For its first 208 years, the New England Journal of Medicine has never endorsed a political candidate. But this week the journal published an editorial outlining its political position in the upcoming Presidential election, signed unanimously by all editors who are US citizens.
The editors did not explicitly endorse former Vice President Biden, but rather offered a scathing condemnation of the current administration’s performance during the COVID pandemic:“Reasonable people will certainly disagree about the many political positions taken by candidates.
But truth is neither liberal nor conservative. When it comes to the response to the largest public health crisis of our time, our current political leaders have demonstrated that they are dangerously incompetent. We should not abet them and enable the deaths of thousands more Americans by allowing them to keep their jobs.” (Formally endorsing Biden last month, Scientific American also made the first political endorsement in its 175-year history.)
Much of the media coverage of the NEJM statement has centered on the question of whether medicine should involve itself in politics, or “live above it”.
Medicine has been drawn into political disputes before, but now the nature of the involvement has changed. In the past, debates largely centered around regulation, payment or policy—but now the science itself has become a fundamentally political issue.
The very nature of the coronavirus has become a matter of political belief, not just an indisputable scientific fact.
Public trust in both scientific institutions and the government, and their ability to work together, has been damaged. We fear this will lead to poorer health outcomes regardless of who wins the upcoming election.
“Last night I shared a post on Facebook that said, ‘Hey, the flu shot isn’t about you.’ Sitting here, soaking up every ounce of caffeine before my night shift, I figured I should elaborate.
The flu shot is for Influenza, a severe respiratory illness that can lead to death. Have you ever had it? I have, and it’s awful. You spike fevers, every bone and muscle in your body aches, and no matter how hard you try, you just can’t seem to catch your breath.
You get the flu shot not always for you, but for those around you. For the grandparents, whose bodies are not what they used to be, and they just can’t kick an illness in the butt like when they were young.
For the 30 year old, with HIV or AIDS, who has a weakened immune system.
For the 25-year-old mother of 3 who has cancer. She has absolutely zero immune system because of chemotherapy.
For the newborn baby who was just welcomed into the world, and isn’t quite strong enough to fight off infections on his own.
For the nurses and doctors that take care of you. If they get sick, they can’t go to work and take care of the countless patients that need them.
For the 50-year-old husband who needs a medication for his chronic illness, and that medication also weakens his immune system.
For the pregnant mom that has been trying to get pregnant for years, and now she’s trying to stay healthy for her unborn baby.
For the single dad who can’t take any more sick days and needs to provide for his kids.
For the 7-year-old boy that just wants to play with his friends. But he has a disease that puts him at a higher risk for infection, so he has to stay inside.
The flu shot is NOT always about you. It’s about protecting those around you, who cannot always protect themselves. I have been in the room as a patient has passed away, because of influenza. I have watched patients struggle to breathe, because of influenza. I have busted my butt to provide tylenol, warm blankets, nebulizers, etc. to keep that patient comfortable and fighting a terrible respiratory infection.
U.S. states saw another 840,000 jobless claims filed last week, as the number of Americans applying for first-time unemployment insurance benefits each week continues to hover at a historically high level.
The U.S. Department of Labor (DOL) released its weekly jobless claims report at 8:30 a.m. ET Thursday. Here were the main metrics from the report, compared to Bloomberg estimates:
Initial jobless claims, week ended Oct. 3: 840,000 vs. 820,000 expected and 849,000 during the prior week
Continuing claims, week ended Sept. 26: 10.976 million vs. 11.4 million expected and 11.979 million during the prior week
New weekly unemployment insurance claims have held below the psychologically important 1 million mark for the past six consecutive weeks, but have so far failed to break below 800,000 since the start of the pandemic. At 840,000 last week’s new claims remained at a level still handily above the pre-pandemic record high of 695,000 from 1982.
The past two weeks’ jobless claims totals have also been flattered by an absence of updated new claims out of California. The state – which has consistently been one of the biggest contributors to new weekly claims – announced last week it was taking a two-week pause in processing initial claims to “reduce its claims processing backlog and implement fraud prevention technology,” according to the Labor Department’s statement.
Across all programs, the total number of jobless claims decreased for the week ending Sept. 19. Total claims came in at 25.5 million, down from the about 26.5 million during the previous week, as a smaller number of self-employed or gig workers not eligible for regular state programs claimed Pandemic Unemployment Assistance. But the number of workers collecting benefits through the Pandemic Emergency Unemployment Compensation Program – which offers an extra 13 weeks’ worth of federal benefits to those who had exhausted previous state or federal compensation – rose by 154,000 to 1.96 million.
Continuing jobless claims, which are reported on a one-week lag and represent the total number of individuals still receiving state unemployment benefits, continued their gradual downtrend last week. But as with new jobless claims, continuing claims have held well above pre-pandemic levels, and have not broken below the 10 million mark in more than 6 months.
“Net, initial filings fell less than expected last week. The improvement in continuing claims is reflecting people being hired but also individuals exhausting their benefits,” Rubeela Farooqi, chief economist for High Frequency Economics, said in an email. “Overall, the signal from the claims data is still one of ongoing weak conditions in the labor market. Even as filings are declining, levels remain extraordinarily high. Employment growth has already slowed and without fiscal support that protected jobs, risks are skewed to the downside for payrolls going forward.”
President Donald Trump said Tuesday he had asked his negotiators to halt further stimulus talks until after the election, but added that he would support standalone measures providing tens of billions of dollars for airline payroll support and the Paycheck Protection Program. House Democrats, however, have previously balked at the notion of passing slimmed down versions of a stimulus package – meaning the prospect of further fiscal stimulus in the next month remains unlikely.
Texas has the highest uninsured rate in the U.S., and Massachusetts has the lowest, according to an analysis by WalletHub, a personal finance website.
To measure the rates of uninsured by state, analysts compared the overall insurance rates of each state in 2019 using U.S. Census Bureau data. Analysts also examined the state rates based on age, race and income. Access more information about the methodology here.
Massachusetts has the lowest uninsured rate for adults and children, at 3.39 percent and 1.52 percent, respectively.In Texas, which ranked last, the children’s uninsured rate is 12.75 percent and the adults’ uninsured rate is 20.47 percent.
Here is each state ranked from lowest to highest uninsured rate, according to the analysis:
The undercurrent of the VP debate is the age and health of the two men vying for the presidency.
The two remaining presidential debates, scheduled for October 15 and 22, are in question due to President Trump’s positive COVID-19 and quarantine status, making the vice presidential debate this Wednesday at 9 p.m. even more important than VP debates of past elections.
The undercurrent in the debate consists of the ages of challenger Biden, who is 77 and turning 78 before the end of the year, and Trump, 74, who has been hospitalized for COVID-19 and was released from Walter Reed Army Medical Center on Monday afternoon. Trump has said he plans to debate Biden on October 15.
This VP debate is big, said Paul Keckley, a healthcare policy analyst and managing editor of the Keckley Report.
“The reason is not so much the two are debating,” Keckley said. “We have a 77- year-old challenger and a 74-year-old incumbent. Voters are expecting the odds are one will become disabled and the vice president is going to step in. That’s the undercurrent of this debate.”
Healthcare is an obvious dominant theme Wednesday night beyond the health of the two men seeking the presidency.
It is expected that Biden’s running mate, Kamala Harris will challenge Vice President Mike Pence on his role heading the coronavirus task force when close to 7.5 million people in this country have been infected with COVID-19 and more than 200,000 have died.
Pence will likely challenge Harris on her support for Medicare for All before she backtracked to support Biden’s public-private option for healthcare coverage.
Pence and Harris are expected to lay out the healthcare plans of their respective Republican and Democratic nominees less than four weeks before the election, in a way the lead candidates failed to get across during the first presidential debate that presented more chaos than clarity.
TRUMP AND BIDEN PLANS
Trump and Biden differ fundamentally on whether the federal government should be involved in the business of providing healthcare coverage.
Trump’s guiding principles rest on the pillar of state autonomy as opposed to a federalized healthcare system and Biden’s maxim that healthcare is a right, not a privilege.
Trump believes that private solutions are better than government solutions, according to Keckley. He is much less restrained on private equity and the Federal Trade Commission’s scrutiny of vertical integration. States become the gateway to the market as private solutions are sold to states as innovation.
Trump’s other concept is that the door to engaging consumers in healthcare is price transparency. His view is that price transparency will spawn consumer engagement.
