risk,” said Sen. John Cornyn (R-Texas).

However, a review of documents and current efforts in some states to change laws indicates there is significant evidence that birth control — or at least some forms of it — may be at risk legally. So we dug in.

At the Supreme Court

The cornerstone for this concern can be found in Justice Clarence Thomas’ concurring opinion in Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe v. Wade’s guarantee of access to abortion. Thomas suggested that having found no constitutional right to abortion, the court should next “reconsider all of this court’s substantive due process precedents, including Griswold.” That is a reference to Griswold v. Connecticut, the 1965 case that established a right for married couples to use contraception (single people were granted that right in a separate case in 1972). In Griswold, the court found that the “due process” clause of the 14th Amendment protects the right to privacy.

True, Thomas represents only one vote on the court, and the number of his fellow justices who share his opinion that the birth control case should be reversed is unclear. But the Supreme Court has already allowed some employers to decline to offer their workers contraceptive coverage based on their opposition to abortion. At issue in the 2014 Hobby Lobby case was the religious belief of the owners of the craft store chain that some forms of contraception — including the “morning-after” pill and two types of intrauterine devices — could produce early abortions by preventing the implantation of a fertilized egg. The court decided the government could not force the contraceptive coverage requirement from the Affordable Care Act on employers with those beliefs.

Scientific evidence suggests that neither the morning-after pill (which is a higher dose of a hormone used in regular birth control pills) nor IUDs stop the implantation of a fertilized egg and therefore do not cause abortions. Still, the court ruled that the owners’ religious beliefs trumped the government’s interest in workers getting contraceptive coverage.

“That legal blurring of distinct scientific boundaries between abortion and birth control threatens contraceptive access in the United States,” wrote professors Rachel VanSickle-Ward and Kevin Wallsten in The Washington Post. They predicted that some states “will probably ban some forms of contraception outright, using the discredited idea that contraceptives act as abortifacients.”

State Action

Confusion about how some forms of contraception work has led to efforts in several states to ban certain types of birth control. The most frequently targeted form of birth control is the morning-after pill, which can prevent pregnancy if taken within a few days of unprotected sex but which cannot interrupt an established pregnancy. It is not the same as the abortion pill, a regimen of two other medications that do end a pregnancy up to 10 weeks of gestation.

And even if the birth control methods did prevent a fertilized egg from implanting in a woman’s uterus, that would not be an abortion, at least not according to the medical community. Although many religious groups and abortion opponents argue that human life begins when the egg is fertilized, there is a consensus among doctors, scientists, and legal experts that pregnancy begins at implantation. And, they point out, an abortion is the termination of a pregnancy. Roughly half of all fertilized eggs never implant.

Even before Roe was overturned, lawmakers in Idaho called for hearings to ban emergency contraception, and Missouri lawmakers tried to bar Medicaid from paying for the morning-after pill and IUDs.

Anti-abortion groups are pushing the idea. “Plan B is Capable of Causing an Early Abortion,” said a fact sheet from Students for Life of America, referring to the name of a brand of the morning-after pill. Model legislation from the National Right to Life Committee would ban abortion from the moment of fertilization, not implantation.

The bottom line, wrote professors VanSickle-Ward and Wallsten before the decision overturning Roe was even final, is that “the court doesn’t have to formally end legal protection for contraception use.”

“If it allows plaintiffs to call contraception abortion, and Dobbs ends legal protection for abortion, then contraception is at risk.”

Our Ruling

It is true that, so far, no state has banned forms of contraception. But the threat appears very real. And the absolute nature of Cammack’s statement — saying there’s “no way, shape, or form” that access to contraception is at risk — is not accurate. We rate the statement False.

SourceS

Congressional Record, July 21, 2022, Pages H6927-H6940

Supreme Court, Dobbs v. Jackson Women’s Health Organization, June 24, 2022

Supreme Court, Burwell v. Hobby Lobby Stores, June 30, 2014

Supreme Court, Griswold v. Connecticut, June 7, 1965

Stateline, “Some States Already Are Targeting Birth Control,” May 19, 2022

The 19th, “With Abortion Rights in Limbo, Conservative Lawmakers Are Eyeing Restrictions on IUDs and Plan B,” May 25, 2022

The Daily Beast, “Why Can’t the FDA Fix Outdated Birth Control Labels,” updated July 12, 2017

Journal of Contraception, “Mechanism of Action of Emergency Contraception,” July 12, 2010

KHN, “FAQ: High Court’s Hobby Lobby Ruling Cuts Into Contraceptive Mandate,” June 30, 2014

KHN, “Misinformation Clouds America’s Most Popular Emergency Contraception,” June 7, 2022

National Right to Life, “National Right to Life Committee Proposes Legislation to Protect the Unborn Post-Roe,” June 15, 2022

NPR, “Abortion Foes Push To Redefine Personhood,” June 1, 2011

Students for Life, Facts About Plan B, accessed Aug. 1, 2022

The Washington Post, “If the Supreme Court Undermines Roe v. Wade, Contraception Could Be Banned,” updated May 3, 2022

KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism about health issues. Together with Policy Analysis and Polling, KHN is one of the three major operating programs at KFF (Kaiser Family Foundation). KFF is an endowed nonprofit organization providing information on health issues to the nation.

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The great undoing: Which of Trump’s policies will Biden reverse?

