A high-stakes lawsuit threatening Obamacare is now likely to drag out throughout the 2020 presidential election season and beyond.
Unless the Supreme Court heeds a petition from Democrats to resolve the case quickly.
A federal appeals court ruled yesterday that the Affordable Care Act's requirement for Americans to buy health coverage was unconstitutional, and directed a district court in Texas to reconsider whether the sweeping 2010 health care law can stand without it.
The mandate was once considered essential for the law's protections for people with preexisting conditions to work as intended, but has since been defanged by Congress. Republican-led states are arguing that the entire law must fall without the mandate, a position the Trump administration agrees with.
The decision from a three-judge panel of the U.S. Court of Appeals for the 5th Circuit was anxiously awaited by lawmakers, policymakers, and health-care stakeholder and advocates.
And the ruling easily ranks as one of the most pivotal moments in health care of 2019. It's the final zinger in a year of political battles over the future of the Affordable Care Act, prospects for Medicare-for-all and efforts to lower the high cost of prescription drugs.
In this case, the future of the law could be in limbo until well after the November election unless the Supreme Court agrees to hear it immediately.
California Attorney General Xavier Becerra, who is defending the law in court because the Trump administration has abdicated that role, said yesterday he will file a request for the court to take up the case soon to get clarity for those affected by the ACA.
"For California, and I think millions of Americans, it is indispensible to get clarity and certainty," Becerra told reporters. "And the best way to get certainty is to go to the Supreme Court. We will do it in due speed and deliberatively ... far faster than what the clock allows."
The California Department of Justice is prepared to challenge the 5th Circuit’s decision in #TexasvUS.— Xavier Becerra (@AGBecerra) December 19, 2019
Let’s end the uncertainty. Americans shouldn’t be jerked around when it comes to their healthcare. #AffordableCareAct pic.twitter.com/5qaz9a64eA
From House Speaker Nancy Pelosi (D-Calif.):
Tonight’s court ruling in favor of Republicans’ all-out assault on health care is a chilling threat to the 130 million Americans with pre-existing conditions & every family that depends on the ACA’s lifesaving protections.— Nancy Pelosi (@SpeakerPelosi) December 18, 2019
From Larry Levitt, executive vice president for health policy at the Kaiser Family Foundation:
A U.S. appeals court has ruled that the ACA's individual mandate is unconstitutional, but is sending the case back to the district court for an analysis of how much of the rest of the ACA should be thrown out. Pre-existing condition protections would seem particularly at risk.— Larry Levitt (@larry_levitt) December 18, 2019
Nicholas Bagley, professor of law at the University of Michigan Law School:
The Fifth Circuit decision in Texas v. United States is out. Here's the basic rundown: a win for the red states, and a defeat for the ACA, with a remand to the district court for further severability analysis. pic.twitter.com/AAlliHUPPo— Nicholas Bagley (@nicholas_bagley) December 18, 2019
Brian Fallon, executive director of Demand Justice:
Seems like the 5th Circuit is trying to have its cake and eat it too: declare the ACA mandate unconstitutional and preserve option of striking down the whole law but postpose the timing for doing so til after the elections to spare the GOP any political fallout in 2020— Brian Fallon (@brianefallon) December 18, 2019
Wherever the lawsuit ends up next, it remains a political hot potato for the Trump administration. The Justice Department is refusing to defend a law that has extended health coverage to millions of Americans and guaranteed more comprehensive coverage for millions more. At the same time, President Trump's health officials are arguing they're trying to expand access to coverage and improve the law.
"The decision carries significant political implications: It catapults to the forefront of the 2020 presidential and congressional campaigns questions about insurance coverage and consumer protections for people with preexisting medical conditions — issues that Democrats wielded in last year’s midterm elections to win a House majority," my Washington Post colleague Amy Goldstein writes.
