Election 2020: Trump and Biden’s starkly diverging views on healthcare

https://www.healthcaredive.com/news/presidential-election-2020-trump-biden-different-healthcare-policies-ACA-coronavirus/585184/?utm_source=Sailthru&utm_medium=email&utm_campaign=Issue:%202020-10-01%20Healthcare%20Dive%20%5Bissue:29992%5D&utm_term=Healthcare%20Dive

Spoiler: the 2 nominees differ on almost everything.

President Donald Trump and Democrat nominee Joe Biden’s starkly contrasting views on healthcare were laid bare during this week’s chaotic debate. But some major industry executives noted at a recent conference they’ve done relatively well under Trump and could likely weather a Biden presidency, given his moderate stance and rejection of liberal dreams of “Medicare for All.”

The former vice president stresses incremental measures to shore up President Barack Obama’s landmark Affordable Care Act. Trump’s campaign website has no list of healthcare priorities, making his record even more relevant to attempts to forecast his future policies.

“I think a lot of the president’s second term agenda will be extensions of things he’s done in his first term,” Lanhee Chen, domestic policy director at Stanford University’s Public Policy program, said at AHIP in September.

Either way, the impact of whoever lands in the White House next year still matters for the industry’s future.

And 33 seats in the Senate are also up for grabs in November, complicating the outlook. Two scenarios would likely lead to health policy gridlock, according to analysts and DC experts: Trump wins regardless of Senate outcome, or Biden wins and Republicans maintain control of the Senate. A third scenario, where Biden wins and Democrats retake the Senate, would be the most negative for healthcare stocks, Jefferies analysts say, while the other two outcomes would be a net positive or mostly neutral.

Here’s a look at where the candidates stand on the biggest healthcare issues: the coronavirus pandemic, the Affordable Care Act, changes to Medicare and Medicaid and lowering skyrocketing healthcare costs.

COVID-19 response

Trump

Of all wealthy nations, the U.S. has been particularly unsuccessful in mitigating the pandemic. The U.S. makes up 4% of the global population, but accounted for 23% of all COVID-19 cases and 21% of all deaths as of early September.

Public health experts assign the majority of the blame to an uncoordinated federal response, with the president electing to take a largely hands-off approach to the virus that’s killed nearly 207,000 people in the U.S. to date. That backseat stance is unlikely to change if Trump is elected to a second term.

In March, Trump said a final COVID-19 death toll in the range of 100,000 to 200,000 Americans would mean he’s “done a very good job.”

Critics blame shortages of supplies like test materials, personal protective equipment and ventilators, especially in the crucial early days of the pandemic, on Trump’s approach. States and healthcare companies have also reported challenges with shifting federal guidelines on topics from risk of infection to hospital requirements for reporting COVID-19 caseloads.

Trump has also pushed unproven treatments for COVID-19, giving rise to concerns about political influence on traditionally nonpartisan agencies like the Food and Drug Administration and the Centers for Disease Control and Prevention.

These concerns have colored Operation Warp Speed, the administration’s public-private partnership to fast-track viable vaccines. The operation received $10 billion in funds from Congress, but administration officials have also pulled $700 million from the CDC, even as top health officials face accusations of trying to manipulate CDC scientific research publications.

Fears that political motivations, not clinical rigor, are driving the historically speedy timeline could lower public trust in a vaccine once it’s eventually approved.

Trump has also repeatedly refused to endorse basic protections like widespread mask wearing, often eschewing the face covering himself in public appearances. He’s consistently downplayed the severity of the pandemic, saying it’ll go away on its own while suggesting falsely that rising COVID-19 cases were solely due to increased testing.

While Trump’s list of priorities for his second term include “eradicating COVID-19,” the plan is short on details. His most aggressive promise has been approval of a vaccine by the end of this year and creating all “critical medicines and supplies for healthcare workers” for a planned return to normal in 2021, along with refilling stockpiles to prepare for future pandemics.

Biden

Biden, for his part, would likely work to enact COVID-19 legislation and dramatically change the role of the federal government in pandemic response first thing if elected.

The Democratic candidate says he would re-assume primary responsibility for the pandemic. He plans to “dramatically scale up testing” and “giving states and local governments the resources they need to open schools and businesses safely,” per an August speech in Wilmington, Delaware.

Biden says he’d take a backseat to scientists and allow FDA to unilaterally make decisions on emergency authorizations and approvals.

