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Biden Leans In on Obamacare With `Forceful Defender’ to Run HHS

Dec. 7, 2020, 8:42 PM

Defending and expanding Obamacare will be a top priority for President-elect Joe Biden, who’s sending a strong message he wants to bolster the law in picking California Attorney General Xavier Becerra for Health and Human Services secretary.

The hard-hitting attorney led the fight to save President Barack Obama’s signature health-care law in court. If it survives its current challenge in the U.S. Supreme Court, the defender-in-chief will run implementation of the Affordable Care Act, said Katie Keith, a health law professor at Georgetown University.

“If the goal is to put in charge the person who has led the fight against rollbacks to the Affordable Care Act and implementation, I think Becerra personally knows all of the ways that has been done,” she said. “I can’t think of a better person who understands all of the work that has to be undone.”

Picking Becerra signals Biden wants a competent litigator defending the law he helped shepherd as vice president. Becerra’s experience in California, a state that worked to defend health protections, suggests the Biden administration is gearing up for fights of its own and wants to make its policies as bulletproof as possible.

Building a Better Law

Becerra has been a “very active and forceful defender of good public policy, and that’s what we need right now,” former Centers for Medicare & Medicaid Services Administrator Don Berwick said. The Biden administration’s objective should be to use every tool possible within existing laws to extend health-care coverage as much as they can, he said.

As California attorney general, Becerra led the coalition of Democratic states defending the ACA after Republican states led by Texas challenged its constitutionality. The Supreme Court heard oral arguments Nov. 10 and a decision is expected by the end of June.

A person familiar with Biden’s thinking said the most important consideration in picking Becerra was his history of fighting for the ACA, first for its passage while he served in the House and then as California attorney general.

Choosing Becerra tracks with how the Biden administration approached health-care policy during the campaign, said Nicole Huberfeld, a professor at the Boston University School of Law and School of Public Health.

“His campaign was always sort of ‘Let’s take the ACA and build it up,’ so I do think it’s consistent with that Biden message,” she said.

Becerra “has been a staunch defender of affordable health care and pre-existing condition protections in the face of Trump’s attacks in court and federal regulation. I look forward to Attorney General Becerra’s hearing in the Finance Committee as soon as possible next year so he is on the job quickly,” Senate Finance Committee Ranking Member Ron Wyden (D-Ore.) said in a statement.

Abortion Backlash

The choice, however, doesn’t sit well with conservatives. At least one Republican senator already expressed concerns with the pick.

Becerra “has accepted over $1,000,000 in donations from the big healthcare industry and has a 100% rating from Planned Parenthood,” Sen. Mike Braun (R-Ind.) said in a statement. Braun pledged to meet with Becerra to discuss donations from insurance companies and his support for abortion and Medicare for All.

The Catholic Association called Becerra’s nomination “a gross insult to Catholics.”

“Becerra spent years tormenting the Little Sisters of the Poor in court, trying to force them to pay for things like abortion pills against their consciences,” Ashley McGuire, a senior fellow with the group, said in a statement. She was referring to litigation California led against the administration for rules giving certain employers the right to opt out of Obamacare’s requirement that they provide employees with insurance that pays for birth control.

Expanding Coverage

In addition to defending the full law, Becerra fought to expand the people it covers.

Becerra sued the HHS for allowing health workers and hospitals refuse to provide medical treatment that conflicts with their religious and moral beliefs such as abortion. He also challenged HHS’s move to expand ACA exemptions to nondiscrimination protections for LGBTQ people.

Becerra brings important experience from California, which worked on implementing the ACA while also expanding coverage, Berwick said.

“Having leadership at HHS that is looking for every opportunity to strengthen the Affordable Care Act, instead of attack it, will be an incredibly welcome change,” said Josh Peck, who was the chief marketing officer for HealthCare.gov during the Obama administration.

Fighting Off Future Challenges

Given how many Trump administration health-care policies Becerra has challenged, Keith said he’s a fascinating choice to lead HHS.

“If he is confirmed, he would know better than anybody how to best insulate policy changes from legal challenges,” she said. “He has the mind for how opponents are going to come in and undo what he’s doing because he has sort of used that playbook.”

Becerra isn’t as embedded in health policy as the typical HHS candidate, but “sometimes people who aren’t in the health space can bring fresh eyes” to old problems, said Jeffrey Crowley, director of the White House Office of National AIDS Policy during the Obama administration.

He also “has a deeper understanding of the complexities of the structural barriers to good health,” which can only make him more effective, Crowley said.

—With assistance from Alex Ruoff

To contact the reporters on this story: Shira Stein in Washington at sstein@bloomberglaw.com; Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloombergindustry.com; Andrew Childers at achilders@bloomberglaw.com

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