Trump called the decision "a win for all Americans" but stressed it wouldn't immediately alter the current health-care system. He also made an allusion to Medicare-for-all plans proposed by Democrats, referring to "radical health-care changes being proposed by the far left" that he said would strip Americans of their current coverage.
"My administration continues to work to provide access to high-quality healthcare at a price you can afford, while strongly protecting those with pre-existing conditions," Trump said in a statement released by the White House. "They are trying to take away your healthcare, and I am trying to give the American people the best healthcare in the world."
Centers for Medicare and Medicaid Services Administrator Seema Verma:
The recent federal court decision is still moving through the courts, and there is no disruption or impact to your current coverage or coverage in a 2020 plan.— Administrator Seema Verma (@SeemaCMS) December 19, 2019
For our final Health 202 of 2019, here's a quick spin back through the year's top health-care moments:
September: Trump welcomes a major drug pricing bill from House Democrats.
The president lauded the rollout of Pelosi's drug pricing plan without endorsing it. His aides interacted frequently throughout the fall with her aides, in hopes of reaching a bipartisan deal on legislation to help lower drug prices.
Trump initially tweeted this about Pelosi's bill:
Because of my Administration, drug prices are down for the first time in almost 50 years — but the American people need Congress to help. I like Sen. Grassley’s drug pricing bill very much, and it’s great to see Speaker Pelosi’s bill today. Let’s get it done in a bipartisan way!— Donald J. Trump (@realDonaldTrump) September 19, 2019
For a while, it looked as though the negotiations might be successful. But they began stalling as the weeks passed and White House officials expressed increasing public skepticism about the Pelosi bill. It all came to a crashing stop, and last week House Democrats went on to pass their bill, with only two Republicans voting in favor.
Trump struck a very different tone last month:
...Pelosi and her Do Nothing Democrats drug pricing bill doesn’t do the trick. FEWER cures! FEWER treatments! Time for the Democrats to get serious about bipartisan solutions to lowering prescription drug prices for families...— Donald J. Trump (@realDonaldTrump) November 22, 2019
Meanwhile, the administration ran up against several barriers in its own attempts to help lower drug prices. It scrapped plans to ban the rebates drugmakers pay to pharmacy middlemen, saw a court block its requirement for drugmakers to post drug list prices in television ads and has yet to release a long-promised rule tying the prices of certain Medicare drugs to lower prices in other countries.
June: Presidential candidates seeking the Democratic nomination raise their hands to say they would scrap private insurance.
Four of 20 Democrats raised their hands when asked at the first presidential debate whether they would erase private health coverage under a Medicare-for-all-type system. They included New York Mayor Bill de Blasio and Sen. Elizabeth Warren (D-Mass.) on the first night and Sens. Bernie Sanders (I-Vt.) and Kamala Harris (D-Calif.) on the second night.
That was just one of several provocative questions around Medicare-for-all the candidates debated again and again throughout the year. In four of the five presidential debates so far, they spent more time sparring over how to achieve universal health coverage than any other single topic.
At the beginning of the year, the candidates were split into two basic camps: Those in favor of Medicare-for-all and those who preferred offering a public option among private ones.
But as the year progressed — and the political potholes became clearer — the candidates adopted more nuanced positions on how to get to Medicare-for-all and whether Americans should be forced to give up their private coverage.
At this point, only Sanders could be said to truly support an immediate transition to Medicare-for-all, in which all Americans have a generous set of benefits funded by the government. Even candidates who say they’re still in favor of Medicare-for-all don’t want it right away.
March: The Trump administration files a legal brief saying it opposes the entire Affordable Care Act.
The Justice Department said in March it supports a federal judge’s ruling that the entire health-care law — not just its protections for patients with preexisting conditions — should be ditched. Yesterday's appeals court decision means that judge must now give a fuller consideration to the lawsuit.
The administration’s comprehensive stance against the whole ACA prompted an uproar among Democrats and health-care advocates, who noted the upheaval to the country’s health-care system should all of the law be invalidated. Trump health officials have had to defend the legal position even as they argue they’re improving the law and making coverage accessible to more people.
