The Washington PostDemocracy Dies in Darkness

The Health 202: These are the judges holding Obamacare's future in their hands

with Paulina Firozi


The future of Obamacare is at stake next week, when the country’s most conservative appeals court will consider whether to uphold a ruling striking down the whole law. But the politically fraught, high-stakes case is at least likely to get a fair hearing by three judges whose names were announced yesterday, legal experts say.

Two of the judges were GOP-appointed; they include Jennifer Walker Elrod, a George W. Bush appointee, and Kurt Damian Engelhardt, an appointee of President Trump. But they’re known for being some of the more measured and thoughtful members of the U.S. Court of Appeals for the 5th Circuit, distinct from other judges who might be more politically inclined.

“There’s no doubt there are a couple firebrand jurists out there … but none of those judges are on this panel,” New Orleans litigator Harry Morse, who has argued before Engelhardt, told me.

“There’s nothing about these three that strikes me that they’ll be looking for headlines or take a stand on anything other than their fair reading of the law,” he added. “They’re all pretty careful folks.”

A third judge, Carolyn Dineen King, was appointed by former Democratic president Jimmy Carter. She, along with Elrod and Engelhardt, will hear oral arguments on July 9 in the closely watched lawsuit brought by nearly two dozen GOP-led states who are trying to unravel the ACA, even after it survived years of court challenges and repeal attempts in Congress.

It’s a deeply disturbing situation for California and other Democrat-led states defending the health-care law, who fear its consumer protections and insurance expansions could be wiped out in a moment. They’ve stepped up to defend the law because President Trump’s Justice Department is refusing to do so — even though a decision overturning the law would create a logistical and political mess for the administration.

Anthony Michael Kreis, assistant professor at Chicago-Kent College of Law:

The states, led by Texas, were certainly strategic in where they mounted the challenge. The 5th Circuit — whose 16 active judges include 11 appointed by Republicans — is widely viewed as being more sympathetic to Republican arguments that the ACA must now be struck down because Congress repealed the basis for its constitutionality, the individual mandate to buy coverage.

Because the panels are chosen randomly, it would have been unlikely for the trio hearing next week’s ACA lawsuit to include three or even two judges appointed by Democrats. The Elrod-Engelhardt-King panel is a good reflection of the 5th Circuit’s overall makeup, said Barry Edwards, a lecturer at the University of Central Florida who has written about U.S. appeals courts.

“I’d say the Democratic states were hoping for a better panel, but this is the panel they expected,” Edwards said.

Engelhardt was sent to the 5th Circuit by Trump, who relies heavily on recommendations from the influential Federalist Society. But he was initially made a federal district judge by George W. Bush, indicating he may not be as far to the political right as the judges Trump tends to favor, Edwards told me.

Engelhardt has been on the 5th Circuit for a little more than a year, while Elrod has been on its bench since 2007.

Appellate lawyer Raffi Melkonian:

Melkonian pushed back against Millhiser's take:

Jonathan Adler, a law professor at Case Western Reserve University School of Law, and Topher Spiro, vice president for health policy at CAP:

Even those familiar with the 5th Circuit find it hard to predict how the panel will land on last year’s district court ruling striking down the entire ACA, the decision the states are appealing. Its ruling will have bearing on whether the Supreme Court agrees to hear yet another challenge to the ACA, after upholding most of the law in 2012 and then again in 2015.

Edwards guesses the appeals court will upheld the lower-court decision scrapping the health-care law — a scenario in which the Supreme Court would almost certainly take up the case, given how many people the law has touched. But Morse said it’s hard for him to believe the judges would agree to strike down the ACA given how many times it has survived past legal challenges.

“I know it’s two Republican judges and one Democratic judge, but the ACA has been challenged twice in front of the Supreme Court,” Morse said. “The argument being made is the ACA can’t survive without the individual mandate, and Congress has implicitly rejected that.”

Nicholas Bagley, a law professor at the University of Michigan who has watched the case closely, said he’s certain the Supreme Court will hear the case if the 5th Circuit strikes the law. But he doesn’t expect a SCOTUS review if it leaves the law in place.

“If the panel reverses, I’m not at all sure that the Supreme Court will take the case,” Bagley wrote me in an email. “It’s that goofy.”

Last week, before the judges’ names were announced, the appeals court questioned whether the Democratic-led states and the U.S. House have the right to appeal the lower-court decision striking the law. Bagley and some other legal scholars interpreted the request as boding poorly for the law’s future, while others said it was a reasonable request, my Washington Post colleague Yasmeen Abutaleb reported.

Bagley's reaction:


AHH: More states are enacting laws to try to combat teen vaping — Virginia, Illinois, Florida and Vermont are just the latest places where antismoking laws took effect yesterday.

Virginia and Illinois, for example, join six states and the District of Columbia in raising the age to purchase tobacco to 21. Still, health advocates are worried such measures aren’t enough to tackle the issue, our Post colleague Hannah Denham reports.

Some have pointed to other tactics by e-cigarette companies, such as selling fruity flavors of the products, as just one of the issues that needs to be addressed.

