Religious Right targets prevention

Texas judge's ruling would saddle consumers with new co-pays for mammograms, colonoscopies and other preventive tests

One of the Affordable Care Act’s more important contributions to public health is its requirement that all private health insurance plans provide 100 percent coverage for tests that have been proven to prevent disease. No co-pays are allowed for the more than 50 preventive measures that have been given an ‘A’ or ‘B’ rating by the U.S. Preventive Services Task Force, the committee of outside experts whose high-rated recommendations include screening for breast, colorectal, and cervical cancers, hypertension, diabetes, and hepatitis B and C.

Last week, Texas federal district court Judge Reed O’Connor struck down that provision of the ACA. The same judge who ruled the entire ACA unconstitutional in 2018 (a ruling later overturned by the Supreme Court) repeated the plaintiffs arguments nearly word for word when he said a law allowing an outside committee to make those decisions violated the “appointments clause” in the U.S. constitution because its members weren’t appointed by the president or the head of the Department of Health and Human Services.

Judge O’Connor also said the law violated the Religious Freedom Restoration Act when the USPSTF included coverage for PrEP, the prophylaxis drug for preventing HIV transmission. The plaintiffs in Braidwood Management v. Becerra included Steven Hotze, a physician and conservative activist who has called same-sex marriage a “wicked, evil movement,” and conservative groups represented by Jonathan Mitchell, the one-time clerk for Antonin Scalia who played a key role in overturning Roe v. Wade

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My former colleague Harris Meyer has written extensively about this lawsuit since it was filed in March 2021. As Tim Jost, the retired Washington & Lee University law professor who tracked ACA litigation for the Health Affairs blog, told him at the time: “This is a huge deal. It’s billions and billions of dollars of services that Americans get every year, not just from ACA health plans but also from employer plans. If this benefit ends, it would mean a lot of people would forgo preventive services and end up with much worse medical problems.”

Once the O’Connor hands down his final decision — it’s still unclear if he will strike down the law nationwide or make a more limited ruling — the Biden administration will undoubtedly appeal. The Texas-based Fifth Circuit Appeals Court upheld O’Connor’s decision in the first anti-ACA case and will likely do so again. That will send this case to the Supreme Court where, unlike in the first anti-ACA case, conservative justices now have a super majority.

Who knows what the Trump-configured Supreme Court will do in this case. In June, it stripped the Environmental Protection Agency of its authority to control carbon pollution because it wasn’t explicitly mentioned in the 1971 Clean Air Act. The Roberts court seems hellbent on hamstringing government agencies’ ability to address the two most pressing issues facing the nation: global warming and the deteriorating health status of the American people.

It will take a year or more before the Braidwood case reaches the high court. Writing yesterday on the Commonwealth Fund website, Jost predicted insurers will not rejigger their plans for the upcoming open enrollment season for 2023 insurance coverage.

But, he suggested, if Judge O’Connor enters a nationwide injunction, a distinct possibility in the next several months, “it may well lead to various insurers and health plans offering different cost-sharing levels for services, which could make comparing plans more difficult.

“It also might make it easier for insurers to try to avoid covering people with health needs by covering or avoiding coverage for particular services,” he wrote. “This would undermine another key goal of the ACA: making sure people are covered regardless of preexisting conditions.”