The Health 202: Democrats are making Amy Coney Barrett's nomination all about Obamacare

The perennial fight is playing out in yet another legal challenge to the health-care law, which the court is scheduled to hear shortly after Election Day.

“It's no mystery about what’s happening here,” Democratic presidential nominee Joe Biden said in a speech yesterday responding to the president’s nominee. “President Trump is trying to throw out the Affordable Care Act – he’s been trying to do it for the last four years. The Republican Party has been trying to eliminate it for a decade.”

The administration believes it has found “a loophole” with the death of Justice Ruth Bader Ginsburg, Biden added, saying “they see another opportunity to overturn the ACA on their way out the door.”

Democrats are keeping a tight focus on the ACA as they respond to the Barrett pick.

As we’ve explained in The Health 202, the probable replacement of Ginsburg with a conservative justice makes it somewhat more likely — although far from certain — that the Supreme Court may strike down some of the ACA or send it back to a lower court to decide which parts of the law should stay or go. 

It’s possible Barrett could be in place by Nov. 10, when oral arguments are scheduled. Senate Republicans are charging forward with the confirmation process, scheduling the hearings to begin two weeks from today.

There’s not much Democrats can do to stop it. But they do believe a health-care focused message could propel them to big wins in the November elections, my colleague Paul Kane wrote. After all, focusing on the case and its potential effect on Americans with preexisting conditions helped Democrats win control of the House in 2018. And things could get even more dicey for Republicans looking to eliminate the law during the pandemic.

Barrett expressed sympathy for a 2015 case seeking to cut off some Obamacare insurance subsidies.

In that case, King v. Burwell, the Supreme Court ruled 6 to 3 that the subsidies could continue flowing in states using the federal marketplaces sold through Healthcare.gov instead of running their own marketplaces. 

The bringers of the lawsuit argued the text of the ACA allowed the subsidies to be distributed only through state-run marketplaces. But Chief Justice John G. Roberts Jr. disagreed in a majority decision that ensured millions of Americans could continue receiving the subsidies to buy private plans.

While a professor at the University of Notre Dame Law School, Barrett indicated on the NPR program “On Point” she agreed with the three conservative justices who thought the subsidies should be stopped.

“It’s clearly a good result that these millions of Americans won’t lose their tax subsidies,” she said at the time. But she added this: “The dissent has the better of the legal argument.”

Barrett also criticized Roberts’s ruling in 2012 that the ACA was constitutional by saying the penalty for being uninsured amounts to a tax. “Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” she said at the time.

Senate Minority Leader Chuck Schumer (D-N.Y.) said he won’t meet with Barrett because of her views on the ACA.

CNN's Manu Raju:

Schumer doubled down on his message, after the president suggested the ACA could be “terminated in the Supreme Court” less than 24 hours after announcing Barrett as his nominee in the Rose Garden of the White House.

Trump tweeted this Sunday morning:

Later in the day, Trump called Obamacare “terrible” at a White House news conference. "It doesn’t work. We’ve made the best of it,” the president said.

House Speaker Nancy Pelosi (D-Calif.) said Republicans want Barrett confirmed quickly so she can help overturn the ACA.

“What I am concerned about is anyone that President Trump would have appointed was there to undo the Affordable Care Act,” Pelosi (D-Calif.) said in an interview on CNN’s “State of the Union.” “That is why he was in such a hurry, so he could have been in place for the oral arguments which begin November 10. … If you have a preexisting medical condition, that benefit will be gone."

She urged Americans to “vote, vote, vote,” describing it as “the antidote” to “whatever he does.”

“Vote for affordable care. Vote for your preexisting condition. Vote for your safety. And vote for your health,” Pelosi said.

Sen. Debbie Stabenow (D-Mich.) said on “Fox News Sunday” that “it’s very clear from her writings, multiple writings, that she will be the vote that takes away health care for millions of Americans, including people — 130 million people and counting with preexisting conditions.”

And Sen. Christopher A. Coons (D-Del.) said he’ll ask Barrett her views on the ACA when they meet one-on-one.

“I’ll press her on her previous statements about the ACA. Trump said he would only choose a nominee he was confident would overturn the ACA,” Coons said on CBS’s “Face the Nation.” “It defies comprehension why President Trump would continue in his efforts to strip away from people preexisting condition protections.” 

Ahh, oof and ouch

AHH: The CDC director suggested Scott Atlas is arming Trump with misleading data.

Robert Redfield, who leads the Centers for Disease Control, was overheard by NBC News in a phone conversation, speaking about the neuroradiologist recently brought onto the White House coronavirus task force.