“Flavored products have been used to make the poison go down smoother and to attract kids,” Erika Sward, an American Lung Association spokeswoman, told Hannah. “The tobacco industry has known that for decades.”

Vermont started imposing a 92 percent tax on e-cigarettes as part of efforts there to address the trend. Meanwhile, eight other states are looking to raise the buying age by 2021, and a recently introduced Senate bill seeks to make the same change.

OOF: A new study of federal data found the cost of air ambulances has skyrocketed — with a spike of about 60 percent between 2012 and 2016 to a median cost of $39,000. In 2016, the median charge to ride to a hospital in a helicopter was $238 per mile.

“Because many air ambulance companies are not part of insurance networks, patients often get hit with the huge bills, according to the findings by Johns Hopkins University researchers, whose study was published in the journal Health Affairs,” our Post colleague Christopher Rowland reports.

And even as a surge of air ambulance carriers enter the market, there has been no resulting control on the cost, in part because most local markets still have just one carrier, study co-author Gerard Anderson, a professor of health policy and management at Johns Hopkins, told Christopher.

“If you’re somebody who gets injured, and an air ambulance comes, you’re going to pay huge amounts because most likely you’re out of network and you’re going to get a bill for $30,000 or $40,000,” Anderson said.

The industry says “Medicare rates are a poor benchmark for comparison. It claims Medicare air ambulance rates are 40 percent below cost and that air ambulance companies are forced to increase list prices as a result,” Christopher adds.

OUCH: Drug manufacturers have pushed through some price increases to start the month and some of those hikes have impacted generic injectable medicines that are facing shortages, the Wall Street Journal’s Jared S. Hopkins reports.

It’s not unusual for drug companies to raise the list prices of their drugs at the beginning of the year, and then again at mid-year, though the number and rate of the increases have somewhat declined amid pressure from lawmakers and the Trump administration to address skyrocketing prescription costs for patients.

The latest price hikes did not include some of the biggest drug companies, though it’s still possible for them to increase prices later this month.

“All told, 20 companies increased the list prices of over 40 prescription drugs by an average of 13.1%, according to Rx Savings Solutions,” Jared reports. That’s compared to 16 companies this time last year that increased dozens of list prices by 7.8 percent on average.

One price increase, for example, was a 50 percent increase by B. Braun Medical Inc. for the price of antibiotic cefazolin to more than $9 a package – it’s a drug that like other antibiotics is now in short supply.


— If your summer agenda includes spending time in a swimming pool, read on: The Centers for Disease Control and Prevention is warning about a fecal parasite called Cryptosporidium, also known as “Crypto,” that has seen a growing number of outbreaks, our Post colleague Lindsey Bever reports. The miroscropic parasite can live in pools and water playgrounds for days. 

From 2009 through 2017, there was an average 13 percent increase per year in outbreaks of cryptosporidiosis, a disease characterized by nausea, vomiting and “watery diarrhea” that can last for weeks. There were more than 400 reported outbreaks in the United States over the last decade, and more than 200 people were hospitalized and one person died, according to a recent CDC morbidity and mortality weekly report.

Illnesses related to the parasite were linked to swimming pools and water playgrounds in 35 percent of outbreaks.

“Cryptosporidium lives in the intestines of infected people and animals who shed a form of the parasite in their feces, according to the CDC,” Lindsey reports. “Public health experts say that even trace amounts of infected fecal matter on hands or swimsuits can contaminate food, beverages or swimming pools — and others who ingest it can become infected, as well.”

— And here are a few more good reads: 


Lawmakers condemn ‘vulgar’ posts in secret border agent Facebook group (Robert Moore, Mike DeBonis and John Wagner)


Inside the Secret Border Patrol Facebook Group Where Agents Joke About Migrant Deaths and Post Sexist Memes (ProPublica)

A Facebook group for border agents was rife with racism and sexism. Now DHS is investigating. (Eli Rosenberg)


AMA Abortion Lawsuit Puts Doctors In The Thick Of Debate (Kaiser Health News )

Want Ammo? Be Prepared For A Background Check (Kaiser Health News )


‘I’ve gained my life back’: New tests may help those with persistent urinary tract infections (Suzannah Weiss)

New guidelines aim to enlist primary care physicians in transgender care (Stat)


Trump, California governor spar over immigrant health care (Associated Press)


Coming Up

  • The HHS Presidential Advisory Council on HIV/AIDS convenes for a meeting on July 8 and 9.
  • The Washington Post will host Sen. Bernie Sanders (I-Vt.) as part of its interview series with the 2020 candidates on July 10.
  • The Bipartisan Policy Center holds an event on financial challenges for dual caregivers on July 18.


A blanket of hail and ice covered streets in the Mexican city of Guadalajara after a freak summer hailstorm:

A blanket of hail and ice covered streets in the Mexican city of Guadalajara after a heavy storm hit the area on June 30. (Video: The Washington Post, Photo: Jorge David Arias Flores/Reuters/The Washington Post)