with Paulina Firozi


As Brett Kavanaugh prepares to face his first round of questioning from senators today, many Americans are worried about what would happen to their health care if the Supreme Court overturned the Affordable Care Act's protections for people with preexisting conditions. 

A new tracking poll released this morning by the Kaiser Family Foundation found 52 percent of Americans were very worried and 23 percent somewhat worried about the costs of health care coverage rising if the ACA is rolled back, and 41 percent are very worried and 19 percent somewhat concerned that they will lose their coverage. 

Senators never made it past their opening statements at Kavanaugh's first seven-hour Capitol Hill appearance Tuesday, but several Democrats and protesters made clear that health care would be atop the agenda when the  Capitol Hill grilling commenced today. 

One protester kept cutting off a disgruntled Sen. Orrin Hatch (R-Utah) and yelled, "We need health care." Another cut into Texas GOP Sen. John Cornyn's time, screaming, "Vote no, vote for my children's health care."

Democrats and health-care advocates point to the nominee's ruling in a 2011 case against the ACA, though it was on technical grounds and not on the merits (more on that below).

"Kavanaugh issued a dissent in 2011 when the D.C. Circuit upheld the constitutionality of the Affordable Care Act in the case Seven-Sky v. Holder . But he was criticized by some conservatives for doing so on technical, jurisdictional grounds instead of declaring the law unconstitutional," report Anne E. Marimow and Robert Kranish in a look at ten issues likely to come up at today's hearing.

Democrats warn that Kavanaugh could be a deciding vote if a lawsuit brought by 20 red states in Texas against the ACA made its way to the highest court.  To rile their base against Kavanaugh, they've placed the potential loss of protections for preexisting conditions right up there with overturning Roe v. Wade in the confirmation fight.

Not every Democratic senator brought up the ACA in their opening statements, but enough did to guarantee Kavanaugh will go through several lines of questioning on how he'd approach the question before the Texas court: Did Congress's removal of the individual mandate penalty effectively nullify Obamacare?

The Los Angeles Times's Jennifer Haberkorn reported last week that in meetings with Democrats, Kavanaugh may have tipped his hand. Several Democrats told Haberkorn that Kavanaugh, when asked about the ACA specifically, focused on the legal idea of "severability," a doctrine that says even if one part of a law is found invalid, the rest should still stand.

But even if he would vote to allow the ACA to stand on that issue, Democrats are more concerned about Kavanaugh's past writings on expansive presidential powers, which they say could lead to his supporting efforts by the Trump administration to dismantle the health-care law without Congress. 

"What would that mean when it comes to women's health care? The days of the divine rights of kings ended with the Magna Carta in 1215," said Sen. Amy Klobuchar (D-Minn.) in her opening statement at Kavanaugh's hearing. "So what does that warning mean in real life terms today? Here's one example. It means whether people like Kelly Gregory, an Air Force veteran, mother and business owner, who is here from Tennessee and who is living with stage IV breast cancer can afford medical treatment."

Our Post colleagues who covered the hearing wrote that Kavanaugh spoke throughout his remarks about "his appreciation for the strides that women and girls have made professionally and in sports."

"Kavanaugh’s critics have said his elevation to the Supreme Court would be detrimental to women’s reproductive rights and health-care options, and his emphasis on the strong women in his life seemed designed to counter those concerns," our colleagues explained. 

In his remarks, Kavanaugh assured the senators that he doesn't "decide cases based on personal or policy preferences." But Sen. Dick Durbin (D-Ill.), in his opening statement, noted that Kavanaugh has been critical of the ACA and called it "unprecedented" on a federal level.

The constitutionality of the ACA came before D.C. Circuit Court of Appeals in 2011 over the issue of whether Americans could be penalized for not purchasing health insurance. Kavanaugh dissented -- not on the merits of the arguments, but by contending it was simply premature to hear the case under the  Anti-Injunction Act of 1867 that says a judge can't rule on a tax until it's been collected. The ACA's individual mandate didn't take effect until 2014. 

