[Editor’s note: This transcript was generated using both transcription software and a human’s light touch. It has been edited for style and clarity.] 

Julie Rovner: Hello and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF Health News, and I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, Jan. 23, at 10 a.m. As always, and particularly today, news happens fast and things might have changed by the time you hear this. So, here we go. 

Today we are joined via videoconference by Rachel Cohrs Zhang of Stat News. 

Rachel Cohrs Zhang: Hi, everybody. 

Rovner: Alice Miranda Ollstein of Politico. 

Alice Miranda Ollstein: Hello. 

Rovner: And Rachel Roubein of The Washington Post. 

Rachel Roubein: Hi. 

Rovner: I’ll do my best to keep the Rachels straight. Later in this episode, we’ll have my interview with longtime Hill staffer Rodney Whitlock, who will help explain budget reconciliation, which is the process by which congressional Republicans are going to try to enact most of President [Donald] Trump’s health agenda later this year. But first, the news — and it is breaking fast, as I said. 

President Donald Trump was sworn in at noon on Monday and as predicted hit the ground running with a sheaf of executive orders. Many of those have to do with health policy, and we’ll get to them in a moment. But first today, it appears the new administration is taking the tightest hold ever on the workings of the sprawling Department of Health and Human Services, creating chaos, whether on purpose or not. 

Now, every new administration puts a moratorium on what it tells the public as new political appointees integrate themselves into the everyday workings of agencies like the National Institutes of Health, the Centers for Disease Control and Prevention, and the Food and Drug Administration. But this administration has gone considerably further than ever before, literally grinding to a halt long-scheduled scientific meetings, scientific journal publications including CDC’s Morbidity and Mortality Weekly Report, and canceling travel until further notice and basically any communication with the outside world. 

What do we know about what’s happening here? Is this just the sort of government-wide external communication stoppage, or does it have to do with the administration trying to get rid of efforts at diversity, equity, and inclusion? 

Roubein: My colleagues at The Post, Dan Diamond, Lena Sun, and I dug into this on Tuesday and also Wednesday and continuing this morning, and basically our sense of it kind of early on Tuesday was that Stefanie Spear, an HHS deputy chief of staff, key [Robert F.] Kennedy [Jr.] ally, had instructed agency staff Tuesday morning to do this pause on external communications. There was then later a memo that outlined it. In general, we talked to nearly a dozen people, and some of them acknowledged that, yes, it’s expected, some review during a presidential transition so that the new incoming team can understand the vast flow of info to health agencies. But they also said they were confused by the pause’s scope, and as you mentioned, yesterday there were council meetings, travel, etc., paused, then compounded on some of that confusion. 

Rovner: Yeah, I mean, basic things like study sections, which is when they review grants. I mean, this is basically stopping a $47 billion agency, the NIH I’m talking about now, in its tracks. 

Ollstein: I think that if this continues, you’re going to see a lot of pressure on members of Congress. Even a lot of conservative Republican members of Congress have been very protective of funding for scientific research because of how many jobs it supports in their districts. I mean, we’re talking about hundreds of thousands of jobs, if not more, around the country that are contingent upon this federal funding continuing to flow. 

So I think I’m already starting to see within the scientific community calls for reaching out to members of Congress talking about how much of this investment flows to their district specifically. So we’ll see if that resonates, if these members of Congress are willing to stand up to the Trump administration on things like this. We just don’t know yet. 

Rovner: Yeah, I mean this is every research university, every research institution in the country, effectively. Again, we don’t know how long it will last. Some of it I think goes through Feb. 1, but some of it is still open-ended. 

It’s still unclear when those political appointees are actually going to get to HHS, at least at the top. The Senate Finance Committee has finally set a date for a confirmation hearing for Secretary-designate Robert F. Kennedy Jr. It’ll be next Wednesday, Jan. 29. The courtesy hearing at the Senate HELP [Health, Education, Labor, and Pensions] Committee is tentatively scheduled for the next day — only the Finance Committee actually votes on this nomination. But that nomination remains in a bit of trouble, yes? 

Cohrs Zhang: I don’t know that it’s in any more trouble this week than it was last week or last month. I think there have been more active advertising and outreach by groups that are concerned about his nomination, certainly in the public sphere. But again, these are largely Democratic-backed groups. We have seen Mike Pence’s organization doing some advertising around RFK Jr.’s lack of a— 

Rovner: His lack of a pro-life. 

Cohrs Zhang: Yeah, lack of a pro-life record. But I think as we’ve been in the hallways and talked to senators who are generally very concerned about abortion and reproductive rights and those kind of issues, they have not voiced concern about his nomination. They have met with him. They’ve had generally positive things to say. And again, I think part of it’s that they don’t want to get out ahead of themselves before these hearings. But I think there are certainly some Republican senators who do remain concerned about his views on vaccines and public health and just some of the levers that he could use on that front. And so it’s not a sure bet by any means, but I don’t know that there’s been a substantial change in the past week as to whether he gets confirmed or not. 

Rovner: One thing we did see this week were the financial disclosures, which include some interesting things. Alice, is that what you wanted to talk about? 

Ollstein: No, I— 

Rovner: Or, no, you want to mention something else? 

Ollstein: Yeah, quickly just to highlight something Rachel said, that we really have not seen widespread organized opposition to Kennedy coming from the anti-abortion movement. Mike Pence’s group is kind of out on a limb by themselves on this one. You have not seen the other big groups join them in opposing his nomination. And even though some of them do share concerns privately, they’re taking a wait-and-see approach. They want to see what he says at his hearing, like Rachel mentioned. He’s been telling Republican members of Congress what they want to hear on the abortion front, promising to do X-Y-Z to impose restrictions through different HHS policies. 

So a lot of people in the anti-abortion movement see Kennedy as someone who can be reached and influenced and isn’t a hardcore abortion rights advocate. And his record is all over the place. He’s basically taken every position possible. So it’s— 

Rovner: Like Trump. 

Ollstein: Yeah, honestly, a lot of fluidity there. And so it becomes sort of a Rorschach test where people point to the part that they want to make an argument about. 

Rovner: Any impact from some of these financial disclosures about the fact that he continues to get money from a lawsuit against Merck’s HPV vaccine, among other things? I mean, so he’s got a vested interest in that lawsuit going forward at the same time he’ll be in charge of the FDA. 

Cohrs Zhang: I think from just the feedback that we’ve heard, these agreements are very convoluted, they’re complicated, and I think that this is kind of a case that we haven’t really seen before. I think this was kind of the first disclosure of how he could try to get around some of these conflicts that he obviously has. And I think he is going to divest in a large number of those things. And the people that I’ve talked to who have served in prior administrations who are lawyers say he may have to recuse himself from some of these issues. But the ethics agreement, the wording was pretty vague. I do expect certainly some members of the Senate committees that he’s going to be appearing before to ask potentially for commitments on some of these ethical issues or to explain his position a little bit more. 

But I think what we’re seeing with the Merck and HPV vaccine is where he’s involved in referring clients to the law firm, and that’s going to stop going forward. He’ll have to divest from any case that involves United States government directly or these vaccine programs directly. But that lawsuit itself is kind of a post-program lawsuit where people have gone through, they’ve claim they’ve been injured, they’ve gone through the government program already, they’ve received their decision, and now they’re taking it further into court. So it certainly is going to be a live issue, absolutely expected to come up. But in terms of actually operating a very large agency, this Vaccine Injury Compensation Program is a, relatively, a very small part of what they do. 

Rovner: All right, well, back in the White House, as I mentioned, the new president’s executive orders issued Monday covered everything from immigration, to renaming the Gulf of Mexico as the Gulf of America, to ordering federal workers back to the office, to pulling the U.S. out of the World Health Organization. 

Now, most of these orders don’t carry the force of law. They direct federal agencies to start the process of carrying out these changes, and most could and will, and some already are, being challenged in court. But they certainly signal a dramatic change of direction the Trump administration intends to take. Let’s start with drug prices. This is an issue that Trump has been — another issue Trump has been — all over the place on. He revoked [President Joe] Biden’s executive order to have HHS look at ways to reduce out-of-pocket drug spending. That doesn’t really do anything, but does it suggest anything about whether the new administration will pursue the next round of Medicare drug price negotiations on the 15 drugs that the Biden administration named just, oh, what, a week or two ago? 

Roubein: The Biden administration, they put out very clearly, right before the change of administration, their Medicare drug negotiation list. And on a call with reporters, a lot of people asked, OK, do you expect the Trump administration to change these drugs that you have listed? And their belief is that it was pretty firm in statute the data that they needed to look at, and they didn’t expect an actual change in those drugs, which include the major weight loss drugs. So people had been really highly anticipating this second round. 

Rovner: At least Ozempic and Wegovy, that one, not all of the weight loss drugs. I don’t think I realized until I started getting into this that even if the administration doesn’t pursue the negotiations, there would still be caps on the prices of these drugs, right? I mean, that’s written into the statute. 

Cohrs Zhang: The statutory deadlines are pretty nonnegotiable. I guess there could be some lawsuits against HHS maybe for not implementing the program on schedule, but it is pretty formulaic for how these steps have to happen. I don’t know that the caps automatically go into effect if the negotiation process isn’t happening. We are kind of in uncharted territory here, testing the boundaries of the program. But I don’t know that the CMMI [Center for Medicare and Medicaid Innovation] demonstrations that we saw, I wouldn’t read that as an indicator of how they plan to proceed on negotiation, given it’s kind of like a win handed to Trump on a silver platter. So I think we’ll have to watch and stay tuned. 

Rovner: I mean, that’s sort of the mysterious part of all of this is that a lot of things that were set in motion by the Biden administration that haven’t happened yet and will happen seemed to be something that Trump could just say, “Hey, look, it happened on my watch, therefore I get credit for it.” Rachel, you’re nodding. 

