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The Affordable Care Act has survived many court challenges, but the case is Kelley vs. Becerra — now before a federal judge in Texas — threatens to undermine one of the law’s most popular provisions, which requires most health plans to cover preventative care with no co-payments.
If the judge rules in the plaintiffs’ favor, access to free birth control, cancer screening, vaccines, PrEP (HIV pre-exposure prophylaxis), alcohol abuse counseling, nutritional counseling for people at increased risk of chronic diseases and many more preventive services would be at risk, according to leading medical groups of the country who sounded the alarm.
“The lawsuit could result in millions of Americans, likely more than 150 million, losing guaranteed access to preventative care,” said Dr. Jack Resneck, president of the American Medical Association, told NPR. “There’s really a lot at stake,” he said.
The physician group cites research showing that the expanded access to screening and coverage pioneered by the ACA has led to an increase in colorectal cancer screening, immunizations, use of contraception and screening for chronic diseases. There is also data showing that expanded coverage has reduced racial and ethnic disparities in screening.
Resneck warns that if the precautionary mandate is reversed in court, that advance could be reversed. Some plans may choose to limit or deny coverage for certain services. Others would require co-payments.
“Reimbursing co-payments and deductibles for these services would actually put many patients off getting them,” says Resnick. He says for people on a tight budget, co-paying for a mammogram or colonoscopy could be a disincentive to skip screening.
Americans have saved billions of dollars in domestic contraceptive spending since the ACA’s preventive services and birth control went into effect. And since the tipping over Roe v. calf, the Biden administration has taken steps to clarify the benefits. “Under the ACA, most private health plans are required to offer birth control and family planning counseling at no additional cost,” according to an HHS press release. (A small percentage of American workers are covered by stock insurance plans that are not required to follow the ACA’s pension rules.)
Plaintiffs in the Texas case argue that the preventive care regulations violate the Religious Freedom Restoration Act. Some refuse to pay for health insurance plans that cover birth control, PrEP medication, or other preventive care services that could violate their religious beliefs. For economic reasons, the plaintiffs object to the fact that the order to cover pension benefits makes insurance cover more expensive.
Plaintiff John Kelley, an orthodontist living in Tarrant County, Texas, “is unwilling to purchase health insurance that includes birth control because his wife is past childbearing age,” the complaint reads. “He does not want or need health insurance that covers Truvada or PrEP medication because neither he nor his family members exhibit HIV-transmitting behaviors,” the complaint continued. “Mr. Kelley is also a Christian” and is unwilling to buy health insurance plans that subsidize certain types of contraceptives or PrEP drugs “that promote homosexual behavior and injecting drug use.”
The plaintiffs are represented by attorney Jonathan Mitchell, known as the key strategist behind the 2021 Texas abortion law, which bans abortions after 6 weeks of pregnancy. The America First Legal Foundation, created by former Trump administration official Stephen Miller, is also offering advice.
“The plaintiffs appear to be possibly additionally motivated by the requirement to use contraception and the coverage of services such as PrEP,” said Katie Keith, director of the Health Policy and the Law Initiative at Georgetown University’s O’Neill Institute. But she says the lawsuit is far-reaching: “Clearly, this threatens the entire preventive care requirement under the Affordable Care Act.”
One of the plaintiffs’ legal arguments rests on the doctrine of non-delegation, the principle that Congress cannot delegate its legislative powers to other bodies, explains Andrew Twinamatsiko of the O’Neill Institute for National and Global Health at Georgetown University.
When the ACA was written, Congress authorized several groups to use their expertise to identify evidence-based prevention services. The Advisory Committee on Immunization Practices helped identify appropriate vaccines, the Prevention Services Task Force reviewed evidence to recommend which procedures and services might be covered, and the Health Resources and Services Administration specified maternal and child health care services and screening .
“Plaintiffs argue that this structure delegates too much decision-making power to the groups without providing sufficient guidance – or what they call ‘understandable principle’ – to exercise their discretion,” explains Twinamatsiko.
Some legal scholars say the argument that Congress did not provide enough specific guidance on what constitutes precaution may stand in court.
“I’ve argued for years that the concept of precaution is very open-ended,” says Josh Blackman, a professor of constitutional law at South Texas College and a research fellow at the Cato Institute. “Courts could respond to that position by saying, ‘Congress: If you’re going to cover something like birth control, you need to be more specific,'” Blackman says.
The case was heard in late July before Judge Reed O’Connor of the US District Court in the Northern District of Texas – the same judge who ruled in 2018 that the Affordable Care Act was unconstitutional. A decision is expected in the coming weeks.
“I anticipate a fairly sweeping decision that will likely override any preventive care requirements,” says Keith. Legal experts believe the case will be appealed to the US Court of Appeals for the Fifth Circuit and eventually to the US Supreme Court.
Although the Supreme Court has upheld the Affordable Care Act in previous cases, there is now a new composition of judges. Scholars point to the most recent EPA v West Virginia decision, in which judges questioned the EPA’s authority to act without specific direction from Congress. Georgetown’s Twinamatsuko points to another case, Little Sisters of the Poor vs. Pennsylvania, which also focused on the Affordable Care Act’s preventive services provisions, which required employers to include free birth control in their healthcare plans under Health Resources and Services Administration guidelines. In that case, “Judge Clarence Thomas specifically said that the ACA’s preventive service requirement appears to give HRSA virtually unlimited powers to determine what qualifies as preventive care,” and provided his opinion on what ifs Kelley vs. Becerra comes before the Supreme Court.
Attorneys general in 20 states filed a friend of the court to defend access to free screening. And public health experts have weighed in, too. “It’s really difficult to take away from people what they already have,” says A. Mark Fendrick, a physician who directs the University of Michigan’s Center for Value-Based Insurance Design. “If the preventive mandate were to be abolished, I think a lot of people will not get the preventive care they need.”