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State judge overturns Georgia abortion ban

If anyone can take on Ticketmaster, it's Taylor Swift fans. Presale tickets for Swift's tour went on sale today, and fans' outrage over a myriad of issues reignited talks on Capitol Hill about breaking up the monopoly.

In health news, Georgia's six-week abortion ban was ruled unconstitutional.

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. Someone forward you this newsletter? Subscribe here.

Judge says Georgia abortion ban 'unconstitutional'

A state judge on Tuesday found Georgia's six-week abortion ban to be "plainly unconstitutional" and has barred it from being enforced.

Fulton County Superior Court Judge Robert McBurney ruled that the ban, which has been in place since July, violated pregnant people's rights to privacy under the state constitution.

The Living Infants Fairness and Equality (LIFE) Act in Georgia bans abortions after a fetal heartbeat is detectable, generally around six weeks into pregnancy.

The bill had been ruled unconstitutional in 2019, but that decision was reversed after the Supreme Court overturned Roe v. Wade.

McBurney stated in his ruling that the LIFE Act must be considered under the legal environment that existed when it was enacted.
"At that time — the spring of 2019 — everywhere in America, including Georgia, it was unequivocally unconstitutional for governments — federal, state, or local — to ban abortions before viability," McBurney's ruling said.

A provision in the LIFE Act that imposed criminal penalties on physicians who did not report abortions performed when fetuses had detectable heartbeats but were not viable was also unconstitutional at the time it was enacted, McBurney determined.

Ultimately, he found "no legal basis" for Georgia to bar abortions after six weeks and ruled that neither the state government nor local government can enforce a post-heartbeat ban on abortion.

McBurney's ruling did allow to stand a provision that requires doctors to determine if a heartbeat is present before performing an abortion. While it adds a step to the abortion procedure, it does not prevent it from being performed, and the Georgia judge determined it was not "unduly burdensome."

What's next: Georgia appealed to the state Supreme Court. The ruling also puts pressure on the legislature to act, whether it's to pass abortion restrictions or protections.

Read more here.

A MESSAGE FROM PHRMA

Data show the 340B program may be driving up costs for some patients. 340B hospitals prescribe patients more expensive medicines than non-340B hospitals on average. It's time to fix the 340B program.

White House seeking billions in COVID funding

If at first you don't succeed...

The White House is asking Congress for close to $10 billion in emergency health funding.

More than $9 billion would be intended toward COVID-19 vaccine access, next-generation vaccines, long-COVID research and more.

"While COVID-19 is no longer the disruptive force it was when the President took office, we face the emergence of new subvariants in the United States and around the world that have the potential to cause a surge of infections, hospitalizations, and deaths, particularly as we head into the winter months," the White House wrote in a letter transmitted to lawmakers from the Office of Management and Budget.
About $750 million would be spent on efforts to control the spread of monkeypox, hepatitis C and HIV.

The session of Congress before newly elected members take office is likely one of the last opportunities the Biden administration has to receive additional COVID-19 funding, as Democrats still control both chambers.

While Democrats will retain control of the Senate next year, it appears likely that Republicans will control the House.

The White House has been calling for additional COVID-19 funding since last spring, when the administration first requested $22.5 billion from Congress.

"We're going to be very clear with Congress, as we have been, about what happens if they don't give us this funding," an administration official said.
The federal government has said it anticipates running out of money to purchase and distribute vaccines as soon as January and expects its supply of therapeutics to be depleted throughout 2023, depending on the specific product.

Read more here.

FAUCI BRUSHES OFF MIDTERM RESULTS, GOP PROBE THREAT

Anthony Fauci says he's not breathing a sigh of relief that Republicans — who vowed to investigate him if they retook the Senate — didn't win the majority in the upper chamber, because he has "no problem at all" testifying before Congress.

"I have nothing to hide at all, despite the accusations that I'm hiding something," Fauci, the nation's leading infectious diseases expert and President Biden's chief medical adviser, told ITK at a gala in Washington over the weekend.

GOP plans no more: Sen. Rand Paul said earlier this year that he planned to subpoena Fauci's records if the GOP retook the Senate in the midterm elections, as the Kentucky Republican stood to become chairman of the Senate Health Committee.

Asked on Saturday — shortly before Democrats were projected to hold on to their narrow Senate majority following Sen. Catherine Cortez Masto's (D) win in Nevada — if he would consider Republicans not winning control a "relief," Fauci replied, "It doesn't matter to me how the elections go."

"If they have oversight hearings, I'm happy to cooperate," said the longtime director of the National Institute of Allergy and Infectious Diseases, who announced earlier this year that he's stepping down from his government role next month.

Read more here.

HHS ANNOUNCES WINNERS OF MASK INNOVATION CHALLENGE

The Department of Health and Human Services (HHS) on Tuesday announced two winners in its mask innovation challenge launched more than year ago, with the agency declaring the endeavor a success due to the new designs.

In March 2021, the Biomedical Advanced Research and Development Authority launched a contest to develop "the next generation of masks." Contest participants stood to win hundreds of thousands of dollars if their designs were chosen.

The winners: HHS on Tuesday announced that the masks developed by Airgami and ReadiMask were chosen as the ultimate winners of the government competition. Both masks have already been made available on the market, though Airgami is not currently accepting orders due to high demand.

Both masks were found to provide filtration greater than 95 percent, HHS said in a statement. The agency cited the unique features of the masks, including Airgami's origami-inspired design that increased the surface area of the filter material and ReadiMask's use of adhesive to provide a close fit.

"Overall, the Mask Challenge was a success; it supported new channels for innovative manufacturing lines, new patterns, folds, and materials to improve performance, new ways to increase the fit of masks, and the availability of masks for children and adults alike," HHS said.

Read more here.

A MESSAGE FROM PHRMA

Data show the 340B program may be driving up costs for some patients. 340B hospitals prescribe patients more expensive medicines than non-340B hospitals on average. It's time to fix the 340B program.

Walmart agrees to $3.1B opioid settlement framework

Walmart agreed on Tuesday to a framework that would have the company pay
$3.1 billion to settle a nationwide lawsuit brought by states, tribes and municipalities over its role in the opioid crisis.

Walmart's agreement follows similar announcements earlier this month from CVS and Walgreens, which agreed to pay about $5 billion each to settle the lawsuits.

The settlement framework does not include any admission of liability, and Walmart said it "strongly disputes" allegations the company failed to appropriately oversee the dispensing of opioids at its stores.
Still, the company said it believes the settlement framework "is in the best interest of all parties and will provide significant aid to communities across the country in the fight against the opioid crisis, with aid reaching state and local governments faster than any other nationwide opioid settlement to date, subject to satisfying all settlement requirements."

What happens now: Pennsylvania Attorney General Josh Shapiro (D), who co-led a coalition of attorneys general in the negotiation, said the agreement is now being sent to other states for review and approval.

Shapiro's office said the parties are optimistic that the settlement will gain the support of the required 43 states by the end of 2022, allowing local governments to join the deal during the first quarter of 2023.

Read more here.

WHAT WE'RE READING

Get ready for a drug importation revival (Axios)
FDA warns of rise in reports of child poisonings linked to cough medicine (NBC News)
Medicare plan finder likely won't note new $35 cap on out-of-pocket insulin costs (Kaiser Health News)

STATE BY STATE

Kentucky Supreme Court considers blocking key abortion bans in hearing (The Courier-Journal)
California reports its first child under 5 to die from flu and RSV this season (CBS News)
A Florida fund for injured kids raided Medicaid. Now it's repaying $51 million (ProPublica)

THE HILL OP-ED