KHN has put together an interactive tool of significant health policies implemented by the Trump administration using its own authority — executive orders, agency guidance or formal regulations — and is tracking Biden administration and court actions.

We will update this chart as actions are taken.

Topics: Affordable Care Act | HHS Operations | Immigration | Insurance | Medicaid | Prescription Drugs | Price Transparency | Public Health | Women's Reproductive Health

Affordable Care Act

OVERTURNED Ordered federal officials to minimize “the economic burden" of the Affordable Care Act on states and individuals

WHEN: Jan. 24, 2017

HOW: Executive order

STATUS/BIDEN ADMINISTRATION ACTION: Revoked by Biden's Jan. 28, 2021, executive order.

OVERTURNED Cut funding for navigators and ACA marketplace enrollment outreach to consumers

WHEN: Aug. 31, 2017

HOW:Press release

STATUS/BIDEN ADMINISTRATION ACTION: Biden indirectly ordered the Department of Health and Human Services to restore funding as part of his Jan. 28, 2021, ACA executive order and promised to spend $50 million for outreach during a special 2021 open enrollment period.

UNCHANGED Eliminated payments to insurers that helped cover the costs the ACA required them to pay for very low-income customers

WHEN: Oct. 12, 2017

HOW: Announcement by HHS, backed by a Department of Justice legal opinion

STATUS/BIDEN ADMINISTRATION ACTION: Policy remains unchanged.

IN Process Shortened marketplace open enrollment from three months to six weeks

WHEN: April 18, 2017

HOW: Included in a larger HHS regulation

STATUS/BIDEN ADMINISTRATION ACTION: Effectively overturned by Biden's Jan. 28, 2021, executive order.

IN PROCESS Allowed states to loosen requirements for the “essential health benefits" required by plans sold on the ACA marketplaces

WHEN: April 17, 2018

HOW: Included in a larger Centers for Medicare & Medicaid regulation

STATUS/BIDEN ADMINISTRATION ACTION: Regulation remains in effect, but Biden's Jan. 28, 2021, executive order mandated a review by HHS.

IN PROCESS Loosened rules for Section 1332 waivers under the ACA, which allow states to experiment with different coverage options. This was a change to the “guardrails" that sought to ensure that all ACA plans offered the same comprehensive coverage and that state experiments not cause a reduction in enrollment.

WHEN: Oct. 24, 2018

HOW: CMS guidance

STATUS/BIDEN ADMINISTRATION ACTION: The guidance was written into regulation the day before Trump's term ended, Jan. 19, 2021. A lawsuit was filed in U.S. District Court in Washington in January challenging both the guidance and the regulation. A review by HHS was ordered as part of Biden's Jan. 28, 2021, executive order.

IN PROCESS Changed the formula for indexing increases in ACA plan premiums — a move expected to lead to high consumer out-of-pocket costs

WHEN: April 25, 2019

HOW:Regulation

STATUS/ BIDEN ADMINISTRATION ACTION: Regulation remains in effect. An HHS review was ordered as part of Biden's Jan. 28, 2021, executive order.

IN PROCESS Curtailed LGBTQ civil rights protections offered by the ACA

WHEN: June 19, 2020

HOW:Regulation

STATUS/BIDEN ADMINISTRATION ACTION:Enjoined by the U.S. District Court for the Eastern District of New York on Oct. 29, 2020. Biden's Jan. 20, 2021, executive order mandates that agencies “consider whether to revise, suspend, or rescind" actions that do not fully implement statutes barring discrimination.

IN PROCESS Allowed Georgia to pull out of healthcare.gov

WHEN: Nov. 1, 2020

HOW:Waiver

STATUS/BIDEN ADMINISTRATION ACTION: Remains in effect. Georgia's plan is to move out of healthcare.gov for insurance policies purchased for 2023. A lawsuit seeking to reverse the decision was filed in U.S. District Court in Washington on Jan. 14, 2021. An HHS review was ordered as part of Biden's Jan. 28, 2021, executive order.

IN PROCESS Cut funding for marketplace operations and urged states to drop out of healthcare.gov

WHEN: Jan. 19, 2021

HOW:Regulation

STATUS/BIDEN ADMINISTRATION ACTION: Regulation remains in effect. An HHS review was ordered as part of Biden's Jan. 28, 2021, executive order.

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HHS Operations

OVERTURNED Executive Order: Limited the government's ability to use agency “guidance," as opposed to formal regulation, to assess civil penalties against “regulated parties"

WHEN: Oct. 9, 2019

HOW:Executive order

STATUS/BIDEN ADMINISTRATION ACTION: Rescinded by Biden's executive order on Jan. 20, 2021.

IN PROCESS Regulation: Limited the government's ability to use agency “guidance," as opposed to formal regulation, to assess civil penalties against “regulated parties"

WHEN: Jan. 14, 2021

HOW:Regulation

STATUS/BIDEN ADMINISTRATION ACTION: Biden ordered the Office of Management and Budget to “promptly take steps to rescind" the regulation in his Jan. 20, 2021, executive order.

IN PROCESS Sunsetting all regulations unless they are reviewed within five years, and then reviewed again at least once every 10 years after that

WHEN: Jan. 19, 2021HOW: RegulationSTATUS/BIDEN ADMINISTRATION ACTION: Several health groups filed suit in U.S. District Court for the Northern District of California on March 9, 2021, asking that the regulation be overturned. On March 23, 2021, the Biden administration postponed, pending judicial review, the effective date of the regulation to March 22, 2022.

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Immigration

IN PROCESS Expanded the list of federal assistance programs that if used by immigrants could make them potentially “public charges," a designation that would hamper their ability to become lawful, permanent residents. The expansion included Medicaid.

WHEN: Aug. 14, 2019

HOW:Regulation

STATUS/BIDEN ADMINISTRATION ACTION: The regulation has been blocked by several federal district courts and upheld by circuit courts. The Supreme Court dismissed pending appeals on March 9, 2021, after the Biden administration announced it was no longer enforcing the provision. Biden ordered a review of the regulation in an executive order on Feb. 2, 2021.

UNCHANGED Blocked visas for immigrants who couldn't show they could afford health insurance

WHEN: Oct. 4, 2019

HOW:Proclamation announced Oct. 4, 2019, and published Oct. 9, 2019

STATUS/BIDEN ADMINISTRATION ACTION: The policy was challenged in court but upheld by a panel of judges from the 9th Circuit Court of Appeals on Dec. 21, 2020. The plaintiffs have requested a review by the full court.

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Insurance

UNCHANGED Expanded the availability of short-term health plans

WHEN: Aug. 3, 2018

HOW: Regulation

STATUS/BIDEN ADMINISTRATION ACTION: The regulation was challenged in court but upheld by the U.S. Court of Appeals for the District of Columbia on July 17, 2020.

IN PROCESS Allowed association health plans

WHEN: June 21, 2018

HOW:Regulation

STATUS/BIDEN ADMINISTRATION ACTION: A judge in U.S. District Court in Washington struck down parts of the regulation on March 28, 2019. The case was appealed to the Court of Appeals for the D.C. Circuit, which heard arguments on Nov. 14, 2019, but has not yet issued an opinion. On Jan. 28, 2021, the Biden administration asked the court to delay its decision by at least 60 days.

UNCHANGED Expanded health reimbursement arrangements (HRAs) for employers to fund premiums for workers getting coverage on the individual market

WHEN: June 20, 2019

HOW:Regulation

STATUS/BIDEN ADMINISTRATION ACTION: Regulation remains unchanged.

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Medicaid

IN PROCESS Allowed states to impose work requirements for some enrollees

WHEN: Jan. 11, 2018

HOW: Guidance

STATUS/BIDEN ADMINISTRATION ACTION: The waivers granted to states were challenged, and a federal district judge vacated several approvals. That was appealed and the case made its way to the Supreme Court, which set a hearing date of March 29, 2021. The court removed the case from its calendar on March 11, 2021, but the case could still be heard later. In his Jan. 28, 2021, executive order, Biden mandated that HHS “consider whether to suspend, revise, or rescind" the guidance, which has since been removed from the CMS website.

UNCHANGED Weakened standards for Medicaid managed-care plans

WHEN: Nov. 13, 2020

HOW:Regulation

STATUS/BIDEN ADMINISTRATION ACTION: The regulation remains unchanged.

IN PROCESS Allows states to ask for a waiver to take their Medicaid federal contribution as a block grant

WHEN: Jan. 30, 2020

HOW: Guidance

STATUS/BIDEN ADMINISTRATION ACTION: HHS was ordered to “consider whether to suspend, revise, or rescind" the guidance in Biden's Jan. 28, 2021, executive order.

IN PROCESS Approved TennCare's block grant

WHEN: Jan. 8, 2021

HOW:Waiver

STATUS/BIDEN ADMINISTRATION ACTION: HHS was ordered to “consider whether to suspend, revise, or rescind" the waiver for Tennessee's Medicaid program in Biden's Jan. 28, 2021, executive order.

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Prescription Drugs

unchanged Required drug prices in TV ads

WHEN: May 10, 2019

HOW: Regulation

STATUS/BIDEN ADMINISTRATION ACTION: Drugmakers filed a lawsuit seeking to overturn the rule. The rule was blocked by the U.S. Court of Appeals for the District of Columbia on June 16, 2020.

UNCHANGED Executive Order: Ordered discounts for consumers who get insulin and injectable epinephrine from community health centers that purchase through the 340B program

WHEN: July 24, 2020

HOW:Executive order

STATUS/BIDEN ADMINISTRATION ACTION: Order remains unchanged.

UNCHANGED Authorized prescription drug imports from Canada

WHEN: Oct. 1, 2020

HOW:Regulation and guidance from the FDA

STATUS/BIDEN ADMINISTRATION ACTION: A lawsuit challenging the rule was filed by drugmakers on Nov. 23, 2020, and is pending.

IN process Ordered HHS to establish “most favored nation" prices for Medicare drugs based on lowest price in other developed countries

WHEN: Nov. 27, 2020

HOW:Regulation

STATUS/BIDEN ADMINISTRATION ACTION: Lawsuits were filed and several U.S. district courts — including those for Maryland, the Northern District of California and the Southern District of New York — blocked the rule. Following the courts' actions, CMS announced on Dec. 28, 2020, that the rule would not be implemented without further rule-making.

