HEALTH CARE BRIEFING: Sweeping Obamacare Challenges Are Over

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The road to a broad-stroke constitutional challenge to Obamacare is more or less closed, but smaller pokes at the law are still expected after the Supreme Court’s 7-2 ruling yesterday to uphold it.

“There will not be a big omnibus challenge to the entire statute, but there will continue to be ongoing litigation about the administration and enforcement of the law, and that will go on for some time,” said Jonathan Adler, a law professor at Case Western Reserve University School of Law.

In a move that surprised most court watchers, the Supreme Court resolved on procedural grounds the latest attack on the Affordable Care Act. The court held that Republican-controlled states and two individuals who brought the lawsuit couldn’t prove they were injured by the provision in the law that requires everyone to buy insurance because it’s not enforceable.

The ruling means some 20 million people get to keep their health insurance, and legal scholars say it marks the last chances at a constitutional challenge to President Barack Obama’s signature statute.

President Joe Biden and Health and Human Services Secretary Xavier Becerra want to use the ACA as the cornerstone vehicle to get more people insured, whether it’s through expansion of the low-income Medicaid program or enticements for more people to sign up for Obamacare through monetary aid.

“We can do all those things now, because now we know we’re working from a platform that’s not just legal, but has survived three legal tests,” Becerra told health industry participants in a call yesterday.

Adler said that means there’s room for new litigation, but it will likely focus on how the administration uses with the law to propel its goals. “Like any big regulatory statute, it’s got tons of provisions, it’s got tons of moving parts, there are tons of things in the law which can create legal conflicts and questions, and those provisions will be the subject of litigation,” he said. Read more from Lydia Wheeler.

Ruling Leaves Parties Searching for 2022 Pitches: The end of the latest legal challenge against Obamacare also weakens a message that’s united Democratic campaigns in recent elections. “It seems to me like the ACA has petered out as a major animating issue,” said Kyle Kondik, managing editor of Sabato’s Crystal Ball. Democrats had used Republicans’ unsuccessful efforts to overturn the ACA to help them win control of both chambers of Congress in 2020. Read more from Alex Ruoff.

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Happening on the Hill

Manchin Bashes FDA on Alzheimer’s Drug Approval: Sen. Joe Manchin (W.Va.), a moderate Democrat considered a crucial vote within the party’s slim Senate majority, said Janet Woodcock, the acting head of the Food and Drug Administration, should be quickly replaced by a permanent leader. Manchin blasted an FDA decision to approve the controversial Alzheimer’s therapy Aduhelm despite conflicting evidence that the Biogen drug works and a negative vote against the therapy by agency advisers. Read more from Anna Edney.

Kennedy Pushes Bill for Telehealth: Sen. John Kennedy (R-La.) introduced legislation yesterday seeking to improve access to telehealth services, according to a statement. Kennedy’s package of four bills would “raise reimbursement levels for health care professionals conducting virtual visits, end a regulation that limits access to telehealth services” and “improve telehealth access in rural areas,” the statement said. Find text of the bills here.

The Coronavirus Pandemic

U.S. Puts $3.2 Billion Into Antiviral Effort: The U.S. is investing $3.2 billion into developing antiviral medicines to combat Covid-19 and other viruses with pandemic potential. The aim: create treatments to be taken at home soon after someone gets sick. Dubbed the Antiviral Program for Pandemics, the push led by U.S. health agencies will support the production of antiviral treatments for Covid-19 and future disease threats, the Health and Human Services Department said. Riley Griffin and Rebecca Torrance have more.

CureVac’s Flop Shows Pfizer, Moderna Made mRNA Look Too Easy: The rapid development and remarkable efficacy of Covid-19 shots from Pfizer and Moderna created sky-high expectations for the novel technology they employ. CureVac’s vaccine disappointment shows that not every messenger-RNA project will live up to hopes. The German biotech firm made some crucial choices that set its candidate apart. Although the trial results it published earlier this week aren’t directly comparable, and the proliferation of viral variants has complicated studies since the other shots were tested last year, experts say key differences between the vaccines probably played a major role in CureVac’s weak results. Read more from Tim Loh and Naomi Kresge.

EU Lifts Travel Curbs on Vaccinated Americans: The European Union lifted travel restrictions for U.S. residents, in the latest step toward a return to normalcy despite concerns over the spread of potentially dangerous coronavirus variants. EU governments decided today to add the U.S., along with Albania, Hong Kong, Lebanon, Macau, the Republic of Northern Macedonia, Serbia, and Taiwan to a so-called “white list” of countries from which non-essential travel is allowed. Read more from Nikos Chrysoloras.

British officials are considering plans to open up international travel for passengers who’ve been fully inoculated against Covid-19, allowing a resumption of tourism to over 150 countries and territories including the vital U.S. market. Read more from Tim Ross and Siddharth Philip.

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What Else to Know Today

Opioids Rip Through U.S. Workforce: Before the Covid-19 pandemic was the drug epidemic. Its relentless toll added a record 90,722 overdose deaths in the U.S. for the year through November 2020, a grim number obscured by coronavirus casualties that recently topped 600,000, according to federal data released this week. As the virus transfixed the nation, the drug crisis spread to largely untouched parts of the country, exacerbated by the recession and millions of job losses.

Not only stores and restaurants shuttered: Counseling services went online, inpatient clinics closed and mobile clinics pulled back. Without support, many Americans relapsed and some turned to drugs for the first time. Before the pandemic, U.S. unemployment hit a half-century low of 3.5%; today, the country is still missing almost 8 million people on payrolls. The Biden administration is seeking full employment, but that goal will be daunting as businesses confront a workforce more addicted than ever. Read more from Katia Dmitrieva and Reade Pickert.

Medicare Spent Most Drug Cash on Advertised Products: Medicare and its beneficiaries spent $560 billion on prescription drugs between 2016 and 2018, and nearly 60% of that money went to products the pharmaceutical industry advertised directly to consumers, the Government Accountability Office said in a report released yesterday. The GAO report indicates that direct advertising practices may have led to increases in Medicare patient use and spending for at least some drugs. Read more from Lesley Torres.

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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

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