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Overnight Health Care: Barrett says she's 'not hostile' toward Affordable Care Act | Nominee says she doesn't classify Roe v Wade as 'superprecedent' | Eli Lilly pauses study of COVID-19 treatment over safety concerns

Overnight Health Care: Barrett says she's 'not hostile' toward Affordable Care Act | Nominee says she doesn't classify Roe v Wade as 'superprecedent' | Eli Lilly pauses study of COVID-19 treatment over safety concerns
© Greg Nash

Welcome to Tuesday’s Overnight Health Care. 

Supreme Court Justice nominee Amy Coney Barrett faced questions in her Senate confirmation hearing about her views on the Affordable Care Act and Roe v. Wade but did not give much away. Mitch McConnellAddison (Mitch) Mitchell McConnellMcConnell: Battle for Senate 'a 50-50 proposition' 'Packing' federal courts is already a serious problem What a Biden administration should look like MORE is going to force a vote on "targeted" COVID-19 relief next week, and Trump has decided to pick a fight with Anthony FauciAnthony FauciOvernight Health Care: White House seeks to clarify press release claiming pandemic over | Fauci: COVID vaccine likely not available until next year Fauci: COVID-19 vaccine likely not available until next year Kushner told Woodward in April Trump was 'getting the country back from the doctors' MORE.

We'll start with Barrett:

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Barrett says she's 'not hostile' toward Affordable Care Act

Judge Amy Coney Barrett said on Tuesday that she is "not hostile" toward the Affordable Care Act (ACA) as Senate Democrats pressed her during a confirmation hearing about the implications for the health care law if she's confirmed to the Supreme Court.

Barrett defended her criticism of the Supreme Court's 2012 decision to uphold the Obama-era law as focused on the majority's reasoning in the case as opposed to the contours of the legislation itself.

"I think that your concern is that because I critiqued the statutory reasoning that I'm hostile to the ACA, and because I'm hostile to the ACA that I would decide a case in a particular way," Barrett said in response to questioning from Sen. Dick DurbinRichard (Dick) Joseph DurbinDemocrats warn GOP will regret Barrett confirmation Democrats brace for nail-biting finish to Senate battle Democratic Senate emerges as possible hurdle for progressives  MORE (D-Ill.). "And I assure you I am not — I am not hostile to the ACA, I'm not hostile to any statute that you pass."

President TrumpDonald John TrumpHillary Clinton responds to Chrissy Teigen tweet: 'I love you back' Police called after Florida moms refuse to wear face masks at school board meeting about mask policy Supreme Court rejects Trump effort to shorten North Carolina mail-ballot deadline MORE previously vowed to only nominate justices who want to overturn ObamaCare, and some Republican senators have openly attacked the law. 

Barrett's Republican supporters in the Senate have tried to tamp down criticisms of her approach to health care cases, dismissing suggestions that her appointment will lead to the ACA being overturned.

A group of 18 GOP state attorneys general and the Trump administration are trying to persuade the Supreme Court to invalidate the law in a case that will be heard Nov. 10, just a week after the election.

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Democrats worry that the ACA's opponents will get an edge in the case if Barrett is confirmed before then.

GOP senators last week voted down a bill from Senate Minority Leader Charles SchumerChuck SchumerHouse Democrats introduce bill to invest 0 billion in STEM research and education Graham dismisses criticism from Fox Business's Lou Dobbs Lewandowski: Trump 'wants to see every Republican reelected regardless of ... if they break with the president' MORE (D-N.Y.) that would have blocked the administration from funding the lawsuit.

Democrats fear Barrett will side with her mentor, the late Justice Antonin Scalia, who twice ruled against the health law.

Read more here.

Barrett says she doesn't classify Roe v Wade as 'superprecedent'

Supreme Court nominee Amy Coney Barrett said Tuesday that she did not consider Roe v. Wade, the landmark ruling establishing a woman’s right to an abortion, as a "superprecedent," meaning a decision so widely accepted that it is invulnerable to serious legal challenges that could see it overturned. 

Barrett said during the second day of her Supreme Court confirmation hearing that she defined superprecedents as cases that are “so well-settled that no political actors” or other people are “seriously pushing for its overruling.” 

“I’m answering a lot of questions about Roe, which I think indicates Roe doesn’t fall into that category,” Barrett said in response to a question from Sen. Amy KlobucharAmy KlobucharTrump announces intention to nominate two individuals to serve as FEC members Start focusing on veterans' health before they enlist Durbin says he will run for No. 2 spot if Dems win Senate majority MORE (D-Minn.) 

