Author Archives: Nicholas Bagley

The Trump administration targets the contraception mandate

by Nicholas Bagley — Friday, Nov. 9, 2018

With the midterms out of the way, HHS has released two final rules affording employers wide leeway to opt out of the so-called contraception mandate. The first exempts employers with religious beliefs from the obligation to include contraception in the health insurance package they offer to their employees. The second does the same for employers […]

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Judges Shouldn’t Have the Power to Halt Laws Nationwide

by Nicholas Bagley — Wednesday, Oct. 31, 2018

That’s the headline to an article of mine, co-authored with Sam Bray of Notre Dame Law School and published today in The Atlantic. We highlight the disquieting possibility that a single district court in Texas might soon enter an injunction prohibiting the enforcement of all or part of the Affordable Care Act across the entire […]

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Maryland files suit to protect the ACA from Texas

by Nicholas Bagley — Thursday, Sept. 13, 2018

Last week’s hearing in Texas v. United States convinced a lot of observers, me included, that a district court judge in Texas is poised to declare that all or part of the Affordable Care Act is unconstitutional. When and if he does so, the judge might also enter an injunction ordering the administration to stop enforcing the Act […]

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Limiting State Flexibility in Drug Pricing

by Nicholas Bagley — Thursday, Sept. 13, 2018

That’s the title of a new perspective piece from Rachel Sachs and me in the New England Journal of Medicine. The Trump administration has refused to allow Massachusetts to experiment with a closed formulary, which would give the state some leverage in price negotiations over low-value drugs. But, as we explain, CMS has offered no written explanation whatsoever for its refusal. […]

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Trump’s Sabotage of Obamacare Is Illegal

by Nicholas Bagley — Tuesday, Aug. 14, 2018

So runs the headline of an op-ed that I co-authored with Abbe Gluck of Yale Law School in the New York Times. Here’s an excerpt: Never in modern American history has a president so transparently aimed to destroy a piece of major legislation. What makes Mr. Trump’s sabotage especially undemocratic is that Congress has repeatedly […]

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The Right Thing on Risk Adjustment

by Nicholas Bagley — Wednesday, July 25, 2018

It took a crisis to spur the Trump administration to action, but it did finally act. Yesterday evening, HHS released a rule addressing a New Mexico judge’s concerns with the risk adjustment program. If all goes well—more on that in a moment—the new rule should put an end to risk adjustment fiasco. To bring you […]

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Taking a Dive on Risk Adjustment

by Nicholas Bagley — Monday, July 9, 2018

On Friday evening, the Wall Street Journal reported that the Trump administration would be suspending risk adjustment payments due for 2017 and 2018. The next day, CMS scurried to clarify that the suspension was a necessary response to an adverse court judgment out of New Mexico. “As a result of this litigation,” Administrator Seema Verma […]

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A puzzle about standing, resolved.

by Nicholas Bagley — Tuesday, June 26, 2018

A few weeks back, I raised a question about Texas’s latest challenge to the Affordable Care Act: do the plaintiffs even have standing to sue? Now that the Justice Department has thrown in the towel and declined to the defend the statute, that question has become a lot more urgent. To demonstrate standing, Texas and […]

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Health insurance is complicated. In many states, it’s about to get worse.

by Nicholas Bagley — Monday, June 25, 2018

That’s the opening of a piece of mine in the Wall Street Journal (gated, unfortunately) about what states should do in response to the Trump administration’s anticipated relaxation of rules governing short-term plans. Where states allow short-term plans without restriction, the plans will be a lot cheaper than those sold on the exchanges because they don’t have to comply with the ACA. But that low price comes with […]

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The severability question is not hard.

by Nicholas Bagley — Monday, June 25, 2018

In a lengthy blog post about the Texas lawsuit that’s trying to bring down the ACA, Josh Blackman takes aim at an amicus brief filed by a bipartisan group of law professors (including me). The brief argues that the Affordable Care Act should stand, even if the penalty-free individual mandate is held unconstitutional. Blackman isn’t […]

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