It all started when Texas and other GOP-led states sought to have the entire ACA struck down, in a lawsuit they filed in 2018. The administration initially supported striking down only its preexisting condition protections but leaving the rest of the law in place. But in a shift that was deeply controversial inside the administration, the DOJ later adopted a full-on stance against all the ACA, saying the entire law should be struck.
As The Health 202 has reported, a trio of Trump advisers convinced the president that opposing all of Obamacare was the way to go. They included Russ Vought, deputy director of the Office of Management and Budget; Joe Grogan, head of the Domestic Policy Council; and Office of Management and Budget Director Mick Mulvaney.
Democrats were already slamming the administration for refusing to defend part of the ACA. The shift gave them even more political fodder, which they’re sure to hammer repeatedly in 2020.
And then the president tweeted this:
The Republican Party will become “The Party of Healthcare!”— Donald J. Trump (@realDonaldTrump) March 26, 2019
Trump caused a stir as he resumed promises that congressional Republicans would once again try to repeal and replace the ACA despite their failed attempt in 2017. Two of his top officials — Mulvaney and counselor Kellyanne Conway — insisted there was a plan at the ready should the courts ultimately strike down the ACA.
But Republicans in Congress said none of these promised efforts were underway. They made clear resurrecting a repeal-and-replace effort was just about the last thing they’re interested in doing these days. The administration has since worked on an ACA replacement plan, but internal disputes have prevented it from finalizing or releasing anything.
February: Seven pharmaceutical executives shift blame to members of Congress.
The Senate Finance Committee grilled pharmaceutical executives on high drug prices in a three-hour hearing billed as one of the biggest Congress-vs.-industry showdowns since the tobacco hearings of the 1990s. Committee leaders warned the executives they shouldn't try to redirect blame to other parts of the health-care industry for skyrocketing drug prices in the United States.
But while senators on the committee asked the executives a range of questions about the drug pipeline, there were few true “gotcha” moments, as we reported at the time.
The witnesses frequently recited well-worn arguments for why insurers and pharmacy middlemen (called pharmacy benefit managers, or PBMs) should share more of the blame for the high cost of prescription drugs. The senators largely refrained from insisting on direct answers as to why these companies have massively inflated prices for specific medications.
Still, the hearing gave Congress an unprecedented chance to directly grill executives at a time when the industry is facing growing indignation from Americans. The Finance Committee held a similar hearing two months later, this time with PBM executives.
PROGRAMMING NOTE: This is the last Health 202 of the year. Thanks for reading, enjoy your holidays and we'll be back in your inbox on Monday, Jan. 6, 2020.
AHH, OOF and OUCH
AHH: Sens. Chuck Grassley (R-Iowa) and Ron Wyden (D-Ore.) say Senate Majority Leader Mitch McConnell (R-Ky.) spoiled their bipartisan effort to bring down drug prices. Grassley, a top Republican, was “visibly exasperated” and told reporters that McConnell told Republicans not to support the package, Stat’s Nicholas Florko reports.
“The president wants it,” Grassley said. “Senate majority leaders, historically, if you’ve got the president of the same party, they tend to be spokesmen for the administration, not against the administration.”
“Grassley’s sharp words are the clearest example yet that lawmakers, Republican and Democrats alike, are increasingly frustrated about Congress’ inability to send drug pricing legislation to the president’s desk,” Nicholas writes. “While Grassley has previously acknowledged that McConnell wouldn’t slate his package for a vote unless it had more Republican support, he has not previously accused McConnell of encouraging Republicans not to support the package, a seeming sabotage.”
The measure, which has the support of the White House and advanced through the Senate Finance Committee over the summer, would cap the amount seniors pay out of pocket annually for medications, and would block drug companies from increasing prices beyond inflation.
