How Trump's likely SCOTUS pick has ruled on health care Presented by

CMS is halting a key payment program for Obamacare insurers, and in POLITICO Agenda Joanne Kenen looks at how health care consultants have gorged off Washington's policymaking (and explains why they are like your kitchen contractor).

But first: President Donald Trump is hours from unveiling his pick to replace Justice Anthony Kennedy on the Supreme Court.

SCOTUS: HOW TRUMP'S LIKELY NEXT PICK HAS RULED ON HEALTH CARE — The president is picking between four reported contenders (barring a last-minute surprise) who could end up as the deciding vote to overturn Roe v. Wade or change the course of the ACA.

Trump is scheduled to announce his pick at 9 p.m. — his latest injection of reality TV into the presidency, so much so that ABC's The Bachelorette will pause its episode tonight — and here's where the possible justices stand:

BRETT KAVANAUGH, an appeals court judge for the D.C. Circuit who also worked on the Whitewater investigation and in the George W. Bush White House, arguably has the most Washington support but the lengthiest paper trail of the four. That's reportedly concerned Senate Majority Leader Mitch McConnell, who's worried that Democrats will be able to unearth land mines in Kavanaugh's past. Among his stances:

— On abortion: Kavanaugh dissented on last fall's immigration case — Garza v. Hargan, where the court supported an undocumented teen in HHS custody who sought an abortion — although his decision-making has divided conservatives. Supporters point out that Kavanaugh criticized his colleague's efforts to craft "radical" new abortion policy; critics charge that his dissent was too cautious and should have gone further. More.

— On contraception: Kavanaugh concluded that the ACA's contraception coverage mandate infringed on the rights of religious organizations in a 2015 case, Priests for Life v. HHS, which some religious liberty groups have hailed. However, Kavanaugh's critics note that he acknowledged that the government may have a role to play in contraception access.

— On the ACA's individual mandate: Kavanaugh in 2011 wrote that a lawsuit against the ACA's individual mandate wasn't yet ready for judgment until someone paid for the penalty, and his critics say he laid the groundwork for Chief Justice John Roberts to save the ACA in 2012 by considering the mandate a tax.

In 2015, Kavanaugh ruled in favor of the Obama administration in Sissel v. HHS, concluding that the ACA was a bill that raised revenue and lawfully originated in the House — even though the Senate struck the House's text entirely.

THOMAS HARDIMAN, an appeals court judge for the Third Circuit, has been personally recommended by his colleague Maryanne Trump Barry, the president's sister and a fellow appeals court judge.

— On abortion: Hardiman hasn't directly ruled on abortion — which could end up shielding him from concerns that he'd overturn Roe. But he did join in a decision that vacated the conviction of an anti-abortion protester who was arrested for refusing to move from a public sidewalk.

— On contraception and the ACA: Hardiman this spring ruled for the Little Sisters of the Poor, who were seeking to intervene in litigation related to the ACA's birth control mandate.

— On other health care issues: Hardiman joined in an opinion that upheld Delaware's lethal-injection protocol for prisoners.

AMY CONEY BARRETT, an appeals court judge for the Seventh Circuit who was seated just eight months ago, has the skimpiest record from the bench. But she was also a Notre Dame law professor and has spoken or written extensively on sensitive issues like abortion. She's also been cheered by anti-abortion and religious liberty groups — especially after Sen. Dianne Feinstein grilled Barrett last year over her Catholic beliefs.

— On the ACA's individual mandate: Barrett has argued the Supreme Court was wrong to preserve the law's constitutionality, writing in 2017 that "Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute."

— On the ACA's contraception mandate: Barrett joined a 2012 letter criticizing the provision as part of an "assault on religious liberty."

— On abortion: Barrett reportedly said at a Notre Dame campus forum in 2013 that life begins at conception, although she also suggested that it would be "very unlikely" that Roe is ever overturned.

— On Supreme Court precedent: Barrett in 2013 suggested that a justice could be flexible in interpreting precedent and should try to "enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it."

RAYMOND KETHLEDGE, an appeals court judge for the Sixth Circuit, hasn't ruled on abortion or other sensitive health care issues. However, Kethledge in 2012 joined in a decision to strike down Ohio's ban on certain campaign contributions from Medicaid providers.

Donald Trump is scheduled to announce his next pick for the Supreme Court at 9 p.m. ET tonight.

A message from PhRMA: Today, there are several promising vaccine candidates in stage three clinical trials. These trials have tens of thousands of participants, from every walk of life. From development to robust clinical trials, and throughout manufacturing, these vaccine candidates follow the same rigorous process of other vaccines that have saved millions of lives. More.

CASES ON THE HORIZON AT THE COURT

Abortion issues: The newest justice will have an opportunity to rule on abortion and other reproductive health issues quite quickly, POLITICO's Jennifer Haberkorn writes.

The justices already have two petitions asking them to weigh in on whether states can defund Planned Parenthood. They are likely to decide in the fall whether to take the case. Other cases expected to get to the Supreme Court level in coming years question the motive or method under which a woman may get an abortion, a potential opening to reconsider Roe. It is unclear whether the justices will take them. More.

ACA cases: Several potentially significant cases relevant to the future of Obamacare could also come before the Supreme Court in the coming years, POLITICO's Paul Demko reports.

In one high-profile case that's a few years away at best, conservative states led by Texas are seeking to overturn the ACA — and the Justice Department last month joined an aspect of the case, asking that pre-existing condition protections and other market rules be struck down.

Meanwhile, a divided federal appellate court rejected insurers’ claims that they’re owed billions of dollars stemming from a shortfall in funding for a program that was supposed to protect them from particularly expensive Obamacare customers.

In addition, a federal judge in New Mexico ruled in February that the federal government erred in assuming that another risk-mitigation program had to be budget neutral. In response, on Saturday CMS announced that it’s putting on hold billions of dollars in risk adjustment payments to insurers for 2017 until the legal issue is resolved. (More about that below.)

Consolidation in the health care industry is also an issue that the Supreme Court could weigh in on down the road. Massive transactions like CVS Health’s pending $69 billion acquisition of Aetna or Walmart’s potential bid for Humana could end up as legal fights before the high court.

THE LANDSCAPE IN CONGRESS — Already, Sen. Susan Collins (R-Maine) has said she will not support a justice who would vote to overturn Roe. Sen. Lisa Murkowski (R-Alaska), another GOP lawmaker who has previously voiced support for abortion rights, will be another key vote.

WELCOME BACK TO MONDAY PULSE — Where your author thinks, with no inside knowledge, that the pick is going to be Hardiman. (Email him if you want the explanation.) We'll all find out tonight: Tips to [email protected].

With help from Jennifer Haberkorn (@JenHab) and Paul Demko (@PaulDemko)

Alex Azar speaks at 340B Coalition conference. The HHS secretary will address the group at 2 p.m. More.

Bipartisan Policy Center looks at 15 years of PEPFAR. The group will host an event and release a report, with former Sens. Tom Daschle and Bill Frist among those scheduled to speak. More.

CMS FREEZES BILLIONS IN RISK-ADJUSTMENT PAYMENTS — CMS on Saturday said it would halt the payments pending resolution in a dispute over the payments' legality.

Where the courts stand. A federal court in New Mexico decided in February the payments were based on flawed rules — but another court in Massachusetts upheld the payments.

The agency on Saturday said it would appeal the New Mexico ruling. “CMS is seeking a quick resolution to the legal issues raised and will inform stakeholders of any update to the status of collections or payments at an appropriate future date,” the agency said in a statement.

Why it matters: The so-called risk adjustment payments are supposed to protect insurers from big losses. The health plans pay into a pool – this doesn’t involve tax dollars – and funds are transferred to insurers that ended up with many high cost patients. For 2017, $10.4 billion was involved.

How the industry sees it: "This decision comes at a critical time when insurance providers are developing premiums for 2019 and states are reviewing rates," said America's Health Insurance Plans in a statement. "This decision will have serious consequences for millions of consumers who get their coverage through small businesses or buy coverage on their own."

CMS quit test of pricey cancer treatment amid concerns over industry role. Medicare and Medicaid administrators earlier this year quietly killed a plan to pay for a breakthrough, half-million-dollar cancer treatment based on how well it worked, scuttling one of the Trump's administration's first and most highly touted attempts to lower the cost of drugs.

The payment deal for Swiss drug giant Novartis' Kymriah therapy drew internal HHS scrutiny and is the target of current congressional investigations. Democrats want to know if the company got preferential treatment because Novartis paid President Donald Trump's longtime lawyer Michael Cohen $1.2 million in early 2017 for health care consulting work — though there's no indication Cohen played any role in the Kymriah deal. More.

