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The Health 202: SCOTUS faces three key questions in the Obamacare case it's hearing today

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with Alexandra Ellerbeck

The Supreme Court will hear yet another lawsuit against the Affordable Care Act today — one that has been years in the making.

At first glance, one might expect the court to strike down the entire 2010 health care law, given that it now includes three justices appointed by President Trump. 

That is, of course, possible. But it’s far from certain, given the series of complex legal questions the court would have to decide before getting to a ruling as dramatic as ditching the sweeping law that gave millions of Americans insurance protections and coverage. Nor do court-watchers have a great sense of where Trump’s two most recent nominees — Justices Amy Coney Barrett and Brett M. Kavanaugh — might land on some of these questions.

A ruling on the case isn't expected until next spring and may not come until June if the justices are deeply divided.

The case is more complicated than at first glance.

The lawsuit — brought by Texas and other GOP-led states — supplied Democrats with useful political fodder in 2018 and 2020, allowing them to hammer over and over the message that Republicans want to strip people of health insurance and protections. 

“Today the difference between the outgoing Trump Administration and the incoming Biden Administration on health care — the path the American people rejected and the future they chose — is on full display,” said Sen. Patty Murray (D-Wash.), ranking Democrat on the Senate Health, Education, Labor and Pensions Committee.

But the justices must first decide whether the states even have a basis to bring the lawsuit. If they agree the states have standing, then they’d have to decide whether the law’s mandate to buy health coverage is still constitutional without a penalty to enforce it.

And only if they rule the mandate is unconstitutional would they have to consider whether the rest of the law — including its consumer protections, subsidized marketplaces and Medicaid expansion — can stand without it.

(Your Health 202 author and colleagues will be live-blogging the arguments, starting at 10 a.m.)

Four legal scholars with differing opinions about the first Obamacare lawsuit back in 2012 teamed up to oppose this challenge, saying the arguments for getting rid of the law are weak and could jeopardize future laws passed by Congress.

Here’s what they told us to watch for today:

It could be harder than usual to guess where the justices stand.

Typically during oral arguments, the justices interrupt the presenting attorneys at will to quiz them. Observers often try to gain clues from who interrupts the most frequently — and to which side they direct the hardest questions.

But the coronavirus pandemic has upended normal procedure. 

Now the court holds oral arguments via teleconference while providing a live audio feed to reporters. The presenters are given a designated amount of time to lay out their argument, and then each justice is given a time allotment to respond with questions. The justices proceed in order of seniority, starting with Chief Justice John G. Roberts Jr., then Justice Clarence Thomas and so on.

“Figuring out where the justices are is a little more difficult because they all feel obligated to ask questions of all the attorneys,” said Jonathan Adler, a law professor at Case Western Reserve University.

The justices may be skeptical Texas can even sue.

The first question before the court has to do with a legal concept known as “standing.” Under the U.S. Constitution, federal courts can only decide actual controversies. In other words, at least one of the plaintiffs has to demonstrate a concrete injury resulting from the mandate to buy health coverage.

And while there’s still technically a federal requirement to buy coverage, Congress zeroed out the penalty. That could make it hard for Texas to argue that anyone is harmed by the mandate.

Nicholas Bagley, a health law professor at the University of Michigan, said he’ll be closely listening for clues on standing from Roberts and Kavanaugh, who are known to be hawkish on the matter.

“My gut says that they’ll be attracted to an argument that would provide them a clean way to get rid of the case without weighing in on the merits,” Bagley said.

The justices must decide whether they believe what Congress said in 2010 — or what it said in 2017.

This has to do with “congressional intent” — a phrase likely to come up in today’s arguments. When Congress passed the ACA in 2010, it said the mandate is essential for creating insurance marketplaces where people with preexisting health conditions aren’t rejected or charged more. 

Seven years later, Congress passed a bill making the mandate toothless but keeping the rest of the law in place. So California, which is defending the law, is arguing the legislators made clear by that very move the rest of the law is “severable” from the mandate.

Yale law professor Abbe Gluck said she’ll be “looking for signal that the court understands, as the lower court did not, that the actions of the 2017 Congress — not those of the 2010 Congress — control.”

The word of the day will be “severability.”

If the court strikes down the mandate, the rest of the law could stay in place if the justices decide it’s severable. Such a ruling would be a huge sigh of relief to health-care advocates, because then there would be no practical impact on the availability or affordability of health insurance.

Gluck and Ilya Somin, a law professor at George Mason University, said they’ll be closely watching the conservative justices for any indication of how they feel about severability. 

In her confirmation hearings last month, Barrett said there is a “presumption of severability” — referring to the idea that the court should leave as much of a law in place as possible even if it strikes down one part. 

