The Health 202: Congress could easily make the Obamacare lawsuit go away. It probably won’t.

The Supreme Court upheld the law back in 2012 by ruling that the penalty falls under Congress’s authority to tax. But because Congress zeroed out the Affordable Care Act’s penalty for lacking health coverage, GOP-led states are arguing the rest of the law must fall too, in a lawsuit that even conservative legal scholars have called weak. 

In response, the House and the Senate could pass legislation making clear the law can survive without the mandate penalty — or it could simply reinstate the penalty to a very small sum of, say, $1. 

University of Michigan professors Nicholas Bagley and Richard Primus described the legislative possibilities in this article for the Atlantic:

Congress could fix the problem by saving, severing, or sinking the mandate. First, Congress could make the mandate constitutional again by raising the penalty for not having insurance from zero dollars, where Congress set it in 2017, to one dollar. Second, Congress could declare the individual mandate severable from all other parts of the ACA. Third, it could repeal the mandate — something that might once have wrecked the ACA but that now would have little or no effect on the rest of the regulatory framework.

Republicans controlling the Senate don’t want to run afoul of Trump, whose administration has joined states in asking the court to throw out the entirety of the ACA. Republicans also have a deep-seeded animosity to the health-care law they have tried to undermine for years.

Senate Majority Leader Mitch McConnell (R-Ky.) has said the Senate would “act quickly” to restore preexisting condition protections if the ACA were struck down. But a spokesman wouldn’t say whether Republicans would also seek to protect the rest of the vast law, which includes Medicaid expansion and individual marketplaces that vastly expanded the universe of options for people to get affordable coverage.

As for Democrats, who control the House, the issue is far too good for them politically. They spent much of the 2018 election railing against the lawsuit and how it could eliminate insurance protections for Americans with preexisting health conditions. They’re running on the same message this year.

“Anyone who thinks Mitch McConnell and Donald Trump aren’t fully committed to the GOP lawsuit to strike down the Affordable Care Act and all its protections is living in a fantasy land,” said Henry Connelly, a spokesman for House Speaker Nancy Pelosi (D-Calif.).  

“Experts have said [Trump’s planned] executive order would amount to little more than a public relations ploy, and the order is not viewed as a substantive policy proposal among many West Wing advisers,” The Post’s Josh Dawsey and Yasmeen Abutaleb report, adding that the president will say little about the ACA in a speech where he’ll tout health care “wins” despite his failure to repeal and replace the law or do much on lowering drug prices.

“Trump is scheduled to deliver a speech Thursday in Charlotte, broadly outlining how he would approach health-care policy in a second term, though the speech is likely to be light on details,” they write. “Instead, Trump will tout the administration’s efforts to lower drug prices, address surprise medical bills and improve health-care price transparency, according to two senior administration officials and an outside lobbyist familiar with the plans.”

“If the Democrats are in charge, they can do it in a blink,” Rodney Whitlock, a former health staffer to Sen. Chuck Grassley (R-Iowa), wrote to me in an email. “Republicans will have a much more complicated conversation.”

If Republicans retain control of the Senate and the White House, it’s likely they would just wait for the court’s ruling next June. Many of them have shied away from discussing the ACA after their failed effort in 2017 to repeal it.

But if Democrats take charge, they would be more likely to act preemptively to undermine the lawsuit with one of the three possible legislative fixes. “If Biden wins and if they have the Senate, then yes,” said Jen Taylor, senior director of federal relations for Families USA. “In the meantime, there is a holding pattern in this.” 

Democrats could also pass legislation to save the ACA retroactively, Bagley told me. 

“The Democrats could wait and adopt a $1 penalty after the Supreme Court strikes the law down,” he said. “If they did so, they could claim — pretty reasonably — that the law is fully enforceable again.”

“Thousands of students and teachers have become sick with covid-19 since schools began opening last month, but so far, public health experts have found little evidence that the disease is spreading inside buildings, and the rates of infection are far below what is found in the surrounding communities,” Laura Meckler and Valerie Strauss report.

