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The Health 202: The Obamacare lawsuit, by the numbers

July 10, 2019 at 8:07 a.m. EDT

with Paulina Firozi

THE PROGNOSIS

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A federal appeals court in New Orleans appeared to take aim at Obamacare yesterday, given the pointed questions the judges asked of Democratic attorneys general defending the 2010 health-care law.

But it's unclear whether the court will go so far as to shoot the law down entirely.

National Democrats and their its various political organizations and affiliated activist groups were on high alert as the U.S. Court of Appeals for the 5th Circuit heard oral arguments in the case Texas v. Azar. The challenge, which is the latest chapter in GOP efforts to upend the law, says the entire Affordable Care Act is unconstitutional because the basis for its constitutionality — the individual mandate to buy coverage — was zeroed out by Congress.

Lines of questioning from the three judges hearing yesterday's oral arguments were somewhat as expected, given their political appointments. Judge Kurt Engelhardt, a Trump appointee, primarily grilled attorneys representing California Attorney General Xavier Becerra, who is leading the law's defense along with a score of other Democratic attorneys general. Judge Jennifer Walker Elrod, appointed by George W. Bush, peppered both sides with questions. The panel's only Democratic appointee, Jimmy Carter appointtee Judge Carolyn Dineen King, was silent during the 90-minute-plus hearing, my colleague Amy Goldstein reports.

Alex Ruoff, health reporter for Bloomberg Government:

Los Angeles Times's Noam Levey: 

“If you no longer have the tax, why isn’t it unconstitutional?” Elrod asked. She and Engelhardt repeatedly noted that the law was written without an explicit feature guaranteeing that if one part were ever removed by Congress or the courts, the rest would remain in place. Still, the hearing didn't clearly foreshadow how the panel will rule, Amy writes.

BuzzFeed News's Zoe Tillman: 

Via a spokeswoman for Becerra: 

But people sure wanted to know what the judges would say. "The case’s outsize significance was evident from the television crews outside the marbled courthouse in downtown New Orleans and the lines standing in the heat, hoping for a seat in the courtroom, as well as from the broadsides issued from Washington in the hours before the hearing," Amy writes.

Here's who wanted little to do with the lawsuit: Republicans on Capitol Hill. They already failed to figure out how to repeal Obamacare back in 2017, and they would be back in that bind should the law get struck down. 

Senate Majority Leader Mitch McConnell (R-Ky.) didn't respond directly yesterday to a question about whether he supports the lawsuit. Instead, he said it's likely to get a Supreme Court hearing and insisted that Republicans would restore protections for people with preexisting conditions should they be struck down.

“I think the important thing for the public to know is there is nobody in the Senate not in favor of covering preexisting conditions ... nobody,” McConnell said. “And if it were, under any of these scenarios, to go away, we would act quickly on a bipartisan basis to restore it.”

Senate Majority Leader Mitch McConnell (R-Ky.) on July 9 did not say whether Congress had a plan set if the court strikes down the Affordable Care Act. (Video: The Washington Post)

Kaiser Health News's Julie Rovner: 

Sen. Susan Collins (R-Maine) was a lone wolf. She issued a statement urging Trump's Justice Department to reconsider its position opposing the entire ACA (Collins, it should be noted, voted for the tax overhaul eliminating the individual mandate).

“The Affordable Care Act remains the law of the land, and it is the Department of Justice’s duty to defend it,” Collins said. “The administration should work with Congress to fix the law’s problems legislatively, while ensuring that the protections for the millions of Americans who are living with pre-existing conditions such as asthma, arthritis, cancer, diabetes, and heart disease remain in place."

Meanwhile, Democrats are savoring the moment. They're spending the week bludgeoning Republicans over the high-stakes lawsuit, which they well know is prime fodder for 2020 attacks. The House Oversight Committee will hold a hearing this morning dubbed “The Trump Administration's Attack on the ACA: Reversal in Court Case Threatens Health Care for Millions of Americans,” where a number of patients and consumers advocates will testify.

The Democratic Senatorial Campaign Committee, the Democratic Attorneys General Association and the Democrat-affiliated group Protect Our Care launched hundreds of thousands of dollar's worth of print and digital ads around the country. Democrats in Congress delivered floor speeches castigating their GOP colleagues. House Speaker Nancy Pelosi (D-Calif.) and Senate Minority Leader Chuck Schumer (D-N.Y.) gathered many of their members on the Capitol steps to broadcast their frustration, holding up photos of patients who could lose coverage.

“The fate of our entire health-care system hangs in the balance due to this nasty, cruel lawsuit led by President Trump’s Department of Justice,” Schumer said. “If the courts ultimately strike down the law, health care of tens of millions of Americans would be gone — gone.”

House Judiciary Committee Chairman Jerry Nadler (D-N.Y.) said he's also planning a hearing on the lawsuit:

Rep. Sheila Jackson Lee (D-Tex.):

Sen. Chris Murphy (D-Conn.): 

All Democrats have to do is keep up a steady drumbeat about the millions of Americans who could lose health plans or find their coverage diminished should the courts ultimately strike down the ACA. Legal experts say that’s an unlikely scenario — given the law’s vast scope and the shakiness of the states' arguments. But Democrats are playing up the threat for all it’s worth.

