THE PROGNOSIS

Which way you lean politically determines whether you think it was heroic or traitorous, but the late-Sen. John McCain's vote against repealing the Affordable Care Act will be remembered as one of his final "maverick" acts.

McCain, with one downward flick of his thumb, helped saved the law from imminent demise. 

It's probably just a coincidence, yet still interesting timing that on the week of McCain's death, Vice President Pence suggested during a campaign swing for the GOP Senate candidate in Wisconsin that Republicans would resurrect a repeal effort if they retained control of Congress. 

“We made an effort to fully repeal and replace Obamacare and we'll continue, with Leah Vukmir in the Senate, we'll continue to go back to that," he told reporters. 

Immediately Democrats pounced. 

Pence's comments will land well with the GOP base, who still want to see the law repealed. But it's not quite that simple anymore. The health care waters have become much murkier for Republicans to navigate this year. 

And this week marks a major turning point. 

The first hearing begins Wednesday in the Texas lawsuit against the Affordable Care Act. Ever since the Justice Department announced in June that it would not defend the ACA against the 20 states seeking to have it ruled unconstitutional, Democrats have jumped on the potential loss of preexisting condition protections as a potent campaign attack. 

And today Senate nomination hearings begin for President Trump's Supreme Court pick, Brett Kavanaugh, who could be a deciding vote on the ACA if the lawsuit makes its way up to the highest court. 

Democrats are running on a message that their Republican opponents are willing to allow insurers to discriminate against people based on past or present illness. And a new Washington Post-ABC News poll out this morning shows they have a good chance of retaking the House majority come November --the Democratic candidate for Congress is preferred by 12 points to the Republican one among registered voters.

To blunt that attack, ten GOP senators late last month co-sponsored legislation to save that most popular provision of the law in the event the ACA is struck down by the court. Led by Sen. Thom Tillis (R-N.C.), the bill would prohibit insurers from denying coverage based on a person's health. 

But critics of the legislation say Republicans are making a purely a political move. They say it leaves too many loopholes for insurers to still discriminate based on age or gender or someone's job. And Sen. Susan Collins (R-Maine), who also bucked her party and voted against ACA repeal, reportedly said her colleagues' effort doesn't do enough because it doesn't protect the part of the ACA that requires all plans cover "essential health benefits" like mental health and maternity care.

Tillis's spokesman, Daniel Keylin, in an email to The Health 202 pushed back against the criticisms, saying it's not meant to be the "totality of Congress' answer to the Affordable Care Act falling."

"This twenty-page bill is not comprehensive health care legislation, and it does not strike down or change any provisions in the Affordable Care Act," Keylin said.

"This bill protects Americans with pre-existing conditions so that they cannot be denied coverage or charged more based on health status – two of the central protections contested in Texas vs. United States. In the event that the court ruling goes beyond the scope that this bill addresses, Senator Tillis has made it clear he is willing to modify his bill and look at a more comprehensive approach."

The Senate map is tougher for Democrats this year — nearly all Democratic senators who are up are running in states won by Donald Trump in 2016. Sen. Dean Heller (R-Nev.) is the only Republican incumbent running in a state won by Hillary Clinton. 

So it's no surprise that Heller is among those signed on as co-sponsors to Tillis​​​​​​'s legislation.  In addition to Tillis and Heller, the bill is supported by Lamar Alexander (Tenn.), Chuck Grassley (Iowa), Joni Ernst (Iowa), Lisa Murkowski (Alaska), Bill Cassidy (La.), Roger Wicker (Miss.), Lindsey Graham (S.C.), and John Barrasso (Wyo.).

"Senator Heller believes in protecting Nevadans with pre-existing conditions, period," Megan Taylor, his spokeswoman, told The Health 202. "While this legislation was not designed to be the end of the discussion, it is a pre-preemptive step to protect Nevadans with pre-existing conditions regardless of how the courts rule on the lawsuit. If other senators have ideas about how to ensure protections for our nation’s most vulnerable patients, Senator Heller’s door is always open and he is ready to work with any senator who wants to improve our nation’s health care system instead of playing politics with it." 

Tillis's spokeswoman said the timing on the bill would be determined by how the court rules. 

One reason why preexisting conditions is such a sensitive topic for Republicans is that the states with the highest percentage of non-elderly people with preexisting conditions supported Trump in 2016. Notably, two of the sickest states are West Virginia and Missouri, where Democratic Sens. Joe Manchin and Claire McCaskill are battling for their political lives against opponents who are the states' attorney general and plaintiffs in the Texas lawsuit against the ACA. 

