Legal sparring over abortion votes

Jul 31, 2024

With Kelly Hooper and Carmen Paun

Driving The Day

Arizona abortion-rights supporters deliver boxes of petition signatures to the Capitol

Arizona abortion-rights supporters delivered petition signatures to the Capitol earlier this month to get abortion rights on the ballot — an effort tangled up in legal battles. | Ross D. Franklin/AP

THE ABORTION BALLOT BATTLE — Even as former President Donald Trump and many Republicans say that abortion should be up to “the will of the people,” anti-abortion groups and GOP state officials are working to block ballot measures on the issue, POLITICO’s Alice Miranda Ollstein reports.

Conservatives are suing to have signatures tossed, inserting language like “unborn child” into voter guides and changing cost estimates as they attempt to prevent more states from voting on measures that could restore or expand abortion access.

“We are working to make sure it doesn’t get on the ballot in the first place,” said Jill Norgaard, a board member of Arizona Right to Life and former Republican member of the Arizona House of Representatives. “When you enshrine something in the state constitution, it ties the hands of future legislators.”

A new wave of lawsuits is coming in Arizona, Arkansas, Florida, Montana and South Dakota after a slew of red and purple states voted in support of abortion rights.

Abortion-rights backers say that even if they beat all the challenges — which isn’t likely given many state courts’ conservative leanings — the legal battles suck away resources they could use to get out the vote.

Here’s more on what’s happening in the states:

Arizona: Legal battles imperil passage of a ballot measure that would usurp the state’s ban after 15 weeks of pregnancy, including a lawsuit from Arizona Right to Life attempting to disqualify the proposed amendment, claiming errors and infractions by groups pushing the initiative. Arizona for Abortion Access dismissed these claims as “bogus.”

Arkansas: A longshot bid to restore abortion access got a surprise win from the state’s high court last week. The state’s high court ordered the secretary of state to keep counting signatures submitted after GOP officials stopped counting them and moved to block certification of the proposed amendment over an alleged paperwork error.

Florida: Florida’s abortion-rights initiative qualified for the November ballot, but a legal battle is in play between Republicans and abortion-rights groups over how much the amendment would cost.

Montana: Republican officials are asking a state court to toss signatures of “inactive” voters who are registered but didn’t vote in recent elections. A judge issued a preliminary injunction forcing the state to count signatures from voters deemed inactive, saying they make up as much as 20 percent of the total.

South Dakota: The state’s high court is deciding whether an abortion-rights ballot measure can remain on the ballot.

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In the Courts

People walk past a Wells Fargo bank

Wells Fargo is accused of mismanaging its employees' health benefits. | Michael M. Santiago/Getty Images

LAWSUIT TARGETS WELLS FARGO BENEFITS — Four former Wells Fargo employees sued the company on Tuesday, claiming it mismanaged prescription drug benefits and forced workers to pay more for their medication than necessary, Kelly reports.

The suit, filed in U.S. District Court in Minnesota, accuses the fourth-largest bank in the U.S. of failing to shop around and compare prescription drug service providers to ensure the company was getting a good deal on employee benefits. The failure has cost the health plan and employees millions of dollars in the form of higher payments for drugs, premiums, out-of-pocket costs, lower wages and limited wage growth, the suit alleges.

Why it matters: The suit is the second brought by law firm Fairmark Partners to target a large employer for allegedly violating its duties under the Employee Retirement Income Security Act, which requires companies to spend their employees’ money cost-effectively.

A Johnson & Johnson employee in February brought a suit that claimed the pharmaceutical giant mismanaged its prescription drug program, causing workers to vastly overpay for generic specialty drugs. Johnson & Johnson has said the case is "meritless."

Wells Fargo said it is reviewing the complaint.

“Wells Fargo provides an array of benefits to our employees, which are provided to support the health of our employees and their families,” a company spokesperson said in a statement.

In Congress

MORE VA FUNDING ON TAP? The Senate is considering fast-tracking legislation to address a budget shortfall at the VA, Sen. John Boozman (R-Ark.), who oversees the agency’s funding, told POLITICO's Caitlin Emma.

“There’s ongoing talks as to whether we can put together a deal right now or to do it when we get back,” said Boozman, the top Republican on the Military Construction-VA spending panel and a senior member of the Senate Veterans’ Affairs Committee.

The Senate leaves for August recess after this week. The VA has said that without Congress taking action by Sept. 20, veterans’ benefits could be in jeopardy by Oct. 1.

A bipartisan bill unveiled this week by Sen. Sherrod Brown (D-Ohio) would give close to $2.3 billion in extra fiscal 2024 funding for compensation and pensions, along with almost $597 million for readjustment benefits. Boozman said senators are working to see whether speedy passage of Brown’s bill is a possibility this week, a move that would require unanimous consent.

The PACT Act expanding benefits for veterans exposed to toxins that President Joe Biden signed into law two years ago has meant the VA is serving more veterans than ever.

HEALTH DATA

CAPTCHA CONFLICT — PointClickCare, which develops electronic health records for most skilled nursing facilities, was dealt a blow in a legal fight over health data-sharing.

Analytics firm Real Time Medical Systems sued PointClickCare earlier this year, saying that PCC implemented a protocol, known as CAPTCHA, that blocked Real Time’s access to medical records for thousands of patients.

Real Time uses the data to help prevent hospital admissions and other adverse outcomes and argued that PCC implemented CAPTCHAs — some unsolvable — for anticompetitive reasons. PCC contends it has to use the measure to protect patient data.

In a preliminary injunction Monday, a federal judge enjoined PCC from using “indecipherable” CAPTCHAs, saying that they prevented access to patients’ records and PCC violated information blocking rules under the 21st Century Cures Act.

Real Time said in a statement that it was “pleased” with the decision. PCC said that the ruling allows a “backdoor exception” to its security policies that “sets a dangerous precedent” for the industry and that it will appeal.

The bigger picture: HHS is implementing rules preventing health care organizations from stifling the flow of patient information. As that happens, the industry is trying to balance data security and access to data.

“This is exactly the kind of case/situation we are going to see more of,” said Kirk Nahra, partner at WilmerHale and co-chair of its cybersecurity and privacy practice. “We’re going to see the information blocking rule used to weaponize data collection … in both directions … We are likely to see massive confusion and uncertainty for the foreseeable future in this area.”

Penalties for providers found to have engaged in information blocking go into effect Wednesday.

At the White House

BIDEN PUSHES MORE ON FENTANYL — President Joe Biden will release a new national security memorandum Wednesday calling on government agencies and departments to increase cooperation, coordination and intelligence collection to crack down further on the supply of illicit fentanyl and other synthetic opioids, Carmen reports.

Biden is also pushing Congress to pass legislation to make it harder for the drug to end up in fake pills that have led to fatal poisonings among many people, including teens. More than 80,000 people in the U.S. died of opioid overdoses in 2023, many from fentanyl.

And, he asked Congress to set up a national pill press registry so law enforcement agencies can keep track of the equipment, which can be used to make fake pills. He also wants to impose new penalties on drug traffickers and smugglers and place fentanyl-related substances on the list of Schedule I drugs.

The latter has stalled on Capitol Hill amid opposition from top Democrats concerned that the legislation includes mandatory minimum sentences for possession of certain amounts of drugs, which they fear could exacerbate the incarceration of racial minorities.

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Names in the News

Diana Erani of the Massachusetts League of Community Health Centers is joining the National Association of Community Health Centers as chief operating officer in September.

Dr. Candice Chen has joined HHS’ Health Resources and Services Administration as acting associate administrator for the Bureau of Health Workforce. She was previously at the George Washington University Milken Institute School of Public Health.

The Sequoia Project has launched its workgroup aimed at bolstering interoperability for pharmacies.

WHAT WE'RE READING

POLITICO's Meridith McGraw and Daniel Lippman report on the head of the Heritage Foundation’s Project 2025 stepping down.

The Washington Post reports on a former organ transplant coordinator on trial related to the leak of late Supreme Court Justice Ruth Bader Ginsburg's medical records.

The Bipartisan Policy Center has a report on the future of the hospital-care-at-home program, in which it calls for a five-year extension.

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