Centers for Medicare and Medicaid Services Administrator Seema Verma, who was appointed by Trump in 2016 based largely on the recommendation of Pence, is instituting a rule, starting January 1, 2021, requiring hospitals to have price transparency for 300 shoppable services. Hospitals are being required to make their contract terms with payer accessible.
This is separate from CMS’s interoperability rule aimed at payers that also goes into effect on January 1.
Trump believes healthcare is a personal responsibility, not a public obligation. To Trump, healthcare is a marketplace where there are winners and losers, according to Keckley.
Biden has a more developed policy platform on making healthcare a universal right, starting with strengthening the Affordable Care Act that was passed while Biden was vice president during President Barack Obama’s terms.
Biden wants to increase the eligibility for tax subsidies in the ACA up to 400% of the federal poverty level, which would expand access to subsidized health insurance.
He also wants to reduce the affordability threshold for employer insurance. Currently, if employees pay more than 9.7% of their adjusted income for their workplace coverage, they can seek a plan in the ACA marketplace. Biden would lower that eligibility for ACA coverage to 8.5%, opening the door for many more consumers to be insured through the ACA, at a lower cost.
Biden would also lower the age of eligibility for Medicare from 65 to 60.
For companies such as manufacturing and transportation, in which individuals can retire after 30 years of service, this lets them into the Medicare system earlier to fill that gap between retirement and Medicare eligibility.
Biden’s public option would create insurance plans that would compete with private plans.
The other factor to watch on the Biden side, Keckley said, is his clear focus on equity and diversity in healthcare.
AFFORDABLE CARE ACT
Biden wants to strengthen Obamacare while Trump is actively pursuing a repeal of the law through the Supreme Court.
President Trump’s debate prep and the White House Rose Garden event announcing the nomination of Judge Amy Coney Barrett to replace the late Supreme Court Justice Ruth Bader Ginsburg, border on the definition of super spreader events.
The Justices, perhaps with the addition of Trump’s pick, Amy Coney Barrett, if there are enough Republican senators well enough and in attendance to vote for confirmation, are scheduled to hear oral arguments in the case brought by 18 GOP-led states on November 10, the week after the election.
Senators must be present to vote, and Republicans, who have a majority of 53 to 47 seats, need a four-vote majority. Two Republican senators – Susan Collins of Maine and Lisa Murkowski of Alaska – have said they wouldn’t vote on a nominee prior to the election. Vice President Mike Pence could cast the deciding vote in a tie.
Three Republican senators have tested positive for the coronavirus. Sens. Mike Lee of Utah and Thom Tillis of North Carolina, who sit on the Judiciary Committee, tested positive for COVID-19 days after attending the White House Rose Garden event on September 26. Republican Sen. Ron Johnson of Wisconsin is now the third to test positive, though he did not attend that event.
There was a lack of social distancing and mask wearing at both the Rose Garden nomination and at a meeting between Trump and staff for debate prep. Twelve people in Trump’s inner circle, including his wife Melania, former New Jersey governor Chris Christie and White House Press Secretary Kayleigh McEnany, have tested positive since attending.
Senate Majority Leader Mitch McConnell wrote in an email to GOP senators obtained by CNN that he needs all Republican senators back in Washington by October 19.
COVID-19
Trump announced in a tweet Monday that he would be leaving Walter Reed later in the afternoon, saying he felt “really good!” and adding, “Don’t be afraid of Covid. Don’t let it dominate your life. We have developed, under the Trump Administration, some really great drugs & knowledge. I feel better than I did 20 years ago!”
Trump has been criticized for leaving the hospital on Monday to take a drive-by ride to wave to supporters. Attending physician Dr. James Phillips called the action “insanity” and “political theater” that put the lives of Secret Service agents in the car with him at risk.
Trump has downplayed the virus in an effort to reopen the country and the economy, and has put the blame on China, where the coronavirus originated.
Trump told Biden during the debate, “We got the gowns; we got the masks; we made the ventilators. You wouldn’t have made ventilators – and now we’re weeks away from a vaccine.”
Biden puts the blame squarely on Trump for delaying action to stop the spread.
