Health Care — Judge rejects ObamaCare coverage for HIV drugs

Correction: An earlier version of this report misstated the reason for Sen. Richard Burr’s (R- N.C.) absence this week at votes.

Former President Obama and first lady Michelle Obama had their official portraits unveiled at the White House today. The latter’s portrait captured the former first lady looking “fine,” according to her husband.  

A judge in Texas ruled on Wednesday that provisions in the Affordable Care Act requiring employer health plans to cover HIV prevention drugs violated religious freedom laws. 

Welcome to Overnight Health Care, where we’re following the latest moves on policy and news affecting your health. For The Hill, we’re Nathaniel Weixel and Joseph Choi. Subscribe here.

Federal judge rules against ObamaCare provisions

A federal judge in Texas on Wednesday ruled that key parts of the Affordable Care Act that require insurers to cover many preventive services for free are unconstitutional.

Judge Reed O’Connor — who struck down the entire ObamaCare law in 2018 — also ruled that the law’s requirement that health plans cover HIV prevention drugs violates the religious freedom of a Christian-owned company. 

The Texas employers who challenged the provision argued it violates the Religious Freedom Restoration Act by forcing people to pay for coverage that conflicts with their faith and personal values. 

Specifically, they said paying for health plans that cover HIV prevention drugs, known as PrEP, makes them “complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman.” 

Fallout: Under ObamaCare, any service or drug that gets an “A” or “B” rating from the U.S. Preventive Services Task Force (USPSTF) must automatically be added to that list of free services. 

• But O’Connor ruled any services recommended by members of the USPSTF are invalid because they “are unconstitutionally appointed.”
  
• Insurers would be able to charge for cancer screening, substance abuse treatment, colonoscopies, depression screenings and many other services if the ruling stands. 

Familiar name: The ruling came in response to a lawsuit filed by Jonathan Mitchell, a former Texas solicitor general. Mitchell is the architect of Texas’s abortion law that offers a $10,000 award to private citizens who successfully sue abortion providers. 

Read more here. 

Hochul lifts mask mandate on mass transit 

New York Gov. Kathy Hochul (D) on Wednesday announced the state’s health department will lift its mask mandate for public transit, shelters and correctional facilities. 

Hochul declared the move “a new normal” in the state’s fight against COVID-19, adding that officials will still encourage mask-wearing on transit and the mandate remains in effect for health care facilities. 

“Getting vaccinated, boosted is our best shot, but also we have to restore some normalcy to our lives,” Hochul said at a press conference. “And so, we’ll be talking about a new normal starting today.” 

• Mask requirements will remain in health care facilities such as hospitals and nursing homes.
  
• The mask mandate for public transit in the state has been in effect since April 2020. State and local officials have gradually scaled back New York’s initial requirement to wear face coverings in public when social distancing wasn’t possible as the pandemic progressed. 

Hochul on Wednesday said she expected many to still wear masks on public transit and urged the public to follow newly posted signage in subway stations that reads, “let’s respect others’ choices.”

Following Hochul’s announcement, the New York Taxi & Limousine Commission also loosened mask rules in yellow cabs and rideshare vehicles. 

Read more here. 

SENATE DEMS OUT WITH COVID

Three Democratic senators have disclosed positive COVID-19 diagnoses so far this week, with one lawmaker quarantining overseas due to his infection.

• Sen. Bob Menendez (D-N.J.) announced his positive test Wednesday afternoon, saying he was experiencing “mild” symptoms.
  
• Sen. Jon Ossoff (D-Ga.) announced he tested positive earlier on Wednesday while in India for a planned eight-day trip as part of an economic delegation. His office said Ossoff would isolate in the country and expects to return to the United States next week.
  
• Sen. Jacky Rosen (D-Nev.) on Tuesday announced she also tested positive and will work remotely throughout the week. 

The split vote: With the Senate’s 50-50 makeup, any absence can swing the odds of a piece of legislation’s success if lawmakers vote strictly along party lines.

Republican Sen. Richard Burr (N.C.) also announced earlier this week that he would miss votes due to hip replacement surgery.

The chamber is slated to hold multiple votes on President Biden’s judicial nominees this week.

Read more here. 

ABOUT 1 IN 4 YOUNG ADULTS GETTING MENTAL HEALTH CARE: CDC 

Almost a quarter of all young adults received mental health care treatment last year, according to recently released data from the Centers for Disease Control and Prevention (CDC).

Observed trends: 

• The number of adults aged 18 to 44 who received mental health care in the past 12 months saw the biggest increase from 2019, rising from 18.5 percent to 23.2 percent. The percentage of all adults who received mental health treatment also increased from 19.2 percent in 2019 to 21.6 percent in 2021.
  
• The percentage of adults aged 45 to 64 who received treatment saw a more modest increase from 20.2 percent to 21.2 percent, while the percentage of adults aged 65 and older decreased slightly from 19.4 percent to 18.9 percent.  

Who was counted: The CDC considered adults to have received mental health treatment if they reported taking prescription medication for their mental health, receiving counseling or therapy from a mental health professional or both.  

Non-Hispanic Asian adults remained the least likely to receive treatment in each of the three years reviewed. 

Read more here. 

Mich. judge declares 1931 abortion ban unconstitutional

A Michigan judge on Wednesday ruled a state law passed in 1931 that banned abortions cannot be enforced, citing the state’s constitution and the right to privacy that it provides. 

• Planned Parenthood of Michigan filed the lawsuit against the Michigan state government in April to halt a near-total abortion ban from going into effect.  
  
• The 1931 law, which was triggered after the Supreme Court overturned Roe v. Wade, banned all abortions except in situations where the mother’s life was endangered due to her pregnancy. No exceptions for incest or rape are included in the ban. 

The ruling: Michigan Court of Claims Chief Judge Elizabeth Gleicher wrote in her decision that the law “violates the Due Process and Equal Protection Clauses of the Michigan Constitution.” She found that the law was unconstitutional because it would “deprive women of their right to bodily integrity and autonomy, and the equal protection of the law.” 

“This is the legal landscape against which the Court must evaluate the undisputed evidence in this case,” Gleicher wrote, further adding that the law would “endanger the health and lives of women seeking to exercise their constitutional right to abortion.” 

The defense in the lawsuit had argued that an abortion ban had nothing to do with bodily integrity on the basis that pregnancy did not involve “nonconsensual entry into the body.” 

“When pregnancy is desired, the word ‘intrusion’ is likely low on the list of a mother’s descriptors of the process. But when pregnancy is unwelcome, dangerous, or likely to result in negative health consequences, it is indeed a ‘bodily intrusion,’” Gleicher wrote.

Read more here. 

WHAT WE’RE READING

• Sen. Burr cited COVID when he dumped shares ahead of stock market crash, according to FBI records (ProPublica) 
• Doctors are taking it on themselves to figure out long Covid (Politico) 
• Tobacco giant Philip Morris is investing billions in health care. Critics say it’s peddling cures for its own poison (Stat) 
  
  

STATE BY STATE

• Pregnant women held for months in one Alabama jail to protect fetuses from drugs (AL.com) 
• South Dakota DSS, Dept. of Health raising awareness for “Avoid Opioid” campaign (KTIV) 
• Oregon Health Authority will update COVID data less frequently, publish more on monkeypox (Oregon Public Broadcasting) 
  
  

THE HILL OP-ED

It’s up to the states to take the lead on paid leave 

That’s it for today, thanks for reading. Check out The Hill’s Health Care page for the latest news and coverage. See you tomorrow.

VIEW THE FULL EDITION HERE

–Updated on Sept. 8 at 11:50 a.m.