“Scholars across the spectrum say that doesn’t mean Roe should be overruled but descriptively it means it’s not a case everyone has accepted,” Barrett said.

Why it matters: Barrett has repeatedly declined to offer her opinion on various court rulings, including Roe v. Wade, arguing it would be a violation of judicial conduct. Still, some scholars say Roe v. Wade is not a superprecedent because of the lack of consensus as to the soundness of the decision. Among its critics are some Republicans on the Senate Judiciary Committee.

From Congress: Democratic suspicions over how Barrett might rule in abortion cases is heightened by the fact that conservatives, notably Sen. Josh HawleyJoshua (Josh) David HawleyTrump announces intention to nominate two individuals to serve as FEC members Murkowski predicts Barrett won't overturn Roe v. Wade Infrastructure, energy investments urgently needed to create U.S. jobs MORE (R-Mo.), demanded that President Trump nominate a judge who believes Roe was decided incorrectly. 

Read more here

Eli Lilly pauses study of COVID-19 treatment over safety concerns

Eli Lilly's late-stage clinical trial of a monoclonal antibody treatment for COVID-19 has been paused by federal regulators due a safety concern, the company said Tuesday.

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"Safety is of the utmost importance to Lilly. We are aware that, out of an abundance of caution, the ACTIV-3 independent data safety monitoring board (DSMB) has recommended a pause in enrollment," spokeswoman Molly McCully told The Hill in an emailed statement. 

"Lilly is supportive of the decision by the independent DSMB to cautiously ensure the safety of the patients participating in this study," McCully added. 

She did not provide any information about what caused the panel to recommend the pause or how long it might last.

The antibody treatment, which is experimental and has not yet been approved, is similar to one from Regeneron Pharmaceuticals that was given to President Trump while he was hospitalized for COVID-19. Trump has touted the therapy as a "miracle" and "cure" and credited it with his apparent recovery.

There's no evidence Regeneron's antibody therapy was responsible for Trump's improved condition, and antibodies are not a cure for COVID-19. He has called for both the Lilly and Regenron treatments to become available immediately on an emergency basis, and both companies have filed for an emergency authorization from the Food and Drug Administration. 

But the trial pause could complicate that.

Read more here.

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McConnell to force vote on 'targeted' coronavirus relief bill next week

Senate Majority Leader Mitch McConnell (R-Ky.) said Tuesday that the Senate will vote on a "targeted" coronavirus relief bill next week that will include more aid for small businesses hit hard by the fallout of the pandemic.

The Senate is out of town this week after an outbreak of the coronavirus among its members but will return to Washington, D.C., on Monday.

“When the full Senate returns on October 19th, our first order of business will be voting again on targeted relief for American workers, including new funding for the PPP," McConnell said in a statement, referring to the Paycheck Protection Program.

McConnell, during a stop in Kentucky on Tuesday, said the bill would be "highly targeted" and authorize around $500 billion. The bill, he noted, would include money for schools, hospitals and protections from coronavirus-related lawsuits. 

President Trump immediately undermined the targeted approach, tweeting on Tuesday: "STIMULUS! Go big or go home!!!" 

McConnell had been skeptical that there would be a deal on coronavirus relief before the Nov. 3 elections, and warned in Kentucky last week that the chamber's first "priority" would be confirming Judge Amy Coney Barrett to the Supreme Court.

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But he said on Tuesday that he believes there is time to squeeze in the coronavirus bill before turning to Barrett's nomination on the floor during the final week of October.

Read more here.

Trump criticizes Fauci amid disagreement over campaign ad

President Trump on Tuesday mocked top U.S. infectious diseases expert Anthony Fauci, suggesting his “prognostications” about the coronavirus have been inaccurate amid a standoff between the doctor and the president’s reelection campaign.

“Actually, Tony’s pitching arm is far more accurate than his prognostications,” Trump tweeted, referencing Fauci's wild first pitch at the Washington Nationals season opener in July.

The president also appeared to attribute a quote to Fauci that he never said publicly, describing how he and other health officials changed their position on mask usage early in the pandemic.

“ ‘No problem, no masks,’ ” Trump tweeted. 

“WHO no longer likes Lockdowns — just came out against. Trump was right. We saved 2,000,000 USA lives!!!” Trump continued. 

