HEALTH CARE BRIEFING: Ginsburg’s Death Casts Doubt on Obamacare

Bloomberg Government subscribers get the stories like this first. Act now and gain unlimited access to everything you need to know. Learn more.

The death of Justice Ruth Bader Ginsburg injects new uncertainty into the fate of the Affordable Care Act as the landmark health-care law heads to a third showdown before U.S. Supreme Court.

President Donald Trump’s administration is asking the court to declare the law invalid and wipe out its protections for people with pre-existing conditions. The court is scheduled to hear arguments on Nov. 10, a week after the election, and probably will rule in the first half of 2021.

With Ginsburg on the court, the law’s supporters held a strong, perhaps even unbeatable, hand. She was one of five justices, including Chief Justice John Roberts, who remained on the court after voting in 2012 to uphold the core of the law in a case that raised similar issues.

Her death Friday means defenders of the law will have to pick up a fifth vote from one of the other Republican-appointed justices.

“I think you have to say that Affordable Care Act is in a more tenuous position today than it was on Friday morning,” said Nicholas Bagley, a health-care law professor at the University of Michigan Law School. “And you can hold that thought and still think that the likeliest outcome is that this very silly lawsuit will be turned away.”

The law’s supporters have a strong candidate in Justice Brett Kavanaugh, whose past votes and opinions term suggest he would be unlikely to throw out the entire ACA. Justice Samuel Alito’s record also suggests he would be open to upholding the bulk of the law, though he voted to invalidate it in 2012.

Democrats are seeking to make Trump’s stance in the case a pivotal issue in the presidential election. Democratic presidential candidate Joe Biden said Sunday Trump is trying to “strip away the peace of mind from more than 100 million people with pre-existing conditions.” Read more from Greg Stohr.

Biden to Focus on Obamacare Fight: Democratic presidential nominee Joe Biden is framing his argument against Trump’s Supreme Court nominee around the risk to the Affordable Care Act at a time when the coronavirus pandemic has made health care a critical issue and central to the campaign.

“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 yesterday in a speech at the Constitution Center in Philadelphia. “If he succeeds, insurers could once again discriminate or drop coverage completely for people living with pre-existing conditions like asthma, diabetes, and cancer.”

The strategy also helps the Biden campaign bridge what seems to voters to be a very Washington-centric fight over the timing of confirmation hearings to an issue of prime importance to them, especially as the pandemic continues. Read more from Tyler Pager.

Happening on the Hill

Fauci, Redfield, Hahn, Giroir Testify on Virus: U.S. infectious diseases expert Anthony Fauci, CDC Director Robert Redfield, FDA chief Stephen Hahn and Brett Giroir, the top Trump administration official overseeing coronavirus testing, are scheduled to testify before the Senate Health, Education, Labor and Pensions Committee at a hearing Thursday on the federal response to Covid-19.

On Friday, House Energy and Commerce Chairman Frank Pallone (D-N.J.) and Health Subcommittee Chairwoman Anna Eshoo (D-Calif.) said the White House is blocking Hahn from testifying at their panel, “despite bipartisan interest” in his appearance. The White House “muzzling of the FDA’s top scientist further injures public trust and confidence in FDA,” they said in a statement.

Obamacare and Covid-19: The House Energy and Commerce Subcommittee on health holds a hearing Wednesday on the Affordable Care Act and the Covid-19 pandemic.

Virus Containment: The Joint Economic Committee on Tuesday will discuss the effects of the U.S.’s failure to contain Covid-19.

Bill Would Require TSA Fever Checks: Transportation Security Administration officers would check passengers’ temperatures at airport checkpoints under a bipartisan bill released Friday, a responsibility that former TSA officials warned the agency isn’t necessarily equipped to handle. The legislation was offered by Senate Commerce, Science, and Transportation top Democrat Maria Cantwell (Wash.) and Sen. Rick Scott (R-Fla.), Courtney Rozen reports.

Bills on House Floor: The House is scheduled to consider the following bills this week under suspension of the rules.