The candidate supports reopening an ACA enrollment period for the uninsured, eliminating out-of-pocket costs for COVID-19 treatment, enacting additional pay and protective equipment for essential workers, increasing the federal match rate for Medicaid by at least 10%, covering COBRA with 100% premium subsidies during the emergency, expanding unemployment insurance and sick leave, reimbursing employers for sick leave and giving them tax credits for COVID-19 healthcare costs.

Trump opposes most of these measures, though he did sign COVID-19 relief legislation that upped the Medicaid match rate by 6.2% and extended the COBRA election period, though without subsidies.

Biden has said he’d be willing to use executive power for a national mask mandate, though ensuring compliance would be difficult. He’d also rejoin the World Health Organization, which Trump pulled the U.S. out of in May.

Affordable Care Act

Trump

On his first day in office, Trump issued an executive order saying: “It is the policy of my Administration to seek the prompt repeal of the Patient Protection and Affordable Care Act.” But after the Republican repeal-and-replace effort floundered in 2017, the administration began steadily chipping away at key tenets of the decade-old law through regulatory avenues.

Trump has maintained he’ll protect the 150 million people with preexisting conditions in the U.S. But despite publicly promising a comprehensive replacement plan on the 2015 campaign trail (and at least five times this year alone), Trump has yet to make one public. The president did in September sign a largely symbolic executive order that it’s the stance of his administration to protect patients with preexisting conditions.

The president doesn’t mention the ACA in his list of second term priorities. The omission could have been intentional, as Trump is backing a Republican state-led lawsuit seeking to overturn the sweeping law, now pending in front of the U.S. Supreme Court and scheduled for oral arguments one week after the election.

The death of liberal justice Ruth Bader Ginsburg puts the law in an even more precarious position.

And Trump’s health agencies have enacted myriad policies keeping the law from functioning as designed.

The president signed legislation zeroing out the individual mandate penalty requiring people to be insured in 2017. The same year, he ended cost-sharing reduction payments to insurers, suggesting that would cause the ACA to become “dead.” But the marketplace generally stabilized.

The administration has also increased access to skimpier but cheaper coverage that doesn’t have to comply with the 10 essential health benefits under the ACA. The short-term insurance plans widely discriminate against people with pre-existing health conditions, even as a growing number of Americans, facing rising healthcare costs, enrolled, according to a probe conducted by House Democrats this year.

Trump has also encouraged state waivers that promote non-ACA plans, cut funding for consumer enrollment assistance and outreach, shortened the open enrollment period and limited mid-year special enrollments.

​Despite his efforts, the ACA has grown in popularity among voters on both sides of the aisle, mostly due to provisions like shoring up pre-existing conditions and allowing young adults to stay on their parent’s insurance until age 26.

Biden

If elected, Biden would likely roll back Trump-era policies that allowed short-term insurance to proliferate, and restore funding for consumer outreach and assistance, political consultants say.

Building on the law is the linchpin of Biden’s healthcare plan. The nominee has pledged to increase marketplace subsidies to help more people afford ACA plans through a number of policy tweaks, including lowering the share of income subsidized households pay for their coverage; determining subsidies by setting the benchmark plan at the pricier “gold” level; and removing the current cap limiting subsidies to people making 400% of the federal poverty level or below.

Biden maintains as a result of these changes, no Americans would have to pay more than 8.5% of their annual income toward premiums. They could save millions of people hundreds of dollars a month, according to a Kaiser Family Foundation analysis. Commercial payers mostly support these efforts, hoping they’ll stabilize the exchanges.

But a second prong of Biden’s health strategy is deeply unpopular with private insurers: the public option. Biden’s called for a Medicare-like alternative to commercial coverage, available to anyone, including people who can’t afford private coverage or those living in a state that hasn’t expanded Medicaid.

The rationale of the public plan is that it can directly negotiate prices with hospitals and other providers, lowering costs across the board. However, market clout will depend on enrollment, which is still to-be-determined.

Critics see the plan, which by Biden’s estimate would cost $750 billion over 10 years, as a down payment on Medicare for All. And the private sector worries it could threaten the very profitable healthcare industry, which makes up about a fifth of the U.S. economy.

Medicare

Trump

Neither Trump nor Biden supports Medicare for All, dashing the hopes of supporters of the sweeping insurance scheme for at least another four years.

“It has a pulse — it’s not dead — I just don’t see it happening in any near term,” John Cipriani, vice president at public affairs firm Global Strategy Group, said at AHIP.