Cohrs Zhang: Yes, absolutely. We’ve seen this — the Biden administration with surprise billing laws, too. That was passed under Trump and kind of was more implemented through Biden. So it’s not unheard of. This strategy happens every time. 

Rovner: Well, on the Affordable Care Act, Trump is effectively ordering the rollback of some of the things that the Biden administration did to increase enrollment, like boost outreach and lengthen enrollment periods. What else are we expecting on the ACA front, or at least administratively? I know that the big legislative push is going to be on whether or not to extend the additional subsidies that were created under the Biden administration. But do we think that Trump’s going to launch another effort, broadside, on the Affordable Care Act to make it not work, or might he just let it go this time? 

Ollstein: I think that this past week has shown that health care is not a priority for this administration. So yes, they are moving to try to roll back a lot of Biden initiatives on this front, but they aren’t really proposing anything new or anything very sweeping. And so I think, like we saw in his first administration, there is a lot they could do administratively to sort of chip away at it and make it less successful in various ways. But I think also the longer the law is in place, the more baked into the health care system it is, the more popular it’s become, the more people who are enrolled. Way more people are enrolled now, and particularly in red states, than were enrolled when he first took a whack at it in 2017. And so I think the sort of, like you said, broadside will be more difficult this time around and doesn’t seem to be on the front burner anyway. 

Roubein: I think for some of this past is prologue when obviously in 2017 Republicans did not repeal the ACA, and then the Trump administration through regulation, which took time, tried to put their stamp on it, like with changing rules to make short-term health plans more accessible. So that all is longer and it’s kind of more in the weeds, but I think that’s what we should look out for. And then the other big thing being if Congress, a Republican-controlled Congress, extends the Affordable Care Act enhanced subsidies, that’ll be a big fight for 2025. 

Rovner: And of course if they go after Medicaid, which people keep forgetting is a big piece of the Affordable Care Act, was the expansion of Medicaid. Rachel C., you wanted to say something. 

Cohrs Zhang: Yes, I just wanted to flag that Theo Merkel, who worked in the last White House and worked on a lot of these ACA rules and plans and thinks in a very sophisticated way about health care from a conservative perspective, is going back to the White House. So I think we may see some of these efforts that may not capture headlines in the same way and they may be kind of wonky, but they definitely can have a measurable effect on price transparency, on the ACA, on some of the way that these markets work. So I wouldn’t expect it to be something that Trump is talking about from a podium, but I think behind the scenes I am expecting some creative thinking on these things. 

Rovner: So speaking of things that Trump has not made a priority, he has not done anything explicitly about abortion with these executive orders. That’s a little bit surprising. And he’ll actually be in California touring the fire damage on Friday when the annual March for Life comes to D.C. And we will talk more about abortion and reproductive health shortly. But one of the executive orders, called, quote, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” could have some pretty far-reaching consequences. Right, Alice? 

Ollstein: Yes, absolutely. So the order is very sweeping, and it’s basically getting rid of any federal recognition of trans or nonbinary people on all fronts. And so this will impact what documents people are able to get. It will influence what services they’ll be able to access in terms of shelters that are gender-segregated. People who are incarcerated, if they’re federally incarcerated, this gets rid of their right to gender-affirming care while incarcerated, so it’s sort of forcibly detransitioning people essentially who are in custody. Yeah, I think that this is sort of going under the radar but is going to be one of the most impactful orders they’ve done so far. 

Going back to the abortion front just for a second, I, too, thought it was very notable that they had nearly 80 Biden regulations on a list on Day 1 they were getting rid of and not a single one pertained to abortion. And I’ve been hearing from the anti-abortion community a lot of frustration and hope that he’ll still do some of these things, but he’s been the first Republican president in decades and decades to not do some of these things on Day 1 or Day 2, things like the Mexico City policy, changing the Title X program domestically. So I’m hearing from anti-abortion activists. They’re sort of asking each other How patient should we be? or How much should we push back and criticize being sort of left off the agenda? 

Rovner: Some sharp-eyed analysts also noted that the language of the executive order defines male and female as starting at conception, which in addition to being biologically not quite accurate — you cannot differentiate embryos as male or female until they are several weeks old — it also introduced the concept of personhood into the federal lexicon. Or is that reading too much into it? 

Ollstein: Yeah, I did see a lot of jokes about how under federal law everyone is a woman now because of defining sex at conception rather than at birth. I mean, we see tons of medically inaccurate language in tons of laws all the time. So it is unclear whether this is a personhood gambit or just a misunderstanding. I think obviously this is going to be challenged in court, and I’m curious if either the challengers or judges zero in on that sort of personhood-y language and try to make anything of it. 

Rovner: Well, there are a lot of judges that would like to create personhood, so I guess it depends where these things end up in court. 

Moving on to reproductive health. As I mentioned earlier, President Trump has so far been pretty mum on this issue, but the new Congress has not. Both the House and the Senate have teed up something called the Born-Alive Child Protection Act, which basically restates law that a baby born alive should receive needed medical care and that infanticide is illegal. The Senate voted yesterday, Wednesday, which was also the 52nd anniversary of the now-defunct Supreme Court ruling Roe v. Wade, and it failed to get the 60 votes needed to block a filibuster. So it’s not going to become law, at least not right now. But passing the bill was never the actual point of this exercise, right? 

Ollstein: Well, what’s fascinating is — so they’ve taken messaging votes on this exact bill multiple times before. What’s fascinating to me is that given that it is more or less a messaging vote, why they chose this policy rather than something more sweeping that the anti-abortion people would like to see, like a gestational ban or restrictions on abortion pills. This is seen as sort of the lowest rung. It is important for the anti-abortion movement and they’re touting the vote, but it is a lower ambition than some of the bills we’ve seen Congress take up in the past. 

I think it is interesting that we’re not going to get a chance to see how Trump would deal with this if it passed. I think there’s going to be a lot of interesting tensions around his promise on the campaign trail to not meddle in abortion from the federal level, whereas Congress could send him things that do that and he’ll have to make a decision either way. 

Roubein: We kind of saw the same playbook in 2023 when Republicans controlled the House and there was thinking, because that was the first year after Roe v. Wade had been overturned, that maybe they would bring up something like a 15-week ban and there was talk of that, and then they ended up not doing that and bringing up this legislation that is being voted on. And that’s been a signal to many that this is not something Republicans want to take a vote on, which is a ban it at a certain point in pregnancy. 

Rovner: Well, and I think this low-hanging fruit shows what we’ve known for a long time, which is that neither side has a filibuster-proof majority on anything that has to do with abortion, either for abortion rights or against them. I mean, this is why all the people who were complaining that the Democratic Congress should try to pass some kind of assurance of abortion rights, codify Roe v. Wade, there have never been the votes for that. 

Cohrs Zhang: They did try, and it fell short. 

Rovner: They did try, yes. They did try, and it didn’t happen, because neither side has the votes and neither side has actually had the votes since Roe v. Wade passed. In the early 1980s, the Republican Senate under President [Ronald] Reagan tried to pass constitutional amendments. They didn’t have the votes for that, either. Both sides have sort of struggled with this for decades now, and I think it looks like the struggle will continue. 

Well, speaking of the struggle continuing, in news you might’ve missed, just before leaving office last week, President Biden issued a statement recognizing the ratification of the Equal Rights Amendment. Talk about things from the 1980s. This is actually from the 1970s. This is a very long-running saga, since Virginia became the 38th state to vote to ratify the amendment in 2020. Now, Biden recognizing the amendment as law is a big deal, but not the deal that would actually make it happen, right? Or is it now a part of the Constitution? What do we know about the status of the Equal Rights Amendment? 

Ollstein: So what President Biden did doesn’t have any immediate effect. It will have to be litigated, basically. He’s putting out his theory that it is part of the Constitution, but it will take people suing under it and citing it to force courts to determine whether or not they agree. And I’ve been hearing a lot of frustration from progressives that he didn’t kick off this entire process years earlier. He could have had his solicitor general out in court arguing for this. And we know how long these court battles take, years and years and years. And so there’s a lot of frustration that he didn’t kick off that process sooner so that people could have an answer by this point, potentially. 

I talked to some folks in the White House behind the scenes who were saying: Look, the president’s view on this has had to evolve. It was influenced by the American Bar Association coming out with a statement saying they view it as ratified. They were explaining that Biden was always a supporter of the ERA but wasn’t sort of clear on what he could do and what the status of the law is. And so it is interesting that you have, in the wake of this announcement, folks on both the left and the right saying: This is theater. This doesn’t really do anything. 

Rovner: I guess what would’ve done something is, I think, that the national archivist has to publish it, which is what makes it an amendment to the Constitution, what marks it as ratified. 

Ollstein: Yes, but you have— 

Rovner: The archivist said she can’t do that, because the Justice Department has an opinion that Virginia happened too late. I mean, that’s what the fight is about. Has it, quote-unquote, “expired,” or because the period that was supposed to end was only in the preamble and not in the language of the amendment, does the amendment stand? And that’s the legal fight, right? 

Ollstein: Right. And so you have folks like Sen. [Kirsten] Gillibrand who’ve been really out in front on this saying that that is a mere technicality. The archivist works for the president. The president did her job for her was the line I was getting. And the archivist taking that particular action doesn’t really matter. It’s sort of just a technicality. Other people disagree and say that because she didn’t take that step, none of this means anything. And so, again, this will have to be hashed out in court over years, likely. 

Rovner: And just to be clear, the reason we’re talking about this in the sort of reproductive section of the podcast is that if the Equal Rights Amendment were actually part of the Constitution, it would basically create a constitutional right to abortion, yes? 

Ollstein: That is what some people argue. Again, this’ll be fought over in court for years to come. But the basic argument is, yes, if there is an amendment in the Constitution for women’s equality under law, then, some people argue, being denied the right to access abortion when men are not denied the right to access their health care services, that is an actionable discrimination. And one thing that’s interesting to me is that both progressives and conservatives view the ERA this way, and you had anti-abortion groups waging years-long campaigns against it, citing the potential for its use to expand abortion access. 

Rovner: Wow. All right, so while we are on the subject of the Supreme Court, down in Texas, Judge Matthew Kacsmaryk, he of the controversial case aimed at canceling the FDA’s approval of the abortion pill mifepristone, has officially revived the case after the Supreme Court ruled its original plaintiffs didn’t have standing to sue. Now the case will be carried forward by attorneys general of three conservative states. Now what happens? 

Roubein: This case would be prohibiting telehealth prescriptions for mifepristone, changing when people can use mifepristone in pregnancy from the current 10 weeks to the previous seven weeks. This would not be revoking the original approval in 2000 of mifepristone. 

Rovner: Which is what Judge Kacsmaryk originally said they could do and was overruled by — even the conservative 5th Circuit said, Yeah, maybe you can roll back the expansion of availability, but you can’t cancel the actual approval, although we will wait to see what the Trump administration would get, somebody installed at the FDA decides to do on that score. 

Also in Texas this week, Republican Lt. Gov. Dan Patrick I guess unexpectedly called for the state to amend its abortion ban to make clear that women with life-endangering pregnancy complications can have an abortion if needed. Alice, this has been the subject not just of debate but of a lawsuit that went to the Texas Supreme Court. How big a break is this with a leading Texas Republican? And could something actually happen during this year’s legislative session? 

Ollstein: So I mean, looking across the country, we have seen here and there Republicans coming out and saying that, The law we passed banning abortion is having consequences we did not intend. And so some have moved to add more exceptions, singling out things like ectopic pregnancies. Some have changed how people can be prosecuted under these bans, moving from affirmative defense, where we prosecute a doctor and then the doctor can exonerate themself after the fact, to having a real exception for certain medical instances. 

But we’ve seen in a lot of states, even when prominent Republicans come out and say, We need to do something — people are dying, we’ve seen things not happen and a real resistance to changing these laws from lawmakers, from anti-abortion organizations that are very influential in these different states. And so I am not sure that this is necessarily a huge breakthrough, just based on what we’ve seen in other states, because we’re also seeing at the same time calls for making a lot of these laws even stricter. And so we’re seeing both. We’re seeing both people calling for exceptions and loosening some things, and we’re seeing calls for tightening some things as well. 

Rovner: The fight rages on. Well, finally this week I want to note the passing of Cecile Richards, who was a longtime leader in the abortion rights movement, including a dozen years as head of Planned Parenthood. She was a daughter of the late Texas governor Ann Richards and the mother of former press secretary to then-Sen. Kamala Harris, Lily Adams. Even during her fight against an aggressive brain cancer, Cecile continued to try to work to advance the cause of reproductive health for women. She was respected, I think, by both sides. 

All right, that is the news for this week. Before we get to our interview, I have a quick correction. Last week I got the first name wrong of the new governor of West Virginia, which is doubly embarrassing because I have known him for more than two decades. It’s Patrick Morrisey. All right, now we will play my interview with Rodney Whitlock, and then we will come back and do our extra credits. 

I am so pleased to welcome to the podcast Rodney Whitlock. Rodney, who has worked as a senior staffer in both the House and the Senate, is a veteran of many, many pieces of health legislation, both large and small. He’s currently vice president at McDermott Plus, a D.C. health policy consulting firm, and one of the people I still turn to when I get confused about some piece of congressional minutia. He’s also played “What the Health?” host at various live events around Washington and done it very well. Rodney, thank you for being here as a guest. 

Rodney Whitlock: It is absolutely a pleasure to be with you, friend. I am looking forward to it. 

Rovner: So I have asked you to come help me explain as briefly as we can the congressional budget process and budget reconciliation, in particular. President Trump and congressional leaders keep talking about a, quote, “big, beautiful bill” or possibly two “big, beautiful bills” into which they would like to pour most of the president’s agenda. But there’s an entire process to go through before we get there. So let’s start at the beginning. What’s the annual budget resolution? How does it work, and why do we need it? 

Whitlock: Well, that’s an interesting question, since we haven’t had one around here forever. It’s like we have to go, “Oh, what is that again?” All right. So where we start is this, that Congress has the ability through the budget resolution process to create instructions, we call them reconciliation instructions, that allows them to make significant changes without facing a filibuster in the Senate. And so the annual budget resolution process, which produces the appropriations, etc., we’ve gotten to the point that we barely pay attention to when that occurs, because it’s not really an enforceable, or something you used to watch when you and I were much younger, as the regular process, what we would have called regular order. It only becomes interesting when they say, OK, but now we’re going to do it and we’re going to do it in unified government through budget reconciliation, which means now we’re playing with majority rules in both bodies, which allows for them to make significant changes, as we saw in ’21-’22 when Democrats are in control. Republicans tried in 2017. Democrats succeeded through the ACA in 2009-’10. So that’s where we are. 

Rovner: And just to be clear, the budget resolution is supposed to set the terms of spending both in the annual spending bills, the appropriations, and in spending that is not subject to annual appropriations, because it’s mandatory and it goes on unless Congress does something to stop it. So you don’t really need a budget resolution to do the spending bills, even though they’re supposed to set what we call the top line, the overall number, which is why the spending bills happen no matter what. But you do need a budget resolution to do reconciliation, right? 

Whitlock: That is correct. Because that allows the Senate — listen, the House has to do their job. I don’t mean to be disrespectful of the place I spent 10 years in, but I spent 11 years in the other place, so I can be disrespectful to a degree. The House, they have to do their part of it, but the game, the rules, why it matters is all about the Senate. 

Rovner: So what typically goes into a reconciliation bill as opposed to what goes into the annual spending bills? I think that’s where people get really confused. 

Whitlock: Sure. It’s especially relevant for mandatory programs and the ability to be able to make changes to mandatory programs through this special process that avoids the use of the filibuster. Generally the spending bills, at the end of the day, they come up with some agreement, although we’re still waiting for this fiscal year’s agreement, that is generally related to the appropriations bills. It doesn’t get into the mandatory side, Social Security, Medicare, Medicaid, where there’s a lot of money. And so if you want to do things there— 

Rovner: And the spending bills are not allowed to get into the mandatory side. 

Whitlock: They’re not supposed to get into them. You and I are having this wonderful conversation where we’re talking about, OK, this is how it’s supposed to happen, and then we step back and go, OK, now this is how it actually happens. So they’re not supposed to, authorizing on appropriations, blah, blah, blah. You’re not supposed to do that. But then we end up with 5,800-page bills, going, There’s a lot in here beyond just simple appropriations. So, yes, that “supposed to” thing. 

Rovner: They’re not really in the bill. They’re just catching a ride on the bill. 

Whitlock: Exactly. 

Rovner: So you’ve sort of explained why health is always a big part of a budget reconciliation bill. Because of those big programs or because it’s so much money or both? 

Whitlock: It is both. We have three monstrous mandatory programs that take up a huge chunk of our spend: Social Security, Medicare, and Medicaid. Why do we end up talking about health care? Medicare and Medicaid. And because Social Security by statute is not allowed to be used, is not allowed to be touched through reconciliation. And so that leaves you Medicare, Medicaid — health care. 

Rovner: And taxes of course, which is the big thing that gets changed through reconciliation, which they don’t have to use reconciliation for, but they do because it can’t be filibustered in the Senate, right? 

Whitlock: Correct. And the directional can vary based on who’s in charge. You can use reconciliation to increase taxes. You can use reconciliation to decrease taxes within the rules of reconciliation. 

Rovner: And those are within the parameters of the budget resolution. 

Whitlock: Correct. Which is set by the Budget Committee then goes to each floor for a vote, must be unified, must give specific instructions with specific amounts to specific committees, and each then must meet those or the whole thing falls. 

Rovner: That’s right. 

Whitlock: And so that’s why the budget resolution and that process is really important. 

Rovner: And that’s Step 1, right? Which is really three steps. House has to do a budget resolution, Senate has to do a budget resolution, and then they have to agree on a final budget resolution. 

Whitlock: Correct. And what they’re trying to do is avoid that third step by having the same one pass through both bodies, preclearance, etc., of trying to make sure they don’t have to do it twice. But certainly that’s part of the challenge they face is figuring out, and as you started in the conversation, which is: How are they going to do it? How are they setting it up? Very complicated stuff, to say the least. 

Rovner: So under regular order, you get the budget resolution. It has reconciliation instructions. It sends the committees with jurisdiction over those programs off to meet those instructions, which may, say, add several billion dollars or cut several billion dollars or do some specific things. And then that all gets bundled together and sent to each floor. Right? Do I have it right so far? 

Whitlock: That’s correct. It’s each committee has to deliver. In the House, again, doesn’t matter as much. They have to do theirs, and they want to get as close as possible. But at the end of the day, the House doesn’t have to worry about the Byrd Rule. It’s only in the Senate where the Byrd Rule has teeth and really matters. And that determines what is or is not eligible to be in a reconciliation bill. So the House will go through their process, and the House is going to try as much as they possibly can. And the House has a very vested interest. The House doesn’t want to be told by the folks in the Senate, having worked in both bodies I can speak to that, which is the House does not want to be told, Well, that’s cute of you, but you can’t do that, because the Byrd Rule. They want to do as much as they can with their own authority, not have to dance to the tune being sung by the Senate. 

Rovner: And explain what the Byrd Rule is, please. 

Whitlock: I was wondering when we were going to get to that. OK, the Byrd Rule. Essentially what happened was is that Sen. [Robert] Byrd, who was a longtime senator from West Virginia, scion of the process, he cared very much about how things were going in terms of reconciliation and how it was being used. 

In 1985, the Senate adopted a rule that basically allows you to continue with the reconciliation, but it limits how it can be used. It’s referred to as the Byrd Rule, and it was because Sen. Byrd himself felt like it was being abused. It was not being used for its intended purpose. It was being used to accomplish policy outside of that. So a rule was adopted as a six-part test, which then allows for a restriction on what you can do and a limitation on how it could be in, what meets the test. 

Rovner: Who decides what’s in or out? I mean, basically there has to be a referee to say you can put this in reconciliation or you can’t. 

Whitlock: All right, so this is complicated, but it is — effectively the way the process works is that these six-part tests, if you write a provision that goes in the reconciliation bill, down to the sentence, that it can be challenged. The technical way the challenge works is a member will stand up on the Senate floor and say, I object under the Budget Reconciliation Act of 1985, that under Section whatever whatever whatever, that this provision in Title X, Section A, of whatever bill, of the reconciliation bill, violates the Byrd Rule. Then the president pro tempore, whoever’s standing up there, my former boss, Sen. [Chuck] Grassley, or whoever is there, then says yes or no it does — does or does not. Then the Senate, if there’s an objection, has to vote. 

Now, what’s critical is to override the ruling of the chair requires 60 votes. So in a tightly controlled Senate, 53-47, which is where we are, there’s no chance it’s being overridden. Now, the step I left out there, which is important: Who actually says that? It is the Senate parliamentarian, Elizabeth MacDonough, who’s been there for the better part of 15 years. And it’s her job to listen to both sides make their arguments and determine prior to that moment where that member stands up, because they know it’s coming, which direction she would rule. She then turns to the president pro tempore and says, This is what the ruling is. The president pro tempore or the vice president repeats that. And that’s how the process goes. 

Rovner: In theory. 

Whitlock: In theory. We, the Senate have always depended upon everybody following the rules. The president pro tempore does not have to repeat what is said. That’s never happened. That is — we’ve never had — there have been challenges. Some have been overridden, some have been upheld, but we’ve never had gamesmanship where the president pro tempore ignores the ruling of the parliamentarian. We’ve had parliamentarians fired over whether or not the majority leader liked the ruling, but we’ve never had the ruling ignored. 

And so we’ll see if Republicans have to use that. We watched it to see if they would do it in ’17. We watched what the Democrats would’ve done in 2009-’10, ’21-’22. To date, everybody’s followed the rules — barely, but they have. And those rules are the Byrd Rules. 

Rovner: So what is the most important thing to know about the Byrd Rule, which is obviously what dictates what can and can’t be in this bill? 

Whitlock: Yeah. Six-part test, and some of them are very perfunctory: Can’t touch Social Security. Got to be in your jurisdiction. Has to actually save or spend money. The most important one, Rule No. 4, is produces a change and outlays the revenues, which is merely incidental to the non-budgetary components of the provision. In other words, it’s got to be more about the money than the policy. And that is the very gray-area rule where people will walk into the parliamentarian and say, OK, yeah, there are a lot of pages here, but they’re all critical to be able to achieve the savings. And the other side can say, But not that sentence and not that sentence and not that sentence, and start to pick it apart until it’s Swiss cheese, which was a lot of what happened to Republicans in 2017, such that it barely even works anymore. 

And so the fight over the Byrd Rule is typically right there on — is it about the spending or is it about the policy? And it’s not black-and-white. It is incredibly gray for us to figure out what is an answer. And it is fought out in front of the parliamentarian, and she makes the ruling. 

Rovner: And so basically, I mean, what has to be remembered is this is supposed to be a budget exercise and not a policy exercise. 

Whitlock: 100%. And that’s why, again, the Affordable Care Act could have never been written under reconciliation. The Medicare Modernization Act, which created Part D, could never have been written under reconciliation, because they were policy bills. And so you can’t do a policy bill in reconciliation. And if you come in thinking, Let me see if I can sneak a policy bill through and call it reconciliation, oh, you are in for a miserable time. Been there, done that. 

Rovner: So I’m not going to ask you to predict what’s going to be in this bill or multiple bills. You can do more than one reconciliation bill per budget resolution, but we’re not going to go there. But I will ask you to handicap how long you think this might take. I mean, it’s hardly going to be the couple-of-weeks, we’re-going-to-have-this-before-the-end-of-the-winter kind of thing. Right? 

Whitlock: Early on I felt like they were heading to a two-step process where they were going to do in the first hundred days, What could we all agree to quickly? Hold hands, get done, boom. Taxes, energy, some immigration stuff, whatever fit in, done. And then came the whole “one big, beautiful bill” concept and: Let’s do it all at once. Let’s try to throw in debt limit. Let’s try to throw in some level of deficit reduction consistent with what we would require under a debt limit agreement. And let’s do it all in one big, beautiful bill. 

Well, the former was quick, the latter is slow. And I think what we are coming to realize, and as somebody who worked both sides but certainly appreciated the Senate position, which was more often than not in my career the median position, that which what could get done, was what the Senate could get the votes for. I think right now the real concept that we’re dealing with here is what you’re going to do, how you’re going to do it, when you’re going to do it, is what the House can get done, given their very tight majority and their members who are willing to say: Nope. Perfect. I’m waiting for perfect. Everything else is my enemy. It doesn’t matter how good it is. It’s my enemy because I’m holding out for perfect. When you’ve got members willing to do that, it’s going to be a very hard slog to get there. 

And so there are things they could have moved quickly on. They’re not doing that. And so because they’ve decided to slow down the process and see if they can put things together, it’s going to take more time, because the more things you put in, the more you have to do education, the more people have to understand, the more work it is. That’s the challenge. 

Rovner: Well, this has been a very useful primer. I hope we can call on you again as the process proceeds. 

Whitlock: I’ll be here for you. I come running any time you call. 

Rovner: Rodney Whitlock, thank you so much. 

OK, we are back. And now it’s time for our extra-credit segment. That’s where we each recognize the story we read this week we think you should read, too. Don’t worry if you miss it. We will put the links in our show notes on your phone or other mobile device. Rachel C., why don’t you go first this week? 

Cohrs Zhang: My extra credit is in The Washington Post. The headline is “In Florida, a rebellion against fluoride is winning.” And I think it’s just a great case study of what we’re going to see over the next couple of years — that, sure, there’s going to be so much attention focused on the federal level, focused on Congress, focused on HHS, but the powers of the federal government are limited on public health and some of these issues. I think fluoride and how that’s included in the water supply is a great one. And I think it is just going to be so important to watch how all these issues are playing out in state and local governments as well. 

So I think there’s just going to be this sense that local officials are emboldened by the stances that the Trump administration is taking on some of these issues. And I think it’s just a great way to make practical some of the influences of the rhetoric that we’ve seen so far before top health officials are even in office. So I thought it was really well done, and I think this is going to be a line of coverage to follow. 

Rovner: Local news more important than ever. Alice. 

Ollstein: Yeah, speaking of local news more important than ever, my piece is from the L.A. Times, which has just been doing phenomenal coverage of the fires that have devastated the area. I’m from L.A. The L.A. Times has gone through a lot, but I really want to hold up their incredible coverage of this crisis. 

And the piece I chose is by Karen Garcia and Tony Briscoe, and it’s called “Now that you can return home after the fires, how do you clean up safely?” And it’s just about how even though people are cleared to go back to the often pile of rubble that their houses have become — and obviously people are very eager to do that and want to search for anything that might have survived of their personal belongings. But this article is really warning people to take precautions when they do that, because the amount of things in the average home nowadays can be so toxic when on fire. And so things like basic cleaning products, things like synthetic fabrics and furniture. So they’re really encouraging people to wear an N95 mask, wear gloves, cover all of your skin, because some of these things can be so dangerous if inhaled or if they touch you. So I think this is a very important thing for folks in that situation to keep in mind. 

Rovner: Yes, the danger is not gone when the fire is out, basically. Rachel R. 

Roubein: My story, it’s in The Washington Post by my colleague Caroline Kitchener. The headline is “Antiabortion advocates look for men to report their partners’ abortions.” And the story shows the reach and the scope of how anti-abortion advocates have been trying to pursue ways to stop abortions, but they’ve had trouble finding efforts to fully end the practice with many women receiving pills through mail, through a handful of websites, and they’re trying to devise new strategies. 

So Caroline writes about anti-abortion advocates launching legal efforts to try and stop abortion pills from reaching women in states with bans. And how they’re doing that is increasingly turning to male sex partners of women who decided to end their pregnancies. And she writes about the strategy being filed in a lawsuit last month by Texas Attorney General Ken Paxton and that this kind of partner-focused approach will become more public next month when Texas’ largest anti-abortion organization is planning to launch ads on Facebook, etc., to reach husbands, boyfriends, sex partners of women who’ve had abortions in Texas. 

Rovner: Wow, it’s quite the eye-opening story. My extra credit this week is from CNN by Brenda Goodman, and it’s called “With bird flu cases rising, certain kinds of pet food may be risky for animals —and people.” And it’s something I never really thought about, but it seems that feeding your pets, particularly your cats, a raw diet can be as dangerous as you drinking raw milk. Raw diets are popular with lots of pet parents who don’t like processed foods and additives, but the use of raw milk, meat, and eggs can introduce bacteria and viruses like bird flu into your pet and possibly pass pathogens onto you and your family. Just something else to worry about. 

All right, that is this week’s show. As always, if you enjoy the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left us a review. That helps other people find us, too. We welcome back our ace producer and editor, Frances Ying, this week. Also thanks to our editor, Emmarie Huetteman. As always, you can email us your comments or questions. We’re at whatthehealth@kff.org, or you can still find me at X, @jrovner, and increasingly at Bluesky, @julierovner. Where are you folks these days? Alice? 

Ollstein: I’m on Bluesky, @alicemiranda. 

Rovner: Rachel Roubein. 

Roubein: On X, @rachel_roubein, or Bluesky, @rachelroubein. 

Rovner: Rachel C. 

Cohrs Zhang: I’m still on X, @rachelcohrs, and also hanging out more on LinkedIn these days. 

Rovner: We will be back in your feed next week with more news. Until then, be healthy.