“If this lawsuit is successful, America will suffer through a humanitarian catastrophe,” Murphy told reporters on a Monday call. “Twenty million people losing insurance overnight cannot be handled by America’s emergency rooms,” Murphy continued. “Millions of people with preexisting conditions … Medicaid will be withdrawn from 17 million Americans.”

This case isn’t going away anytime soon. The 5th Circuit is expected to issue its ruling within two months or so. If the court, known for being one of the country’s most conservative, moves to strike down the ACA, there’s a strong chance the Supreme Court would take up the case. So here’s what you need to know about the Obamacare lawsuit, by the numbers:

→18 Republican-led states, led by Texas, are bringing the lawsuit. They sued the Department of Health and Human Services in February 2018, just weeks after Congress repealed the ACA’s penalty for being uninsured. The Supreme Court upheld the law in 2012 by declaring the penalty a federal tax. Now that the “tax” is gone, the states argue the law is unconstitutional.

→21 Democratic attorneys general are defending the law because the Trump administration is refusing to do so. The Justice Department started off opposing only the law’s protections for patients with preexisting conditions but has since expanded its stance to oppose all of the ACA.

→10.3 million people who buy coverage on the ACA’s individual marketplaces could lose their plans. Of those, 8.9 million get federal subsidies to help afford their monthly premiums.

→More than 12.7 million Medicaid enrollees could get kicked off the program, which was expanded in 36 states and the District of Columbia under the ACA.

→2.3 million young adults allowed to stay on their parents’ plans could lose their coverage, if insurers abandoned that ACA regulation.

→52 million people are estimated to have a preexisting medical condition. While these people could largely get employer-sponsored coverage, they were often denied individual market coverage before the ACA.

→3 5th Circuit judges are hearing today’s oral arguments. They include Jennifer Walker Elrod, a George W. Bush appointee, Kurt Damian Engelhardt, a Trump appointee and Carolyn Dineen King, an appointee of Jimmy Carter. Here’s my Health 202 on the three.

AHH, OOF and OUCH

AHH: President Trump is planning an executive order to call for an overhaul of the organ transplant and kidney dialysis systems in the United States as a way to “prolong lives and save the government billions of dollars,” our Post colleagues Lenny Bernstein and Kimberly Kindy report.

Trump is expected to announce the executive order today.

“Trump will outline proposals to keep people with kidney disease off dialysis longer and make treatment less expensive; encourage more live donation of kidneys and livers; and force the 58 nonprofits that collect transplant organs to improve their performance, people briefed on the plan said. He also will try to reduce discards of less-than-perfect organs by transplant surgeons,” they report.

The administration believes the effort will make 17,000 more kidneys and 11,000 more hearts, livers, lungs and other organs available for transplants at a time when the country is facing a major shortage of transplant organs. Trump will also call on Health and Human Services Secretary Alex Azar to test payment models that will push physicians to treat kidney patients early, in order to delay kidney failure to reduce hospitalizations and dialysis needs.

The order "is one of a series of health- care initiatives Trump is announcing in the run-up to the 2020 presidential election," our colleagues writes. "Several of the Department of Health and Human Services rules have been held up by court fights or budgetary concerns."

The Virginia General Assembly voted July 9 to adjourn until November, as Republicans rejected Democrats' request to vote on a series of gun control measures. (Video: Virginia House of Delegates)

OOF: Virginia’s Republican-controlled General Assembly abruptly ended a special session on gun control legislation after about an hour and a half yesterday. Gov. Ralph Northam (D) had called the special session in the wake of the May mass shooting in Virginia Beach, and lawmakers had filed about 30 bills meant to limit gun use or strengthen penalties for gun law violations. 

The move stunned the gun-control activists and gun rights protesters who filled the state Capitol.

“The Republican leaders in the state House and Senate said they would refer all bills to the bipartisan Virginia State Crime Commission for study and recommendation, and then reconvene Nov. 18 — after a high-stakes state election in which all 140 legislative seats are on the ballot,” our Post colleagues Gregory S. Schneider, Laura Vozzella and Antonio Olivo report.

House Speaker Kirk Cox (R-Colonial Heights) said the call for the session was “premature” and accused the governor of an “election-year stunt,” saying gun violence needs to be thoroughly studied before lawmakers take action. 

Meanwhile, Senate Minority Leader Richard L. Saslaw (D-Fairfax) accused his Republican colleagues of being “controlled by the National Rifle Association.” “This is far from over,” he said. “In the end, let me assure you, we are going to prevail, one way or another.”

OUCH: New data points to a drop in the number of undocumented immigrant children who are enrolling in Medi-Cal, California’s Medicaid program for low-income residents.