“We may well get a strong indication that most of the justices are deeply skeptical about the plaintiff states’ severability argument,” Somin said. “Either way, we are likely to learn a good deal about where the justices stand on the key issue in the case, although oral argument isn’t necessarily a definitive indicator.”

Ahh, oof and ouch

AHH: Pfizer’s coronavirus vaccine could be cleared by mid-December.

“The news Monday that Pfizer’s experimental coronavirus vaccine is more than 90 percent effective sharply increased prospects that federal regulators will authorize the vaccine on an emergency basis as early as mid-December, and that the first shots will be administered before the end of the year or early next year,” The Post’s Laurie McGinley, Lena H. Sun and Carolyn Y. Johnson report.

The findings, reported in a company news release, have not yet been peer-reviewed, but they represented a point of hope for many public health experts battling surging coronavirus cases. Pfizer and BioNTech said that they intend to submit an application for emergency authorization to the FDA by the third week of November. 

“It’s stunning,” said Eric Topol, director of the Scripps Research Translational Institute, of the results, which far exceeded the FDA’s standard that a vaccine be more than 50 percent effective. “We could have a rollout in December.”

“Even with the welcome development, experts warned that the longed-for return to normalcy will take many months or more, and that the path is certain to contain unexpected twists and turns. Even after a vaccine is approved, they said, people will need to wear masks and social distance for some time — in part because the vaccine doses will be limited, and it will take time to immunize enough of the population to stop the virus from spreading,” Laurie, Lena and Carolyn write. 

Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, predicted on CNN that people would start receiving vaccines by the end of the year. He also told The Post in a separate interview that a highly effective vaccine means “there will be more enthusiasm” among the public about receiving it.

The prospect of a vaccine on the horizon has renewed calls for people to double-down on efforts to contain the virus in the coming months.

Washington Post columnist Megan McArdle:

President Trump, who still refuses to concede the presidential race to Joe Biden, accused Pfizer of sitting on the news until the day after the race was called for Biden.

OOF: The FDA approved a covid-19 antibody drug for emergency use.

“The Food and Drug Administration on Monday cleared the experimental drug from Eli Lilly for people 12 and older with mild or moderate COVID-19 not requiring hospitalization. It’s a one-time treatment given through an IV,” the Associated Press’s Matthew Perrone writes

The approval represents the first time that an antibody drug is approved for use in the U.S. The treatment consists of laboratory-derived versions of antibodies that occur as the body fights off an infection and is similar to the experimental antibody treatment from Regeneron that President Trump received.

Early results suggest it “may help clear the coronavirus sooner and possibly cut hospitalizations in people with mild to moderate COVID-19. A study of it in hospitalized patients was stopped when independent monitors saw the drug did not seem to be helping in that situation,” Perrone writes.

While the FDA normally requires “substantial evidence” of efficacy before authorizing a drug for emergency use, it can lower those standards during a public health emergency, instead requiring only that the benefit of therapies outweigh the risks. The antibody treatment is still undergoing testing to determining its safety and efficacy, and Lilly would need to show evidence from larger controlled trials to get full approval. 

“The government has signed an agreement with Lilly to spend $375 million to buy 300,000 vials of the drug. How many doses that would provide is unclear,” Perrone writes. “Each vial contains 70 milligrams and that dose proved ineffective in the early results. It took four times that amount — 2,800 milligrams — to show any effect.”

OUCH: HUD Secretary Ben Carson tested positive for the coronavirus.

“Carson, who tested positive Monday morning at Walter Reed National Military Medical Center after experiencing symptoms, was at the White House last Tuesday for an election night event, as was White House Chief of Staff Mark Meadows, who also has tested positive for the virus. Carson was around senior administration officials and other Cabinet members during the event,” The Post’s Ben Terris, Tracy Jan and Seung Min Kim report. “Several attendees at the election night party said they had not been contacted by the White House for tracing purposes, even though they were in the room with Meadows and Carson.”

“I really came down with symptoms yesterday. Fever of 101. Chills. Muscle cramps. Respiratory issues and fatigue,” The Secretary for Housing and Urban Development told The Post on Monday afternoon, adding that he is “feeling terrific.”

“Carson, a retired neurosurgeon and a member of the White House coronavirus task force, has been photographed mingling at indoor gatherings without a mask despite saying in the past that mask-wearing makes a difference in reducing transmission of the coronavirus,” Ben, Tracy and Seung Min write. “Carson’s diagnosis comes days after news of a fresh wave of coronavirus infections at the White House, with Meadows and five other Trump aides receiving positive test results in the time around Election Day."

“I think you have seen an increase in mask-wearing at those ceremonies,” Carson said Monday. “You see a lot more masks now. People are becoming convinced that masking is good. But I’m much more concerned with therapeutics. Let’s get this thing under control. Let’s not let it control us.”

The transition

The Trump administration is rebuffing the Biden transition team, which could delay the president-elect’s covid plan.

“The head of the General Services Administration under President Donald Trump has yet to recognize the incoming Biden administration — a delay that could have consequences for the president-elect's plan to move swiftly on the coronavirus,” NBC News’s Allan Smith and Heidi Przybyla report.

GSA chief Emily Murphy has refused to sign a letter of “ascertainment,” paperwork that would give the Biden team nearly $6.3 million in transition funding and provide access to agency officials and information. 

The Post's Lisa Rein explains how the Trump administration is adding challenges to the transition process for President-elect Joe Biden. (Video: The Washington Post, Photo: Demetrius Freeman/The Washington Post)

“With the ascertainment delayed, the Biden transition has been prevented from meeting with officials heading Operation Warp Speed and other Trump administration coronavirus efforts,” Smith and Pryzbyla write.

The delay means that months of preparation from career staff at federal agencies is hanging in limbo. The Post reports that staff at Veterans Affairs have are putting the final touches on “a voluminous set of briefing documents” on private health care, coronavirus protocols, and electronic health records. 

Despite the delay, the Biden team is forging ahead with its own transition process, reaching out to contacts in and out of the government and naming members of a coronavirus task force. Vivek H. Murthy, co-chair of the task force and former U.S. surgeon general, will brief Senate Democrats over the phone at their caucus lunch today.

The virus may overwhelm hospitals in some areas before Biden takes office.

“The United States’ surging coronavirus outbreak is on pace to hit nearly 1 million new cases a week by the end of the year — a scenario that could overwhelm health systems across much of the country and further complicate President-elect Joe Biden’s attempts to coordinate a response,” Politico’s Dan Goldberg and Alice Miranda Ollstein report.

Biden, who named his coronavirus task force on Monday, has promised to ramp up testing and contact tracing, push forward a new coronavirus relief package, and oversee the distribution of masks, but he cant do any of that until he takes office on Jan. 20. In the meantime, public health officials are not optimistic that the country will see a major change in course, although some states have started to implement new restrictions.

The U.S. surpassed 10 million coronavirus cases on Monday, as the nation confronted its third major surge in cases, fueled in part by colder weather and more indoor gatherings. 

“The country’s health care system is already buckling under the load of the resurgent outbreak,” Goldgerg and Ollstein write. “The number of Americans hospitalized with Covid-19 has spiked to 56,000, up from 33,000 one month ago. In many areas of the country, shortages of ICU beds and staff are leaving patients piled up in emergency rooms. And nearly 1,100 people died on Saturday alone, according to the Covid Tracking Project.”

David Eisenman, director of the UCLA Center for Public Health and Disasters, warned that the situation is likely to only get worse and could reach levels comparable to the peak of the virus in Europe.

“Going into Thanksgiving people are going to start to see family and get together indoors,” he said. “Then the cases will spread from that and then five weeks later we have another set of holidays and people will gather then and by January, we will be exploding with cases.”

Vaccine distribution

Some health experts want to prioritize people of color for the covid-19 vaccine, but that raises tricky ethical and legal questions.

“Frontline health workers, elderly people, and those with chronic conditions that make them especially vulnerable to Covid-19 are likely to be at the head of the line, but there is also support among public health experts for making special efforts to deliver the vaccine early on to Black, Latino, Native Hawaiian and Pacific Islander, and Native American people — who have experienced higher rates of serious illness and death from the coronavirus,” Stat News’s Nicholas St. Fleur reports.

“Having a racial preference for a Covid-19 vaccine is not only ethically permissible, but I think it’s an ethical imperative,” Lawrence Gostin, a professor of global health law at Georgetown University, told Stat News. “The reason is both because of historic structural racism that’s resulted in grossly unequal health outcomes for all kinds of diseases, and because Covid-19 has so disproportionately impacted the lives of people of color.”

On April 7, U.S. Surgeon General Jerome Adams, discussed the lack of health equity when it comes to the impact covid-19 may have on African Americans. (Video: Reuters)

But Gostin acknowledged that courts would be unlikely to allow for vaccines to be distributed to geographic locations based solely on race, and he worries that any explicit attempt to distribute the vaccine based on race could backfire if it winds up in protracted litigation and delays the vaccine process.

“The other challenge you have with saying, ‘We want African Americans to step up first,’  is that we don’t want people to feel that they’re being guinea pigs,” said Georges Benjamin, executive director of the American Public Health Association. “We need to be very careful. We don’t want to give people the perception that they’re being experimented upon.”

The National Academies of Sciences, Engineering, and Medicine has called for geographic areas that have higher rates of poverty, unemployment or lack of health insurance to receive priority for vaccine distribution, since these communities are likely to be at a higher risk. Recommendations from the National Academies could inform the advisory group that will advise the Centers for Disease Control and Prevention about a distribution strategy once a vaccine is approved.

Sugar rush