Jun 28, 2018

Axios Vitals

By Caitlin Owens
Caitlin Owens

Good morning ... I had been prepared for weeks for Justice Anthony Kennedy to announce his retirement, but am still a little bit in shock that this is actually happening. His departure is just about the biggest thing that could possibly have happened in American politics, other than a war.

1 big thing: What Kennedy's retirement means for health care

Anthony Kennedy (on right) congratulates new Supreme Court Justice Neil Gorsuch. Photo: Eric Thayer/Getty Images

Kennedy's retirement from the Supreme Court will reverberate for decades — especially in the ongoing legal debate over abortion rights.

The big picture: Kennedy was a true swing vote on abortion rights, upholding the central premise of Roe v. Wade but allowing states to impose at least some restrictions on access to the procedure.

  • Kennedy will all but certainly be replaced with a more staunchly conservative jurist. And the court's existing bloc of four Republican nominees is already much more open to states' abortion restrictions than Kennedy was.

Threat level: We're a long way from Roe being overturned. The more immediate likelihood is that limits on the procedure will be upheld, and that red states will seize that opening to push the envelope on more restrictive policies.

  • Expect to see states pursue — and the court uphold — tighter regulation of abortion providers and tighter time limits on when the procedure can be performed.
  • If Roe is ultimately overturned, abortion would not automatically become illegal. The issue would return to the states — meaning it would likely be legal in blue states and illegal in red states.

What's next: Some Democrats are trying to tie the Supreme Court vacancy into their health care-focused midterms strategy, but that's a tough sell.

  • Whoever President Trump nominates, he or she will strenuously avoid taking a position on the latest Affordable Care Act lawsuit, or the Justice Department's decision to seek an end to protections for people with pre-existing conditions.
  • Supreme Court nominees never comment on active lawsuits they might have decide if they're confirmed.

Go deeper: Kennedy's complicated legacy.

2. HHS rejects Mass. plan to cut drug spending

The Trump administration yesterday rejected Massachusetts’ proposal to exclude certain drugs from Medicaid coverage — an effort to lower spending on expensive brand-name products.

  • If Massachusetts wants to establish a formulary for prescription drugs — a list of which products are covered, which drug makers would have to negotiate their way onto — it would have to forego all the rebates it receives today from drug companies, the administration said.
  • That likely would end up costing the state more.

The other side: Law professors Nick Bagley and Rachel Sachs argued in April that, while the pharmaceutical industry likely would have challenged a Medicaid formulary in court, it probably wouldn't have won.

3. Senate panel talks health costs

The Senate health committee doesn't necessarily seem much closer to legislation to reduce health care costs, but members were at least seriously talking about the issue yesterday, Axios' Caitlin Owens reports.

What to watch: Chairman Lamar Alexander and Ranking Member Patty Murray both brought up issues with hospital billing practices — for example, situations where patients go to in-network hospitals but get billed for care from out-of-network physicians.

  • Price transparency and market competition (or the lack thereof) came up often, as well, and experts generally agree that these issues contribute to the private market's dysfunction.
  • If you don't know what a service costs, and you don't have any other options, that essentially allows the industry to set prices wherever it wants to, experts argued.
4. Home DNA tests solve more cold cases

In the weeks since a suspect in the Golden State Killer case was identified using data from commercial DNA kits, law enforcement has increasingly turned to the samples stored by GEDMatch to track down more suspects in unsolved cases, The New York Times reports.

How it works: In most of these cases, the suspects themselves never provided their own DNA to a testing company.

  • Forensic detectives match crime-scene DNA to commercial DNA banks to identify relatives — often distant cousins — then start building out a family tree, and then identify the most likely suspects from that family tree.

In one case, DNA matches had stumped the genealogy researcher working on the case. Per NYT:

  • "It was only when she considered the possibility of misattributed paternity — the person that public records said would have been the suspect’s grandfather was not actually his grandfather — that everything began to fall into place."
  • "She could trace the suspect’s ancestry back to his Native American great-great-grandparents on his father’s side and follow the movement of the family
    ... Two brothers were then identified as people of interest because of their age and location at the time of the killing. After extracting DNA from a crumpled up napkin, police determined that [the suspect] was their guy.

🤔: "It’s unclear if any of the cousins whose DNA helped lead to arrests have been notified that they played a role," the NYT notes. "Whether they should be told — and whose responsibility that would be — are among the many unresolved questions that have been raised with this new approach."

Caitlin Owens

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