Trump has promised to protect Medicare if elected to a second term, and it’s unlikely he’d make any major changes to the program’s structure or eligibility requirements, experts say.

But Medicare is quickly running out of money, and neither Trump nor Biden has issued a complete plan to ensure it survives beyond 2024. Political consultants think it’ll teeter right up to the edge of insolvency before lawmakers feel compelled to act.

The president’s administration has allowed Medicare to pay for telehealth and expanding supplemental benefits in privately run Medicare Advantage programs, efforts that would likely bleed into his second term — or Biden’s first, given general bipartisan support on both, experts say.

Under Trump, HHS did pass a site-neutral payment policy, cutting Medicare payments for hospital outpatient visits in a bid to save money. But Democratic lawmakers have argued Trump’s calls to get rid of the federal payroll tax, which partially funds Medicare, could throw the future of the cash-strapped program in jeopardy.

The president has also signed legislation experts say accelerated insolvency, including the Tax Cuts and Jobs Act of 2017, the Bipartisan Budget Act of 2018 and the Further Consolidated Appropriations Act of 2020, which repealed the ACA’s Cadillac tax — a tax on job-based insurance premiums above a certain level.

Nixing that tax lowered payroll tax revenue, also dinging Medicare’s shrinking trust fund.

Trump’s proposed budget for the 2021 fiscal year floated culling about $450 billion in Medicare spending over a decade. And repealing the ACA would also nix provisions that closed the Medicare prescription drug “donut hole,” that added free coverage of preventive services and reduced spending to strengthen Medicare’s winnowing Hospital Insurance Trust Fund.

Biden

Biden has proposed lowering the Medicare age of eligibility to 60 years, with the option for people aged 60-64 to keep their coverage if they like it. The idea is popular politically, though providers oppose it, fearful of losing more lucrative commercial revenue.

It would make about 20 million more people eligible for the insurance, but could also add even more stress onto the program, experts say. Biden’s campaign says it would be financed separately from the current Medicare program, with dollars from regular tax revenues, and will reduce hospital costs.

Biden also says he’d add hearing, vision and dental benefits to Medicare.

Medicaid

Trump

Trump’s tenure has also been defined by repeated efforts to prune Medicaid. The president has consistently backed major cuts to the safety net insurance program, along with stricter rules for who can receive coverage. That’s likely to continue.

Republican lawmakers maintain the program costs too much and discourages low-income Americans from getting job-based coverage, and have enacted policies trying to privatize Medicaid. The Trump administration took a step toward a long-held conservative dream earlier this year, when CMS invited state waivers that would allow states to deviate from federal standards in program design and oversight, in exchange for capped funding.

So far, no states have enacted the block grants.

The administration also aggressively encouraged states to adopt work requirements, programs tying Medicaid coverage to work or volunteering hours. A handful of states followed suit, but all halted implementation or rolled back the idea following fierce public backlash and legal ramifications.

And repealing the ACA would ax Medicaid expansion, which saved some 20,000 lives between 2014 and 2017, according to the Center on Budget and Policy Priorities.

Biden

Biden, however, wants to preserve expansion, and would take a number of other steps to bolster the program, including increasing federal Medicaid funding for home- and community-based services. The roughly 4.8 million adults in states that elected not to expand Medicaid would be automatically enrolled into his public option, with no premium and full Medicaid benefits.

Additionally, states that have expanded Medicaid could elect to move their enrollees into the public option, with a maintenance-of-effort payment.

Lowering costs of drugs and services

Trump

Efforts to lower prescription drug costs have defined Trump’s healthcare agenda in his first term, and been a major talking point for the president. That’s more than likely to continue into a second term, experts say, despite a lack of results.

Trump did cap insulin costs for some Medicare enrollees, effective 2021. He also signed legislation in 2018 banning gag clauses preventing pharmacists from telling customers about cheaper options.

But despite fiery rhetoric and a litany of executive orders, Trump has made little if any concrete progress on actually lowering prices. One week into 2020, drugmakers had announced price hikes for almost 450 drugs, despite small price drops earlier in Trump’s tenure.

Trump has proposed several ideas either dropped later or challenged successfully by drugmakers in court, including allowing patients to import drugs from countries like Canada, banning rebates paid to pharmacy benefit manufacturers in Medicare and forcing drugmakers to disclose the list prices of drugs in TV ads.