This early evidence suggests that reopening may not be as risky as some feared, although public health experts are quick to warn that the data is still preliminary and should not be used as an excuse to reopen schools without precautions or concern for the overall case rate in the surrounding area.

“Everyone had a fear there would be explosive outbreaks of transmission in the schools. In colleges, there have been. We have to say that to date, we have not seen those in the younger kids, and that is a really important observation,” Michael Osterholm, director of the Center for Infectious Disease Research and Policy at the University of Minnesota, told The Washington Post.

On Wednesday, Brown University, working with school administrators, released data from its National COVID-19 School Response Data Dashboard showing low levels of coronavirus cases among both teachers and students. Separate data released by Texas also shows low rates of infections in schools.

In many other places, however, the data is spotty or incomplete. In Florida, where Gov. Ron DeSantis (R) has pushed schools to open even in areas with high infection rates, some counties report being pressured not to release school-specific data. Some teachers and health officials also worry that cases could go up in schools if restrictions are relaxed or if the pandemic gets worse during the winter months.

Trump said yesterday his administration may not approve tougher guidelines the FDA has proposed for emergency use authorization of a coronavirus vaccine, Amy Goldstein and Laurie McGinley report.

The tougher standards, which have been sent to the White House Office of Budget and Management, were seen as a way to shore up public trust in the vaccine process.

“That has to be approved by the White House,” Trump said of the FDA guidance. “We may or may not approve it.” He called the decision to revise the guidelines “a political move.”

Earlier in the day, top government scientists told a Senate panel they expect a coronavirus vaccine to be widely available for Americans by next spring. They included Anthony Fauci, the director of the National Institute of Allergy and Infectious Diseases and Centers for Disease Control and Prevention Director Robert Redfield, who cautioned that once 700 million doses of the vaccine are ready, it could still take months to distribute them.

Similar comments by Redfield at another Senate hearing last week prompted pushback from Trump, who said that the CDC director was wrong about the predicted time frame. Trump has offered varying timelines for a vaccine, initially saying that a vaccine could be approved as soon as October and immediately made available to all Americans. Last Friday, however, the president said he expects all Americans be vaccinated by April.

Redfield also said that he was “disappointed” by remarks casting the CDC as “part of the deep state.” The CDC director was referring to a baseless accusation made by Michael Caputo, the Department of Health and Human Services assistant secretary for public affairs who took a medical leave of absence last week after posting an incendiary video to Facebook in which he claimed that CDC scientists were engaged in subversive activity meant to undermine the president.

“Obviously people don’t understand the ability to suck energy out of people that are working 24/7 when they get unfairly criticized or unfairly characterized,” Redfield said.

Brett Giroir, the assistant secretary for health at the Department of Health and Human Services, and Stephen Hahn, the head of the Food and Drug Administration, also testified before the Senate.Hahn tried to shore up confidence in the FDA’s vaccine process, which has come under scrutiny from Democrats worried that Trump political appointees may interfere with the process in an effort to push a vaccine through before the November elections.

“FDA will not authorize or approve a vaccine we won’t be confident in giving to our families,” Hahn said.

Epidemiologists, health-care worker unions, and aerosol scientists have been engaged in a heated debate for months over whether the coronavirus is primarily spread through large respiratory droplets or through tinier particles that can hang in the air for an extended period of time, Kaiser Health News’s Robert Lewis and Christina Jewett report.

Over the past several days, the Centers for Disease Control waded into the middle of this debate, publishing — and then quickly unpublishing — guidance emphasizing airborne transmission as the “main way the virus spreads.” The agency claimed on Monday that the draft guidance had been released in error.

“This wonky, seemingly semantic debate has a real-world impact on what sort of protective measures health care companies need to take to protect their patients and workers,” Robert and Christina write.

If the virus spreads mainly through airborne transmission, it could mean that hospitals need to take further steps to prevent transmission — for instance, by providing more expensive and often hard-to-get N95 respirators to all staff who work with covid-19 patients. For hospitals, the mode of transmission touches on “everything from airflow within hospital wards to patient isolation to choices of protective gear,” Robert and Christina write.