"When the D.C. Circuit upheld the Affordable Care Act's constitutionality you criticized the law, the law which this president has said many times he wants to ignore and abolish," Durbin said. "And you said, quote, 'the president may decline to enforce a statute that regulates private individuals when the president deems — when the president deems — the statute unconstitutional even if a court has held or would hold the statute constitutional'."

You can expect Democrats to really home in on the question of whether Kavanaugh believes a president can simply disregard Congress or the courts and act on his own.

Creating a dialogue around protections for people with preexisting conditions is also a strategic political move for Democrats. They are counting on the issue to motivate voters in November. 

“I think this becomes the narrative of his nomination, which could bring it down,” Sen. Sherrod Brown (D-Ohio) told Haberkorn. “If people realize that their insurance is at risk because of this court nominee, I think there is going to be a lot of pressure put on a lot of people to vote no.”

Health care is the second most important issue to all registered voters ahead of the November midterms, falling just behind "corruption in Washington," according to the Kaiser poll. Majorities from both sides of the aisle believe it's important to keep protections for people with pre-existing conditions.

One figure in the poll illustrates why the issue resonates so strongly with so many Americans: 1 in 6 people have or live with someone with a preexisting health condition, which could range from asthma to diabetes to cancer. 

Also, this month's Kaiser tracking poll marks the 90th time it has surveyed the popularity of the ACA since April 2010. Right now, 50 percent see the law favorably, 40 unfavorably and 10 percent have no opinion. 

The law remains as politically divisive as ever. Those surveyed who identify as Democrats hold positive views of the ACA, while Republicans feel negatively about it. 


AHH: Arizona Gov. Doug Ducey (R) yesterday appointed former Republican Sen. Jon Kyl (Ariz.) to return to the Senate to replace John McCain (R-Ariz.), who died on Aug. 25. Kyl, 76, said he would serve through at least the end of this year.

Our Post colleague Sean Sullivan wrote Ducey’s pick “ensures that a reliable Republican vote will join the Senate GOP ranks at a crucial moment when party leaders are aiming to confirm Trump’s Supreme Court nominee, Judge Brett M. Kavanaugh.”

Kyl retired from the Senate in 2013 and has since worked as a lobbyist for various companies, including for the pharmaceutical industry. In a statement, Protect Our Care— a coalition of groups that support Obamacare — executive director Brad Woodhouse warned Kyl’s record and lobbying background means he will prioritize drug industry interests. “By naming a Big Pharma lobbyist who repeatedly voted against the Affordable Care Act and has continued to call for its repeal to serve the remainder of Sen. McCain’s term, Gov. Ducey has assured we will have yet another Senator whose priorities lie with insurance and drug companies, not the health and wellbeing of the American people,” Woodhouse said in a statement.

OOF: Thousands of people in Arkansas are likely to lose health insurance coverage this week for failing to meet the state’s new Medicaid work requirement. The new ruless took effect on Saturday, the first of the month, but beneficiaries had until today to retroactively report information and get their coverage reinstated, the Arkansas Times’s Benjamin Hardy reports.

The state’s beneficiaries who lose coverage “will be the first in the history of the Medicaid program, in any state, to be dropped from coverage because of such a rule,” Benjamin writes.

Under the state's work requirement, if certain beneficiaries don't report 80 hours of work activity or an eligible exemption for three months, they will automatically be dropped from coverage. The beginning of September marked three months since the new requirement went into effect for people on the “Arkansas Works” health-insurance program for low-income adults.

Those beneficiaries have until 9 p.m. to retroactively report their work activity or be “locked out” of Medicaid for the rest of 2018, Benjamin explains. Arkansas is the first state to get its work requirement off the ground, he adds.

OUCH: KFF’s new tracking poll found a majority of Americans are concerned about of unexpected medical bills and whether they’ll be able to afford them.

The survey found 39 percent of insured adults ages 18 to 64 said they have gotten an unexpected medical bill from a doctor, hospital or lab in the last year. Those individuals thought the bill was covered but realized it was either not covered at all or that they owed more money than they were expecting. The poll found 10 percent of these insured adults said the unexpected bill was related to care from an out-of-network provider.