The president has signed recent executive orders to lower costs largely viewed as pre-election gambits, including one tying drug prices in Medicare to other developed nations and another directing his agencies to end surprise billing. Implementation on both is months away. Trump has also promised to send Medicare beneficiaries $200 in drug discount cards before the election, an effort slammed as vote-buying that would cost Medicare at least $6.6 billion.

Both Trump and Biden support eliminating surprise bills but haven’t provided any details how. That “how” is important, as hospitals and payers support wildly different solutions.

Biden

Biden also has a long list​ of proposals to curb drug costs, including allowing the federal government to negotiate directly with drug manufacturers on behalf of Medicare and some other public and private purchasers, with prices capped at the level paid by other wealthy countries. Trump actually supported this proposal in his 2016 campaign, but quickly dropped it amid fierce opposition from drugmakers and free market Republican allies.

Biden would also cap out-of-pocket drug costs in Medicare Part D — but wouldn’t ban rebates, as of his current plan, allow consumers to import drugs (subject to safeguards) and eliminate tax breaks for drug advertising expenses.

He would also prohibit prices for all brand-name and some generic drugs from rising faster than inflation under Medicare and his novel public option. Biden would create a board to assess the value of new drugs and recommend a market-based price, in a model that’s shown some efficacy in other wealthy countries like Germany.

Both Biden and Trump say they support developing alternative payment models to lower costs. But they diverge on the role of competition versus transparency in making healthcare more affordable. In a rule currently being challenged in court, Trump’s HHS required hospitals to disclose private negotiated prices between hospitals and insurers, with the hope price transparency will allow consumers to shop between different care sites and shame companies into lowering their prices.

Biden, by comparison, says he would enforce antitrust laws to prevent anti-competitive healthcare consolidations, and other business practices that jack up spending. Trump has been mum on the role of M&A in driving healthcare costs, and inherited a complacent Federal Trade Commission that’s done little to reduce provider consolidation. Until a contentious hospital merger in February this year, the FTC hadn’t opposed a hospital merger since 2016.

 

 

 

 

This Legal Attack on the ACA Could Be the Big One

This Legal Attack on the ACA Could Be the Big One

The flag-draped casket of Justice Ruth Bader Ginsburg lies in repose under the Portico at the top of the front steps of the US Supreme Court. Ginsburg died at 87 on September 18 after serving on the high court for 27 years. 

When news broke of Justice Ruth Bader Ginsburg’s death on September 18, the outpouring of grief and gratitude for the accomplishments of the feminist icon was quickly followed by speculation over how her passing will affect the legal challenge to the Affordable Care Act (ACA) now before the US Supreme Court.

The landmark health law survived high court rulings in 2012 and again in 2015. In each case, Chief Justice John Roberts voted with the court’s liberal bloc, including Ginsburg, to uphold the ACA. President Donald Trump has nominated conservative Judge Amy Coney Barrett of the Seventh Circuit of the US Court of Appeals to fill Ginsburg’s seat. Because oral arguments for California v. Texas are set for one week after Election Day, supporters of the law are uneasy.

“If the suit had a trivial chance of success yesterday, it has a new lease on life,” University of Michigan law professor Nicholas Bagley told Amy Goldstein in the Washington Post after learning of Ginsburg’s death. “The ACA has become part of the basic plumbing of the US health care system. Ripping it out at this point would create enormous problems.”

If the ACA is overturned, the consequences could be severe. At this point, the nation remains mired in the coronavirus pandemic, which has metastasized into one of the greatest public health crises in a century. Last week, the US reached the horrific milestones of more than 7 million people infected and 200,000 dead from COVID-19. ACA protections for people with preexisting conditions would disappear if the health law is struck down, and more than 12 million adults who have gained health coverage through the ACA’s Medicaid expansion could lose it. More than 9 million others would lose access to subsidized premiums for private health insurance.

Still, the worst-case scenario is just one of many. Here is a review of the lawsuit, what’s at stake, and the potential outcomes.

Implications of Eliminating the Individual Mandate

California v. Texas originated from a consortium of Republican state attorneys general led by Texas. A California-led coalition of 20 states and Washington, DC, is defending the ACA. The Texas coalition argues that the ACA is unconstitutional in its entirety because Congress in 2017 zeroed out one provision of the lengthy law, the individual mandate. If that part of the ACA is invalid, they argue, then the rest is too.

