Phia Group


Phia Group Media

What Kind of [Month] Has it Been?

By: Nick Bonds, Esq.

As we approach the new year, let’s take a moment to pause and reflect on the whirlwind of policies, proposals, and issues swirling in the end-of-2021 zeitgeist as we brace for 2022. So, where to begin…

First: one of the biggest healthcare issues to come before the Supreme Court this year are two cases challenging state laws significantly limiting access to abortion. Abortion restrictions in Texas and Mississippi are two of the most direct challenges to the Roe v. Wade-Planned Parenthood v. Casey framework that has been in place for decades. We’ve already written a fair amount on the Texas “heartbeat bill,” which SCOTUS declined to enjoin in early November while lower level appeals continue. While that law remains in effect, Texas has the strictest abortion limitations of any state by far.

Meanwhile, oral arguments on Mississippi’s abortion restriction banning abortions after 15 weeks (well before the current fetal viability standard) were heard by SCOTUS this week. Though not nearly as restrictive as the Texas law, the Mississippi law similarly gives the current, majority conservative Court an opportunity to limit (if not outright overturn) the Roe-Casey framework. The three newest Justices: Gorsuch, Kavanaugh, and Barrett, along with conservative stalwarts Justices Alito and Thomas, appear poised to uphold the Mississippi law. Though the liberal-leaning Justices – Breyer, Kagan, and Sotamayor – strived to persuade the Court (particularly Chief Justice Roberts) that Roe should stand, and that a sweeping ruling completely throwing out all abortion precedent could significantly damage the Court’s credibility.

It’s difficult to say what the Court will decide, though Roberts would most likely prefer a narrow ruling that somehow reconciles the Mississippi law with keeping Roe and Casey in place. Whatever the Court rules, we may well remain in suspense until next summer for decisions on both the Texas and Mississippi laws.

Next up: Omicron is the latest coronavirus mutation to be dubbed a “variant of concern” by the WHO. First reported by scientists in South Africa, Omicron appears to have already spread to dozens of other countries, and how now even been detected here in the United States. Though Omicron appears to be more contagious than previous variants, there is some hope that it causes less severe and dangerous symptoms. We won’t know for some time yet whether the current vaccines are as effective against this new variant, though the CDC has now changed its recommendation on booster shots to say that all American adults should get booster doses of their vaccines six months after their second dose.

New unease around the Omicron variant, and the expanded booster recommendations from CDC, drive home the urgency of expanded vaccination uptake. Coincidentally, President Biden’s proposed vaccination requirements for large private employers and for federal contractors have all been held up by federal courts in Louisiana and Kentucky. We have yet to see whether Omicron could rise to the level of a “grave danger” that might re-pave the way for OSHA to issue the vaccine mandate emergency temporary standard, but it could certainly affect that debate. Even with the federal vaccine requirement in limbo, many employers are implementing their own requirements as the specter of Omicron grows.

Lastly, with the House and Senate back in session for the first weeks of December, eyes pivot back to Capitol Hill and the tense negotiations around the Build Back Better Act (BBB). Key healthcare provisions in the BBB include items like expanding Medicaid subsidies to close the coverage gaps in 12 states, allowing Medicare to negotiate prescription drug prices, broadening Medicare coverage for senior hearing benefits, and providing up to four weeks of paid family medical leave. Once again the focus is on Senator Joe Manchin, who has already expressed his reservations at the overall cost of the bill, and seems to have set his sights on cutting the paid leave from the final bill. Ultimately, Manchin is expected to support the final version of the bill, and hopes remain high that a (significantly cut down) version of the bill will be finalized and signed by President Biden by the end of 2021.

I know that was a flurry of headlines and issues. Like I said, let’s all take a breath here. We’ll be keeping our eyes on all of these developments, and their potential implications for group health plans, throughout the upcoming holidays.