Health care's army of would-be fixers. The Affordable Care Act was a bonanza for health care consultants — as is President Donald Trump’s attempt to take it down, POLITICO's Joanne Kenen writes. And that adds billions of dollars to health bills.

For instance, digitization forced doctors to abandon their bulging file folders in favor of computerized records. Providers, government and the private sector are all grappling with how to pay for medical care in ways that reward the quality, not quantity, in a system that may not really be the “best in the world,” but is certainly the most expensive.

That's sparked an army of visionaries, mercenaries and everyone in between who profit off America's dysfunctional system. Keep reading: More.







Trump administration says it’s under no obligation to reunite Central American migrants with children. The administration on Friday night gave several reasons why it wouldn’t have to immediately reunite the three migrants with their children, POLITICO's Renuka Rayasam reports.

In a filing, government lawyers argued that (1) as criminals, the government had a right to separate them from their children and (2) the court didn’t need to issue a separate order because the three migrants are most likely part of a separate class action lawsuit filed by the ACLU. (In that case, a judge already required the administration to reunite migrant parents with their children.) Still the administration says that one migrant was transferred to New York on Thursday to be reunited with her children.

Meanwhile: Democratic governors warn that administration changing definition of 'family reunification.' The Trump administration may be placing migrant children whom it separated from their families with long-term sponsors who are unrelated to them, despite a judge’s order to reunify families, according to a letter from six Democratic governors that was first shared with POLITICO. The governors say that's what they were told in a recent meeting with Trump administration officials.

“If true, this interpretation appears to blatantly ignore the terms of the court order” that nearly all migrant parents detained by the administration must be reunited with their children by July 26, write the governors, led by Washington’s Jay Inslee and New York’s Andrew Cuomo. More for Pros.

Nursing home staffing is frequently overstated. That's according to data analyzed by Kaiser Health News, which found frequent fluctuations in day-to-day staffing and big shortfalls on weekends.

"On the worst staffed days at an average facility, the new data show, on-duty personnel cared for nearly twice as many residents as they did when the staffing roster was fullest," Jordan Rau writes. More.

Texas: The tension when a jail becomes a mental health treatment center. Houston's Harris County jail has been pressed into duty as a de facto mental health hospital, POLITICO's Renuka Rayasam writes. Currently about one in four of its 10,000 inmates have a diagnosed mental illness and receive some form of psychiatric medication every day.

And while officials and lawmakers want to shift the jail's role, the shuttering of state-run psychiatric hospitals over several decades has pushed jails into the front lines of mental health treatment. More for Pros.

The New York Times editorial board asks: Do poor people have a right to health care? More.

Also in the NYT, Annie Lowrey makes the case for a stronger safety net for the poor — including just giving them money. More.

New rules that could make it easier for government agencies to fire federal workers take effect today, WaPo's Lisa Rein writes. More.

At Huffington Post, Jonathan Cohn digs into CMS' decision to suspend risk-adjustment payments, asking whether it's the latest ACA sabotage. More.

In National Review, Andrew McCarthy argues that the fight over Roe v. Wade is besides the point and that Planned Parenthood v. Casey is the court's key abortion ruling. More.

U.S. objections to a breast-feeding resolution stunned global health officials, the NYT's Andrew Jacobs writes. More.

CORRECTION: The July 6 edition of Pulse indicated that Jennifer Wagner was a medical doctor. She has a doctorate but not an MD.

Follow us on Twitter Joanne Kenen @joannekenen



Adriel Bettelheim @abettel



Jason Millman @jasonmillman



Lauren Morello @lmorello_dc



Sara Smith @sarasmarley



Dan Diamond @ddiamond



Zach Brennan @ZacharyBrennan



Adam Cancryn @adamcancryn



Tucker Doherty @tucker_doherty



Brianna Ehley @briannaehley



Dan Goldberg @dancgoldberg



David Lim @davidalim



Susannah Luthi @SusannahLuthi



Alice Miranda Ollstein @aliceollstein



Sarah Owermohle @owermohle



Carmen Paun @carmenpaun



Mohana Ravindranath @ravindranize



Rachel Roubein @rachel_roubein



Darius Tahir @dariustahir