IN PROCESS Altered drug rebate rules for Medicare prescription drugs

WHEN: Nov. 30, 2020

HOW:Regulation

STATUS/BIDEN ADMINISTRATION ACTION: The U.S. District Court in Washington postponed most of the provisions a year, so they won't take effect until Jan. 1, 2023. HHS, under the Biden administration, issued a final rule on Feb. 2, 2021, delaying the effective date of the parts of the rule that had not been stayed by the judge until March 22, 2021. The administration has until April 1 to decide whether to proceed to defend the remainder of the lawsuit.

IN PROCESS Regulation: Required discounts for consumers who get insulin and injectable epinephrine from community health centers that purchase through the 340B program

WHEN: Dec. 23, 2020

HOW:Regulation

STATUS/BIDEN ADMINISTRATION ACTION: The Biden administration delayed implementation of the regulation until at least March 22, 2021. On March 23, the Biden administration again delayed the effective date to July 20, 2021.

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Price Transparency

UNCHANGED Called for hospital and insurer price transparency regulations

WHEN: June 24, 2019

HOW: Executive order

STATUS/BIDEN ADMINISTRATION ACTION: Order remains unchanged.

UNCHANGED Required health insurers to provide estimated prices to patients

WHEN: Nov. 12, 2020

HOW: Regulation

STATUS/BIDEN ADMINISTRATION ACTION: Health plans and insurers must make data files publicly available for policies that take effect starting Jan. 1, 2022, and they must provide cost-sharing information on 500 specified services the following year. Information on all items and services is required for policies that take effect starting Jan. 1, 2024.

UNCHANGED Required hospitals to publish “standard charges"

WHEN: Nov. 27, 2019

HOW:Regulation

STATUS/BIDEN ADMINISTRATION ACTION: The American Hospital Association sued to overturn the regulation, but a judge in U.S. District Court in Washington dismissed the challenge on June 23, 2020. The regulation took effect Jan. 1, 2021.

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Public Health

OVERTURNED Disbanded the Directorate on Global Health Security and Biodefense, part of the National Security Council

WHEN: May 2018

HOW: A reorganization ordered by then-national security adviser John Bolton, the details of which were not made public.

STATUS/BIDEN ADMINISTRATION ACTION: The office was reconstituted under Biden's Jan. 20, 2021, executive order.

UNCHANGED Added new restrictions on funding for National Institutes of Health research using fetal tissue from elective abortions

WHEN: July 26, 2019

HOW:Guidance

STATUS/BIDEN ADMINISTRATION ACTION: Policy remains unchanged.

OVERTURNED Withdrew the U.S. from the World Health Organization

WHEN: July 6, 2020

HOW:Nonpublic letter

STATUS/BIDEN ADMINISTRATION ACTION: Biden announced the U.S. would rejoin WHO via a national security memorandum on Jan. 21, 2021

IN PROCESS Changed the rules for distributing organs for transplant

WHEN: Dec. 2, 2020

HOW: Regulation

STATUS/BIDEN ADMINISTRATON ACTION: A challenge by major organ transplant centers in federal district court was rejected on Jan. 16, 2020. The regulation was frozen by the Biden administration on Feb. 2, 2021, as part of a 60-day review of Trump administration regulations.

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Women's Reproductive Health

OVERTURNED Reinstated and expanded the so-called Mexico City policy, or “global gag rule," which limits funding to organizations that perform or support abortion outside the United States

WHEN: Jan. 23, 2017

HOW: Memorandum

STATUS/BIDEN ADMINISTRATION ACTION:Rescinded by Biden memorandum, Jan. 28, 2021.

OVERTURNED Withdrew U.S. funding from the U.N. family planning agency

WHEN: April 3, 2017

HOW: Memorandum from the State Department

STATUS/BIDEN ADMINISTRATION ACTION: Funding was restored by Secretary of State Antony Blinken on Jan. 28, 2021, following Biden's executive order that day.

UNCHANGED Ordered the HHS secretary to “consider changing" the ACA's contraceptive mandate regulations

WHEN: May 9, 2017

HOW: Executive order

STATUS/BIDEN ADMINISTRATION ACTION: Written into multiple regulations Oct. 13, 2017, and Nov. 15, 2018. Remains unchanged.

UNCHANGED Interim final regulation: Allowed employers with moral objections to opt out of offering contraceptive coverage under the ACA

WHEN: Oct. 13, 2017

HOW:Interim final regulation

STATUS/BIDEN ADMINISTRATION ACTION: Litigated alongside final regulation (below). Upheld by the Supreme Court on July 8, 2020.

UNCHANGED Interim final regulation: Allowed employers with religious objections to opt out of offering contraceptive coverage under the ACA

WHEN: Oct. 13, 2017

HOW: Interim final regulation

STATUS/BIDEN ADMINISTRATION ACTION: Litigated alongside final regulation (below). Upheld by the Supreme Court on July 8, 2020.

UNCHANGED Reinterpreted “free choice of provider" guidance for Medicaid recipients, which allows people to receive services from any qualified provider

WHEN: Jan. 19, 2018

HOW: CMS guidance

STATUS/BIDEN ADMINISTRATION ACTION: Guidance remains in effect. Lawsuits challenging individual states' efforts to exclude Planned Parenthood from Medicaid are at various stages of litigation, but no suits have been filed challenging the federal guidance.

UNCHANGED Final regulation: Allowed employers with moral objections to opt out of offering contraceptive coverage under the ACA

WHEN: Nov. 15, 2018

HOW:Final regulation

STATUS/BIDEN ADMINISTRATION ACTION: Upheld by the Supreme Court on July 8, 2020.