Biden said during the debate: “Look, 200,000 dead. You said over seven million infected in the United States. We in fact have 5% or 4% of the world’s population – 20% of the deaths. Forty thousand people a day are contracting COVID. In addition to that, about between 750 and 1,000 people, they’re dying. When [Trump] was presented with that number he said ‘It is what it is’ – what it is what it is – because you are who you are. That’s why it is. The president has no plan. He hasn’t laid out anything.”
Biden said that back in July he laid out a plan for providing protective gear and providing money the House passed to get people the help they need to keep their businesses open and open schools.
Under Trump’s Administration, Congress passed $175 billion in provider relief funds for hospitals, small businesses, individuals and others – $100 billion from the CARES Act and $75 billion from the Paycheck Protection Program and Healthcare Enhancement Act.
MEDICAID EXPANSION
CMS Administrator Seema Verma was healthcare advisor to Pence while he was governor of Indiana. Her consulting firm, SVC, Inc., worked closely with Pence to design Indiana’s Medicaid expansion under the Affordable Care Act. They developed a unique Medicaid expansion program called Health Indiana Plan 2.0, which mandated low income adults above the poverty level pay monthly premiums for their healthcare.
Members who did not pay faced being disenrolled for six months.
As administrator, Verma has initiated similar work requirements for Medicaid coverage nationwide.
While as governor Pence implemented Medicaid expansion, as vice president he has supported torpedoing the ACA, and has pushed the Graham-Cassidy plan for healthcare reform that would have replaced the ACA.
DRUG PRICES
Neither Trump nor Biden has taken on the pharmaceutical industry in a meaningful way, though both have voiced a strong belief that drug manufacturers are egregious to the system, according to Keckley.
“Both camps are saying, we’re really going to take them on,” he said.
During the debate, Trump said he was cutting drug prices by allowing American consumers to buy drugs from Canada and other countries under a favored nation status.
“Drug prices will be coming down, 80 or 90 percent,” Trump said during the debate, telling Biden he hadn’t done anything similar during his 47 years in government.
If Trump gets a second term, there will likely be more industry folks in his circle, following up on his first term of stacking his cabinet with business people.
Biden would be more likely to lean toward a blend of public health officials and industry executives. There would be more of a spotlight on wealth creation in healthcare and executive pay.
In the $1.1 trillion world of prescription drugs, the United States makes up 40% of the market.
“We’re the hub of the prescription drug industry,” Keckley said.
President Donald Trump spent three days in the hospital. He arrived and left by helicopter. And he received multiple coronavirus tests, oxygen, steroids and an experimental antibody treatment.
For someone who isn’t president, that would cost more than $100,000 in the American health system. Patients could face significant surprise bills and medical debt even after health insurance paid its share.
The biggest financial risks would come not from the hospital stay but from the services provided elsewhere, including helicopter transit and repeated coronavirus testing.
Trump has praised the high quality of care he received at Walter Reed National Military Medical Center, and has played down the risk of the virus. “Don’t be afraid of Covid,” Trump tweeted on Monday, before returning to the White House. “Don’t let it dominate your life.”
Across the country, patients have struggled with both the long-term health and financial effects of contracting coronavirus. Nearly half a million have been hospitalized. Routine tests can result in thousands of dollars in uncovered charges; hospitalized patients have received bills upward of $400,000.
Trump did not have to worry about the costs of his care, which are covered by the federal government. Most Americans, including many who carry health coverage, do worry about receiving medical care they cannot afford.
For some Americans, the bills could start mounting with frequent tests. Insurers are generally required to pay for those tests when physicians order them, but not when employers do.
The Trump administration made that clear in June, when it issued guidance stating that insurers do not have to pay for “testing conducted to screen for general workplace health and safety.” Instead, patients need to pay for that type of testing themselves. Some might be able to get free tests at public sites, and some employers may voluntarily cover the costs. Others could face significant medical debt from tests delivered at hospitals or urgent care centers.
COVID tests can be expensive. Although they typically cost $100, one emergency room in Texas has charged as much as $6,408 for a drive-through test. About 2.4% of coronavirus tests billed to insurers leave the patient responsible for some portion of payment, according to the health data firm Castlight. With 108 million tests performed in the United States, that could amount to millions of tests that leave patients responsible for some share of the cost.
