One of the most important changes Americans experienced with the onset of the Affordable Care Act (ACA) was that a large suite of preventive services and treatments—from contraceptives to heart monitoring to mammograms—had to be covered in full by insurance policies. But a new ruling could change that.
On March 30, Northern District of Texas judge Reed O’Connor decided on a case in which several plaintiffs (six individuals and two businesses) who provide healthcare for themselves, their families, and their employees sued the Department of Health and Human Services, demanding their insurance policies exclude some of the preventive services recommended under the ACA.
In particular, the plaintiffs wanted to forgo PrEP drugs, contraception, the HPV vaccine, and screenings and behavioral counseling for STDs and drug use, contending that they don’t need those services nor want to offer them to their employees.
O’Connor ruled in their favor—and in so doing struck down the whole preventive services mandate.
Like other aspects of the ACA, some of the preventive care mandate was quickly put under scrutiny. Rollout of the law hadn’t even started when the HHS adjusted its rules to allow businesses—as well as churches and religious entities—to claim a religious exception to refuse covering contraceptive, thereby transferring the payment responsibility on the insurance. Later on, the exceptions were further expanded with the support of the Supreme Court. Other preventive services remained covered.
In this case, however, not all of the plaintiffs in the case objected to the services on religious grounds, though some did. Among them was Braidwood Management, owned by Republican megadonor Steven Hotze. (Hotze filed the lawsuit before he was indicted for paying a private investigator who ran an air-conditioning repairman off the road, convinced his van contained 750,000 fraudulent ballots for the 2020 election.)
The plaintiffs claim that “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.”
Yet the judge’s decision goes beyond the religious exception for the specific services, saying instead that the 2010 task force that consulted on preventive services had no authority to decide which should be offered free of cost. O’Connor cited a clause in the US constitution that says government decisions have to be made by federal officers appointed by the president or a head of department. Since the members of the task force were not selected that way, they can’t make decisions on free preventive services, the judge said.
Although the decision will most likely be appealed by the government, it might eventually end up in front of the Supreme Court. It’s hard to tell what would happen if the challenge to the mandate stood. One possibility is that employers and insurers would have the option to ask for coverage for the preventive services. This could have serious consequences on the general health of Americans: At least 40% say they would not pay for most of the preventive services currently offered for free by the ACA.
The decision will only impact decisions made by the task force since 2010, as they were part of the ACA implementation and therefore linked to the coverage issue. Several routine screenings, such as mammograms, had been recommended prior to that and would not be in question. However, the preventive services task force introduced more than 50 new screenings and changed the frequency and timing of some existing ones based on new medical evidence over the past 13 years.
There is, however, an easy fix—if both parties want it. Since the decision rests on a procedural issue, it would be sufficient for Congress to amend the law and transfer the authority to decide what services must be covered from the task force to the secretary of health who, as a federal officer, would have authority to impose a decision.