UNCHANGED Final regulation: Allowed employers with religious objections to opt out of offering contraceptive coverage under the ACA

WHEN: Nov 15, 2018

HOW:Final regulation

STATUS/BIDEN ADMINISTRATION ACTION: Upheld by the Supreme Court on July 8, 2020.

IN PROCESS Barred abortion providers from Title X family planning program

WHEN: March 4, 2019

HOW:Regulation

STATUS/BIDEN ADMINISTRATION ACTION: Multiple lawsuits were filed, but the full 9th U.S. Circuit Court of Appeals upheld the regulation on Feb. 24, 2020. Biden's Jan. 28, 2021, executive order instructed HHS to act to “suspend, revise, or rescind" the regulation.

in process Allowed health providers to refuse to offer any service that violates their consciences

WHEN: May 21, 2019

HOW: Regulation

STATUS/BIDEN ADMINISTRATION ACTION: The regulation was blocked by several federal district courts. A hearing on the rule before the 9th Circuit Court of Appeals scheduled for March 17, 2021, was canceled at the request of the Biden administration.

UNCHANGED Barred the use of fetal tissue from elective abortions in research conducted at the National Institutes of Health and barred the use of fetal tissue from elective abortions in extramural NIH-funded research unless such research is expressly approved by an ethics advisory board

WHEN: June 5, 2019

HOW:Statement from HHS

STATUS/BIDEN ADMINISTRATION ACTION: Remains unchanged.

in process Required separate ACA premiums for abortion coverage

WHEN: Dec. 27, 2019

HOW:Regulation

STATUS/BIDEN ADMINISTRATION ACTION: A federal district judge in Maryland overturned the rule on July 10, 2020. The decision has been appealed.

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KHN reporter Victoria Knight contributed to this report.

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Rand Paul gets schooled by scientists — including one he cited — after lashing out at Anthony Fauci

“Sorry Dr Fauci and other fearmongers, new study shows vaccines and naturally acquired immunity DO effectively neutralize COVID variants. Good news for everyone but bureaucrats and petty tyrants!” — Sen. Rand Paul in a tweet, March 21, 2021 That Sen. Rand Paul of Kentucky often disagrees with infectious-disease expert Dr. Anthony Fauci is well known. This story was produced in partnership with PolitiFact. It can be republished for free. Recently, the pair clashed at a Senate hearing when Paul, a Republican, argued against mask recommendations for people who have had covid-19 or have been vacci...

Democrats could undo Trump policies faster -- but they're not. Why?

Undoing many of the policies of his predecessor is one of President Joe Biden's top priorities. In early February, Biden even got a little defensive about all the executive actions he was taking in his first days in office to halt policies set by President Donald Trump. “I'm not making new law," he said Feb. 2. “I'm eliminating bad policy."

But as easy as it sounds on the campaign hustings or in a 30-second political ad, it's complicated to overturn rules from earlier administrations. There is one tool, however, that Biden and the Democratic Congress could use to undo the policies the Trump administration left behind. A little-used law called the Congressional Review Act allows a new administration with a like-minded Congress to fast-track the repeal of regulations and other executive actions with simple majority votes in both chambers and no filibuster in the Senate.

So far, though, Congress has made no attempt to use it, and the president has not called for it. And it appears there are no specific plans to do so, at least not on health-related policies.

Time is of the essence when it comes to using the CRA. With a few exceptions, it applies to only those Trump administration policies finalized between Aug. 21, 2020, and Jan. 20, 2021. And it's available for only the first 60 legislative days — those that either the House or Senate is officially working in Washington — of the new Congress. That end date will likely land sometime in April.

KHN is tracking health regulations, guidance and executive orders implemented during Trump's term and whether those policies will continue under the Biden administration.

Trump and the GOP-controlled Congress were not shy about using the CRA to eliminate policies implemented by the Obama administration. Between Feb. 14 and May 17, 2017, Congress passed and the president signed rollbacks of 14 regulations, according to the Congressional Research Service. Before 2017, the 1996 law had been used only once — when the new George W. Bush administration and GOP-led Congress repealed a Clinton-era worker safety rule in 2001.

But experts said it's not surprising that the Democrats haven't followed that pattern this year.

“The CRA is such a blunt instrument," said Daniel Pérez, a senior policy analyst at George Washington University's Regulatory Policy Center. “There are other tools at their disposal."

Using the act is also risky. Under its provisions, once a policy is repealed, no administration can issue a “substantially similar" regulation. But how similar is too similar? No one knows, and it's never been tested.

“It's kind of a legal gray area," said Pérez.

The Biden administration may well be the one to test that. One regulation repealed by the Republican Congress using the Congressional Review Act in 2017 dealt with the Title X family planning program. The Obama-era rule forbade state health departments from withholding Title X funding as long as organizations were able to provide family planning services. Several states had banned Planned Parenthood affiliates and other clinics that performed abortions from participating in the program. Title X has not, from its inception in 1970, funded abortions, but abortion providers have long participated to provide contraceptive and other health services.

Family planning groups would like to see those state policies blocked once again.

But the failure to use the Congressional Review Act may be about more than just getting organized in time. Many Trump policy changes that Democrats may want to ditch were part of larger regulations that touched a wide variety of subjects and could include policies that Biden's team wants to keep. But Congress can't dismiss only part of a rule.