Redfield suggested Atlas is arming Trump with misleading data about a range of issues, including questioning the efficacy of masks, whether young people are susceptible to the virus and the potential benefits of herd immunity, Monica Alba reports.

"Everything he says is false," Redfield said during a phone call made during a flight from Atlanta to Washington, D.C.

Redfield acknowledged afterwards that he was speaking about Atlas, who has been criticized for promoting questionable theories.

OOF: White House Chief of Staff Mark Meadows defended his pushback against tougher FDA guidelines for coronavirus vaccines.

Meadows questioned the value of recent guidelines proposed by the Food and Drug Administration that could put in place stricter standards for emergency authorization of a coronavirus vaccine, during an interview with Margaret Brennan on the CBS program “Face the Nation” on Sunday.

“Why would you think that we would need new guidance after we've developed vaccines and drugs for for decades?” Meadows responded after Brennan asked about the White House's pushback against the new FDA guidelines.

“We're trying to make sure that the guidance we give is not an inhibitor to getting things out fast,” Meadows added. “My challenge to the FDA is just make sure it's based on science and real numbers.”

The Post reported on Friday that Meadows called FDA Commissioner Stephen Hahn last week to ask for detailed justification for the proposed FDA guidelines, which would make it nearly impossible to approve a vaccine for emergency use before the election. 

Trump called the tougher standards a “political move” and said the White House may not greenlight them. So far, however, the White House has not asked the FDA to change or withdraw the guidelines, which recommend vaccine manufacturers include a median of two months of safety data from trial participants after the participants receive a second shot.

“The White House’s involvement appears to go beyond the perfunctory review that agency officials had expected, and is likely to reinforce public concerns that a vaccine may be rushed to benefit the president’s reelection campaign,” The Post’s Laurie McGinley, Yasmeen Abutaleb and Josh Dawsey write.

OUCH: Four Midwest states are seeing covid-19 cases surge.

Minnesota, Montana, South Dakota and Wisconsin had record single-day increases on Saturday, Reuters’s Anurag Maan and Lisa Shumaker reported. Cases are rising nationally for the second week in a row.

“The United States is reporting nearly 46,000 new infections on average each day, compared with 40,000 a week ago and 35,000 two weeks ago,” Maan and Shumaker write.

While some of the new cases are likely the result of increased testing, hospitalizations have also risen in the Midwest.

Cases have also begun rising again in the Northeast, with more than 1,000 people testing positive in New York on Friday for the first time since early June.

The confirmed global death toll approaches 1 million. The prospect of 2 million deaths is “certainly unimaginable, but it’s not impossible,” World Health Organization expert Mike Ryan said Friday at a news briefing.

“If we look at losing 1 million people in nine months and then we just look at the realities of getting vaccines out there in the next nine months, it’s a big task for everyone involved,” he said.

Fewer than one in ten Americans have coronavirus antibodies.

“Fewer than 1 in 10 Americans showed signs of past infection with the novel coronavirus as of late July, suggesting that most of the country may still be vulnerable to infection, according to one of the largest studies of its kind published Friday in the journal the Lancet,” The Post’s Ben Guarino reports.

The estimate comes from leftover blood samples taken from a randomly selected group of 28,500 dialysis patients across 46 states. While some researchers have cautioned the sample may not be representative, the study is valuable for being one of the largest of its kind. The results, showing that about 8 percent of samples had coronavirus antibodies, are in line with CDC studies.

“This means for every case diagnosed by a nasal or saliva swab in the country, about nine more people have antibodies for the coronavirus, the study estimated,” Guarino writes. 

But that still leaves that vast majority of Americans potentially at risk.

“We are still in the middle of the fight,” Eli Rosenberg, a State University of New York at Albany epidemiologist, told The Post. “We’re all tired, and we’re all hoping for a vaccine. This shows us how it’s not over here, not even by a long shot.”

Scientists are still learning about how immunity to the coronavirus works and how long it lasts. Some scientists have hypothesized that even some people who don't have antibodies may have some level of protection from a different part of the immune system, known as T-cells, possibly through contact with other coronaviruses, like the common cold. So far, however, this theory has not been proved.

Public messaging

Health and Human Services is funding an unusual ad blitz about covid-19.

“The health department is moving quickly on a highly unusual advertising campaign to ‘defeat despair’ about the coronavirus, a $300 million-plus effort that was shaped by a political appointee close to President Donald Trump and executed in part by close allies of the official, using taxpayer funds,” Politico's Dan Diamond writes.