Backstory: Trump’s comments about Fauci come at a time of disagreement between the public health expert and the Trump campaign over the latter’s use of a clip of Fauci in a new advertisement.  Fauci said over the weekend that his remarks were taken out of context and that he did not consent to being featured in the ad. On Monday, he called on the campaign to take the advertisement down.

Read more here.

Supreme Court declines to hear South Carolina attempt to block Medicaid funding from Planned Parenthood

The Supreme Court on Tuesday declined to hear an appeal of a lower court ruling that blocked the South Carolina Department of Health from cutting off Medicaid funding to Planned Parenthood.

The high court’s rejection means that last year’s ruling from the 4th Circuit Court of Appeals will remain in effect, prohibiting the state from terminating Planned Parenthood as a Medicaid provider. 

While it takes four justices to approve a petition, the court doesn’t publish the vote totals and it declined to hear the case without comment. 

South Carolina Gov. Henry McMaster (R) signed an executive order in 2018 prohibiting abortion clinics from participating in Medicaid.

Why it matters: Medicaid, the health care program for the poor, generally doesn’t pay for abortions, but conservatives have long pushed to cut any state and federal funding flowing to the Planned Parenthood, which also provides an array of other health care services.

Read more here.

Facebook bans anti-vaccination ads

Facebook announced Tuesday that it will ban advertisements that discourage people from getting vaccines, another tightening of the platform’s rules on a subject it had previously avoided.

Any ads that paint vaccines as unsafe, useless or harmful will no longer be allowed.

“Our goal is to help messages about the safety and efficacy of vaccines reach a broad group of people, while prohibiting ads with misinformation that could harm public health efforts,” Facebook’s head of health initiatives, Kang-Xing Jin, said in a blog post. “We don’t want these ads on our platform.”

Facebook has previously slapped restrictions on vaccine-related hoaxes identified by global health organizations.

The challenge: Enforcing the new ban on anti-vaccination ads will be crucial. Tuesday’s policy update will not affect user-generated content about vaccines, including the private Facebook groups and Instagram pages that critics have said are some of the main contributors to the spread of conspiracy theories about vaccinations. Facebook will still allow ads that advocate against government policies around vaccinations.

For example, an ad currently run by the page The Patriot League calling for users to sign a letter opposing mandatory COVID-19 vaccines can remain on the platform.

Read more here.

Minnesota health officials connect COVID-19 cases to Trump, Biden campaign events

Minnesota health officials have connected more than two dozen coronavirus cases to Trump and Biden campaign events in the state.

Sixteen cases have been tied to a Bemidji outdoor airport rally the president hosted Sept. 18, according to state health officials. Of these, four were reported by protesters at the event, according to state infectious disease director Kris Ehresmann. Ehresmann added that not all of the cases were necessarily contracted at the event.

Officials said three more cases involved people who attended a Sept. 30 Duluth Trump rally, as well as another three tied to attendees of a Sept. 24 Minneapolis-St. Paul International Airport event where Vice President Pence appeared. At least one person attended both of those events, and cases tied to the Duluth event were part of the same household, according to Ehresmann.

The state also traced two cases to attendees of Biden campaign events, including one from a Sept. 16 Duluth event. While another was initially reported from a person who attended a Sept. 22 event in the Minneapolis suburb of Brooklyn Park, state officials told The Hill that the Biden campaign later said no event took place in Brooklyn Park on that day.

Read more here.

What we’re reading

A $42,112 helicopter ride: Coronavirus patients battle surprise medical bills (The New York Times)

Fauci: Trump’s rapid recovery ‘amplifies’ misunderstanding of COVID-19 (STAT)

First, a vaccine approval. Then ‘chaos and confusion.’ (The New York Times)  

Coronavirus cases are rising in U.S., sparking worries the next big wave has begun (Washington Post

State by state

True toll of coronavirus: Deaths are up by 27% in Louisiana. That's even higher than U.S. average. (NOLA.com)

Inside Disney’s ugly COVID reopening battle with California Gov. Gavin NewsomGavin NewsomWashington, Oregon, Nevada join California plan to review COVID-19 vaccine OVERNIGHT ENERGY: Ford, GM scientists knew in 1960s that emissions caused climate change: report | Testing for oil in Arctic wildlife refuge proposed for this winter | Biden's oil stance jars Democrats in tough races Electric vehicles see state-level gains MORE (Daily Beast

In a campaign frenzy, Trump heads to Iowa — where Covid-19 is currently ‘out of control’ (Stat News

The Hill op-eds

What if a vaccine does not work?

The abortion battle is set to get worse, regardless of who replaces RBG