with Alexandra Ellerbeck

The Supreme Court upheld (most of) the Affordable Care Act in 2012. And then again in 2015.

Now the justices have a third chance to defend the landmark health-care law from yet another GOP-led lawsuit seeking to tear it down. The decision could come as soon as 10 a.m. today, when the court releases another batch of opinions in the waning days of its term.

For reasons we’ll explain below, California v. Texas seems to be lower stakes than the high court’s previous major ACA rulings. It hinges on an argument many legal scholars have found preposterous — that the law can’t persist stripped of its original penalty for being uninsured.

  • The case argues that a small congressional tweak to the law renders it unconstitutional. In 2017, Congress zeroed out the law's penalty for lacking health coverage, as part of a tax overhaul.
  • The argument goes like this: The Supreme Court ruled the law constitutional back in 2012 by ruling that the penalty falls under Congress’s authority to tax. But because the penalty no longer exists, GOP-led states are arguing, the rest of the law must fall too.
  • There's a comparison here to the 2015 King v. Burwell lawsuit, in which challengers drew on ambiguous wording in the ACA’s text to try to block federal insurance subsidies in dozens of states. No one thought that case would make it very far either — until it did.

Wherever the justices land — and it’s not at all clear even the most conservative are sympathetic to the plaintiffs — the case is yet another example of the persistent unwillingness of Republicans to accept President Barack Obama’s signature domestic legislation as the law of the land, even though the sweeping measure is now so entrenched in the nation’s health-care system that uprooting it seems unimaginable.

Here are two things to remember, as we await the court's decision:

In oral arguments, even the conservative justices seemed skeptical of striking the law down.

As we wrote last November, the two hours of oral arguments gave hope to supporters of the ACA. Throughout the virtual hearing, the court’s conservative justices appeared skeptical of the argument from Texas and the Trump administration that the law can no longer stand without its penalty for lacking insurance.

For example, both 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.

They 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.

Granted, Justice Amy Coney Barrett didn't give many hints about her thoughts. But it might not matter, as I noted at the time.

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.

Even if the court does strike down the ACA, Congress could probably save it anyway.

Lawmakers could pass and send President Biden legislation that effectively renders the lawsuit against Obamacare moot. There are two basic routes the legislation could take: it could make clear the law can survive without the mandate penalty, either by simply saying so or by repealing the mandate entirely, or it could simply reinstate the penalty to a very small sum of, say, $1.

Either of these approaches would take the teeth out of the case, according to University of Michigan professors Nicholas Bagley and Richard Primus.

The only hitch may be the political makeup of the Senate. Unless Democrats included an ACA-saving measure in a budget reconciliation bill, they would need to convince 10 GOP senators to vote to save the health-care law. 

Ahh, oof and ouch

AHH: The Biden administration will buy 500 million Pfizer doses to donate to the world.

“The first 200 million doses will be distributed this year, with the subsequent 300 million shared in the first half of next year. The doses will be distributed by Covax, the World Health Organization-backed initiative to share doses around the globe, and they will be targeted at low- and middle-income countries. Pfizer is selling the doses to the United States at a ‘not-for-profit’ price, according to the people familiar with the deal, who spoke on the condition of anonymity to share details that were not yet public,” The Post’s Tyler Pager and Emily Rauhala report.

The 500 million doses will be about six times the number of vaccines Covax has distributed so far, but would only account for a quarter of the 2 billion doses the initiative planned to distribute this year. 

Biden is slated to announce the plan at the Group of Seven meeting in Britain. The deal comes as the United States and other wealthy countries face criticism for not doing enough to boost the global supply of vaccines and support an equitable distribution. As U.S. cases have receded and supply of vaccines far outstrips demand, the United States has faced renewed pressure at home and abroad to end what some advocates have called a global “vaccine apartheid.”

“The gap between vaccines haves and have-nots is vast. More than half the populations in the United States and Britain have had at least one dose of coronavirus vaccine, compared with fewer than 2 percent of people in Africa,” Tyler and Emily write.

OOF: Thousands of state lawmakers received pharma dollars during the 2020 elections.

“In the last two years, at least 2,467 state legislators — over one-third of all state lawmakers nationwide — used pharmaceutical industry cash to fund their campaigns, according to a new STAT analysis of campaign finance records that spans the full 2020 election cycle. The industry wrote over 10,000 individual checks totaling more than $9 million,” Stat News’s Lev Facher reports.

In Oregon, two-thirds of lawmakers have accepted a check from the pharmaceutical industry, which could explain why the state has repeatedly failed to pass proposals aimed at curbing drug prices. In Louisiana, 84 percent of lawmakers have accepted funding from the industry. In California, it’s 82 percent.

“It’s hard to compare the drug industry’s spending in the 2020 election to past election cycles, since similar analyses don’t exist. But it’s clear that pharmaceutical companies found themselves in an unprecedented political moment: At the start of the cycle, widespread and increasingly vocal animus over high drug prices spurred a slew of aggressive new policy proposals. Then the Covid-19 crisis plunged the drug industry into a vaccine race that overhauled both its priorities and its reputation writ large,” Lev writes.

The pharmaceutical industry spent similar amounts supporting Democrats and Republicans, and it tended to write checks in the lead-up to Election Day. Pfizer was the most prolific donor, sending checks to 1,048 lawmakers in 43 states.

OUCH: Sherri Tenpenny is not the first conspiracy theorist invited to testify before a state legislature.

Video of a conspiracy-ridden, anti-vaccine testimony delivered by a doctor at the Ohio Statehouse has gone viral. Ohio doctor Sherri Tenpenny told state lawmakers that vaccines could cause people to become “magnetized” so that metal would stick to them and suggested that vaccines interface with 5G cellular towers. 

It’s not the first time that lawmakers have invited expert witnesses with histories of promoting vaccine-related and other conspiracy theories, The Post’s Aaron Blake reports.

Sherri Tenpenny, a Cleveland-based doctor, falsely told Ohio lawmakers that coronavirus vaccines could magnetize people during an Ohio House hearing on June 8. (The Ohio Channel)

Legislatures in Michigan and Louisiana have featured testimony from people who have previously spouted conspiracy theories about vaccines. 

U.S. Senate Republicans invited vaccine skeptic Jane M. Orient to testify in front of the Senate Homeland Security Committee. While Orient’s views are less extreme than Tenpenny’s, she belongs to a group, the Association of American Physicians and Surgeons, that holds some views not supported by science.

Booze cruise

Women are drinking as much as men — and getting sicker.

“For nearly a century, women have been closing the gender gap in alcohol consumption, binge-drinking and alcohol use disorder. What was previously a 3-1 ratio for risky drinking habits in men versus women is closer to 1-to-1 globally, a 2016 analysis of several studies suggested,” Kaiser Health News’s Aneri Pattani reports.

“And the latest U.S. data from 2019 shows that women in their teens and early 20s reported drinking and getting drunk at higher rates than their male peers — in some cases for the first time since researchers began measuring such behavior,” she writes.

The trend parallels a rise in mental illness among women, and some researchers worry that the pandemic could make both drinking and mental illness worse. Studies have found that women are more likely than men to drink to cope, as opposed to drinking for pleasure.

Women also suffer liver disease, heart disease and cancer as a result of alcohol more quickly than men and at lower levels of consumption, but alcohol disorders can often go unrecognized in women.

More in coronavirus news

  • The majority of hospitals in D.C. and Maryland will soon start mandating that employees be vaccinated against the coronavirus, The Post’s Rachel Chason reports. Hospital leaders say that a mandate is necessary to protect patients and staff.

    The federal government, however, is taking a different tack. The Post’s Eric Yoder reports that the Biden administration has told federal agencies that they should generally not require proof of vaccination to work on-site.
  • U.S. deaths from heart disease and diabetes surged during the pandemic, possibly as a result of people with symptoms staying away from hospitals out of fear of contracting the coronavirus, the Associated Press’s Mike Stobbe reports. Data released this week shows that the country experienced the biggest increase in death rates from heart disease and diabetes in at least 20 years. The result: There were 32,000 more heart disease deaths and 13,000 more diabetes deaths than in 2019.
     
  • The Department of Health and Human Services has started vaccinating some migrant children against the coronavirus, the Hill's Nathaniel Weixel reports.

Elsewhere in health care

Nevada became the second state to adopt a public option.

Gov. Steve Sisolak (D) signed into law a bill that will allow Nevada to offer state-managed health insurance plans. So far, Washington is the only other state to pass a public option. Nevada's law requires any insurers that bid to cover Medicaid recipients and state employees to also offer a so-called public option plan, which must have lower average premiums than plans on the state marketplace.

“Proponents argue a state-based public option will expand coverage to Nevada's 350,000 uninsured residents and lower the cost of health insurance throughout the market. The bill's detractors decry the price controls and worry that forcing doctors and hospitals to accept patients at lower costs could lead them to leave the state and exacerbate a practitioner shortage,” writes Sam Metz with the Associated Press and Report for America

Sugar rush