Marta Bartan, who works as a hair colorist in New York City, needed a coronavirus test to return to her job this summer. She received a $1,394 bill from the hospital running the drive-through site where she was tested.
“I was so confused,” said Bartan, who is contesting the bill. “You go in to get a COVID test expecting it to be free. What could they have possibly charged me $1,400 for?”
The bills for the typical American would continue at the hospital, with the routine monitoring that any patient would receive and the drugs provided in the course of care.
Remdesivir, a new coronavirus treatment created by Gilead, costs $3,120 when purchased by private insurers and $2,340 with public programs like Medicare and Medicaid.
Trump also received an experimental antibody treatment from Regeneron. It’s currently available to clinical trial participants or to those granted a “compassionate use” exemption. In either situation, the drug would typically be provided to the patient at no charge. This will most likely change, however, when the treatment finishes trials and hits the commercial market. These types of drugs are hard to manufacture, and other monoclonal antibodies cost thousands of dollars.
Health economists are only starting to understand the full costs of coronavirus treatment, just as scientists are mapping out how the disease works and spreads. They do have some early estimates: The median charge for a coronavirus hospitalization for a patient over 60 is $61,912, according to a claims database, FAIR Health
That figure includes any medical care during the hospital stay, such as an emergency room visit that led to admission or drugs provided by the hospital.
For insured patients, that price would typically be negotiated lower by their health plan. FAIR Health estimates that the median amount paid is $31,575. That amount, like most things in American health care, varies significantly from one patient to another.
In the FAIR Health data on coronavirus patients over 60, one-quarter face charges less than $26,821 for their hospital stay. Another quarter face charges higher than $193,149, in part because of longer stays.
Many, but not all, health insurers have said they will not apply copayments or deductibles to patients’ coronavirus hospital stays, which could help shield patients from large bills.
Uninsured patients, however, could be stuck with the entire hospital charges and not receive any discounts. While the Trump administration did set up a fund to cover coronavirus testing and treatment costs for the uninsured, The New York Times has reported that some Americans without health insurance have received large bills for their hospital stays.
The biggest billing risk for a patient receiving treatment similar to Trump’s would probably come from helicopter rides to the hospital.
Air ambulances are expensive and often not in major health insurance plans’ networks. The median charge for an air ambulance is $38,770, according to a study in the journal Health Affairs published this year. When the helicopter trip is out of network — as about three-quarters of them are — patients are left with a median charge of $21,698 after the insurance payout.
Taking two helicopter rides, as Trump did, could plausibly result in more than $40,000 in medical debt for patients without access to their own aircraft (though of course most people do not leave the hospital by helicopter).
The financial consequences of a coronavirus hospitalization could be long-lasting, if a new Supreme Court challenge to the Affordable Care Act is successful. That case argues that all of Obamacare is unconstitutional, including the health law’s protections for preexisting conditions. The administration filed a brief in June supporting the challenge.
The Supreme Court hears that case on Nov. 10. If the challenge succeeds, COVID-19 could join a long list of preexisting conditions that would leave patients facing higher premiums or denials of coverage. In that case, coronavirus survivors could face a future in which their hospital stays increase their health costs for years to come.
The U.S. Department of Labor (DOL) released its weekly jobless claims report at 8:30 a.m. ET Thursday. Here were the main metrics from the report, compared to Bloomberg estimates:
Initial jobless claims, week ended Sept. 19: 870,000 vs. 840,000 expected, and 866,000 during the prior week
Continuing claims, week ended Sept. 12: 12.580 million vs. 12.275 million expected, and 12.747 million during the prior week
At 870,000, Thursday’s figure represented the fourth consecutive week that new jobless claims came in below the psychologically important 1 million level, but was still high on a historical basis. Nevertheless, the labor market has made strides in recovering from the pandemic-era spike high of nearly 7 million weekly new claims seen in late March.
“While jobless claims under a million for four straight weeks could be considered a positive, we’re staring down a pretty stagnant labor market,” Mike Loewengart, managing director of investment strategy for E-Trade Financial Corporation, said in an email Thursday. “This has been a slow roll to recovery and with no signs of additional stimulus from Washington, jobless Americans will likely continue to exist in limbo. Further, a shaky labor market translates into a skittish consumer, and in the face of a pandemic that seemingly won’t go away without a vaccine, the outlook for the economy certainly comes into question.”