That case hinges on the argument that when Congress got rid of the individual mandate penalty for Americans without health insurance it invalidated the entire law. Democrats say that killing the law means getting rid of everything with it, including popular pieces like preexisting condition protections and allowing children to stay on their parents health insurance until they're 26.

When the Trump administration declined to defend the ACA in the case, some Republicans were immediately vocal about their disagreement.  

"There’s no way Congress is going to repeal protections for people with preexisting conditions who want to buy health insurance," said Sen. Alexander in June. "The Justice Department argument in the Texas case is as far-fetched as any I’ve ever heard. Congress specifically repealed the individual mandate penalty, but I didn’t hear a single senator say that they also thought they were repealing protections for people with pre-existing conditions."

That's where we are, two months out from the midterm elections. As Democrats tell it, the future of the ACA is on the ballot this year. Republicans say they their long-held desire to get rid of the law never included preexisting conditions. 

In that battle, this week is shaping up to be the opening salvo. 

AHH, OOF and OUCH

AHH: Our Post colleague Antonio Olivo breaks down the opioid politics between the Senate candidates in Virginia, who both agree that addiction has affected the state, but disagree over the cause behind the crisis.

Sen. Tim Kaine (D) has called for bringing addiction under control by 2030, and has co-sponsored a bill that calls on the National Institutes of Health to develop nonaddictive alternatives to opioids, fund more treatment programs and step up seizures of illicit opioids at the U.S. border, Antonio reports.

Republican candidate Corey A. Stewart meanwhile points fingers at Medicaid, and the state’s recent expansion of the program, for providing opioids at low cost to patients, who he says turn around and sell it to addicts.

“Kaine accuses Stewart of not caring enough about the opioid crisis, criticizing him during a July debate for skipping a vote by his county board over whether to allocate $200,000 in emergency funding toward treatment,” Antonio writes. “Stewart was in Alabama that December day, campaigning for Republican Roy Moore in his failed Senate bid.”

OOF: Documented and undocumented immigrants are dropping out of federal programs that help buy infant formula and health foods out of concern that accepting aid could put at risk whether they are able to get a green card, Politico’s Helena Bottemiller Evich reports.

Agencies in nearly 20 states say there’s been a decrease of up to 20 percent in immigrant enrollment in WIC, the supplemental program for women and children, fearing a reported plan from the Trump administration to deny legal status to those who have accepted public benefits. No rule has officially been implemented.

“Health advocates say the policy change could put more babies who are U.S.-born citizens at risk of low birth weight and other problems — undermining public health while also potentially fueling higher health care costs at taxpayer expense,” she writes. “WIC… serves about half of all babies born in the U.S by providing vouchers or benefit cards so pregnant women and families with small children can buy staple foods and infant formula. The program is also designed to support women who are breastfeeding.”

OUCH: The skyrocketing cost of insulin in the United States is putting diabetics at risk, and forcing some to ration insulin if they can’t afford the necessary supply.

Bram Sable-Smith reports for NPR on how he himself has been impacted by the cost of insulin, which “has more than doubled since 2012.”

“My first vial of insulin cost $24.56 in 2011, after insurance,” Bram writes. “Seven years later, I pay more than $80.”

He writes about one woman, Nicole Smith-Holt, whose son Alec died of diabetic ketoacidosis, when your body stops functioning because you don’t have enough insulin, because he couldn’t afford the medication.

 “Alec's yearly salary as a restaurant manager was about $35,000. Too high to qualify for Medicaid and, Smith-Holt says, too high to qualify for subsidies in Minnesota's health insurance marketplace. The plan they found had a $450 premium each month and an annual deductible of $7,600,” Bram writes. “He died less than one month after going off of his mother's insurance. His family thinks he was rationing his insulin — using less than he needed — to try to make it last until he could afford to buy more. He died alone in his apartment three days before payday. The insulin pen he used to give himself shots was empty.”

Bram reports 1 in 4 people with diabetes, including himself, have admitted to rationing insulin.

TRUMP TEMPERATURE

— As the Senate confirmation hearings for Judge Kavanaugh start today, our Post colleague Amber Phillips breaks down the key players and the information they’ll be seeking during the four days of hearings. She writes Kavanaugh himself will likely avoid answering questions, as much as he can, about how he’ll decide critical cases on issues like abortion.