Many legal experts find this position unpersuasive. The arguments “have been roundly criticized by conservative legal scholars, the Wall Street Journal editorial board, the National Review editorial board, health care stakeholders, and some Republican members of Congress and state officials,” ACA expert Katie Keith, JD, MPH, wrote on the Health Affairs Blog. The Supreme Court is scheduled to hear oral arguments in the case on November 10, one week after the election.

Threats to the Vulnerable

Thanks to the 10-year-old ACA, millions of Americans have gained health coverage. This has proved to be essential during the global pandemic. But if the health law is struck down, about 21 million people who buy health insurance through the ACA exchanges or who gained coverage through Medicaid expansion would be at serious risk of becoming uninsured.

California enthusiastically leaned into the ACA from the start and saw the biggest decline in uninsured residents — 3.7 million — of any state. As the California uninsured rate fell, racial disparities in coverage were also reduced. By 2016, the ACA had produced historic declines in racial disparities in health coverage rates for Californians. (Learn more about the impact of the ACA in California with this collection of resources.)

Nationwide, nearly 133 million people with preexisting conditions could be denied coverage or be required to pay more for a health insurance policy if the ACA is eliminated.Contracting the [coronavirus] is the ultimate preexisting condition,” Andy Slavitt, former administrator of the Centers for Medicare & Medicaid Services under President Barack Obama, and Bagley wrote in the New York Times. “The disease can bring with it mysterious complications and affect virtually every organ system, the immune system, and even the limbs. Young, otherwise healthy people may find themselves uninsurable if the Affordable Care Act is struck down.”

A lawsuit that once seemed like a long shot now has a much more reasonable chance at success — and that means 20 million people’s health coverage really could be in the balance.

—Sam Baker, Axios

Also at risk are essential health benefits that the ACA requires all health plans to cover, including maternity care, mental health services, and substance use disorder treatment. If the law is overturned, they could disappear from insurance plans.

“Other popular provisions hang in the balance, including those that guarantee preventive care with no out-of-pocket payments; end lifetime caps; allow kids to stay on their parents’ insurance through age 26; and make vaccines free to patients. Even some key improvements to Medicare — including a reduction in prescription drug costs for beneficiaries — would be gone,” Slavitt and Bagley wrote.

The ACA’s impacts reach far beyond health care consumers. “Insurance companies, drug companies, hospitals, and doctors have all changed the way they do business because of incentives and penalties in the health law,” Julie Rovner wrote in Kaiser Health News. “If it’s struck down, many of the ‘rules of the road’ would literally be wiped away, including billing and payment mechanisms.”

Supreme Court Scenarios

If the Republican Senate votes to confirm Barrett before the oral arguments for California v. Texas, the ACA faces a tougher battle, though it could be narrowly upheld. Although Barrett has not participated in any cases regarding the ACA on the Seventh Circuit, “her academic writing and public action offer glimpses into her views” opposing the health law, Goldstein and Alice Crites reported in the Washington Post.

If Barrett misses the oral arguments, she will not participate in the case. The Supreme Court could choose to postpone the arguments or proceed with eight justices, which is “far from unprecedented,” Keith wrote. Should that result in a 4-4 ruling, the lower court’s decision would stand, and the case would be remanded to a federal district court judge to decide which other provisions of the law must fall along with the individual mandate. Other provisions on the chopping block “could include the law’s rules banning insurers from denying people coverage or charging them higher premiums because of their medical history,” Dylan Scott wrote in Vox. Litigation could continue for years, during which the ACA would remain the law of the land, according to Keith.

This is not an exhaustive list of potential outcomes. For example, an eight-judge court could narrowly rule in favor of the ACA.

As Sam Baker wrote in Axios, “A lawsuit that once seemed like a long shot now has a much more reasonable chance at success — and that means 20 million people’s health coverage really could be in the balance.”

 

 

 

 

The first presidential debate: 7 healthcare takeaways

https://www.beckershospitalreview.com/hospital-management-administration/the-first-presidential-debate-7-healthcare-takeaways.html?origin=CFOE&utm_source=CFOE&utm_medium=email&oly_enc_id=2893H2397267F7G

5 key takeaways from Joe Biden and Donald Trump's 1st presidential debate -  ABC News

President Donald Trump and former Vice President and Democratic presidential nominee Joe Biden sparred over the future of the ACA, the COVID-19 pandemic and health insurance during a 90-minute debate in Cleveland Sept. 29.