“Scientists in Houston on Wednesday released a study of more than 5,000 genetic sequences of the coronavirus that reveals the virus’s continual accumulation of mutations, one of which may have made it more contagious,” Chris Mooney, Joel Achenbach and Joe Fox report.

All viruses accumulate mutations, and most are harmless. The new study, which has not been peer-reviewed, claims that a change in the spike protein on a particular strain of the virus could have made that particular strain more transmissible, but the study does not say that the mutations made the virus deadlier or changed clinical outcomes.

David Morens, a virologist at the National Institute of Allergy and Infectious Diseases who reviewed the new study, said that if the virus becomes more contagious it could have implications for efforts to control it, including through a vaccine. Morens also cautioned, however, that these findings come from a single study, saying, “You don’t want to over-interpret what this means.”

Researchers collected 5,085 DNA sequences as the virus spread throughout Houston, making the study appear to be “the largest single aggregation of genetic sequences of the virus in the United States thus far,” Chris, Joel and Joe write. 

The study found that when the coronavirus first came to Houston, about 71 percent of viruses sampled had a particular mutation, known as the D614G mutation, that affects the spike protein. By the second wave of the outbreak over the summer, 99.9 percent of viruses had this mutation. Researchers also found that people infected with the mutated virus had higher viral loads in their upper respiratory track, which could help the virus spread more effectively.

Some scientists, however, have urged caution in interpreting the results of the study.

“The first coronavirus vaccine that aims to protect people with a single shot has entered the final stages of testing in the United States in an international trial that will recruit up to 60,000 participants,” Carolyn Y. Johnson reports.

Johnson & Johnson’s vaccine is the fourth experimental coronavirus vaccine to enter large Phase 3 clinical trials in the United States, and it is the only one testing inoculation with a single dose. Other vaccines being tested require a return visit and a second shot. 

Another possible advantage comes from the fact that J&J’s vaccine can be stored in liquid form at refrigerator temperatures for months. Two other leading vaccine candidates must be frozen or kept at ultracold temperatures

“The United States has invested billions of dollars in an array of vaccine technologies, including close to $1.5 billion to support the development of the J&J vaccine and an advance purchase of 100 million doses. The J&J vaccine is the second to use a viral-vector approach, taking a harmless virus and inserting into it a gene that contains the blueprint for a distinctive part of the novel coronavirus,” Carolyn writes.

J&J has said that it will follow other leading vaccine trials in releasing the full protocol for its study, which is larger than any of the other Phase 3 trials in the United States.

• Although the economy has improved, CEOs from some of America’s largest companies say that it remains fragile and argue that the government should provide further support, Hannah Denham reports.
• Recent research suggests that people who recover from covid-19 may have lingering heart damage, the Wall Street Journal’s Sarah Toy reports.
• After an alcohol-fueled party among Massachusetts teenagers forced the local high school to delay its reopening, police are charging two parents and their teenager for hosting the party, Tim Elfrink reports.

“President Donald Trump promised Wednesday to sign an executive order that would require health care providers to provide medical care to all babies born alive as he makes an election-year push to appeal to voters who oppose abortion,” the Associated Press reports.

The statement, made in a video message for the National Catholic Prayer Breakfast, comes as Trump seeks to shore up support among Roman Catholic voters, a group that has been a pivotal swing vote in previous elections. It also comes as the death of Ginsburg thrusts Roe v. Wade back into the spotlight.

Several Republican lawmakers at both the federal and state level have sought to pass legislation that would make it a crime if doctors fail to provide care for an infant born alive after a failed abortion. The U.S. government has recorded 143 deaths involving infants born alive after attempted abortions between 2003 and 2014, according to the Associated Press.

“Organizations representing obstetricians and gynecologists say the law already provides protections to newborns, whether born during a failed abortion or under other circumstances. But when anomalies are so severe that a newborn would die soon after birth, a family may choose what’s known as palliative care or comfort care. This might involve allowing the baby to die naturally without medical intervention,” the Associated Press writes.