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Presented by PhRMA: Delivered daily by 10 a.m., Pulse examines the latest news in health care politics and policy. | | | | |  | | By Krista Mahr and Daniel Payne | | | With Megan R. Wilson and Caitlin Oprysko
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A federal judge says the constitutional right to an abortion might still exist. | Brandon Bell/Getty Images | JUDGE: RIGHT TO ABORTION MAY STILL EXIST — A federal judge in Washington, D.C., suggested Monday that a constitutional right to abortion may be baked into the 13th Amendment, POLITICO’s Kyle Cheney and Josh Gerstein report. The case: In a year-old case against 10 defendants charged with conspiring to block access to a Washington, D.C., abortion clinic, one defendant contended that the conspiracy charge is no longer legitimate because the Dobbs v. Jackson Women’s Health Organization decision took Congress out of the business of making laws related to abortion access. U.S. District Court Judge Colleen Kollar-Kotelly said the Supreme Court’s ruling in Dobbs concluded only that the 14th Amendment included no right to abortion but stopped short of definitively ruling out other aspects of the Constitution that might apply. Kollar-Kotelly noted that some legal scholarship suggests the 13th Amendment — which was ratified at the end of the Civil War and sought to ban slavery and “involuntary servitude” — provides a right to access reproductive services. What’s next: Kollar-Kotelly is asking the parties in the criminal case, which involves charges of blocking access to abortion clinics, to present arguments by mid-March. In particular, she wants them to address ”whether the scope of Dobbs is in fact confined to the Fourteenth Amendment” and “whether, if so, any other provision of the Constitution could confer a right to abortion as an original matter … such that Dobbs may or may not be the final pronouncement on the issue, leaving an open question.” WELCOME TO TUESDAY PULSE — We are following the saga of Flaco the Owl, who escaped from the Central Park Zoo after his enclosure was vandalized and has since been spotted frequenting the street across from the Plaza. Stay tuned, and send your news and tips to kmahr@politico.com and dpayne@politico.com. TODAY ON OUR PULSE CHECK PODCAST, Adam Cancryn tells Ben Leonard about his exit interview with David Kessler, who reflected on nearly three years of fighting a pandemic as President Joe Biden’s chief science officer — and the political fallout. Plus, Rep. David Schweikert (R-Ariz.), co-chair of the Telehealth Caucus, on how technology can become a bigger part of health care delivery.
| | | | A message from PhRMA: In 2021, Insurers and their pharmacy benefit managers (PBMs) subjected patients to six times the out-of-pocket costs for brand medicines through the use of deductibles or coinsurance compared to patients with only copays — even when these middlemen received a discounted price. That’s not fair. Learn more. | | | | | | | | | | 
President Biden is expected to push for a universal price cap on insulin in SOTU. | Reed Saxon/AP Photo | SOTU WATCH: BIDEN TO PUSH FOR INSULIN PRICE CAP — President Joe Biden will call for expanding a new cap on insulin prices to all Americans as part of his State of the Union address, POLITICO’s Adam Cancryn reports. During the Tuesday speech, Biden plans to tout his administration’s efforts to make health care more affordable, which included imposing a $35-a-month limit on insulin that took effect in January. But that price cap, passed as part of last year’s Inflation Reduction Act , applied to only Medicare beneficiaries. Biden is expected to renew his push for the policy to be applied to anyone with an insulin prescription, the White House said in a fact sheet Monday. Reality check: Democrats had initially planned to pass a universal insulin price cap last year as part of the IRA, which was passed along party lines last August. But the policy was scaled back after Republicans successfully challenged its inclusion. Biden’s fresh support for expanding the price cap is unlikely to result in much concrete progress. Republicans remain opposed to the measure and aren’t expected to even allow a vote on it in the House now that they control the chamber. THE CONFUSING STATE OF TITLE 42 — The Biden administration’s decision to end the Covid-19 federal health emergencies in May didn’t clear up one thing: What, exactly, was going to happen to controversial border policy Title 42, POLITICO’s Myah Ward reports. What is Title 42? The government started using Title 42, a public health order enacted by the CDC during the Trump administration, to turn away asylum seekers when the pandemic hit. It’s been used more than 2 million times for nearly three years. State of play: Until last week’s announcement, the Supreme Court was expected to settle the policy’s fate. Justices will hear arguments this month over a lawsuit filed by a group of Republican-led states trying to keep the measure in place. When the Biden administration declared the Covid national and public health emergencies would end on May 11, it noted in a statement to Congress that Title 42 would end then, too. But the next day, Biden and his aides made things murky when they suggested the White House might have to wait on the Supreme Court ruling to know Title 42’s fate. White House press secretary Karine Jean-Pierre referred reporters to the Department of Justice. And the DOJ didn’t respond to POLITICO’s request for comment on its legal stance. DAVID KESSLER LOOKS BACK— Adam spoke with David Kessler, until recently the chief science officer for the White House’s Covid response, in his Maryland home in his first extended interview since leaving the White House. He talked about how anti-vax rhetoric echoes the tobacco industry, why he’s optimistic that the politicization of public health won’t last and why it’s important to find common ground with Tucker Carlson. Read the full interview.
| | | | JOIN POLITICO ON 2/9 TO HEAR FROM AMERICA’S GOVERNORS: In a divided Congress, more legislative and policy enforcement will shift to the states, meaning governors will take a leading role in setting the agenda for the nation. Join POLITICO on Thursday, Feb. 9 at World Wide Technology's D.C. Innovation Center for The Fifty: America's Governors, where we will examine where innovations are taking shape and new regulatory red lines, the future of reproductive health, and how climate change is being addressed across a series of one-on-one interviews. REGISTER HERE. | | | | | | | | WHY IS THE MILITARY VACCINE MANDATE BACK IN COURT? A lawyer representing Navy Seals who don’t want to be vaccinated against Covid-19 told a federal appeals court Monday that their lawsuit over the withdrawn military vaccine mandate isn’t moot even though Congress passed legislation last December ordering the policy canceled, Josh reports. During arguments before the 5th Circuit Court of Appeals, their attorney said the service members still face the possibility of discipline over their refusal to get vaccinated and the government hasn’t ruled out taking vaccination status into account when doling out future assignments. A Justice Department attorney said the National Defense Authorization Act effectively reversed the Biden administration policy requiring service members to receive a coronavirus vaccine unless granted a religious exemption, rendering moot preliminary injunctions a federal judge in Texas issued early last year against the policy.
| | | | A message from PhRMA:   | | | | | | BURR HEADS TO K STREET — Former Sen. Richard Burr (N.C.), who’d been the top Republican on the Senate Health, Education, Labor and Pensions Committee, has joined law and lobbying firm DLA Piper, Megan and Caitlin report. Burr, who retired last month after nearly three decades on Capitol Hill, will lead the firm’s health policy strategic consulting practice and serve as a principal policy adviser in its regulatory and government affairs practice. He’s bringing with him Margaret Martin, the Senate HELP Committee’s former senior adviser of health policy, and Michael Sorensen, who served as his director of operations. Some of DLA Piper’s health lobbying clients include B. Braun Medical, a Canadian pharmaceutical and medical device company, and Illumina, the leading maker of gene-sequencing machines used in the research and development of diagnostic tests and drugs. Burr pushed for reforming the Food and Drug Administration, including sponsoring the measure that modernized the agency while he served in the House, and was key in the development of ARPA-H, the Biden administration’s new research agency. He’s advocated for pandemic preparedness — even before it was cool — and was a sponsor of the original Pandemic All Hazards Preparedness Act in 2006. The measure, which must be revisited every five years, is up for reauthorization in September. Although advocates worry that Covid has politicized further pandemic measures, Burr tells Megan and Caitlin the reauthorization “should be fairly easy to get across the goal line.” He’s required by ethics rules to abstain from lobbying his former colleagues for two years — a period he jokingly calls “mental-health therapy time.” Although he’s allowed to lobby the executive branch, he doesn’t have immediate plans to do so, he said. Burr did say he wanted to use his influence from the outside to shape the bill — which he joked only came up as a question because he’d “failed to do it before I left.”
| | | | JOIN TUESDAY TO HEAR FROM MAYORS AROUND AMERICA: 2022 brought in a new class of mayors leading “majority minority” cities, reshaping who is at the nation’s power tables and what their priorities are. Join POLITICO to hear from local leaders on how they’re responding to being tested by unequal Covid-19 outcomes, upticks in hate crimes, homelessness, lack of affordable housing, inflation and a potential recession. REGISTER HERE. | | | | | | | | INCOMING CDC DEPUTY TO ATTEND SOTU— Maine Center for Disease Control (CDC) Director Nirav D. Shah, tapped as the CDC’s next principal deputy director, will join Rep. Chellie Pingree (D-Maine) as a guest at Biden’s State of the Union address tonight.
| | | The global consultancy firm CF announced John Auerbach as its new senior vice president of federal health. Auerbach most recently served as the CDC’s director of intergovernmental and strategic affairs.
| | | Pharma companies look at the edge of a Covid cliff as 2023 sales are set to plummet, Reuters reports. Construction workers are prescribed opioids at an alarming rate. In Rhode Island, one organization is trying to tackle the crisis from within the industry, The Boston Globe reports. STAT investigates why EMS responders failed to help Tyre Nichols after he was brutally beaten by Memphis police.
| | | | A message from PhRMA: Every day, patients at the pharmacy counter discover their commercial insurance coverage does not provide the level of access and affordability they need. New data from a study by IQVIA reveal the harmful practices of insurers and their pharmacy benefit managers (PBMs) can lead to significantly higher out-of-pocket costs for medicines — causing some patients to abandon their medicines completely. Learn more. | | | | | | | Follow us on Twitter | | | | Follow us | | | | |  |