Seven takeaways for healthcare leaders:

The ACA

1. Moderator and Fox News host Chris Wallace opened the debate with the topic of President Trump’s nomination of Judge Amy Coney Barrett of the U.S. Court of Appeals for the 7th Circuit to the U.S. Supreme Court. In the first few minutes of the debate, the discussion turned to the future of the ACA should Ms. Coney Barrett join the Supreme Court. A week after the November presidential election, the Supreme Court is set to hear a lawsuit, supported by the Trump administration, that seeks to overturn the ACA. 

2. If the Supreme Court overturns the ACA, Mr. Biden said 22 million Americans would lose insurance and 100 million would lose protections for preexisting conditions. HHS said in 2017 as many as 133 million Americans have preexisting conditions, and a KFF analysis estimates 54 million Americans have conditions serious enough to lead to coverage denials if the ACA is overturned.

3. Mr. Wallace questioned the president about his promise to repeal and replace the ACA, adding that President Trump hadn’t released a comprehensive plan to replace the health law despite pledges to do so. The president disagreed with that, saying he had gotten rid of the individual mandate. Mr. Wallace said eliminating the mandate was not a comprehensive plan. Mr. Wallace called President Trump’s recent executive orders on preexisting conditions and surprise billing “largely symbolic.” President Trump disagreed, but did not tell how the executive orders would be implemented.

Drug prices 

4. The president said drug prices would be coming down “80 or 90 percent.” The president highlighted insulin, which he said he’s getting so inexpensively, “it’s like water.” Insulin continues to retail for about $300 per vial, according to STAT, but cheaper insulin prices could be coming for some seniors. CMS recently said it is expanding the number of Medicare Advantage plans that provide insulin for a $35 or less monthly copay.

Public option

5. In an exchange with Mr. Biden, President Trump accused the Democratic Party of wanting “socialist medicine,” and claimed Mr. Biden wants to end private insurance. Mr. Biden denied those claims and said his health plan, which includes expanded ACA subsidies and a public option, would allow employees to keep their private health insurance. He has not supported Medicare-for-All proposals.

COVID-19

6. On the topic of the pandemic, Mr. Wallace asked President Trump about differing timelines for a vaccine that have been presented by him versus federal scientists like CDC Director Robert Redfield, MD. The president said he has spoken with Pfizer, Moderna and Johnson & Johnson, who’ve said “they can go faster” on a vaccine, but “it’s a very political thing.” He added that the military is already set up to distribute vaccines. Mr. Biden questioned Americans’ trust in the process. A Sept. 29 poll from the Axios/Ipsos Coronavirus Index found 8 in 10 Americans wouldn’t likely get a first generation COVID-19 vaccine if the president said it was safe.

7. President Trump and Mr. Biden took different stances on masks. Mr. Biden cited Dr. Redfield’s renewed call to wear masks, and said masking up and social distancing would save 100,000 lives between now and January. President Trump responded by saying, “They’ve said the opposite.” He alluded to early in the pandemic when public health experts, including Anthony Fauci, MD, director of the National Institute of Allergy and Infectious Diseases, were slow to recommend widespread mask-wearing before scientists better understood how the virus spreads. The CDC currently recommends that every American wear a mask.

 

 

 

‘People should worry:’ ACA in limbo after Bader Ginsburg’s passing

https://www.healthcaredive.com/news/people-should-worry-aca-in-limbo-after-bader-ginsburgs-passing/585545/?utm_source=Sailthru&utm_medium=email&utm_campaign=Issue:%202020-09-22%20Healthcare%20Dive%20%5Bissue:29794%5D&utm_term=Healthcare%20Dive

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’s latest 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.

 

 

 

 

Ruth Bader Ginsburg helped shape the modern era of women’s rights – even before she went on the Supreme Court

https://theconversation.com/ruth-bader-ginsburg-helped-shape-the-modern-era-of-womens-rights-even-before-she-went-on-the-supreme-court-95705?utm_medium=email&utm_campaign=Latest%20from%20The%20Conversation%20for%20September%2018%202020%20-%201736916802&utm_content=Latest%20from%20The%20Conversation%20for%20September%2018%202020%20-%201736916802+Version+A+CID_e457010c9229c8655a12000ef21183e1&utm_source=campaign_monitor_us&utm_term=Ruth%20Bader%20Ginsburg%20helped%20shape%20the%20modern%20era%20of%20womens%20rights%20%20even%20before%20she%20went%20on%20the%20Supreme%20Court

Ruth Bader Ginsburg helped shape modern era of women's rights

Justice Ruth Bader Ginsburg died on Friday, the Supreme Court announced.

Chief Justice John Roberts said in a statement that “Our nation has lost a jurist of historic stature.”

Even before her appointment, she had reshaped American law. When he nominated Ginsburg to the Supreme Court, President Bill Clinton compared her legal work on behalf of women to the epochal work of Thurgood Marshall on behalf of African-Americans.

The comparison was entirely appropriate: As Marshall oversaw the legal strategy that culminated in Brown v. Board of Education, the 1954 case that outlawed segregated schools, Ginsburg coordinated a similar effort against sex discrimination.

Decades before she joined the court, Ginsburg’s work as an attorney in the 1970s fundamentally changed the Supreme Court’s approach to women’s rights, and the modern skepticism about sex-based policies stems in no small way from her lawyering. Ginsburg’s work helped to change the way we all think about women – and men, for that matter.

I’m a legal scholar who studies social reform movements and I served as a law clerk to Ginsburg when she was an appeals court judge. In my opinion – as remarkable as Marshall’s work on behalf of African-Americans was – in some ways Ginsburg faced more daunting prospects when she started.

Starting at zero

When Marshall began challenging segregation in the 1930s, the Supreme Court had rejected some forms of racial discrimination even though it had upheld segregation.

When Ginsburg started her work in the 1960s, the Supreme Court had never invalidated any type of sex-based rule. Worse, it had rejected every challenge to laws that treated women worse than men.

For instance, in 1873, the court allowed Illinois authorities to ban Myra Bradwell from becoming a lawyer because she was a woman. Justice Joseph P. Bradley, widely viewed as a progressive, wrote that women were too fragile to be lawyers: “The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator.”

And in 1908, the court upheld an Oregon law that limited the number of hours that women – but not men – could work. The opinion relied heavily on a famous brief submitted by Louis Brandeis to support the notion that women needed protection to avoid harming their reproductive function.

As late as 1961, the court upheld a Florida law that for all practical purposes kept women from serving on juries because they were “the center of the home and family life” and therefore need not incur the burden of jury service.

Challenging paternalistic notions

Ginsburg followed Marshall’s approach to promote women’s rights – despite some important differences between segregation and gender discrimination.

Segregation rested on the racist notion that Black people were less than fully human and deserved to be treated like animals. Gender discrimination reflected paternalistic notions of female frailty. Those notions placed women on a pedestal – but also denied them opportunities.

Either way, though, Black Americans and women got the short end of the stick.

Ginsburg started with a seemingly inconsequential case. Reed v. Reed challenged an Idaho law requiring probate courts to appoint men to administer estates, even if there were a qualified woman who could perform that task.

Sally and Cecil Reed, the long-divorced parents of a teenage son who committed suicide while in his father’s custody, both applied to administer the boy’s tiny estate.

The probate judge appointed the father as required by state law. Sally Reed appealed the case all the way to the Supreme Court.

Ginsburg did not argue the case, but wrote the brief that persuaded a unanimous court in 1971 to invalidate the state’s preference for males. As the court’s decision stated, that preference was “the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the 14th Amendment.”

Two years later, Ginsburg won in her first appearance before the Supreme Court. She appeared on behalf of Air Force Lt. Sharron Frontiero. Frontiero was required by federal law to prove that her husband, Joseph, was dependent on her for at least half his economic support in order to qualify for housing, medical and dental benefits.

If Joseph Frontiero had been the soldier, the couple would have automatically qualified for those benefits. Ginsburg argued that sex-based classifications such as the one Sharron Frontiero challenged should be treated the same as the now-discredited race-based policies.

By an 8–1 vote, the court in Frontiero v. Richardson agreed that this sex-based rule was unconstitutional. But the justices could not agree on the legal test to use for evaluating the constitutionality of sex-based policies.

Strategy: Represent men

In 1974, Ginsburg suffered her only loss in the Supreme Court, in a case that she entered at the last minute.

Mel Kahn, a Florida widower, asked for the property tax exemption that state law allowed only to widows. The Florida courts ruled against him.

Ginsburg, working with the national ACLU, stepped in after the local affiliate brought the case to the Supreme Court. But a closely divided court upheld the exemption as compensation for women who had suffered economic discrimination over the years.