OOF: The American Civil Liberties Union of Tennessee has filed a lawsuit to try to stop a town’s order that essentially bans surgical abortions within city borders, our Post colleagues Emily Wax Thibodeaux and Ariana Eunjung Cha report.
The lawsuit against a Nashville suburb was joined by the national ACLU and filed on behalf of Carafem, a nonprofit national women’s clinic. The complaint, which calls the Mount Juliet City Commission’s zoning ordinance “unconstitutional,” says it’s also part of Tennessee’s “relentless attack on abortion rights, enacting a multitude of restrictions designed to shutter clinics that have provided safe and affordable abortion care and impose unconscionable obstacles.”
The ordinance passed unanimously at a meeting of the city commission just two days after the clinic opened. Under the ordinance, surgical abortions can’t be performed within 1,000 feet of churches, school grounds, public libraries or child-care facilities. Mount Juliet Mayor Ed Hagerty said the city is “trying to keep our citizens safe, not only those who exist but those yet to be born.”
OUCH: A new report from researchers at Stanford’s Institute for Economic Policy Research found the use of antidepressants among children who have survived gun violence increased more than 21 percent in the two years following a fatal incident. Three years after, use increased to 24.5 percent.
The research, labeled the “largest scale study to date,” reveal the “toll that school shootings have on young survivors, even as they warn that the number of prescriptions is unlikely to capture the full mental health consequences of these events,” our Post colleague Christopher Ingraham reports.
“Furthermore, they found no change in prescribing rates of other types of medication for youth in the affected areas, suggesting that the increase isn’t simply a result of increased interactions with the health-care system overall,” he adds.
“When we think about the cost of school shootings, they’re often quantified in terms of the cost to the individuals who die or are injured, and their families. Those costs are unfathomable and undeniable,” lead study author Maya Rossin-Slater said in a statement. “But the reality is that there are many more students exposed to school shootings and survive. And the broad implication is to think about the cost not just to the direct victims but to those who are indirectly affected.”
— A new report details how Coca-Cola sought to sell its products to teens and shift how consumers perceived the health effects of sugary soda.
The paper published in the International Journal of Environmental Research and Public Health reveal the company’s public relations goals included “to increase Coke brand health scores with teens” and to “cement credibility in the health and well-being space,” our Post colleague Laura Reiley reports. The study looked at public-relations campaigns the company launched related to the 2016 Olympic Games in Rio as well as another 2013-2014 campaign.
Study author Benjamin Wood, a PhD candidate at Deakin University, said the researchers “wanted to raise awareness of these hidden tactics and strategies to target teenagers and their mothers.” Gary Ruskin, co-director of U.S. Right to Know, told The Post that Coca-Cola sought to target a vulnerable population.
“Even though the health problems are quite severe in the U.S., we live under de facto corporate control; the food industry is incredibly powerful in the U.S,” Raskin told Laura. “What’s insidious here is a health campaign that is using tobacco’s tactics, promoting alternative science in a way that advances the notion that sugary sodas aren’t really so bad for people’s health.”
— An outbreak of a drug-resistant bacterial infection that has impacted more than a dozen states has been linked to puppies bought from pet stores, Centers for Disease Control and Prevention officials say.
As of Tuesday, 30 people have reported infections, with illnesses in 13 states. There have been four hospitalizations, our Post colleague Hannah Knowles writes. The CDC reports about 70 percent of those who have fallen ill and were interviewed said they were in contact with a pet store puppy.
“No single supplier has been connected to cases of the illness, which often involves bloody diarrhea and can be transmitted through animal feces,” Hannah writes. “But investigations so far link 12 affected people to Petland, a national chain implicated in a previous spate of puppy-related illness involving the same kind of bacteria, campylobacter. Five of those 12 people were Petland employees, the CDC said.”
The illness often occurs from eating raw or undercooked poultry. But it can also spread through other foods, untreated water and animals.
— And here are a few more good reads: