Week in Review

IN THE NEWS

• A federal judge temporarily blocked Idaho from prosecuting physicians who refer patients for out-of-state abortions. Earlier this year, Idaho Attorney General Raul Labrador interpreted Idaho’s criminal abortion law as criminalizing medical practitioners’ referrals of patients to out-of-state abortion providers. The judge ruled that such interpretation chills medical providers’ First Amendment rights by forcing them to “choose between facing criminal penalties themselves and offering referrals and information about legal out-of-state medicinal services to their patients.”
• The Biden Administration proposed a rule to modernize environmental permitting procedures under the National Environmental Policy Act. The rule would reverse several of the policies that President Donald J. Trump had previously established. The proposed rule also includes provisions designed to improve the efficiency of the permitting process, clarify requirements for environmental impact statements, and improve agency coordination. The public may comment on the proposed rule until September 29, 2023.
• The National Highway Safety Administration proposed new fuel efficiency standards for passenger cars and light trucks. The proposal aims to reduce greenhouse gas emissions and the United States’ dependence on foreign oil. If adopted, the proposed standards would prevent more than 900 million tons of CO2 emissions, which is equivalent to removing over 233 million vehicles from the road between 2022 and 2050. Transportation Secretary Pete Buttigieg stated that “better vehicle fuel efficiency means more money in Americans’ pockets and stronger energy security for the entire nation.”
• Oklahoma Governor Kevin Stitt signed an executive order directing schools and state agencies to define “female” as a “person whose biological reproductive system is designed to produce ova” and “male” as a “person whose biological reproductive system is designed to fertilize the ova of a female.” The executive order also directs schools and agencies to provide single-sex restrooms and locker room facilities. Stitt stated that the executive order aims to “counter the regression of women’s rights in this country” and “provide clarity, certainty, and uniformity to administrative actions and rules.”
• The New Jersey State Board of Education approved new rules to promote equity in education. Under the new regulations, schools that choose to segregate sexual education classes will be required to do so by gender identity, not based on sex. The new rules also remove gender-specific language from state regulations. Separately, the rules require English language-learning students to take a yearly proficiency exam. Education Commissioner Angelica Allen-McMillan noted that the new rules are designed to ensure “that everyone has a voice, not that one voice is louder than another.”
• The Centers for Medicare and Medicaid Services issued a final rule that dictates how much money Medicare will pay to hospice providers. For the 2024 fiscal year, the payment rate to hospice providers will increase by 3.1 percent. Based on this percentage, the agency also raised the cap on payments to individual patients by about a thousand dollars. Finally, the rule doubles the payment rate penalty—from two percent to four percent—that is imposed on hospice providers who fail to comply with the agency’s hospice quality reporting standards.
• The U.S. Food and Drug Administration (FDA) approved a second over-the-counter naloxone nasal spray, meaning that the product will be available without a prescription. The drug, RiVive, reverses the effects of an opioid overdose. As FDA reported, overdoses killed 105,000 people in the United States in the past year. FDA Commissioner Robert M. Califf contended that RiVive’s approval “makes a critical tool available to help protect public health,” as does ensuring that similar naloxone products are available over-the counter.
• The U.S. Department of Health and Human Services launched the Office of Long COVID Research and Practice to lead the Biden Administration’s response to Long COVID, which refers broadly to the symptoms and conditions that continue or develop after an initial COVID-19 infection. The Office of Long COVID Research and Practice will coordinate the interagency implementation of the National Research Action Plan on Long COVID. The Office also will oversee clinical trials of potential treatments for Long COVID.

WHAT WE’RE READING THIS WEEK

• In an Urban Institute report, Elise Colin, research assistant at the Institute, and Bryan J. Cook, director for higher education policy at the Institute, argued that colleges will not be able to retain current levels of racial diversity without affirmative action. Colin and Cook asserted that using class-based affirmative action, which gives greater weight to applicants from less affluent socioeconomic backgrounds, is unlikely to offset the effect of banning affirmative action. Colin and Cook explained, however, that the elimination of legacy preferences may make the admissions process more equitable.
• In an article in the Notre Dame Law Review, Guha Krishnamurthi, professor at the University of Maryland Francis King Carey School of Law, and Peter N. Salib, professor at the University of Houston Law Center, argued that qualified immunity could shield officers who disarm dangerous individuals from liability. Krishnamurthi and Salib noted that U.S. Supreme Court’s Bruen decision constrains states’ ability to regulate guns. Krishnamurthi and Salib explained that even after Bruen, officers who confiscate guns from dangerous individuals may claim qualified immunity, which protects officers from liability unless a previous case “clearly established” that the officer’s conduct was unconstitutional.
• In a Brookings Institution paper, a team from Brookings Metro urged the Federal Emergency Management Agency (FEMA) to adopt new processes for declaring and responding to natural disasters that account for both acute events and the longer-term impacts of climate change. The Brookings Metro team explained that FEMA’s existing system for estimating damages due to natural disasters assumes that disasters are discrete and their costs can be estimated after the fact. According to the team, existing processes only authorize short-term relief and fall short of mitigating the chronic effects of climate change. The team proposed that FEMA adopt a reform that automatically authorizes the allocation of long-term recovery funding upon the declaration of a national disaster.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Allison K. Hoffman, a professor at the University of Pennsylvania Carey Law School, argued that giving healthcare consumers more market-based choices—such as what insurance plan to select and what medication to receive—leads to a less effective healthcare system. Hoffman contends that, rather than making small improvements to the current system, policymakers must make foundational changes. Although Hoffman acknowledges that this process may provoke political battles, she concludes that it is “the only way to build effective health policy.”