Conservative Federal Judge Strikes Down ACA Free Preventive Care Rule

A notorious anti-Obamacare judge cited the religious freedom of employers who don't want to cover PrEP.

A conservative federal district judge in Texas notorious for his rulings against the Affordable Care Act has struck down a requirement that private insurers cover a variety of preventive services for free.

Under the ruling, which came down Thursday, insurers and employers who run plans for employees will have discretion over whether and how to cover certain routine screenings, exams and tests. A provision of the Affordable Care Act has required insurers to cover these services, with zero out-of-pocket costs, since 2011.

It’s not clear exactly what this will mean in practice, because of the decision’s complexity and uncertainty about how or when insurers and employers will react. Among other things, the ruling applies only to some preventive services.

But at least in principle, plans could soon require $100 copayments for colorectal or cervical cancer screenings under at least some circumstances ― or they could decide to stop all coverage for PrEP, the drug that prevents HIV infection.

“The broad effects might not be immediate, but over time, tens of millions of people could end up paying more for preventive services, with many as a result not getting the care,” Larry Levitt, executive vice president for health policy at the nonprofit Kaiser Family Foundation, told HuffPost.

The possibility of removing coverage for PrEP is a very real one, because it was a central issue in this case. A challenge to those specific provisions came from employers who said the requirement violates their religious principles, which condemn homosexuality and sexual activity outside of marriage between a man and a woman.

Arguments from the plaintiffs found a sympathetic ear in Judge Reed O’Connor, a 2007 appointee of former President George W. Bush who has issued multiple rulings striking down elements of the Affordable Care Act, also known as “Obamacare.”

The best-known of those rulings did not survive on appeal, including a 2018 decision to invalidate the entire law that the Supreme Court later rejected by a lopsided 7-2 vote. The Biden administration is sure to appeal Thursday’s ruling as well ― and, more immediately, to seek a “stay” that would prevent O’Connor’s order from taking effect until higher courts can rule on the dispute.

Whether such a stay request succeeds is likely to depend, in part, on whether the government can convince judges that O’Connor’s ruling would mean quick and dramatic changes to the insurance coverage that so many millions have.

O’Connor’s decision to apply his ruling nationwide is “quite aggressive,” Nicholas Bagley, a law professor at the University of Michigan who has followed the case closely, told HuffPost.

But Bagley noted that the 5th U.S. Circuit Court of Appeals, which would hear the appeal, is quite conservative ― as is the Supreme Court, which, given the merits of this particular case, may be more inclined to uphold O’Connor’s ruling than it would have been in the past.

“There will be an appeal,” Sen. Richard Blumenthal (D-Conn.) told HuffPost. “The Trump nominees to the courts have so infected the judiciary that the normal predictions no longer hold true. Normally I would say it’s an aberration, but with the 5th Circuit, it’s totally unpredictable.”

A Popular ACA Feature With Multiple Benefits

The Affordable Care Act’s preventive services requirement is one of the law’s better-known features, and one that its champions have long touted for its impact on millions of Americans. It establishes a core set of services that every insurance plan must cover, and requires insurers to cover these services free of charge.

The federal government has estimated that the requirements apply to 150 million Americans with private insurance ― in other words, nearly half the country’s population.

Free preventive coverage makes it easier for Americans to pay their medical bills. And even experts who think high out-of-pocket costs can be a useful way to discipline health spending tend to support free preventive care, because it encourages people to get the screenings and routine care that can keep them healthier ― or to catch more serious problems early, when treatment is more effective and frequently cheaper too.

Just this month, a Morning Consult survey found that people said they were less likely to get preventive services if they required cost-sharing.

Over the years, the general idea of better coverage for preventive services has not been especially controversial or partisan. But there’s always been the question of what services to include ― and who gets to make that decision.

The Affordable Care Act leaves those decisions to three separate organizations, one of which is an independent organization called the U.S. Preventive Services Task Force, or USPSTF. That choice and its consequences are among the key issues in this case.

The USPSTF is a voluntary panel of experts who are appointed by a federal official but who operate independently and without oversight.

The plaintiffs in the lawsuit argue that, under the “Appointments Clause” of the Constitution, the federal government cannot relinquish authority over defining insurance benefits to such a group. The Biden administration countered that this sort of delegation is common, and indeed necessary, given the complexity of an issue like figuring out what medical services need coverage.

O’Connor sided with the plaintiffs.

An Argument About Religion

O’Connor also agreed with a second argument, from plaintiffs who say that requirements to cover PrEP and HPV vaccines violate their “religious beliefs” as Christians, in violation of the Religious Restoration Freedom Act.

“Preventive care such as PrEP drugs, the HPV vaccine, contraceptives, and screenings and behavioral counseling for STDs and drug use” would make them “complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman,” some of the plaintiffs argue.

The ramifications of that part of O’Connor’s decision are unclear, legal experts say, because it’s separate from the ruling on USPSTF recommendations that O’Connor said applies to the entire country.

But it is the latest in a series of cases in which plaintiffs have claimed that federal regulations or laws violate their Christian beliefs and conservative federal judges have sided with them, all the way up to the Supreme Court.

The Uncertainty Going Forward

Another reason it’s hard to predict what happens next is that O’Connor’s ruling about the Appointments Clause applies only to recommendations the USPSTF made after 2010. That’s because Congress effectively approved every USPSTF requirement from before that time when it passed the Affordable Care Act.

Among the pre-2010 requirements were many standards relating to cancer screenings, for example.

But the USPSTF has updated some of those requirements in the years since issuing them, by making them available at different ages. The task force has also introduced some new rules, including a 2016 requirement to support breastfeeding assistance and a 2018 requirement that insurers offer free coverage of anxiety screening for adolescents.

The other big source of uncertainty is how employers and insurers will react.

Preventive services are frequently inexpensive and can, over the long run, actually reduce spending. In an October 2022 survey from the Employer Benefit Research Institute, 80% of human resource managers at major employers said they would maintain free preventive care, at least in principle, even if the requirement doesn’t survive the courts.

But 8% of human resource managers said they would begin to impose out-of-pocket costs, while another 12% said “it depends.” And it’s always possible that more will reconsider coverage guarantees in the future, especially if they decide scaling back benefits will make them more money in the short run.

“Just because the preventive services mandate is struck down doesn’t mean that they’re going to immediately drop coverage,” Bagley said. “There are a couple of surveys out there suggesting that, actually, a lot of these employers are just going to stick to what they’ve been doing. But whether they’ll actually do that once they take a cold hard look at the math is another question.”

Congress could address the ruling by passing a law enacting the recommendations the USPSTF has already made. Bagley has proposed a simple, one-line statutory fix.

Democrats on Thursday sounded eager to restore the preventive services guarantee, one way or another.

“This decision is deadly,” said Rep. Rosa DeLauro (D-Conn.). “Preventive services detect diseases early on, allowing Americans the opportunity to seek out treatment or preventive health services before a diagnosis becomes a death sentence. ... This decision must be undone immediately ― lives are at stake.”

But passing legislation would require agreement from the Republican-controlled House, where it’s not clear that support for such a measure exists.

Igor Bobic contributed reporting.

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