with Alexandra Ellerbeck

Obamacare appears to be on stable ground, after several pivotal Supreme Court justices hinted yesterday they won’t strike it down.

Yet that ground is also politically dry for further attempts by President-elect Joe Biden to expand the law, as long as Republican power persists in the Senate.

The two-hour Supreme Court hearing gave hope to health-care advocates and liberals.

The oral arguments in the high-profile lawsuit — which threatens to topple the sweeping 2010 measure — seemed to bode well for those who want former president Barack Obama’s signature domestic achievement preserved. Throughout the virtual hearing, the court’s conservative justices appeared skeptical of the argument from Texas and the Trump administration that the ACA can no longer stand without its penalty for lacking insurance.

“A majority of the Supreme Court appeared ready Tuesday to uphold most of the Affordable Care Act in the face of a challenge from Republican-led states and the Trump administration,” Robert Barnes writes.

Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh said Congress’s 2017 decision to zero out the penalty for not buying health coverage didn’t indicate a desire by lawmakers to kill the rest of the law.

“I tend to agree with you this is a very straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place,” Kavanaugh said to a lawyer defending the law.

Roberts suggested the court should not strike down the law when Congress itself failed repeatedly to repeal it.

“I think it’s hard for you to argue that Congress intended the entire act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act,” Roberts told Texas Solicitor General Kyle Hawkins.

“I think, frankly, that they wanted the court to do that. But that’s not our job. ”

The justices also seemed skeptical that Texas even has standing to sue.

For grounds to sue, the state must show real people were harmed when Congress zeroed out the penalty for lacking health coverage. Roberts suggested that allowing this challenge would dramatically expand the ability of people to sue over laws — even if they’re not directly affected.

Justice Neil M. Gorsuch seemed skeptical, too, asking the Texas solicitor general exactly what his state and other GOP-led states want the court to block.

Andy Slavitt, former administrator of the Centers for Medicare and Medicaid Services:

Joe Palmore, a partner at Morrison & Foerster:

The newest justice, Trump appointee Amy Coney Barrett, didn’t give many hints on where she stands.

But it might not matter. If Roberts and Kavanaugh were to side with the court’s three liberal justices to uphold the law, Barrett could side with the court’s conservatives in a 5-to-4 decision. And the entire ACA would only be struck down if the court were to agree with Texas on three questions: that it has standing to sue; that the mandate is unconstitutional; and that the rest of the law can’t exist without it.

The lines of questioning left legal scholars predicting a decision against Texas and in favor of the law. Ilya Somin, a libertarian law professor at George Mason University, predicted at least a 6-to-3 majority for severing the rest of the law from the mandate. The court may even side against Texas on standing and on the mandate’s constitutionality, he wrote in a piece for Reason magazine. 

But even if the court were to agree with Texas on those two questions, there would be no practical effects on daily life in the United States. Americans would only be stripped of their ACA-provided coverage and protections if the court rules the law is unable to be severed from the individual mandate.

Biden promised to defend — and expand — health-care access no matter what the court decides next spring or summer.

The president-elect projected optimism in a speech a few hours after oral argument concluded, expressing his hopes the court will uphold the law and vowing he will protect the health care of Americans “like I protect my own family.”

“That starts by building on the ACA with a dramatic expansion of health-care coverage and bold steps to lower health-care costs,” Biden said.

President-elect Joe Biden spoke about protecting the Affordable Care Act on the same day the Supreme Court heard arguments in a case related to the law. (The Washington Post)

Yet enacting any legislative expansions to the health-care law will certainly require negotiating with Senate Republicans, who could hold 52 seats if they win two Georgia runoff elections in January. Even if there’s a 50-to-50 split, with Kamala Harris serving as the tiebreaker as vice president, Democrats couldn’t afford to lose a single vote on their side. 

And someone like Sen. Joe Manchin (D-W.Va.), the Senate’s most conservative Democrat, isn’t likely to sign on to Biden’s central goal of creating a public insurance option. He could derail any partisan initiative.

Biden seemed to tacitly acknowledge the political reality, saying he “can’t imagine there not being a willingness of Republicans amid significant pressure to deal with health care.”

“I think we can get a lot done,” he said.

Ahh, oof and ouch

Biden announced his transition team for Health and Human Services and other federal agencies.

Among them are many Obama administration alumni, including team leaders Chiquita Brooks-LaSure and Robert Gordon. Brooks-LaSure worked at HHS from 2010 to 2014 in the Office of Health Reform and the Centers for Medicare and Medicaid Services. Gordon, who currently serves as the director for the Michigan Department of Health and Human Services, spent four years in the U.S. Office of Management and Budget.

“The teams that go into federal agencies are a tradition of presidential transitions," Lisa Rein reports. “But the Biden teams will not make formal contact with Trump appointees and the career staff now in government because the outgoing administration has not yet released transition resources and allowed access to agencies, a decision that has led to a standoff with the Biden transition.”

Vox health-care and politics reporter Dylan Scott:

Politico health reporter Dan Diamond:

Rahul Gupta, who led West Virginia's opioid crisis response efforts and who currently works as the chief medical officer at March of Dimes, will lead the transition at the Office of National Drug Control Policy. 

Despite the current standoff, “transition officials stressed that they are working through informal channels to learn what’s going on in the government, talking with think tanks, labor and nonprofit groups and those who previously served at federal agencies,” Lisa reports.

OOF: Most states are not prepared to distribute Pfizer’s leading coronavirus vaccine.

Pfizer announced Monday that its vaccine demonstrated 90 percent effectiveness in early clinical trials, but authorization is only the first step. A review of preliminary distribution plans from 47 states suggests that many are not prepared to overcome the logistic hurdles to delivering the vaccine if approved, ProPublica’s Isaac Arnsdorf, Ryan Gabrielson and Caroline Chen report.

“The Pfizer vaccine is unusually difficult to ship and store: It is administered in two doses given 28 days apart, has to be stored at temperatures of about minus 100 degrees Fahrenheit and will be delivered in dry ice-packed boxes holding 1,000 to 5,000 doses,” Arnsdorf, Gabrielson and Chen write. 

Health officials preparing for vaccine distribution say they feel as if they are trying to hit a moving target. Changing details about the vaccine’s efficacy in certain populations and shipping and storage guidelines could affect distribution. Many states are struggling with how to distribute the vaccine to rural communities.

Arnsdorf, Gabrielson and Chen describe some of the challenges: “Washington state’s Health Department does not have its own warehouse that can store the Pfizer vaccine at a cold enough temperature. Arizona expects the Pfizer vaccine cannot be handled by the state’s rural communities and tribal lands. North Dakota and Oregon aren’t sure how to take care of migrant workers. Kansas’ plan appears to mistakenly assume shipments will be far smaller than 1,000 doses. Georgia’s Public Health Department is relying on local districts and counties to work out their own details,” they write.

The federal program, Operation Warp Speed, will deliver vaccines to the states, but it’s up to states to determine distribution and who should get the first doses.

The Centers for Disease Control and Prevention has recommended prioritizing health-care workers, and then moving on to other essential workers and at-risk populations. Some states are prioritizing people in jails and prisons, while others are not. Some states have stressed ensuring the vaccine gets to long-term care populations or to communities of color, which have been disproportionately impacted by the virus.

OUCH: People with intellectual disabilities and developmental disorders are three times as likely to die of covid-19.

“The finding raises complex questions about how to allocate new vaccines as they become available in limited supplies,” the New York Times’s Roni Caryn Rabin reports. Evolving guidelines for distributing vaccines emphasize prioritizing people with underlying health problems and those in congregate settings but “have not specifically emphasized the importance of prioritizing the vaccination of children and adults with intellectual disabilities like Down syndrome and developmental disorders.”

The finding comes from an analysis of insurance claim data analyzed by the nonprofit FAIR Health, Marty Makary, a public health expert at the Johns Hopkins School of Medicine, and the West Health Institute. The analysis was evaluated by an academic reviewer but has not been published in a scientific journal.

The study found a death rate of 3.37 percent for individuals with intellectual disabilities and 1.22 percent for people with developmental disorders who were infected with the coronavirus, compared to a death rate of 0.6 percent for all patients.

“The population is uniquely vulnerable for several reasons. Many live in group homes or receive care from aides, therapists or teachers who must maintain close physical proximity in order to assist them,” Rabin writes. “Many are medically frail to begin with, with high rates of underlying health conditions, particularly respiratory problems.”

Around the world

China is scrutinizing frozen food imports for the coronavirus.

Authorities have been increasingly scrutinizing frozen food imports as a potential source of outbreaks, even though many of the country’s own scientists have said that the risk is small, Chris Mooney and Gerry Shih report

In the U.S., "transmission from surfaces has been played down by experts, who have emphasized that this route is not thought to be a common way the virus spreads,” Chris and Gerry write. “But in China, where cases are increasingly rare and the government has adopted a no-tolerance policy for new infections, a growing emphasis has been placed on identifying less likely sources of infection.”

China’s Center of Disease Control announced last month that it had traced the source of a coronavirus outbreak in the port city Qingdao to packages of frozen cod shipped to China. The claim has divided experts, some of whom find China’s data and genetic sequencing of the virus persuasive, while others find the evidence inconclusive.

Some scientists say that it is at least theoretically possible for frozen food packaging to serve as a transmission vector but stress that health agencies should take care not to overstate the risk, which could cause panic and disrupt the international food trade.

“Complicating matters further is that in China, there’s a political bent to the claims of virus importation. Nationalist-leaning government officials and state media have advanced the dubious theory that the coronavirus pandemic didn’t start in China’s Wuhan at all, or that it originated in Europe or the United States but only exploded once it reached Wuhan in December,” Chris and Gerry report. “That theory is generally dismissed by experts, including many in China and Hong Kong.”

Trump's antiabortion policies applied to nearly $9 billion in foreign aid.

Republican presidents since Ronald Reagan have barred foreign aid organizations from using U.S. funding for family planning resources to counsel women about abortions or refer them to abortion providers, through the so-called “Mexico City policy." The Trump administration, however, expanded the rule across U.S. global health assistance, affecting groups working on HIV, malaria, tuberculosis and water sanitation. Under Trump the policy has applied to nearly $9 billion in foreign aid, compared to $600 million under President George W. Bush.

“Around the world, countries that depend on U.S. foreign aid have scrapped or scaled back ambitious public health projects, refashioning their health systems over the past four years to comport with President Donald Trump’s sweeping anti-abortion restrictions that went further than any Republican president before him,” Kaiser Health News’s Sarah Varney reports.

“President-elect Joe Biden has pledged to reverse the policy when he takes office, and he campaigned on a promise to enshrine abortion rights in federal law. But for many foreign aid groups, the changes may be permanent,” Varney writes.

Sugar rush