On an unadjusted basis, initial jobless claims rose by a greater margin, or about 28,500, from the previous week to about 824,500. The seasonally adjusted level of new claims rose by 4,000 week on week.
By state, unadjusted claims in California – where joblessness due to the pandemic has compounded with labor market stress due to wildfires – were again the highest in the country at more than 230,000, for an increase of about 4,400 week-over-week. Georgia, New York, New Jersey and Massachusetts also reported significant increases in new claims relative to the rest of the country. Most states reported at least increases in new claims last week.
Continuing claims have also trended lower after a peak of nearly 25 million in May, and fell for a second straight week in this week’s report. But these claims, which capture the total number of individuals still receiving unemployment insurance, have not broken below the 12 million mark since before the pandemic took hold of the labor market in mid-March.
Consistently high numbers of individuals have been filing for, and receiving, jobless benefits from regular state programs, and those newly created during the pandemic. The number of individuals claiming benefits in all programs for the week ended September 5 – the latest reported week – fell for the first time following three straight weeks of increases to 26.04 million, from the nearly 29.8 million reported during the prior week.
Of that total, more than 11.5 million comprised individuals receiving Pandemic Unemployment Assistance, which is aimed at self-employed and gig workers who don’t qualify for regular unemployment compensation but have still been impacted by the pandemic.
One of the major downside risks to further improvement in the labor market has been concern that Congress may not soon pass another round of fiscal stimulus aimed at keeping individuals on payrolls during the pandemic. Economists have already said that the end of the last round of augmented federal unemployment benefits in late July has weighed on improvements in joblessness.
“The current picture suggests that growth has slowed sharply in the past three months, and that the labor market is stalling again in the face of rising infections and the sudden ending of federal government support to unemployed people,” Ian Shepherdson, chief economist for Pantheon Macroeconomics, said in a note Wednesday.
The need for more fiscal stimulus to encourage the economy’s ongoing recovery has become a key talking point of policymakers including Federal Reserve Chair Jerome Powell and his colleagues at the central bank. In congressional testimony Tuesday and Wednesday, the Fed leader said further fiscal stimulus is “unequaled” by any other form of support that could be unleashed, with the central bank’s lending facilities having gone largely untouched by Main Street.
“The concept of the [congressionally authorized] Paycheck Protection Program was helpful because for many of those kinds of businesses – those businesses that don’t have cash reserves – the ability to get a forgivable loan if they stay open, if they keep people employed, was sound, and did give them the prospect of staying in business,” Joseph Minarik, The Conference Board chief policy economist and former Office of Management and Budget chief economist, told Yahoo Finance. “The notion that you have businesses that have been weak over the last few months and now have simply had to shut their doors, that’s a real problem, and it is not necessity going to be solved with a loan.”
In less than two months, the Supreme Court is set to hear the case that could overturn the Affordable Care Act — without Ruth Bader Ginsburg on the bench, fanning anxieties the landmark law is in greater jeopardy due to her passing.
“People should worry,” Nicholas Bagley, a health law expert and professor at the University of Michigan, said.
The death of the liberal justice on Friday at the age of 87 means that of the nine justices, there are now only three appointed by Democratic presidents instead of four.
Assuming the liberal wing was set to uphold the ACA, with Bader Ginsburg they would have only needed to pick up one more conservative justice to vote in favor of preserving the law. Chief Justice John Roberts has been a swing vote in several cases involving the law. Roberts’ 2012 vote saved the law from a fatal blow in a 5-4 decision when he deemed the individual mandate could be considered a tax.
Without Bader Ginsburg, they’ll now need to sway two — raising concerns about whether that’s possible.
“This opens it wide up and I really do think the law could be at risk,” Katie Keith, another legal expert who has followed the case closely, agreed.
The landmark but politically polarizing legislation ushered in health coverage gains and basic protections for millions under President Barack Obama (who appointed two of the three remaining liberal justices). The law’slatest time at the Supreme Court comes after a group of red states argued the law was moot after Republicans zeroed out a key part of it — a tax penalty for those that did not get insured as was required in the law.
However, a split decision may be welcome by ACA proponents.
