The Health 202: Obamacare’s chances of surviving Supreme Court diminished with RBG’s death

“It’s insane to me the validity of a law passed 10 years ago is in jeopardy because of the death of an 87-year-old woman,” Nick Bagley, a health law professor at the University of Michigan who closely tracks Affordable Care Act-related litigation, told me.

President Trump is expected to nominate a replacement for Ginsburg this week, kicking off a dramatic and intense battle over the future of the Supreme Court even as the Nov. 3 election draws near.

Ginsburg’s death has intensified Democrats’ focus on the high-profile case against Obamacare, brought by conservative states and supported by the Trump administration. Democrats won control of the House in 2018 partly by making the lawsuit a major theme, and this year they’ve been constantly reminding voters in ads and campaign speeches that the court could strike down the law.

“I’m speaking for the millions of Americans out there, who are already voting in this election,” Democratic presidential nominee Joe Biden said in a speech Sunday asking Senate Republicans to refuse to confirm a new justice in the six weeks before the election.

“Millions of Americans who are voting because they know their health care hangs in the balance,” Biden added.

Tens of millions of Americans would lose coverage through Medicaid and subsidized marketplaces and many more would lose the law’s consumer protections, including a ban on discriminating against those with preexisting medical conditions. Passed in 2010, the law’s main components have been in place for six years and are now entrenched within the U.S. health-care system.

The renewed focus on Supreme Court appointments helps Democrats to keep hammering Republicans over the resulting upheaval should the court side against the law.

“[Trump] doesn’t’ want to crush the [corona]virus, he wants to crush the Affordable Care Act,” House Speaker Nancy Pelosi said yesterday on ABC’s “This Week.”

The issue doesn’t play well for Republicans, The Post’s Dave Weigel notes:

The Supreme Court ruled the law constitutional 2012 on the basis of its penalty for being uninsured. But after Congress zeroed out the penalty, states argued the whole law must fall because the reason it was found constitutional was gone. Rather than defending the law, the administration has chosen to side with the states in arguing the entire ACA should be struck down. 

“In the middle of the worst global health crisis in living memory, Donald Trump is at the Supreme Court trying to strip health coverage away from tens of millions of families and to strip away the peace of mind from more than 100 million people with pre-existing conditions,” Biden said.

Here are a few possible scenarios for how a decision could go down:

This would involve at least one of two conservative justices ― most likely Chief Justice John G. Roberts Jr. and Justice Brett Kavanaugh ― siding with the three remaining liberal justices. 

Roberts was the swing vote to uphold the ACA in 2012, and many court-watchers doubt he could be persuaded to upend the law this time around. Less is known about Kavanaugh’s perspective, although he has written previously about the importance of keeping as much as possible of laws passed by Congress when there’s a constitutional difficulty.

A 4-to-4 tie would thrust the law into a legal limbo.

Under this scenario, a ruling by the U.S. Court of Appeals for the 5th Circuit would stand. That panel of judges previously ruled the requirement for Americans to carry insurance is unconstitutional, while kicking the question of whether the rest of the law can stand without it back to U.S. District Judge Reed O’Connor.

So it would be up to O’Connor to decide which parts of the ACA could stay and which couldn’t. Known as a deeply conservative judge, O’Connor ruled in 2018 that the entire law is unconstitutional ― so advocates for the law fear he might choose to scrap the whole thing if given the chance again.

Were O’Connor to strike down the ACA, it would lead to yet another series of appeals and the case could wind up before the Supreme Court again.

The Obama administration argued back in 2012 that if all Americans – including the healthy ones – aren’t required to buy coverage, it’s not fair to require insurers to cover everyone at the same cost. In theory, their argument went, the purchasers of coverage would be heavily weighted toward the sick and expensive people. The Trump administration also adopted this position in its original stance on the lawsuit.

The court could be receptive to this type of an argument. The justices could rule that because Congress zeroed out the individual mandate penalty, the law’s consumer protections, including the so-called “guaranteed issue” and “community rating” provisions, must also fall. But they could leave the law’s other major elements such as the individual marketplaces and Medicaid expansion in place.

Conservative justices Neil M. Gorsuch, Samuel A. Alito Jr. and Clarence Thomas are considered highly likely to side against the law (Alito and Thomas ruled it unconstitutional in 2012). But to succeed, they’d need two more justices on their side. That could be either Roberts or Kavanaugh ― and, if she is in place, whoever the Senate confirms to replace Ginsburg. 

In a weekend call with Senate Majority Leader Mitch McConnell (R-Ky.), Trump mentioned two female appellate court judges — Amy Coney Barrett, 48, of the U.S. Court of Appeals for the 7th Circuit, and Barbara Lagoa, 52, of the 11th Circuit — as favorites.

