| Welcome to Wednesday's edition of Overnight Health Care. It was a big day for ObamaCare in the courts, as a federal judge in Texas heard oral arguments in a lawsuit that could result in the end of the law's protections for people with pre-existing conditions. More on that below... but first... Brett Kavanaugh, the man who could ultimately hear arguments in the ObamaCare case if it reaches the Supreme Court, faced opening rounds of questions from senators in his nomination hearing. Kavanaugh declined to answer questions from Sen. Sheldon Whitehouse (D-R.I.) about pre-existing condition protections, saying he wouldn't speculate on hypotheticals, or comment on cases that he could potentially rule on. Kavanaugh did answer questions about abortion. He said Roe v. Wade has been "reaffirmed many times" and that it is settled precedent. "I understand the importance the people attach to the Roe v. Wade decision," Kavanaugh said. "I don't live in a bubble. I live in the real world." However, Democrats allege that "settled law" does not mean that Kavanaugh won't rule with the other conservative justices to overturn the precedent if a case challenging it comes to the Supreme Court. "Roe v. Wade is 'settled law' only until five Republican Supreme Court Justices overturn it. Brett Kavanaugh's statements should not convince anyone that he would uphold Roe," Sen. Dianne Feinstein (D-Calif.) tweeted. CLICK HERE to subscribe to our newsletter. Dems hold up opioids bill. Democrats are objecting to a bill in the Senate aimed at curbing the opioid crisis because of a GOP provision they say is an earmark for one PhRMA-funded advocacy group. One of the biggest issues holding up an agreement on the bill, according to a source familiar with the issue, is a provision added by Senate Majority Whip John Cornyn (R-Texas) that Democrats say would only benefit the Addiction Policy Forum, an advocacy group funded by PhRMA.
The provision would authorize the U.S. attorney general to make grants to entities that focus on addiction and substance use disorders and meet other criteria. But the Addiction Policy Forum is the only group that meets that criteria, essentially making the provision an "earmark" for the group, Democrats argue. Cornyn added the provision after the bill passed out of committee, the source said. Democrats are insisting the provision is removed before the Senate votes on the bill, and won't accept assurances from some Republicans that it will be fixed in conference. Read more here. Why it matters: Republicans had hoped the bill would get a vote in the Senate before Labor Day. McConnell then said last week it could come for a vote this week. But there are still disagreements. Context: The House passed its opioid bill in June, and they're getting inpatient across the Capitol. Any bill that passes the Senate still has to be conferenced with the House bill before going to the president for a signature. But: Senate Minority Leader Charles Schumer (D-N.Y.) did sound an optimistic note Wednesday, telling reporters there were only two outstanding issues on the bill that he hoped to resolve soon. Meanwhile, in Texas... Judge presses ObamaCare supporters in court. A judge appeared skeptical of ObamaCare supporters' arguments in court in Texas on Wednesday in a closely watched case on the future of the law. But, bigger picture: Legal experts, including top conservative ones, highly doubt this case will ultimately succeed in higher courts. A bigger impact could be on the midterm elections, where Democrats are hammering Republicans for supporting the case and possibly taking away coverage for people with pre-existing conditions. "If necessary we're ready to go to the appellate court," a spokesperson for the California Department of Justice, which defended the health law in court, told The Hill on Wednesday, an acknowledgement that they could lose on the lower level. What's the case about? Texas and the other GOP-led states argue that ObamaCare's individual mandate can now no longer be upheld as a tax since Congress eliminated the penalty for violating it as part of the tax law last year. The challengers argue that because the individual mandate is unconstitutional, all of the rest of ObamaCare should be struck down too. The Trump administration has agreed in part, saying the mandate and protections for people with pre-existing conditions should be struck down because those protections are inseparable from the mandate. A focus of the arguments Wednesday was on the question of whether the mandate could be separated from the rest of the law, or whether other provisions must be struck down with it. O'Connor expressed skepticism that the pre-existing condition protections could be separated, saying past judges to examine the issue had found those sections inseparable. "Every single judge ... concluded this," O'Connor said, according to Politico. Read more here. McConnell: No plan to try again on ObamaCare repeal soon. Jon Kyl was officially sworn in as the newest senator from Arizona on Wednesday, but Senate Majority Leader Mitch McConnell (R-Ky.) signaled to reporters that he doesn't have any plans to move again this year to repeal ObamaCare, even though Kyl might give Republicans a better chance of success. Senate Republicans view Kyl as someone more likely to vote with GOP leaders on health care reform legislation than was late Sen. John McCain (R-Ariz.), the maverick whom Kyl replaced after his death. McCain's vote ultimately axed the 2017 GOP effort to repeal ObamaCare. Moderate Republican Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska) also voted no. Similar math: Aside from the politics of the House and Senate needing to pass a shell reconciliation budget, the numbers are still the same. Democrats gained an extra member when Doug Jones won the Senate race in Alabama in December, so if Murkowski and Collins did not change their votes, repeal would still be dead. But maybe: McConnell did not explicitly rule out moving an ObamaCare repeal in the lame duck session after the election but his answer didn't indicate that he's giving it serious thought. Political handicappers give Democrats a good chance of taking back control of the House in the midterms, which would dash any GOP hopes of repealing ObamaCare during the remainder of President Trump's first term in office. Read more on his comments here Federal judge permanently blocks Texas fetal burial law In a victory for abortion advocates, a federal judge on Wednesday blocked a Texas law that would require the burial or cremation of any fetal remains. U.S. District Judge David Ezra wrote in his ruling issuing the permanent injunction that the law would cause a "near catastrophic" failure of the health-care system for women of childbearing age in Texas. Ezra, who was appointed by President Reagan, wrote in his decision that the measure "would be a violation of a woman's right to obtain a legal abortion under the law as it stands today." What the law does: Passed in 2017, the law would have required health-care facilities to bury or cremate fetal remains -- whether they are the result of an abortion, miscarriage, stillbirth or an ectopic pregnancy -- regardless of a patients' wishes. Supporters of abortion rights argue the law is an attempt to punish women for getting abortions. Next step: Texas Attorney General Ken Paxton (R) said the state would appeal. Read more here. What we're reading: Justice Department nearing antitrust approval of health mergers combining CVS-Aetna, Cigna-Express Scripts (The Wall Street Journal) Giuliani's consulting firm helped halt Purdue opioid investigation in Florida (Kaiser Health News)
State by state: Medicaid expansion question fuels Georgia governor's race (The Atlanta Journal - Constitution) Rate decreases coming to New Mexico health exchange (Associated Press) Blue Cross to contribute $5 million to Rhode Island fund for mental health care (Rhode Island Public Radio) The Hill event Join us Wednesday, September 12 for "A Healthy Start: Infant and Early Childhood Nutrition," featuring Reps. Nanette Barragán (D-Calif.) and Bobby Scott (D-Va.), and Administrator of the Food and Nutrition Service Brandon Lipps. Editor in Chief Bob Cusack will sit down with the headliners to discuss maternal, infant, and early childhood nutrition, and what steps can be taken to establish healthier eating patterns across all communities. RSVP Here. | 
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