And even though Sens. Collins  and Lisa Murkowski (R-Alaska) have said "they want a justice who will respect that abortion is legal," Phillips writes the pair have already signaled they will support Trump’s pick.

— HuffPost reported Collins “approved Kavanaugh in her consultations with President Donald Trump before he settled on a nominee.” But in a statement to the publication, Collins spokeswoman Annie Clark told HuffPost the Maine senator “never preapproved Judge Brett Kavanaugh. She never greenlighted Brett Kavanaugh. She never approved Kavanaugh in her consultations with the President.”

— Ahead of the hearings, our Post colleague Robert Barnes takes a look at the candidate, how he could change the Supreme Court and what the days ahead will look like for Kavanaugh.

Bob specifically addresses whether a Kavanaugh confirmation will mean that abortion will be outlawed and the ACA will be overturned.

On abortion, Bob writes his confirmation would “indicate that more of the restrictions on the procedure that some states have enacted would be approved by the Supreme Court.” On whether the health-care law will be overturned, Bob writes the possibility is “certainly one reason Democrats give for opposing Kavanaugh’s nomination.”

“Another challenge to the ACA has been filed by states that say recent action by Congress has undermined the legal argument the Supreme Court used to uphold the law,” he notes. “Kavanaugh may be amenable to such an argument, but this is one area where his replacement of Kennedy does not necessarily shift the court.”

— Politico’s Adam Cancryn writes Democrats are looking to “Kavanaugh into committing to preserve those health care pillars. Or, failing that, to get the 53-year-old appellate court justice to validate Democrats’ fear he’d vote to wipe them out — a reveal they hope would prompt a wave of public outcry and the additional two Senate votes needed to sink [Trump’s] nominee.’

— Hours before the hearings were set to begin, a lawyer for former president George W. Bush turned over 42,000 page of documents regarding the nominee’s service in the Bush White House, a move that pushed Senate Minority Leader Charles E. Schumer (D-N.Y) to call for what our Post colleagues Fred Barbash and Seung Min Kim report is a likely “futile call to delay the proceedings.”

“This underscores just how absurd this process is,” Schumer tweeted late Monday. “Not a single senator will be able to review these records before tomorrow.” Meanwhile, the Senate Judiciary Committee tweeted the staff for the Majority “has now completed its review of each and every one of these pages.”

From Seung Min:

— Meanwhile, the New York Times’s Dhruv Khullar and Anupam B. Jena report on the health trends currently shaping the Supreme Court. Justices, as all Americans, are living longer, a trend influenced by medical and public health advances that mean people are able to fight infectious diseases and live longer with chronic illnesses. “This shift toward a longer and slower decline, as opposed to more rapid death, means that justices are more able to select the administrations and political environments in which to end their terms — to, in effect, pass the baton,” Dhruv and Anupam write.

HEALTH ON THE HILL

— Democrats appear to have a clear advantage over Republicans with just two months to go before the midterm election, according to a new Washington Post-ABC News poll. The poll, released this morning, shows registered voters prefer a generic Democratic candidate over a Republican 52 percent to 38 percent.

The election is shaping up to be a referendum on Trump, with 60 percent of registered voters saying how a candidate feels about Trump is extremely or very important. A majority of voters, 56 percent, also said the Trump administration was "too harsh" in its immigration policies, an issue that was front and center this summer after it was revealed that families were being separated at the border.

And, as Trump's Supreme Court pick begins his nomination hearings this week, public support for Kavanaugh is tepid, according to the poll. Just 38 percent say he should be confirmed, while a similar 39 percent say he should not; almost a quarter, 23 percent, have no opinion

MEDICAL MISSIVES

— The latest Ebola outbreak in the Congo seems to be improving, the New York Times’s Donald G. McNeil reports, as reports of new cases slow down and the two treatment centers empty out.

The World Health Organization director general Tedros Adhanom Ghebreyesus said the outbreak is not yet declared under control, and officials are still monitoring 3,500 contacts of people with confirmed Ebola cases. Donald also reports 4,000 doses of vaccine have been doled out. There were 118 probable or confirmed cases as of Friday, and 77 deaths.

— Doctors and scientists are now suggesting that microwave weapons may have been used to cause the mysterious symptoms and illnesses that struck U.S. diplomats and their families in both Cuba and China.

The New York Times’s William J. Broad writes Douglas H. Smith, who led a study published in JAMA in March said while microwaves weren’t at all mentioned in the March report, they are now considered a “main suspect and that the team was increasingly sure the diplomats had suffered brain injury.” Use of them would explain all the reported symptoms, including sounds, that are not otherwise explained well by other possible attacks, though William writes such an explanation still poses a lot of questions, including who would have initiated the unconventional attack.

“Asked about the microwave theory of the case, the State Department said the investigation had yet to identify the cause or source of the attacks. And the F.B.I. declined to comment on the status of the investigation or any theories,” William reports.

— Our Post colleague Christopher Ingraham followed up on a BuzzFeed News report that the Trump administration had been gathering information on “negative impacts of marijuana use, production, and trafficking on national health, safety, and security,” with a breakdown of five of some concerning trends related to the drug. Here are some of the highlights: 

  1.  Marijuana use is increasing overall, and in 2016, 8.9 percent of Americans 12 and order use the drug monthly, compared with 6.2 percent in 2002.
  2. But heavy use has increased further, from 32.6 percent of monthly users in 2002 to 41.7 percent in 2016.
  3. The potency of marijuana has increased, though Christopher notes that federal data signals average potency has plateaued or even decreased slightly since pot was legalized in Colorado and Washington in 2012.
  4. While federal research finds while marijuana is less debilitating to drivers than alcohol, more drivers in fatal car crashes in Colorado tested positive for marijuana between 2013 to 2016.
  5. Research has found the number of teenagers going to the emergency room for marijuana use has risen sharply, Christopher reports. 

— A new study has found that in the last 20 years, the rate of children diagnosed with attention-deficit/hyperactivity disorder, known as ADHD, has spiked to more than 10 percent.

The study published in JAMA Pediatrics found a steady jump in diagnosis, increasing to 10 percent between 2015 and 2016 from 6 percent in 1997 and 1998, Kaiser Health News’s Rachel Bluth reports.

There was a particular increase for minority groups, Rachel writes, noting “better access to health insurance and mental health treatment through the ACA might have played some role in the increase.” The 1990s rate of 7.2 percent of white children, 4.7 percent of black children and 3.6 of Hispanic children increased to the 2016 rate of 12 percent of diagnoses for white children, 12.8 percent of black children and 6.1 percent of Hispanic children.

— And here are a few more good reads from The Post and beyond: 

Wonkblog
Some doctors and hospitals would stand to lose big -- but others could reap substantial gains.
Jeff Stein
INDUSTRY RX
Health & Science
The technology offers exciting possibilities to improve health, but we need to be cautious.
Jianhua Luo
To Your Health
Medical professionals have since taken Gary Tigges to task on social media for views they say are discriminatory and ignorant of most research on the gender pay gap in medicine.
Taylor Telford
Local
Human ‘minibrains’ are far from conscious, but scientists say it’s time to talk about ethics.
Carolyn Y. Johnson
Business
The technology giant has unveiled an unprecedented new policy affecting companies it does business with.
Danielle Paquette
“I don’t feel any consumer should have to go through this,” says Drew Calver, who faced a life-changing surprise bill from an Austin hospital after a heart attack last year. After attention as a &#…
Kaiser Health News
Medicaid and maternity care are closely intertwined.
Axios
Morning Mix
People were drawn to the magnetic teenager's plucky humor and candor about living on the edge of death.
Kyle Swenson
OPIOID OPTICS
More than 500 readers told us their stories about opioid medication.
Politico
STATE SCAN
A federal judge ruled that Texas and five others states were wrongfully required to pay a fee that helps fund Obamacare.
Austin American-Statesman
DAYBOOK

Today

  • Judge Brett M. Kavanaugh’s confirmation hearings begin before the Senate Judiciary Committee.

Coming Up

  • The House Energy and Commerce Health Subcommittee holds a hearing on opportunities to improve health care on Wednesday.
  • HHS Secretary Alex Azar is set to speak at the National Health Research Forum on Thursday.
  • The House Energy and Commerce Subcommittee on the Oversight and Investigations holds a hearing on “Examining Federal Efforts to Ensure Quality of Care and Resident Safety in Nursing Homes” on Thursday.
  • The House Foreign Affairs Subcommittee on Africa, Global Health, Global Human Rights, and International Organizations holds a hearing on fentanyl from China on Thursday.
SUGAR RUSH

Cystic fibrosis activist Claire Wineland dies following lung transplant: 

From the Fact Checker: Unraveling President Trump's top 5 claims: