The year 2020 has gotten off to a flying start—probably a direct consequence of 2019 finishing with a flurry. One of the first eye-catching bits of news was the request by several states for the Supreme Court to intervene now, not later, in the case that threatens the fundamental basis on which the biosimilar pathway is based.
As reported in December, the Fifth District Court affirmed the ruling that the individual mandate was invalid. However, it sent back to Texas District Court Justice Reed O’Connor the decision as to whether the individual mandate is “severable” from the rest of the Affordable Care Act. In other words, if the individual mandate is cut from the ACA, does that mean that all other aspects of this legislation, including the biosimilar pathway created by the BPCIA, must also be declared invalid?
In Judge O’Connor’s original decision, he took the broadest view, stating that if the individual mandate has been withdrawn, then the entire ACA is invalid. One wonders why the Fifth District Court of Appeals thinks that Judge O’Connor will reconsider his logic. If he doesn’t, the case winds up in the Supreme Court, sooner or later.
The attorneys general of 20 states and the District of Columbia want that to be sooner, which makes sense. Let’s get a final ruling for the sake of US citizens and the entire healthcare system. If a workaround or a complete recontemplation of health reform needs to be done, it would be far better to find that out now, in time for the next elections (assuming that a Supreme Court decision is issued in early Fall of this year). If Medicaid expansion must be rolled back, if the exchanges must be invalidated, and if biosimilars made available to the public must be withdrawn, that could have a huge impact on the upcoming elections. That cannot happen, of course, unless the Supreme Court hears the case before this year’s session is complete.
This may be viewed in a couple of ways: (1) an opportunity/attempt by Democrats to more seriously introduce a public option or even Medicare for all, (2) an opening for Democrats to exploit that the health insurance of 20 million Americans will be immediately at stake in the upcoming elections, (3) an opportunity for Senate Republicans and the Trump administration to demonstrate real leadership in the next phase of health reform (i.e., one that does not reflect any of the lack of understanding of preexisting conditions/chronic disease/patient cost sharing demonstrated in their earlier statements on health reform), or (4) a chance for the administration shoot itself in the foot on the greater healthcare issue one more time.
The Trump administration sides with those who seek to repeal the ACA at any cost; it elected to not defend the law in the current case. The partisan divide between the House and the Senate does not inspire confidence that a quick fix can be implemented to restore by statute the needed parts of the ACA and BPCIA. Consider the nightmare of having to debate once again—from scratch—the foundational pillars of providing affordable, comprehensive health insurance to Americans. Who wants to revisit that exercise in today’s contentious environment?