The ad blitz, first reported by Politico earlier this month, has sparked a congressional investigation by House Democrats, but it still appears to be moving forward. Administration officials have recorded interviews between health officials and celebrities such as actor Dennis Quaid and singer CeCe Williams.

The ad campaign was largely organized by Michael Caputo, a top HHS communications official who recently departed the agency on medical leave and announced Thursday he had been diagnosed with cancer. Caputo said in a Sept. 13 Facebook video that Trump personally asked him to make the campaign happen. The same video also included baseless accusations that CDC scientists were seeking to subvert the president.

Critics have questioned the source of the funding, which pulls money from the CDC and other health agencies, as well as the fact that it appears to bypass potential partners who have previously worked with the government on large-scale public health messaging campaigns. 

Politico reported one $15 million contract for public messaging recommends using a subcontracting firm, DD&T, run by Caputo’s longtime business partner.

"CDC hasn’t yet done an awareness campaign about Covid guidelines — but they are going to pay for a campaign about how to get rid of our despair? Run by political appointees in the press shop? Right before an election?" said Josh Peck, a former HHS official who oversaw the Obama administration's advertising campaign for HealthCare.gov.

Children and covid-19

Few children die of covid-19.

“As the United States’ covid-19 death toll moves relentlessly beyond 200,000, data shows that only about 100 children and teenagers have died of the disease, a fatality rate that is drawing wonder from clinicians and increasing interest among researchers hoping to understand why,” The Post’s Lenny Berstein reports. 

“Covid-19 has become the nation’s third-leading cause of death this year, but 18 states had not seen a single fatality among people under 20 as of Sept. 10, according to statistics compiled by the American Academy of Pediatrics and the Children’s Hospital Association.”

Scientists are trying to figure out why the coronavirus is generally mild in children in the hope that it could provide clues for preventing or treating the virus in older people. One theory is that children have fewer ACE2 receptors on their cells compared with older people, and the coronavirus latches on to these receptors when it invades cells. 

The low fatality rate aside, more than half a million people under 20 have been diagnosed with the disease, and some suffer terrible symptoms. The CDC has documented 935 cases of multi-system inflammatory syndrome in children, a serious side effect that can accompany covid-19 in a small number of cases, although even this disease has killed only 19 young people. Scientists are also still working to understand the role that children may play in transmitting the disease.

Coronavirus latest

• A Chinese health official said that the World Health Organization supported China’s decision to move forward with an emergency authorization to use a coronavirus vaccine for some high-risk groups even while clinical trials are underway, Reuters reports.
• Military suicides have increased by 20 percent this year compared with 2019, a fact that some Army and Air Force officials say may be linked to the additional strain of the pandemic, the Associated Press’s Lolita C. Baldor and Robert Burns report.
• Since the FDA authorized convalescent blood plasma as a potential therapy for treating covid-19 patients, blood banks and researchers have intensified the search for recovered covid-19 patients with high levels of antibodies and who are willing to become regular blood donors, the Wall Street Journal’s Amy Dockser Marcus reports.

• Trump and Biden will not shake hands during their first presidential debate next week as part of social distancing precautions. The campaigns considered but ultimately rejected an elbow bump as too awkward, The Hill’s Edward Moreno reports.
• Five out of 10 of Europe’s top companies by market value are drug producers, a trend that has been “turbocharged” during the pandemic, the Wall Street Journal’s Stephen Wilmot reports.

Elsewhere in healthcare

Experts question how Trump will fund promised $200 prescription drug cards.

Trump said on Thursday that he intends to send a card with $200 to 33 million Medicare beneficiaries to help them pay for prescription drugs, but its unclear where the funds for the program will come from or if it the program is permitted under current laws.

“The administration says it can put the plan in place using existing powers to test new ways of delivering health care. But critics see it as a brazen election year ploy to buy votes that could exceed presidential authority while sapping Medicare’s finances,” Politico’s Rachel Roubein and Susannah Luthi report.

The Wall Street Journal’s Stephanie Armour reported the Trump administration intended to use money from a Medicare trust fund. An official told the Journal the money for the pilot program would be disbursed under a program that lets officials waive Medicare laws to test new initiatives.

This program, however, is usually reserved for much smaller initiatives, and some critics contend it’s unclear what the administration would be testing.

The White House has said that the nearly $7 billion needed to fund the program will come from a federal plan to lower prescription costs by indexing the prices Medicare pays for drugs to those paid by other countries. So far, however, that program has not been implemented.

Sugar rush