If Ginsburg hasn’t been replaced by Nov. 10, it’s possible the court could hear the case, see that the decision is heading toward a tie, and announce it will rehear the case once there are again nine justices. Or, Roberts could simply reschedule the oral arguments, though he’s unlikely to do so, Bagley said.

“I think the justices will be pretty reluctant to play games with the schedule because they don’t want to be seen as acting in a partisan way,” he said.

The country is set to pass the grim milestone seven months after the first death was reported in late February, and only four months after it reached 100,000 deaths. Many of those who have died were isolated from friends and family, kept apart for fear that the infection would spread.

The Washington National Cathedral in D.C. rung its bells 200 times Sunday, once for every 1,000 lives lost to the virus.

Peter Baker, White House correspondent for the New York Times:

Demonstrators protested covid-19 deaths outside the White House on Sunday.

Make Valerio, who covers the White House for WUSA9:

Although the death rate from the virus has declined as it has spread among younger, healthier populations and as treatments have improved, the country remained at around 1,000 deaths per day for much of the summer, defying those who once hoped that the summer months could provide relief. Daily deaths now average between 800 and 900.

The death toll has surpassed what many predicted in the early days of the pandemic. In March, Deborah Birx, coordinator of the White House coronavirus task force, predicted that if the United States had a well-coordinated effort, it would see between 100,000 and 200,000 deaths from the virus.  

The accusation had been made by a nurse who worked at the Irwin County Detention Center in Georgia. The widely circulated whistleblower complaint sparked outrage among congressional Democrats and an investigation from the Department of Homeland Security’s inspector general.

However, the AP did found evidence to support an allegation that gynecologist Mahendra Amin performed surgeries on several women detained by Immigrations and Customs Enforcement at the detention center.

“An Associated Press review of medical records for four women and interviews with lawyers revealed growing allegations that Amin performed surgeries and other procedures on detained immigrants that they never sought or didn’t fully understand,” Nomaan Merchant reports.

Andrew Free, an immigration and civil rights lawyer, said that at least eight women at the Georgia detention center had received gynecological surgery or other treatment, including at least one hysterectomy, from Amin since 2017.

Doctors who spoke with the AP said that in some circumstances the surgeries may have been justified but that they should not have occurred without proper consent. In other cases, less-invasive alternatives may have been possible.

Asked by anchor Chuck Todd whether a death toll of 200,000 could be “a sign of a successful strategy,” Azar cited estimates from the early days of the pandemic that claimed that two million Americans could die without any aggressive actions.

Azar also weighed in on contradictory statements made by Trump and CDC director Robert Redfield. Last week after Redfield said that masks could be more important than vaccines, Trump called Redfield’s statement a mistake. 

“I think the point the president was making is there’s not an equivalence between masks and vaccines,” Azar said. “We use masks as we do mitigation tactics to bridge to the day of those vaccines, but the vaccines are still the end game that we’re headed towards.”

Public health officials have stressed the importance of masks, especially as it is still unknown how effective a vaccine will be or when it will be widely distributed in the United States.

“I have totally changed the FDA process. Same safety but the speed is from a different world,” Trump said in an interview with Fox News’s Mark Levin on Sunday. He also claimed that his critics were rooting against a vaccine for political reasons.

Trump did not specify what steps his administration had taken to change the FDA process, but he has put significant pressure on the agency to speed up the timeline for a coronavirus vaccine, raising concerns a vaccine could be authorized before it has been properly vetted for safety and effectiveness. Last week, Democratic presidential nominee Joe Biden said in a speech that he did not trust that Trump would not interfere with a vaccine approval process. 

But two former FDA commissioners aren’t worried about the integrity of a vaccine.

Mark McClellan and Scott Gottlieb, who have criticized the administration’s coronavirus response, sought this weekend to reassure the public that they can trust the agency’s vaccine process, including any steps taken toward an emergency use authorization for a vaccine.

The former FDA commissioners write in an op-ed in the Wall Street Journal that they “reject the idea that the FDA’s professional staff can be cowed by outside influences. Beneath all the political rhetoric, the process for developing Covid vaccines has been rigorous.”

The New York Times reported on Saturday that HHS Secretary Azar had issued a new memorandum barring national health agencies, including the Food and Drug Administration, from signing any new rules affecting medical products or vaccines.

In an interview with Face the Nation, Gottlieb called the decision “unfortunate” and said it was “the wrong message” at a time when it was important to reaffirm the independence of the FDA, but he also said it would not have a practical effect on the vaccine authorization and stood by his message that the vaccine process would not be influenced by politics.

“China and Russia have begun a mass rollout of their coronavirus vaccines before clinical tests are complete, in what is emerging as an unexpectedly complex geopolitical challenge for the United States,” The Post’s Eva Dou and Isabelle Khurshudyan report.

China’s Sinopharm announced last week it would provide emergency doses of one of its two trial vaccines to the United Arab Emirates, while Russia signed a deal to provide India with 100 million doses of the Sputnik V vaccine.

“American health-care experts say the United States should not rush out its own vaccine in response. But that leaves China and Russia as the only countries wielding this valuable diplomatic tool for potentially months to come,” Dou and Khurshudyan write.

If the gamble pays off, then China and Russia may gain geopolitical power, but bending the rules comes with significant risks. Rare side effects often only appear in larger Phase 3 trials and rushing a vaccine could compromise safety.

“It’s really insane and a terrible idea,” Arthur Caplan, head of the division of medical ethics at New York University’s Grossman School of Medicine, told The Post in reaction to China and Russia not waiting for the results of Phase 3 trials. “It’s staggeringly hard to comprehend.”

“AstraZeneca revealed details of its large coronavirus vaccine trials on Saturday, the third in a wave of rare disclosures by drug companies under pressure to be more transparent about how they are testing products that are the world’s best hope for ending the pandemic,” the New York Times’s Denise Grady, Katherine J. Wu and Sharon LaFraniere report.

AstraZeneca’s blueprint calls for a vaccine to be 50 percent effective against the virus. To conduct the statistical analysis necessary to determine whether it has reached this target, at least 150 cases of covid-19 must be confirmed among people who have received either the vaccine or a placebo, although the company could conduct an interim analysis after 75 cases. 

Despite the release of the blueprint, AstraZeneca has still not released many details about two serious illnesses among the 18,000 people who have received the vaccine so far. In one case, a woman developed inflammation of the spinal cord, known as transverse myelitis, after a single dose of the vaccine. A source told the New York Times that a second case, which prompted a pause in the vaccine trial this month, was also transverse myelitis in another participant who fell ill after a second dose of the vaccine.

Researchers have still not determined whether the illnesses were connected to the vaccine. Britain, Brazil, India and South Africa have resumed clinical trials of the vaccine, but it is still on pause in the United States.

“A report from the Federal Emergency Management Agency warned that the wildfires that have been raging in California, Oregon and Washington have been ‘complicating the response’ to covid-19, the disease caused by the novel coronavirus,” our colleagues Cleve R. Wootson Jr. and Karin Brulliard report. “As a result, the agency said, the rate of positive coronavirus tests in Oregon rose sharply to 5.6 percent last week, the highest since July and the first upward movement after six weeks of declines.”

The smoke from the fires has kept many people indoors, where they may be more likely to come into close contact with other people and where poor ventilation often makes it easier for the virus to spread. At the same time, the recommendations to stay indoors, evacuation orders, and the closure of outdoor testing sites due to hazardous air have slowed testing in many communities.

Other factors, such as the possibility of increased transmission during Labor Day festivities, may have also contributed to the spike in cases. 

“Still, a dozen days avoiding atmospheric contaminants may provide a prelude for a nation still unclear about what will happen when winter forces most people inside,” Wootson and Brulliard write.

• The Congressional Budget Office reported that a string of coronavirus relief bills added 4.7 percent to the gross domestic product (GDP) in 2020 and will add an additional 3.1 percent to the economy in 2021. The report comes as Congress has stalled in negotiations over a second coronavirus relief package, the Hill’s Niv Elis reports.
• Europe is in the midst of a second wave of coronavirus, with daily case numbers in the United Kingdom and European Union reaching record highs. New restrictions have gone into effect in areas that were already far along in reopening, CNN reports.
• The United States set a one-day record of 1 million coronavirus tests administered Saturday. The record comes after testing numbers had fallen for several weeks. But experts warn that the country needs between 6 million and 10 million tests a day to bring outbreaks under control, Reuters reports.
• Trump’s Health and Human Services appointees tried to pressure a leading CDC researcher after she stressed the seriousness of the coronavirus. Paul Alexander, a public affairs official who recently left the agency amid controversy over interference with the CDC’s weekly scientific reports, sent an email excoriating Anne Schuchat, CDC principal deputy director, in June for comments that she made about the spread of the coronavirus and its risk for younger populations. Alexander wrote to his boss, Michael Caputo, who left on a 60-day medical leave last week after a Facebook rant in which he accused CDC scientists of sedition, that the comments contradicted the message from senior members of the Trump administration, The Post’s Lena H. Sun, Yasmeen Abutaleb and Lenny Bernstein report.