Axios Vitals

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November 09, 2022

Good morning, Vitals readers. Today's newsletter is 1,076 words or a 4.5-minute read.

🗳 Situational awareness: With control of Congress still uncertain as of early Wednesday morning — dozens of House contests are still uncalled, along with five outstanding Senate races — we're focusing on what we know about state health ballot measures across the country.

1 big thing: Constitutional wins for abortion rights

Photo illustration: Sarah Grillo/Axios. Photo: Mario Tama/Getty Images

The first major election of the post-Roe era yielded new protections for abortion rights, as voters in three states approved measures to add constitutional protections guaranteeing access to the procedure, Axios' Oriana Gonzalez writes.

Driving the news: California, Michigan and Vermont backed ballot measures that effectively make it impossible for state lawmakers to enact bans.

  • Kentucky voters are considering a proposed amendment that would say that a constitutional right to an abortion does not exist in the state. However, that measure is still too early to call, per the Associated Press.

State of play: The projected results send a "powerful and positive statement" that the public believes "this health care service should remain legal and accessible," said Elisabeth Smith, director for state policy and advocacy at the Center for Reproductive Rights.

  • Without Roe, "state constitutions are now the best vehicle to protect abortion rights and ensure access," Smith added.

The other side: Ballot initiatives are not anti-abortion groups' strong suit, which they argue is due to being outspent by abortion rights organizations in political ads.

  • Anti-abortion groups tend to be more successful when a candidate is involved "because we have an advocate we don't have to pay for on our side," said Marjorie Dannenfelser, president of Susan B. Anthony Pro-Life America, one of the largest anti-abortion organizations in the U.S.

The big picture: Advocates on both sides of the abortion debate zeroed in on midterm elections, calling attention to how states can have the last say in absence of federal protections.

  • "To see the court sort of step in in this way and overturn rights people thought were secure, then means that people see that they need their policymakers to reflect their actual values," said Elizabeth Nash, lead state policy analyst for the Guttmacher Institute.
  • Without Roe, abortion has become "part of the political discourse in a way that it just hasn't been" in the past, Nash added.

Don't forget: While the common narrative around abortion, particularly among Republicans, has been that it is now a state issue, the Supreme Court's opinion specifically gave "elected representatives" the power to regulate abortion.

  • This means that while state lawmakers have a say in the matter, the U.S. Congress does as well.

Zoom in: If Republicans win back control of at least one chamber, they are expected to vote on some sort of nationwide abortion restriction or ban.

2. Where we landed on state ballot measures

Illustration of two checkboxes over a divided blue and red background, with a checkmark moving back and forth between them.

Illustration: Brendan Lynch/Axios

South Dakota appears poised to expand Medicaid to about 42,000 additional state residents, winning 56% of the vote on Tuesday with the bulk of precincts reporting,

Why it matters: South Dakota was one of a dozen Republican-led holdout states that hadn't yet expanded their Medicaid programs under the ACA. This move shows continued openness to the idea in some red states.

Driving the news: That was just one of a number of key health care ballot measures on ballots around the country during this midterms. Among them:

  • Arizona: Voters approved a measure to reduce the maximum amount of interest creditors can charge on medical debt to 3%, from a previous cap of 10%. The initiative also increases the assets exempt from debt collection and allow courts to reduce how much of a person's earnings can be garnished.
  • California: In the third election in a row, voters rejected tighter regulations for the dialysis industry, such as a requirement to have an on-site physician during all hours of operation.
  • California: Voters reaffirmed a ban on flavors in certain tobacco products such as menthol cigarettes or candy-flavored vaping juice.
  • Oregon: It is still unclear whether health care will officially be enshrined as a right in Oregon's state constitution. At press time, just over 50% voted against the measure with a majority of votes counted.

3. SCOTUS seems unlikely to gut Medicaid suing rights

Illustration: Shoshana Gordon/Axios

Supreme Court justices on Tuesday appeared unsympathetic toward an effort to bar Medicaid beneficiaries from suing for benefits the safety net program promises, Axios’ Sabrina Moreno reports.

Driving the news: During oral arguments in a closely watched case, justices rebuffed claims that Medicaid is off-limits from "Section 1983" — a Reconstruction-era law that allows people to enforce civil rights violations by suing state officials in federal court.

  • But the court appeared torn over whether nursing home residents were guaranteed rights under a 1987 nursing home law that sets quality standards for facilities, or whether they should pursue remedies through a separate administrative process.

Catch up quick: The case, Health and Hospital Corp. v. Talevski, was brought by the wife of Medicaid patient with dementia, who sued his Indiana nursing home for alleged abuse.

Why it matters: Ruling in favor of that argument would strip millions of beneficiaries from going to federal courts if states violate their rights, said Sara Rosenbaum, a health law professor at George Washington University.

  • These violations can include negligence or denial of Medicaid coverage when eligible.
  • A decision could also have ramifications for other safety net programs like CHIP, child welfare or the Supplemental Nutrition Assistance Program.

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4. Long COVID sufferers face disability hurdles

Illustration of a person in outline with covid particles surrounding her

Illustration: Sarah Grillo/Axios

While the Biden administration promised support to people with long COVID, patient advocates say many are struggling to get government help, KHN reports.

Why it matters: Long COVID is still disabling millions of people, according to CDC data, and causing massive disruptions to the workforce and financial hardship for those unable to get help.

  • Advocates say many suffering from long COVID symptoms face long wait times that result in denials for disability assistance, KHN reports.

What they're saying: The problem is that long COVID patients lack substantial medical evidence federal officials require to prove a disability, T.J. Geist, a director at Allsup, an Illinois-based firm that helps people apply for Social Security, told KHN.

  • Social Security "has yet to give specific guidance on how to evaluate COVID claims," he said.

5. Catch up quick

🏈 Two concussion drug companies backed by former NFL quarterback Brett Favre overstated their NFL connections and exaggerated the known effectiveness of their drugs, according to an ESPN investigation. (ESPN)

📆 Pfizer is telling U.S. workers they need to head back to the office two to three times a week starting in January. (Bloomberg)

💰 The American Hospital Association's political committee fell victim to 'fraudulent activity.' (Insider)

🚘 In a few years, your car is likely to know if you've been drinking too much and could block you from driving — even if you think you're sober enough to do so. (Axios)

Thanks for reading, and thanks to senior editor Adriel Bettelheim and copy editor Nick Aspinwall for the edits. Did someone forward this email to you? Here's how to sign up.