A federal judge on Thursday struck down a key provision of the Affordable Care Act, jeopardizing free coverage of a wide range of preventive services including mammograms, colonoscopies and mental health screenings for nearly 168 million people on employer health insurance and on Obamacare’s individual market.
District Court Judge Reed O’Connor, the author of several previous rulings against Obamacare, sided with conservative employers and individuals in Texas who argued that the U.S. Preventive Services Task Force that set those requirements has been acting unconstitutionally since 2010. The decision blocks enforcement of the rules nationwide.
O’Connor, a President George W. Bush appointee to the U.S. District Court for the Northern District of Texas, also ruled that the requirement to cover the HIV prevention drug PrEP violated the religious rights of the employers and could not be enforced against them.
The employers and individuals had standing to sue, O’Connor wrote, because “compulsory coverage for those services violates their religious beliefs by making them complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman.”
The employers argued that recommendations made by the U.S. Preventive Services Task Force can’t be enforced because its members are private medical experts who advise the government, not government employees.
“The Appointments Clause says major policy decisions have to be made by an ‘officer of the United States,’ and can’t be made by just somebody off the street,” explained Nicholas Bagley, a professor at the University of Michigan whose research focuses on the implementation of the Affordable Care Act.
Judge O’Connor agreed, in part, but did not grant two other requests — one based on religious rights and another based on secular cost concerns — to block the ACA’s contraception mandate. The challengers have said they plan to appeal that decision.
The decision also does not affect access to free vaccines, which are covered under a different piece of the law.
The ruling comes four years after the same judge found all of Obamacare unconstitutional, a decision that was later overturned by the U.S. Supreme Court. It is also the latest salvo in a years-long fight by conservatives to undo the former president’s signature health law by chipping away at its requirements.
The Biden administration, which is expected to appeal to the conservative leaning 5th U.S. Circuit Court of Appeals, made several arguments in defense of the landmark health reform law that the judge dismissed, including that the accessibility of PrEP and other sexual health preventive services is key to the fight against the spread of HIV, particularly after the country lost ground on testing and treating patients during the Covid-19 pandemic.
Though he acknowledged that there is a “compelling government interest in inhibiting the spread of a potentially fatal infectious disease like HIV,” O’Connor said the government does not have to compel private insurance companies to cover drugs like PrEP in order to achieve its public health aims.
O’Connor also rejected the DOJ’s argument that the challengers can’t prove they were harmed by the preventive care mandate and thus don’t have standing to sue.
The decision notes that when Biden administration attorneys asked the challengers how much more the coverage of preventive services increased their insurance premiums, “Plaintiffs responded that they could not quantify the increased costs, but that they knew their premiums had become too expensive to afford.”
O’Connor had already sided with the challengers on preventive care and PrEP in September, but had not said whether his ruling would apply only to the people suing, to everyone in Texas, or nationwide, and requested a further briefing. O’Connor ultimately granted the pleas for a “universal” ruling, potentially upending the national insurance market.
While 15 states require insurance companies to cover these types of preventive services regardless of federal law, those rules don’t apply to self-insured employer plans, which cover most people who have private insurance.
The Justice Department did not immediately respond to a request for comment. White House press secretary Karine Jean-Pierre told reporters Thursday that the Justice and Health Departments are reviewing the decision and said the administration sees it “yet another attack on the Affordable Care Act” and “yet another attack on the ability of Americans to make their own health care choices.”
Democratic leaders on Capitol Hill pleaded with the administration to swiftly appeal what they called a “reckless decision,” warning that it “will put lives at risk if people are forced to forgo routine screenings and treatment.”
“I am also calling on all health care insurers to commit to continuing to cover all preventive services without cost-sharing while this case is litigated and until final disposition of the lawsuit,” said Frank Pallone (D-N.J.) ranking member of the Energy and Commerce committee.
Health insurance experts say that while the ruling is unlikely to have an immediate effect, patients could be deterred from seeking out services for fear of being hit with a medical bill.
“Most insurance plans are locked in through the end of the year and thus the impacts would not be felt immediately, but that doesn’t apply universally,” cautioned Bagley. “There’s a ton of uncertainty.”
Congress, he added, could easily rectify the situation with a one-line bill saying: “Whatever the USPTF recommends has to be covered, subject to approval by the HHS Secretary.” But prospects for passage are grim with the House currently under GOP control.
The case could ultimately reach the Supreme Court, which has upheld the Affordable Care Act multiple times but chipped away at significant portions of the law, including its contraception coverage requirements and Medicaid expansion.
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