In February, there were 127,845 undocumented immigrant children up to age 18 signed up for the program, a drop of 5 percent since April 2017, when the enrollment peaked at 134,374, Kaiser Health News’s Ana B. Ibarra reports. The data is from the state’s Department of Health Care Services. Undocumented immigrant children have been eligible for coverage under the program since May 2016.

“This drop mirrors statewide and national trends for all children enrolled in Medicaid and the Children’s Health Insurance Program, a separate public program that some states use to cover low-income children,” Ana writes. “From December 2017 to December 2018, overall child enrollment in both programs dropped 2.2% nationally and 3% in California, according to a recent report from Georgetown University’s Health Policy Institute.”

While some point to economic improvements as a reason for the decline, some experts say the falling enrollment rate may also be a result of changes in migration patterns as well as fear related to anti-immigrant rhetoric.“It’s likely the overall hostile environment for immigrant families is playing a critical role in enrollment,” Georgetown University health policy research professor Edwin Park told Ana.

INDUSTRY RX

— E-cigarette maker Juul is getting ready to push back against local efforts to ban vaping that have emerged in various cities, such as in San Francisco, where the mayor recently signed a ban on all e-cigarette sales.

 “The ban is serving as a test case for a broader national fight over youth smoking and vaping. Prodded by Senate Majority Leader Mitch McConnell — an unlikely foe of anything tobacco — the Senate is weighing raising the tobacco purchasing age to 21 nationwide to discourage teen vaping and nicotine addiction,” Politico’s Victoria Colliver reports, who adds the San Francisco ban stings particularly because that’s where Juul is headquartered. “… Juul is beefing up its lobbying efforts and visibility at the federal level and in states, backing efforts to raise the minimum age to buy e-cigarettes while fighting local laws to curb the marketing of vaping products, including flavored products.”

— Swiss pharmaceutical giant Novartis announced it will start making its generic pre-filled epinephrine shots available in local pharmacies nationwide as patients continue to grapple with a shortage of Mylan’s EpiPen, the lifesaving emergency allergy treatment.

Both the adult and pediatric doses of the generic Symjepi epinephrine shots will be available immediately in pharmacies, Reuters’s Aakash Jagadeesh Babu, Tamara Mathias and Michael Erman report.

“Novartis’ Sandoz unit launched the Symjepi epinephrine shots for use in hospitals in January and had said it would make the treatment available in pharmacies in a phased manner,” they write. 

Manufacturing delays have resulted in a shortage of EpiPens across the United States, Canada and Europe, and the treatment is still on a list of drugs in shortage after the FDA listed it more than a year ago. The wholesale price for a two-pack of adult-dose of Novartis’s generic medication is $250, compared with the $300 cost of Mylan’s authorized generic and for the generic version of the EpiPen auto-injector manufactured by Teva.

— Support for legal abortion is at its highest point in more than two decades, according to a new Washington Post-ABC News poll. It found 60 percent of people say abortion should be legal in most or all cases, up from 55 percent in a 2013 poll, our Post colleagues Emily Guskin and Scott Clement report. That level of support, which now matches a record high level from 1995, comes as several states pass abortion restrictions that challenge the rights set by Roe v. Wade.

“The partisan divide on abortion has increased sharply since the 1990s,” our colleagues write. “An October 1995 Post-ABC poll, which found the same 60 percent of Americans saying abortion should be legal as this month’s poll, found Democrats only 15 points more likely than Republicans to say abortion should be mostly or always legal, 64 percent to 49 percent. That gap now is 36 percentage points, 77 percent to 41 percent.”

The poll also found more than 6 in 10 Americans say abortion is either “one of the single most important issues” or a “very important issue” ahead of the 2020 election.

— And here are a few more good reads:

STATE SCAN

Covered California says consumers will see lowest-ever premium hike for individual policies (Sacramento Bee)

AGENCY ALERT

Border arrests drop as Mexico’s migration crackdown appears to cut crossings (Nick Miroff)

MEDICAL MISSIVES

Joe Biden praises son struggling with addiction and mental health: ‘Hunter is my heart’ (Deanna Paul)

NRA’s top lobbyist resigns amid chaos at the gun rights organization (Katie Zezima and Beth Reinhard)

Sean Parker is nerding out on cancer research. And he’s doing it in style (Stat)

DNA-Testing Service Exposed Thousands of Customer Records Online (Bloomberg)

CDC made a synthetic Ebola virus to test treatments. It worked (Stat)

DAYBOOK

Today

  • The House Veterans Affairs Subcommittee on Health holds an oversight hearing on the “Cost of Caring."
  • The House Oversight and Reform Committee holds a hearing on “Hearing: The Trump Administration's Attack on the ACA: Reversal in Court Case Threatens Health Care for Millions of Americans."

Coming Up

  • The House Oversight and Reform Committee hold a hearing on childhood trauma on Thursday.

SUGAR RUSH

How the U.S. Women's World Cup win became political:

The U.S. women’s national soccer team’s lawsuit and co-captain Megan Rapinoe’s outspokenness regarding President Trump have cast the team in a political light. (Video: The Washington Post)
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