Such surprise bills are high on the public’s list of anxieties, according to the poll. They topped the list of health-care costs, with 67 percent saying they were at least “somewhat” worried about surprise bills, compared with 53 percent who were somewhat worried about deductibles, 44 percent for drug costs and 42 percent for premiums.


— Kavanaugh is set to face a range of questions todaythat will likely include the nominee’s views on abortion rights and contraception, our Post colleagues Michael and Ann report.

“In Kavanaugh’s meeting last month with Sen. Susan Collins (R-Maine), who supports abortion rights, Kavanaugh said the landmark decision is ‘settled law,’” they write. “The idea that Kavanaugh views Roe as ‘settled’ does not necessarily mean he would oppose abortion restrictions. Chief Justice John G. Roberts Jr., who also described Roe during his confirmation hearing as ‘settled as precedent,’ has been a reliable vote in favor of such restrictions.”

Michael and Ann also note reproductive-rights advocates are similarly concerned about where Kavanaugh stands on the issue of contraceptive coverage. The judge previously sided in a 2015 case with a group called Priests for Life, which argued “a provision to opt out for religious objections was too burdensome” but Anne and Michael note Kavanaugh referred in his dissent to precedent that “strongly suggests that the government has a compelling interest in facilitating access to contraception.” 

— Planned Parenthood launched a new six-figure ad campaign on Tuesday targeting Kavanaugh on the day his confirmation hearings began on Capitol Hill.

The campaign will include television and radio ads that will air in Washington, D.C., and in Alaska, targeting Republican Sen. Lisa Murkowski, the Washington Examiner’s Robert King reports


— Cities that are looking to open safe injection sites for monitored use of illicit drugs are firing back against the Justice Department, which last week warned it would take “swift and aggressive action” against any such sites.

San Francisco and Philadelphia, two of the cities that could open the first supervised injection site in the nation, both issued defiant statements against the administration, our Post colleagues Lenny Bernstein and Katie Zezima report. At a news conference, San Francisco Mayor London Breed and California state lawmakers vowed to open a site soon, with State Sen. Scott Wiener (D) adding it would happen “even if the federal government threatens us with criminal prosecution.”

In a Tuesday statement, James Garrow, a spokesman for Philadelphia’s Department of Public Health said: “Just as local governments had to lead during the HIV epidemic, cities like ours will be on the forefront of saving lives in the opioid crisis… The federal government should focus its enforcement on the pill mills and illegal drug traffickers who supply the poison that is killing our residents, not on preventing public health officials from acting to keep Philadelphians from dying.”


— Embattled blood-testing company Theranos Inc. will dissolve and pay out its remaining cash to creditors, the Wall Street Journal’s John Carreyrou reports.

Theranos, which promised to change how consumers accessed their medical information with a comprehensive blood test, was once valued at $9 billion. But now the company will formally shutter months after federal prosecutors filed criminal charges against the company’s founder Elizabeth Holmes and its former No. 2 executive for allegedly defrauding investors as well as doctors and patients, John reports. 


— Sen. Claire McCaskill (D-Mo.), who is in a tight race with Republican opponent Josh Hawley, is launching a series of videos targeting her opponent on the topic of health care.

Hawley, the Missouri attorney general, was one of 20 state attorneys general who filed a lawsuit to block the ACA. The video series from McCaskill’s campaign will feature stories about Missouri residents with preexisting conditions every day for 30 days, The Hill’s Max Greenwood reports.

A new NBC News/Marist poll out Tuesday found McCaskill and Hawley are tied at 47 percent among likely voters. When third party candidates are also included, McCaskill has a slim 44 percent lead to Hawley’s 40 percent.

— Here are a few more good reads: 



  • Judge Brett M. Kavanaugh’s confirmation hearings continue before the Senate Judiciary Committee.
  • The House Energy and Commerce Health Subcommittee holds a hearing on opportunities to improve health care.

Coming Up

  • 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.

Women dressed in costumes inspired by “The Handmaid’s Tale,” held a silent protest Kavanaugh's hearing room:

Police arrest 70 at first day of Kavanaugh hearings: