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Democrats struggle to land punch on elusive Kavanaugh. As Supreme Court confirmation hearings spilled into the third day, Democrats were still struggling to land a punch on President Trump’s nominee, Brett Kavanaugh. Kavanaugh deftly handled questions challenging decisions he made as an appellate judge, and he joined the tradition of prior nominees by declining to take a clear position on hot button issues before the court. Under questioning, Kavanaugh said that a disagreement he had about allowing a teen under government custody to have an abortion was based on former rulings allowing the government to regulate abortion. “I also made clear that the government could not make the immigration sponsor as a ruse to try to delay her abortion past the time when it was safe,” Kavanaugh said, arguing that he did not state in his dissent that the girl did not have a right to obtain an abortion. Kavanaugh declined to say how he would rule in a lawsuit that seeks to throw out Obamacare’s protections for patients with pre-existing illnesses. “I can’t give assurances on specific hypotheticals,” Kavanaugh said when asked about the case Wednesday by Sen. Sheldon Whitehouse, D-R.I. “It would be inconsistent with judicial independence … to provide answers on cases or issues that would come before us,” he said.

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Kavanaugh questioned whether consensus exists on Roe v. Wade being ‘settled law,’ leaked documents reveal. Supreme Court nominee Brett Kavanaugh challenged the idea of there being a consensus among legal scholars that Roe v. Wade was “settled law of the land” when he was a White House attorney during the George W. Bush administration, according to documents from his tenure that were leaked to the New York Times. ” In an email written in 2003, Kavanaugh took issue with a line in a draft opinion piece that said “it is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.” Kavanaugh suggested deleting the phrase and wrote, “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so.” The email did not state whether that was his personal belief about abortion, or even whether he considered Roe settled law. During his confirmation hearings, which were in their third day when the report was published Thursday, Kavanaugh did not say how he would rule on Roe, the Supreme Court decision that made abortion legal nationwide, but said that the ruling had been ” reaffirmed many times.

Federal judge sympathetic to lawsuit to end Obamacare. A federal judge appeared to be sympathetic to the legal argument in the Obamacare case during the hearing. U.S. District Judge Reed O’Connor presided over the hearing Wednesday in Fort Worth, Texas, on a preliminary injunction to halt federal enforcement of the law while the lawsuit makes its way through the courts. If O’Connor grants it, insurers would no longer be required to include protections for people with pre-existing conditions in Obamacare plans. O’Connor did not immediately rule on the lawsuit’s motion for an injunction during the hearing. “It does seem for majority of cases, the Supreme Court says to look at the original legislation as enacted,” O’Connor said in Modern Healthcare’s recounting. “Why would I not? Let’s assume I don’t buy the argument it is still a tax and believe the mandate should fall and I get to severability, why wouldn’t I look at those cases?” O’Connor said he is expected to rule quickly on the injunction, despite calls from the Department of Justice to wait until after Obamacare’s open enrollment ends, which coincidentally will occur after the 2018 midterm elections this November.

Jon Kyl sworn into office, giving Senate GOP 51 votes. Sen. Jon Kyl, R-Ariz., was sworn in as the newest member of the U.S. Senate on Wednesday after he was picked to replace the late Sen. John McCain for at least the remainder of the year. Kyl returns to the Senate after leaving in 2012 following an 18-year tenure in the upper chamber. His appointment gives Republicans 51 voting members again for the first time since December, when McCain left Washington for cancer treatment. Senate Majority Leader Mitch McConnell, R-Ky., suggested that the upper chamber was not considering taking another swing at Obamacare soon. “The agenda for the month is already set. We have our plate full through the end of the fiscal year,” McConnell told reporters.

Senate unanimously passes bill banning pharmacy ‘gag clauses’ in Medicare. The Senate unanimously passed a bill Wednesday that would ban Medicare insurers from enforcing “gag clauses” that forbid pharmacies from telling customers about cheaper ways to buy drugs. The Know the Lowest Price Act is intended to help patients covered under Medicare to find out if their prescription would cost less if they were to pay for it out of pocket rather than through their insurance plan. The new rules explicitly apply to Medicare Part D, which pays for prescription drugs, and to Medicare Advantage, a healthcare plan managed by private insurers.

Energy and Commerce to hold hearing to markup bill to end pharmacy gag clauses, other health bills. The House Energy & Commerce Committee’s subcommittee on health will mark up six healthcare bills during a hearing on Friday, including a bill aimed at eliminating pharmacy “gag clauses.” The bill is a companion to the Senate version that passed on Wednesday. Another bill would improve delivery of care for children with complex medical conditions that get care from Medicaid, and a bill also seeks to clarify the authority of state Medicaid fraud and abuse control units to investigate patient abuse and neglect.

Facebook, Twitter open to changes in ’90s Internet immunity law. Top executives from Facebook and Twitter said Wednesday they would be open to discussing changes in a 1996 law that immunizes social media against lawsuits over posts by the platforms’ users, known as Section 230.. During a Senate Intelligence Committee hearing on Wednesday, Sen. Joe Manchin, D-W.Va., questioned Twitter co-founder Jack Dorsey and Facebook Chief Operating Officer Sheryl Sandberg about how much responsibility their firms take for sales of opioids such as heroin. Sandberg said the sale of pharmaceutical drugs on Facebook is “firmly against our policy,” but was cautious in committing to support revisions to current legal protections. “The safe harbor of 230 has been very important in enabling companies like ours to do proactive enforcement, look for things proactively without increasing our liability,” she told the panel. “So we’d want to work very closely on how this would be enacted.” Dorsey said the company is “certainly open to dialogue” around the bill.

Planned Parenthood plots $20 million ground game for midterm elections. Planned Parenthood’s political action committee will devote $20 million to mobilize voters across the country for the 2018 midterm elections, the group announced Wednesday. The group’s PAC, called Planned Parenthood Votes, said that the campaign would be the largest ground game effort ever for a midterm. It will target states that include Arizona, Minnesota, Georgia, Florida, Michigan, Ohio, Wisconsin, and Pennsylvania.

Hospitals sue Trump administration over drug discount program. A collection of hospital groups has re-filed a lawsuit against the Trump administration over its cuts to a drug discount program. The case was filed in the U.S. District Court of the District of Columbia by the American Hospital Association, the Association of American Medical Colleges, and America’s Essential Hospitals, as well as three hospitals. The hospitals say that the cuts violate the law, saying they are outside of the authority of the Department of Health and Human Services, which authorized the cuts. A similar lawsuit was struck down by the same court in July, after a judge ruled that it was filed prematurely because the $1.6 billion-a-year in cuts had not gone into effect.

Judge blocks Texas fetal burial law, attorney general vows to appeal. A federal judge has blocked a Texas law from going into effect that would force clinics to bury or cremate fetal remains after an abortion. The permanent injunction was issued Wednesday by U.S. District Judge David Ezra in Austin, Texas.

Rhode Island finalizes Obamacare rate hikes of up to 8 percent. Rhode Island finalized rate hikes of up to 8 percent for Obamacare plans for 2019, becoming the latest state to raise rates and blame the Trump administration. The state’s lead insurance regulator said on Wednesday that Trump administration efforts to undermine Obamacare have made it a “challenging” year. Critics have charged that the Trump administration has destabilized Obamacare’s insurance exchanges by expanding access to cheaper plans with fewer benefits and by zeroing out of the individual mandate’s financial penalty in 2019. The state “responded to these threats quickly to protect consumers as much as possible,” said Health Insurance Commissioner Marie Ganim in a statement Wednesday. Rhode Island has two Obamacare insurers: Blue Cross & Blue Shield and Neighborhood Health Plan. Blue Cross is seeking an average rate hike of 7.5 percent and Neighborhood Health 8.7 percent.

Judge rules FDA has to quickly implement graphic cigarette warnings. A federal judge ruled Wednesday that the Food and Drug Administration must quickly require graphic health warnings on cigarette packs per a 2009 law. U.S. District Court Judge Indira Talwani of the District Court of Massachusetts set a deadline of Sept. 26 to give the court a schedule for releasing a rule for public comment on the graphic warnings, according to a statement from the collection of public health groups that sued the agency to implement the rule. The eight groups that sued the agency include the American Heart Association, Campaign for Tobacco-Free Kids and American Cancer Society. “Judge Talwani agreed with the health groups that the FDA has both ‘unlawfully withheld’ and ‘unreasonably delayed’ agency action to require the graphic warnings,” the groups’ release said. The 2009 Family Smoking Prevention and Tobacco Control Act called for graphic warnings covering the top half in the front and back of a cigarette pack and in 20 percent of cigarette advertising. The FDA said in March 2013 it had planned to issue a new rule on the graphic warnings but hasn’t done so in more than five years.

More Democrats sign on to Baldwin’s resolution to end short-term plan expansion. Sen. Tammy Baldwin’s, D-Wis., resolution to overturn the expansion of short-term plans now has enough support to get a vote in the Senate. The legislation now has support among 44 senators and only 30 are needed to call a vote on the resolution. The supporters are the majority of the Democratic caucus and no Republicans have signed on to the resolution. Baldwin seeks to roll back a regulation that would expand the duration of short-term plans from 90 days to nearly 12 months.

RUNDOWN

Axios How a tech startup wants to connect cancer patients to treatments

Washington Post Hospitals are fed up with drug companies, so they’re starting their own

The Hill McConnell: No plan to try again on Obamacare repeal soon

Associated Press Report: Fentanyl deaths in Alaska quadrupled in 2017

Forbes Senate bill would legalize medical marijuana for military veterans

STAT News The reinvention of Bob Hugin: Amid anger over drug prices, a former pharma CEO makes run for Senate

New York Times Here’s a cheap way to fight drug misuse: Send doctors sharp letters

Reuters Nurse practitioners could be poised to fill primary care gap