| Welcome to Thursday's Health 202, where this morning we're reading about some interesting hypotheticals Justice Breyer posed. For instance: a sign barring "all animals" from a park doesn't include a "pet oyster." (h/t SCOTUSBlog) Today: A record 14.5 million Americans signed up for Obamacare and The Post talks to Sen. Patty Murray about the path forward for her new pandemic plan. But first: | Justice Breyer issued liberal health-care rulings but didn't mind compromise |  Supreme Court Justice Stephen G. Breyer will retire at the end of this term. (Bill O'Leary/The Washington Post) | | | Justice Stephen G. Breyer is known as a pragmatic liberal who reportedly struck a deal with the chief justice to uphold Obamacare and authored major opinions maintaining access to abortion. After nearly 28 years on the bench, Breyer will retire at the end of the Supreme Court term this summer, a person familiar with his plans told our colleague Robert Barnes. That decision — though not unexpected — is important for President Biden. He'll now get a chance to reinforce the court's liberal minority before the midterms and while Senate Democrats still have the narrowest of majorities. On the campaign trail, Biden promised to nominate a Black woman to the Supreme Court, a pledge White House press secretary Jen Psaki said yesterday Biden "certainly stands by." | - Breyer hasn't formally announced his retirement, though multiple media reports about his impending decision sent reverberations through Washington. He's expected to meet with Biden at the White House today, per Robert.
- The chamber will confirm Biden's nominee with "all deliberate speed," Senate Majority Leader Chuck Schumer (D-N.Y.) said yesterday.
| | "He's one of the most important allies of those who are trying to advance health rights and reproductive rights," said Sarah Somers, a managing attorney at the National Health Law Program. | | Breyer helped save Obamacare, according to one account. The court was initially going to strike down the bulk of the Affordable Care Act, but keep its Medicaid expansion. But that didn't sit well with Chief Justice John G. Roberts Jr., as Joan Biskupic, CNN legal analyst and Supreme Court biographer, reported in March 2019. (The account was adapted from her book The Chief: The Life and Turbulent Times of Chief Justice John Roberts.) | - So Roberts went to Breyer and Justice Elena Kagan to see if they could strike a deal.
- The result? Roberts switched his vote to uphold the law. And Breyer and Kagan switched theirs and voted to make the health law's Medicaid expansion optional for states, Biskupic wrote.
| | The account appears consistent with Breyer's reputation. He is "more moderate than others on the left and willing to search for compromise among the court's ideologically divided justices," Robert writes. Nearly a decade later, Breyer played another instrumental role in saving Obamacare again. He wrote the majority opinion last summer when the high court rejected the third challenge to the law. | - In a 7-to-2 vote, the court ruled that neither Republican-led states nor the individual plaintiffs had legal standing to sue to knock down the law on the grounds that its mandate to buy health coverage had been rendered toothless.
| | On abortion rights: Breyer authored three major decisions, each striking down state laws aimed at restricting the procedure. This includes a Nebraska law banning what critics call "partial-birth" abortions; a Texas law requiring doctors have admitting privileges in nearby hospitals and mandating clinics meet the hospital-like standards of surgical centers; and a Louisiana law requiring the admitting privileges. | - "[He] did it in a very calm and matter of fact way that clearly and unequivocally upheld the right to abortion and skewered the attempts to restrict it, but not with a lot of rhetorical flourish," said Gretchen Borchelt, a vice president of the National Women's Health Law Center.
| | On vaccine mandates: Breyer dissented in the Supreme Court's decision to block Biden's vaccine-or-test requirement for large employers. And he helped allow the administration's vaccine mandate for many health care workers to go into effect. |  Breyer speaks with reporters in the White House Rose Garden after being nominated by President Bill Clinton. (ROBERT GIROUX/AFP via Getty Images) | | | Will the court really change? The short answer is no. The conservatives already hold a majority, and court watchers say Biden is expected to pick someone liberal-leaning who could get through Democrats' slim Senate majority. | - "I expect that President Biden's nominee would have the same record and commitment to abortion rights and to health care generally that Justice Breyer did," Borchelt said.
| | Breyer will rule on a critical Mississippi case banning abortions after 15 weeks, which could undermine Roe v. Wade. But the high court is likely to take up more abortion cases down the road, and his successor will be a crucial part of those decisions. And even before Breyer has publicly confirmed his retirement, those on both sides of the issue are lining up, emblematic of the battle to come for Biden's nominee. Read more stories from The Post on Breyer's retirement: | | |  | Readers help us | | | Private insurers are now required to cover coronavirus tests. We want to hear from you how it's going. Has the process been easy or cumbersome? Have you had to pay up front for the tests or did you get them free without paying first? How long is it taking to get reimbursed? Tell us all at rachel.roubein@washpost.com. | | |  | Agency alert | | | Obamacare sign ups reach new record: About 14.5 million Americans signed up to get health insurance this year through the health law's insurance marketplaces, eclipsing the previous record by nearly 2 million people, our colleague Amy Goldstein reports this morning. The tally will probably end up higher, since a handful of states haven't yet ended their enrollment seasons. The federal insurance marketplace, HealthCare.gov, ended its enrollment window Jan. 15, and 10 million people bought plans on the exchange. | - It's a "substantial slice of good news" for Biden, Amy writes, but also comes as the president's sweeping social spending bill has been stalled for over a month. That includes measures building on the health care law, such as permanently enhancing Obamacare subsidies for some enrollees and extending Medicaid to 2.2 million Americans.
| | |  | From our reporters' notebooks | | | About that new pandemic plan … Earlier this week, the bipartisan leaders of the powerful Senate HELP Committee released a draft of a new plan to tackle future pandemics. The Post's Dan Diamond discussed the proposal with the panel's chair, Sen. Patty Murray (D-Wash.), yesterday. Here's what he learned: Reforming the CDC: The plan to require Senate confirmation of the director of the Centers for Disease Control and Prevention came into focus over the last several years. | - "[We] recognize that in the future, moving forward, for a pandemic or any public health response, we need to have accountability, we need to have focus, we need to have a CDC that we all trust, and I think this is an important way of making that happen."
| | The path forward: Murray said a legislative vehicle for the plan is still being contemplated. "We will be looking for any way to move it forward," she said. Under discussion: Biden has proposed creating a new agency to speed up research, called the Advanced Research Projects Agency for Health (ARPA-H). The lawmakers are talking with the White House about potentially including Biden's proposal in the bill, and Murray said "there are still some basic decisions that need to be made" before adding it in. | | |  | In other health news | | - Moderna is starting human trials to test an omicron-specific vaccine, and Pfizer-BioNTech launched trials earlier this week, per our colleagues Lateshia Beachum and Meryl Kornfield.
- The federal health department is exploring ways to get more tests to Medicare beneficiaries for free, Jeff Zients, the White House coronavirus response coordinator, said.
- The winter surge of coronavirus hospitalizations is showing signs of slowing, particularly in states in the Northeast, The Post's Fenit Nirappil, Katie Shepherd and Dan Keating report.
- The White House announced it has shared over 400 million doses of coronavirus vaccines with other countries, though advocates have called for the administration to do more.
| - Rep. Vern Buchanan (R-Fla.) was named co-chair of a task force to develop Republican health care initiatives. Last week, Buchanan was selected to be the top Republican on the House Ways and Means health subcommittee.
- A new bipartisan health care accountability group launches. The Institute for Health Policy Accountability consists of former Gov. Susana Martinez (R-N.M.) as board chair, former Gov. Ted Strickland (D-Ohio) as senior adviser, and former officials in the Oregon and Tennessee governors' offices.
| | |  | Sugar rush | | | Thanks for reading! See y'all tomorrow. | |