Federal Benefits for Tribal Schools: Tribal grant schools would be eligible for federal health and life insurance benefits under H.R. 895. The schools are operated by American Indian tribes and receive grants through the Tribally Controlled Schools Act. Under the bill, tribal grant schools would be eligible for the Federal Employees Health Benefits program and the Federal Employees Group Life Insurance program. The House Natural Resources Committee approved the bill by unanimous consent on Jan. 15, 2020
American Indian Child Protection:Programs to address child abuse and family violence among American Indians would be reauthorized through fiscal 2026 by a modified version of H.R. 4957. The measure would also establish a National Indian Resource Services Center to offer technical assistance and training to address child abuse and neglect. The House Natural Resources Committee approved the bill by unanimous consent on December 5, 2019.
Female Genital Mutilation: The statute criminalizing the practice of female genital mutilation on minors would be expanded to include additional behaviors by H.R. 6100, which also would increase penalties under the law. The House Judiciary Committee approved the bill by voice vote on March 11.For more, see the BGOV Bill Summary by Adam M. Taylor.
Health Insurer Antitrust Exemption: Health insurers would no longer be exempt from federal antitrust laws under H.R. 1418. Rep. Peter DeFazio (D-Ore.) introduced the bill, called the “Competitive Health Insurance Reform Act,” on Feb. 28, 2019. The measure was referred to the House Judiciary Committee, which hasn’t acted on it. For more, see the BGOV Bill Summary by Danielle Parnass.
Homelessness Data During Covid-19: The Housing and Urban Development Department would have to share data with the Health and Human Services Department on low-income and homeless individuals at risk of contracting Covid-19 under a modified version of H.R. 6294. The House Financial Services Committee hasn’t considered the bill, which was introduced March 19 by Rep. Scott Tipton (R-Colo.). For more, see the BGOV Bill Summary by Michael Smallberg.
Drug Manufacturing Centers of Excellence: The Food and Drug Administration would solicit applications from higher education institutions to be designated as a “National Center of Excellence in Continuous Pharmaceutical Manufacturing” under H.R. 4866. The bill would authorize $80 million for grants or contracts with the centers for the period from fiscal 2021 through 2025. The Energy and Commerce Committee approved the bill by voice vote on July 15. For more, see the BGOV Bill Summary by Adam Schank.
Suicide Hotline: The telephone number “9-8-8″ would be designated by S. 2661 as the national suicide prevention and mental health crisis hotline and would direct callers to the National Suicide Prevention Lifeline. The Senate passed the bill by voice vote on May 13. For more, see the BGOV Bill Summary by Adam M. Taylor.
National Stockpile Grants: Funding for state strategic stockpiles and domestic supply chain manufacturing would be authorized by H.R. 7574, among other changes to the Strategic National Stockpile. The House Energy and Commerce Committee approved the bill by voice vote on July 15. For more, see the BGOV Bill Summary by Danielle Parnass.
Sudden Infant Death: The Centers for Disease Control and Prevention would be authorized to award grants to research and prevent sudden infant death under H.R. 2271. The bill would authorize $33 million annually for fiscal years 2021 through 2024 for the grants. The Energy and Commerce Committee approved the bill on July 15 by voice vote. For more, see the BGOV Bill Summary by Adam Schank.
Maternal Health Grants: Several maternal health grant programs would be authorized and the Health and Human Services Department would be directed to study discrimination in maternal health care by a modified version of H.R. 4995. The Energy and Commerce Committee approved the bill by voice vote on Nov. 19, 2019. For more, see the BGOV Bill Summary by Adam Schank.
Medicaid Nonemergency Transport: State Medicaid programs would be required to cover nonemergency transportation for medically necessary services under H.R. 3935. The Energy and Commerce Committee amended and approved the bill by voice vote on July 15. For more see the BGOV Bill Summary by Adam Schank.
First Responder Mental Health: HHS would collect and report data on suicide among law enforcement and emergency personnel under H.R. 1646. The bill would also require HHS and the U.S. Fire Administration to develop resources to assist with mental health issues faced by first responders. The House Energy and Commerce Committee approved the bill by voice vote on July 15. For more, see the BGOV Bill Summary by Loren Duggan.
Suicide Hotline Changes: The Health and Human Services Department would be required to develop a plan to ensure high-quality service through the national suicide prevention hotline under a modified version of H.R. 4564. The bill would authorize $150 million over three years for the National Suicide Prevention Lifeline, and $10 million over two years for a pilot program using additional means of communication, such as social media. The Energy and Commerce Committee approved the bill by voice vote on July 15. For more, see the BGOV Bill Summary by Loren Duggan.
Suicide Prevention Campaign: HHS would be directed to carry out a national suicide prevention campaign, including drawing attention to the 9-8-8 suicide prevention hotline, by a modified version of H.R. 4585. The House Energy and Commerce Committee approved the bill by voice vote on July 15. For more, see the BGOV Bill Summary by Loren Duggan.
Self-Harm & Suicide Prevention: Two Health and Human Services Department grants programs to expand the surveillance of self-harm and provide self-harm and suicide prevention services would be authorized to receive $250 million over five years under H.R. 5619. The House Energy and Commerce Committee approved the bill by voice vote on July 15. For more, see the BGOV Bill Summary by Loren Duggan.
Counterfeit Medical Devices: The Food and Drug Administration would be permitted to destroy imported counterfeit medical devices under H.R. 5663, an expansion of its authority over counterfeit drugs that are refused admission into the U.S. The Energy and Commerce Committee approved the bill by voice vote on July 15. For more, see the BGOV Bill Summary by Loren Duggan.
Global Health Security: The Global Health Security Agenda Interagency Review Council to facilitate and review the federal response to global infectious disease threats would be codified by H.R. 2166. It was established in a 2016 executive order signed by former President Barack Obama. The measure also would direct the president to appoint a coordinator to lead U.S. strategy on global health emergencies. The House Foreign Affairs Committee amended and approved the bill by voice vote on March 4. For more, see the BGOV Bill Summary by Naoreen Chowdhury.
Global Childhood Development: The U.S. Agency for International Development (USAID) would be authorized to promote early childhood development programming abroad under H.R. 4864. The House Foreign Affairs Committee amended and approved the bill by voice vote on Dec. 18, 2019. For more, see the BGOV Bill Summary by Naoreen Chowdhury.
Preventing Veteran Suicides: The Veterans Affairs Department would have to expand its efforts to prevent veteran suicides under S. 785. Among other provisions, the measure would require the VA to: issue grants for outside entities to provide suicide prevention and telehealth services; ensure that every VA medical center has at least one suicide prevention coordinator; offer scholarships to students in relevant fields who agree to work as VA counselors; and establish a pilot program to expand the use of animals, sports, and other alternative therapies. The Senate passed the bill by voice vote on Aug. 5. For more, see the BGOV Bill Summary by Michael Smallberg.
American Indian Veterans: Health care copayments would be waived for American Indian veterans who receive treatment through the Veterans Affairs Department under H.R. 4908. The House Veterans’ Affairs Committee amended and approved the bill by voice vote on July 30. For more, see the BGOV Bill Summary by Sarah Babbage.
Veterans’ Mental Health Care: The Veterans Affairs Department would have to establish or expand mental health programs for eligible veterans under H.R. 8247. The department would be required to: provide or pay for eligible veterans to receive emergency suicide care, at a VA facility or outside of the department; educate caregivers and family members of veterans with mental health disorders; reach out to veterans who haven’t received health care through the VA in the last two years; and provide annual crisis intervention training to VA police officers. The House Veterans’ Affairs Committee amended and approved the bill by voice vote on Sept. 17. For more, see the BGOV Bill Summary by Michael Smallberg.
Veterans’ Contraceptive Copayments: The Veterans Affairs Department couldn’t charge copayments to veterans who receive contraceptive items under H.R. 3798. The House Veterans’ Affairs Committee amended and approved the bill by voice vote on March 12. For more, see the BGOV Bill Summary by Sarah Babbage.
VA Telehealth Services: Health-care trainees at the Veterans Affairs Department could provide telemedicine across state lines under H.R. 3228. The House Veterans’ Affairs Committee amended and approved the bill by voice vote on July 30. For more, see the BGOV Bill Summary by Michael Smallberg.
VA Prostate Cancer Treatment: The Veterans’ Affairs Department would have to establish research and treatment programs for veterans with prostate cancer under H.R. 6092. The House Veterans’ Affairs Committee approved the bill by voice vote on Sept. 17. For more, see the BGOV Bill Summary by Michael Smallberg.
Veterans’ Disability Forms: The Veterans Affairs Department would be required by H.R. 7795 to publish forms on its website that physicians can use to determine veterans’ eligibility for disability compensation. The House Veterans’ Affairs Committee approved the bill by voice vote on July 30. For more, see the BGOV Bill Summary by Sarah Babbage.

The Coronavirus Pandemic

CDC Messaging Was Bogged Down by Reviews: A few months ago the Trump administration put in place new procedures to review U.S. Centers for Disease Control and Prevention guidelines related to coronavirus, subjecting hundreds of proposed documents and publications to questioning by officials across the administration, according to people familiar with the matter.

Since then, officials from across the federal government have been weighing in on nearly every document or website related to Covid-19 advice that the agency has published, the people said. The full extent of the role other federal agencies are playing in shaping CDC recommendations hasn’t been previously reported.

While the additional scrutiny rarely resulted in big changes to the publications by the agency, the people said, it delayed guidance to nursing homes, schools, houses of worship and businesses, sometimes for weeks, as infections soared across the U.S. Read more from John Tozzi.

Former FDA Head Calls Azar’s Rule-Making Move a ‘Distraction’: Former FDA commissioner Scott Gottlieb said HHS Secretary Alex Azar’s move to bar agencies under his authority from signing their own rules is a “major distraction” that creates “an implication, or at least a specter” that the FDA’s independence is being eroded or influenced. “The timing of this is really poor right now, because it’s going to distract the agency and frankly creates headlines that could leave the perception that the agency is being bullied,” Gottlieb said on CBS yesterday.

Alex Azar has barred agencies under his authority, including the FDA, from signing new rules, the New York Times reported Saturday. The report cited a Sept. 15 memo by Azar that was sent to HHS leaders and said rule-signing authority is “reserved to the Secretary.” Read more from Todd Shields and Yueqi Yang.

CDC Reverses Controversial Testing Guideline: The CDC issued new guidelines Friday, saying anyone who’s had close contact with someone with Covid-19 needs a test, even if they don’t have symptoms. The change comes after a controversy in August, when the agency suggested those people didn’t need Covid screenings. People who don’t have symptoms and aren’t close contacts of an infected person still don’t require a screening, unless recommended by a medical provider or health official, CDC said in a statement. Read more from Emma Court.

Emails from a former senior Trump administration health official and his adviser show that the pair refused to accept CDC science, The New York Times reported Friday. Michael Caputo, the Health and Human Services Department’s top spokesman, and Paul Alexander, a new science adviser for HHS, attempted to bully career officials, the Times reports.

U.S. Stands on Verge of 200,000 Virus Deaths: The U.S. will top 200,000 deaths from the novel coronavirus in coming days, a devastating milestone that comes eight months after the pathogen was first confirmed on American soil. The U.S., with 4% of the world’s population, accounts for about 21% of global coronavirus deaths. The major disparity underscores America’s failure to contain a virus that blazed through populous states like Texas, Florida, and California this summer despite predictions that warmer weather could bring a respite. Read more from Emma Court.

More Headlines:

What Else to Know

Organ Donors Could Recoup Child-Care Expenses: Organ donors will be able to recover lost wages, child-care costs, and many other expenses incurred after undergoing the surgical procedure under an HHS regulatory change that seeks to remove barriers to donation. The final rule issued on Friday aims to curb the number of Americans who die waiting for a new organ by reducing the financial disincentives to donating. The regulation carries out part of Trump’s executive order to reboot Medicare’s approach to kidney care, in an effort to ease one of the biggest domestic drains on taxpayers. Read more from Jeannie Baumann.

More Headlines:

To contact the reporter on this story: Brandon Lee in Washington at blee@bgov.com

To contact the editors responsible for this story: Zachary Sherwood at zsherwood@bgov.com; Giuseppe Macri at gmacri@bgov.com; Michaela Ross at mross@bgov.com

Stay informed with more news like this – from the largest team of reporters on Capitol Hill – subscribe to Bloomberg Government today. Learn more.