If the the liberal wing is only able to sway one conservative justice, resulting in a 4-4 split case, it will buy more time for the law and its defenders, a set of blue states lead by California’s Attorney General Xavier Becerra.
In that instance, the case would be punted all the way back down to Judge Reed O’Connor. The Fifth Circuit, which oversaw the appeal following a decision by O’Connor, ruled the individual mandate was unconstitutional but did not weigh in on whether the rest of the ACA could stand without the mandate. It sent that question back to O’Connor, and that’s where the case would land again, before O’Connor, in the event the Supreme Court punts.
That outcome buys more time, plus another opportunity to appeal and for the case to again work its way back before the Supreme Court.
But one legal expert said based on cases from this past term there is reason to be hopeful that two conservative justices could be swayed to leave the remainder of the ACA intact even if the mandate is ruled unconstitutional.
Legal experts point to cases from the most recent term in which Brett Kavanaugh and Roberts — both appointed by Republicans — weighed in on severability in a way viewed as favorable for the outcome of the ACA case.
“I’m pretty hopeful,” Tim Jost, emeritus professor at Washington and Lee University School of Law, said.
Severability is an important question in the challenge to the ACA. The crux of the lawsuit centers on the argument that the individual mandate is so essential and intertwined into the fabric of the ACA that if the mandate is deemed unconstitutional than the entirety of the ACA must fall.
In their legal challenge, the red states and two individual plaintiffs argued that the individual mandate cannot be severed from the rest of the law, so the entire law should be overturned. That’s why ACA case watchers have tried to read the tea leaves by reviewing how justices have weighed in on severability in earlier cases.
Kavanaugh seemed emphatic about his belief that unconstitutional pieces of a larger law should not spell the demise for the entire law.
In a case decided this summer, political organizations were seeking to make robocalls to cell phones. However, a law, barred robocalls to Americans’ cellphones but was later amended by Congress to include an exception for the collection of debt. The plaintiffs argued this was a violation of the First Amendment, favoring debt-collection speech over political speech. The plaintiffs wanted the entirety of the robocall law overturned, not just the exception allowing robocalls for debt collection.
Kavanaugh wrote the 6-3 opinion, finding the exception for debt-collection unconstitutional, but ruling that the remainder of the law can stand.
In his opinion, Kavanaugh wrote that the court’s preference has been to “salvage rather than destroy” the rest of the law in the event a part is deemed unconstitutional.
“The Court’s precedents reflect a decisive preference for surgical severance rather than wholesale destruction, even in the absence of a severability clause,” Kavanaugh wrote in his opinion in the case, Barr v. Association of Political Consultants.
And Roberts showed similar favor for surgically precise decisions when it comes to severability. “We think it clear that Congress would prefer that we use a scalpel rather than a bulldozer,” he wrote in a separate 5-4 decision from this latest term regarding a challenge to the Consumer Financial Protection Bureau.
More than three million American workers lost health insurance coverage this spring and summer from their employers as the pandemic and spread of Covid-19 triggered massive job losses, a new study shows.
In all, there were 3.3 million adults under the age of 65 who lost employer-sponsored health insurance and almost two-thirds of them, or 1.9 million, “became newly uninsured from late April through mid-July,” according to a new analysis by The Urban Institute and funded by the Robert Wood Johnson Foundation. The loss of employer coverage has hit Hispanic adults particularly hard with 1.6 million losing health benefits, Urban Institute researchers said.
And it could get worse.
“With continued weakness in the labor market, researchers conclude federal and state policymakers will need to act to prevent job losses from leading to further increases in uninsurance,” the authors of the report wrote about their analysis, which was derived from 2020 U.S. Census data.
In particular, the analysis underscores the need to expand health benefits, particularly Medicaid under the Affordable Care Act, analysts say. The ACA dangled billions of dollars in front of states to expand Medicaid coverage for poor Americans but 12 states generally led by Republican Governors or legislatures have refused while President Donald Trump and his appointees at the U.S. Justice Department fight led by Republican Governors
“The danger of an inadequate safety net can be seen in the non-expansion states, where the number of uninsured adults has already increased more than 1 million,” Robert Wood Johnson Foundation senior policy advisor Katherine Hempstead said in a statement accompanying the report.
HENRY KOTULA 