“The nature of health care rule-making is they tend to be omnibus," said Katie Keith, a health policy researcher and law professor at Georgetown University.

For example, a Jan. 19 regulation finalized by the Trump administration cuts funding for Affordable Care Act marketplace operations and codifies changes that would make it easier for states to create health plans that do not include all the protections offered by the ACA. But those changes are embedded within a much larger regulation required each year to keep the health law operating.

Biden administration officials, rather than try to repeal the entire regulation, will likely rewrite just the pieces they disagree with. That will take significant time and resources. That raises another hurdle the White House has encountered as it tries to change health policy. The Senate has yet to confirm a director for the Office of Management and Budget, and new Health and Human Services Secretary Xavier Becerra was sworn in only last week. Both agencies are required for health regulations to proceed.

“My own two cents is this is not the product of a deliberate decision not to use the CRA," said Sara Rosenbaum, a health law and policy professor at George Washington University. “It's more a problem with the messiness they have run into with starting up the new administration. They don't know what they want to do with these rules."

And the transition period was especially tumultuous. Both the Biden administration and the new Congress were delayed in getting organized. First, Trump refused to concede the election — which sparked a mob attack on the Capitol. Then, once it was official that Biden had won, the Senate — now evenly split, 50-50 — didn't change hands to Democratic control until Inauguration Day, when Vice President Kamala Harris became the tie-breaking vote. An agreement on how to run the Senate and committees took even longer to negotiate between the Democrats and Republicans. Plus, before two Democratic challengers swept the Jan. 5 Georgia runoffs, most people thought the Senate would remain in Republican hands, so the CRA would not have been a viable option.

Even when Democrats assumed control of the Senate and White House, the early weeks were crowded with an impeachment trial, efforts to get control of the pandemic response and the covid-19 relief bill that passed earlier this month.

It's not too late for Congress to turn to the Congressional Review Act. Keith said one possible use would be on a last-minute Trump regulation known as the sunset rule. It requires HHS to review 18,000 of its regulations, and those not reviewed within a set period will automatically end. A group of health and other interest groups, led by Santa Clara County in California, sued to block the rule March 9.

But congressional action could be a cleaner way to end the rule. “That strikes me as something the Democrats would like to see never come back again," said Keith.

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Some said the vaccine rollout would be a ‘nightmare’ -- and they were right

WASHINGTON — Even before there was a vaccine, some seasoned doctors and public health experts warned, Cassandra-like, that its distribution would be “a logistical nightmare."

After Week 1 of the rollout, “nightmare" sounds like an apt description.

Dozens of states say they didn't receive nearly the number of promised doses. Pfizer says millions of doses sat in its storerooms, because no one from President Donald Trump's Operation Warp Speed task force told them where to ship them. A number of states have few sites that can handle the ultra-cold storage required for the Pfizer product, so, for example, front-line workers in Georgia have had to travel 40 minutes to get a shot. At some hospitals, residents treating COVID patients protested that they had not received the vaccine while administrators did, even though they work from home and don't treat patients.

The potential for more chaos is high. Dr. Vivek Murthy, named as the next surgeon general under President-elect Joe Biden, said this week that the Trump administration's prediction — that the general population would get the vaccine in April — was realistic only if everything went smoothly. He instead predicted wide distribution by summer or fall.

The Trump administration had expressed confidence that the rollout would be smooth, because it was being overseen by a four-star general, Gustave Perna, an expert in logistics. But it turns out that getting fuel, tanks and tents into war-torn mountainous Afghanistan is in many ways simpler than passing out a vaccine in our privatized, profit-focused and highly fragmented medical system. Gen. Perna apologized this week, saying he wanted to “take personal responsibility." It's really mostly not his fault.

Throughout the COVID pandemic, the U.S. health care system has shown that it is not built for a coordinated pandemic response (among many other things). States took wildly different COVID prevention measures; individual hospitals varied in their ability to face this kind of national disaster; and there were huge regional disparities in test availability — with a slow ramp-up in availability due, at least in some part, because no payment or billing mechanism was established.

Why should vaccine distribution be any different?

In World War II, toymakers were conscripted to make needed military hardware airplane parts, and commercial shipyards to make military transport vessels. The Trump administration has been averse to invoking the Defense Production Act, which could help speed and coordinate the process of vaccine manufacture and distribution. On Tuesday, it indicated it might do so, but only to help Pfizer obtain raw materials that are in short supply, so that the drugmaker could produce — and sell — more vaccines in the United States.

Instead of a central health-directed strategy, we have multiple companies competing to capture their financial piece of the pandemic health care pie, each with its patent-protected product as well as its own supply chain and shipping methods.

Add to this bedlam the current decision-tree governing distribution: The Centers for Disease Control and Prevention has made official recommendations about who should get the vaccine first — but throughout the pandemic, many states have felt free to ignore the agency's suggestions.

Instead, Operation Warp Speed allocated initial doses to the states, depending on population. From there, an inscrutable mix of state officials, public health agencies and lobbyists seem to be determining where the vaccine should go. In some states, counties requested an allotment from the state, and then they tried to accommodate requests from hospitals, which made their individual algorithms for how to dole out the precious cargo. Once it became clear there wasn't enough vaccine to go around, each entity made its own adjustments.

Some doses are being shipped by FedEx or UPS. But Pfizer — which did not fully participate in Operation Warp Speed — is shipping much of the vaccine itself. In nursing homes, some vaccines will be delivered and administered by employees of CVS and Walgreens, though issues of staffing and consent remain there.

The Moderna vaccine, rolling out this week, will be packaged by the “pharmaceutical services provider" Catalent in Bloomington, Indiana, and then sent to McKesson, a large pharmaceutical logistics and distribution outfit. It has offices in places like Memphis, Tennessee, and Louisville, which are near air hubs for FedEx and UPS, which will ship them out.

Is your head spinning yet?

Looking forward, basic questions remain for 2021: How will essential workers at some risk (transit workers, teachers, grocery store employees) know when it's their turn? (And it will matter which city you work in.) What about people with chronic illness — and then everyone else? And who administers the vaccine — doctors or the local drugstore?

In Belgium, where many hospitals and doctors are private but work within a significant central organization, residents will get an invitation letter “when it's their turn." In Britain, the National Joint Committee on Vaccination has settled on a priority list for vaccinations — those over 80, those who live or work in nursing homes, and health care workers at high risk. The National Health Service will let everyone else “know when it's your turn to get the vaccine " from the government-run health system.

In the United States, I dread a mad scramble — as in, “Did you hear the CVS on P Street got a shipment?" But this time, it's not toilet paper.

Combine this vision of disorder with the nation's high death toll, and it's not surprising that there is intense jockeying and lobbying — by schools, unions, even people with different types of preexisting diseases — over who should get the vaccine first, second and third. It's hard to “wait your turn" in a country where there are 200,000 new cases and as many as 2,000 new daily COVID deaths — a tragic per capita order of magnitude higher than in many other developed countries.

So kudos and thanks to the science and the scientists who made the vaccine in record time. I'll eagerly hold out my arm — so I can see the family and friends and colleagues I've missed all these months. If only I can figure out when I'm eligible, and where to go to get it.

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No more ICU beds at the main public hospital in the nation’s largest county as COVID surges

No More ICU Beds at the Main Public Hospital in the Nation's Largest County as COVID Surges

Bernard J. Wolfson Photos by Heidi de Marco December 18, 2020

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She lay behind a glass barrier, heavily sedated, kept alive by a machine that blew oxygen into her lungs through a tube taped to her mouth and lodged at the back of her throat. She had deteriorated rapidly since arriving a short time earlier.

“Her respiratory system is failing, and her cardiovascular system is failing," said Dr. Luis Huerta, a critical care expert in the intensive care unit. The odds of survival for the patient, who could not be identified for privacy reasons, were poor, Huerta said.

The woman, in her 60s, was among 50 patients so ill with COVID-19 that they required constant medical attention this week in ICUs at Los Angeles County+USC Medical Center, a 600-bed public hospital on L.A.'s Eastside. A large majority of them had diabetes, obesity or hypertension.

An additional 100 COVID patients, less ill at least for the moment, were in other parts of the hospital, and the numbers were growing. In the five days that ended Wednesday, eight COVID patients at the hospital died — double the number from the preceding five days.

As COVID patients have flooded into LAC+USC in recent weeks, they've put an immense strain on its ICU capacity and staff — especially since non-COVID patients, with gunshot wounds, drug overdoses, heart attacks and strokes, also need intensive care.

No more ICU beds were available, said Dr. Brad Spellberg, the hospital's chief medical officer.

Similar scenes — packed wards, overworked medical staffers, harried administrators and grieving families — are playing out in hospitals across the state and the nation.

In California, only 4.1% of ICU beds were available as of Wednesday. In the 11-county Southern California region, just 0.5 % of ICU beds were open, and in the San Joaquin Valley, none were.

The county of Los Angeles, the nation's largest, was perilously close to zero capacity.

County health officials reported Wednesday that the number of daily new COVID cases, deaths and hospitalizations had all soared beyond their previous highs for the entire pandemic.

LAC+USC has had a heavy COVID burden since the beginning of the pandemic, largely because the low-income, predominantly Latino community it serves has been hit so hard. Latinos represent about 39% of California's population but have accounted for nearly 57% of the state's COVID cases and 48% of its COVID deaths, according to data updated this week.

Many people who live near the hospital have essential jobs and “are not able to work from home. They are going out there and exposing themselves because they have to make a living," Spellberg said. And, he said, “they don't live in giant houses where they can isolate themselves in a room."

The worst cases end up lying amid a tangle of tubes and bags, in ICU rooms designed to prevent air and viral particles from flowing out into the hall. The sickest among them, like the woman described above, need machines to breathe for them. They are fed through nose tubes, their bladders draining into catheter bags, while intravenous lines deliver fluids and medications to relieve pain, keep them sedated and raise their blood pressure to a level necessary for life.

To take some pressure off the ICUs, the hospital this week opened a new “step-down" unit, for patients who are still very sick but can be managed with a slightly lower level of care. Spellberg said he hopes the unit will accommodate up to 10 patients.

Hospital staff members have also been scouring the insurance plans of patients to see if they can be transferred to other hospitals. “But at this point, it's become almost impossible, because they're all filling up," Spellberg said.

Two weeks ago, a smaller percentage of COVID patients in the ER were showing signs of severe disease, which meant fewer needed to be admitted to the hospital or the ICU than during the July surge. That was helping, as Spellberg put it, to keep the water below the top of the levee.