Despite the unfavorable result, the Kahn case showed an important aspect of Ginsburg’s approach: her willingness to work on behalf of men challenging gender discrimination. She reasoned that rigid attitudes about sex roles could harm everyone and that the all-male Supreme Court might more easily get the point in cases involving male plaintiffs.

She turned out to be correct, just not in the Kahn case.

Ginsburg represented widower Stephen Wiesenfeld in challenging a Social Security Act provision that provided parental benefits only to widows with minor children.

Wiesenfeld’s wife had died in childbirth, so he was denied benefits even though he faced all of the challenges of single parenthood that a mother would have faced. The Supreme Court gave Wiesenfeld and Ginsburg a win in 1975, unanimously ruling that sex-based distinction unconstitutional.

And two years later, Ginsburg successfully represented Leon Goldfarb in his challenge to another sex-based provision of the Social Security Act: Widows automatically received survivor’s benefits on the death of their husbands. But widowers could receive such benefits only if the men could prove that they were financially dependent on their wives’ earnings.

Ginsburg also wrote an influential brief in Craig v. Boren, the 1976 case that established the current standard for evaluating the constitutionality of sex-based laws.

Like Wiesenfeld and Goldfarb, the challengers in the Craig case were men. Their claim seemed trivial: They objected to an Oklahoma law that allowed women to buy low-alcohol beer at age 18 but required men to be 21 to buy the same product.

But this deceptively simple case illustrated the vices of sex stereotypes: Aggressive men (and boys) drink and drive, women (and girls) are demure passengers. And those stereotypes affected everyone’s behavior, including the enforcement decisions of police officers.

Under the standard delineated by the justices in the Boren case, such a law can be justified only if it is substantially related to an important governmental interest.

Among the few laws that satisfied this test was a California law that punished sex with an underage female but not with an underage male as a way to reduce the risk of teen pregnancy.

These are only some of the Supreme Court cases in which Ginsburg played a prominent part as a lawyer. She handled many lower-court cases as well. She had plenty of help along the way, but everyone recognized her as the key strategist.

In the century before Ginsburg won the Reed case, the Supreme Court never met a gender classification that it didn’t like. Since then, sex-based policies usually have been struck down.

I believe President Clinton was absolutely right in comparing Ruth Bader Ginsburg’s efforts to those of Thurgood Marshall, and in appointing her to the Supreme Court.

 

 

 

 

Ruth Bader Ginsburg on a Meaningful Life

Administration’s Record on Health Care

President Trump’s Record on Health Care

President Trump's Record on Health Care | KFF

A review of Trump’s health care record so far. Avoiding the problematic issue of Trump’s alleged plan, analysts at the nonpartisan Kaiser Family Foundation released a report this week that examines President Trump’s record on health care over the last three and half years. Some highlights from the overview and the full analysis:

  • On the Affordable Care Act: “From the start of his presidential term, President Trump took aim at the Affordable Care Act, consistent with his campaign pledge leading up to the 2016 election. He supported many efforts in Congress to repeal the law and replace it with an alternative that would have weakened protections for people with pre-existing conditions, eliminated the Medicaid expansion, and reduced premium assistance for people seeking marketplace coverage. While the ACA remains in force, President Trump’s Administration is supporting the case pending before the U.S. Supreme Court to overturn the ACA in its entirety that is scheduled for oral arguments one week after the election.”

 

  • On Medicare and Medicaid: “The Administration has proposed spending reductions for both Medicaid and Medicare, along with proposals that would promote flexibility for states but limit eligibility for coverage under Medicaid (e.g., work requirements).”

 

  • On drug prices: “The President has made prescription drug prices a top health policy priority and has issued several executive orders and other proposals that aim to lower drug prices; most of these proposals, however, have not been implemented, other than one change that would lower the cost of insulin for some Medicare beneficiaries with diabetes, and another that allows pharmacists to tell consumers if they could save money on their prescriptions. The Trump Administration has also moved forward with an initiative to improve price transparency in an effort to lower costs, though it is held up in the courts.”

 

  • On the response to the coronavirus: “The Trump administration has not established a coordinated, national plan to scale-up and implement public health measures to control the spread of coronavirus, instead choosing to have states assume primary responsibility for the COVID-19 response, with the federal government acting as back-up and ‘supplier of last resort.’ The President has downplayed the threat of COVID-19, given conflicting messages and misinformation, and often been at odds with public health officials and scientific evidence.”

 

President Trump’s Record on Health Care – Issue Brief