But not anymore.

“Over the last 10 days, it is my distinct impression that the severity has worsened again, and that's why our ICU has filled up quickly," Spellberg said Monday.

The total number of COVID patients in the hospital, and the number in its ICUs, are now well above the peak of July — and both are nearly six times as high as in late October. “This is the worst it's been," Spellberg said. And it will only get worse over the coming weeks, he added, if people travel and gather with their extended families over Christmas and New Year's as they did for Thanksgiving.

“Think New York in April. Think Italy in March," Spellberg said. “That's how bad things could get."

They are already bad enough. Nurses and other medical staffers are exhausted from long months of extremely laborious patient care that is only getting more intense, said Lea Salinas, a nurse manager in one of the hospital's ICU units. To avoid being short-staffed, she's been asking her nurses to work overtime.

Normally, ICU nurses are assigned to two patients each shift. But one really sick COVID patient can take up virtually the entire shift — even with help from other nurses. Jonathan Magdaleno, a registered nurse in the ICU, said he might have to spend 10 hours during a 12-hour shift at the bedside of an extremely ill patient.

Even in the best case, he said, he typically has to enter a patient's room every 30 minutes, because the bags delivering medications and fluids empty at different rates. Every time nurses or other care providers enter a patient's room, they must put on cumbersome protective gear — then take it off when they leave.

One of the most delicate and difficult tasks is a maneuver known as “proning," in which a patient in acute respiratory distress is flipped onto his or her stomach to improve lung function. Salinas said it can take a half-hour and require up to six nurses and a respiratory therapist, because tubes and wires have to be disconnected, then reconnected — not to mention the risks involved in moving an extremely fragile person. And they must do it twice, because every proned patient needs to be flipped back later in the day.

For some nurses, working on the COVID ward at LAC+USC feels very personal. That's the case for Magdaleno, a native Spanish speaker who was born in Mexico City. “I grew up in this community," he said. “Even if you don't want to, you see your parents, you see your grandparents, you see your mom in these patients, because they speak the language."

He planned to spend Christmas only with members of his own household and urged everyone else to do the same. “If you lose any member of your family, then what's the purpose of Christmas?" he asked. “Is it worth it going to the mall right now? Is it worth even getting a gift for somebody who's probably going to die?"

That the darkest hour of the pandemic should come precisely at the moment when COVID vaccines are beginning to arrive is especially poignant, said Dr. Paul Holtom, chief epidemiologist at LAC+USC.

“The tragic irony of this is that the light is at the end of the tunnel," he said. “The vaccine is rolling out as we speak, and people just need to keep themselves alive until they can get the vaccine."

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.

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Pharmacists Slow to Dispense Lifesaving Overdose Reversal Drug

This article originally appeared on Kaiser Health News.

Gale Dunham, a pharmacist in Calistoga, Calif., knows the devastation the opioid epidemic has wrought, and she is glad the anti-overdose drug naloxone is becoming more accessible.

But so far, Dunham said, she has not taken advantage of a California law that allows pharmacists to dispense the medication to patients without a doctor’s prescription. She said she plans to take the training required at some point but has not yet seen much demand for the drug.

“I don’t think people who are heroin addicts or taking a lot of opioids think that they need it,” Dunham said. “Here, nobody comes and asks for it.”

In the three years since the California law took effect, pharmacists have been slow to dispense naloxone, which reverses the effects of an overdose. They cite several reasons, including low public awareness, heavy workloads, fear that they won’t be adequately paid and reluctance to treat drug-addicted people.

In 48 states and Washington, D.C., pharmacists have flexibility in supplying the drug without a prescription to patients, or to their friends or relatives, according to the National Alliance of State Pharmacy Associations. But as in California, pharmacists in many states, including Wisconsin and Kentucky, have divergent opinions about whether to dispense naloxone.

“The fact that we don’t have wider uptake . . . is a public health emergency in and of itself,” said Virginia Herold, executive officer of the California State Board of Pharmacy. She said both pharmacists and the public need to be better educated about the drug.

Pharmacists are uniquely positioned to identify those at risk and help save the lives of patients who overdose on opioids, said Talia Puzantian, a pharmacist and associate professor of clinical sciences at Keck Graduate Institute School of Pharmacy in Claremont, Calif.

“There’s a Starbucks on every corner. What else is on every corner? A pharmacy. So we are very accessible,” Puzantian told a group of pharmacy students recently as she trained them on providing naloxone to customers. “We are interfacing with patients who may be at risk. We can help reduce overdose deaths by expanding access to naloxone.”

Opioid overdoses killed 2,000 people in California and 15,000 nationwide in 2015.

Naloxone can be administered via nasal spray, injection or auto-injector. Prices for it vary widely, but insurers often cover it. The drug binds to opioid receptors, reversing the effect of opioids and helping someone who has overdosed to breathe again.

At least 26,500 overdoses were reversed from 1996 to 2014 because of naloxone administered by laypeople, according to the National Institute on Drug Abuse. Since then, the drug has become much more widely available among first responders, law enforcement officers and community groups. The drug is safe and doesn’t have serious side effects, apart from putting someone into immediate withdrawal, according to the institute.

Information on how many pharmacists are dispensing naloxone is limited, but one study last year showed access to the drug at retail pharmacies increased significantly from 2013 to 2015 from previously small numbers.

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