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The Affordable Care Act has survived numerous court challenges, but the case of Kelley v. Becerra — now before a federal judge in Texas — threatens to undermine one of the law’s most popular provisions, which requires most health insurance plans to provide coverage for preventive care without copays.
If the judge rules in favor of plaintiffs, free access to contraception, cancer screenings, vaccines, PrEP (HIV pre-exposure prophylaxis), alcohol abuse counselling, dietary advice for people at higher risk of chronic diseases and many other preventive services would be at risk, according to the country’s leading medical groups, which have sounded the alarm.
“The lawsuit could cause millions of Americans, probably more than 150 million, to lose guaranteed access to preventive services,” Dr. Jack Resneck, president of the American Medical Association, told NPR. “There really is a lot at stake,” he said.
The group of physicians points to research showing that expanded access to preventive care and coverage, introduced by the ACA, has led to increases in colon cancer screenings, vaccinations, contraceptive use and chronic disease screenings. There is also data showing that expanded coverage has reduced racial and ethnic disparities in preventive care.
Resneck warns that if the preventive care mandate is overturned in court, it threatens to reverse that progress. Some plans may choose to limit or deny coverage for certain services. Others would veer on copays.
“Bringing back copayments and deductibles for these services would actually prevent many patients from getting them,” Resnick says. He says that for people on a tight budget, a co-payment for a mammogram or colonoscopy might be enough of a deterrent to skip screening.
Americans have saved billions of dollars in out-of-pocket spending on contraceptives since the ACA’s preventative services and birth control coverage took effect. And since the overthrow of Roe vs. Wade, the Biden administration has taken steps to clarify the benefits. “Under the ACA, most private health plans are required to provide birth control and family planning counseling at no additional charge,” according to an HHS statement. (A small percentage of American workers are covered by grandfathered insurance plans that are not required to follow the ACA’s preventive care coverage rules.)
The plaintiffs in the Texas case argue that the preventive care mandates violate the Religious Freedom Restoration Act. Some object to paying for health insurance plans that cover contraceptives, PrEP drugs, or other preventive care services that may violate their religious beliefs. Plaintiffs also oppose it on economic grounds, arguing that the preventive services coverage mandate raises the price of insurance coverage.
Plaintiff John Kelley, an orthodontist who lives in Tarrant County, Texas, “has no desire to purchase health insurance that includes contraceptive coverage because his wife is past her childbearing years,” according to the complaint. “He does not want or need health insurance that covers the drugs Truvada or PrEP because neither he nor any of his family members engage in behavior that transmits HIV,” the complaint continues. . “Mr. Kelley is also a Christian” and is unwilling to subscribe to health insurance plans that subsidize certain types of birth control or PrEP drugs “that encourage homosexual behavior and intravenous drug use.”
The plaintiffs are represented by attorney Jonathan Mitchell, who is known as a key strategist behind Texas’ abortion law passed in 2021 that bans abortions after 6 weeks of pregnancy. America First Legal Foundation, launched by former Trump administration official Stephen Miller, also provides advice.
“Complainants seem perhaps more driven by the requirement for contraception and coverage of services like PrEP,” says Katie Keith, director of health policy and legal initiative at the O’Neill Institute in Washington. Georgetown University. But she says the lawsuit is broad in scope: “This is very clearly a threat to the full range of preventive services required 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 authority to other entities, says Andrew Twinamatsiko of the O’Neill Institute for Health. national and global from Georgetown University.
When the ACA was drafted, Congress authorized several groups to use their expertise to identify evidence-based prevention services. The Immunization Practices Advisory Committee helped identify appropriate vaccines, the Preventive Services Working Group reviewed the evidence to recommend which procedures and services might be covered, and the administration of resources and services for determined the services and screenings for maternal and child health coverage.
“The plaintiffs argue that this structure delegates too much decision-making power to groups without providing enough guidance — or what they call an ‘intelligible principle’ — to exercise their discretion,” says Twinamatsiko.
Some legal scholars say the argument that Congress hasn’t provided enough specific guidance on what counts as preventive care could hold up in court.
“I argued for years that the term preventative care was very open,” says Josh Blackman, a professor of constitutional law at South Texas College and a researcher at the Cato Institute. “Courts might react to that position by saying, ‘Congress: If you want something like birth control covered, you have to be more specific,'” Blackman said.
The case was argued in late July before Judge Reed O’Connor of the U.S. District Court for 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 expect a fairly drastic decision that could invalidate all preventive care requirements,” Keith said. Legal experts expect the case to be appealed to the United States Court of Appeals for the Fifth Circuit and ultimately to the United States Supreme Court.
Although the Supreme Court has upheld the Affordable Care Act in previous cases, there is now a new lineup of justices. The researchers point to the recent EPA vs. West Virginia decision, in which the justices challenged the EPA’s authority to act without specific direction from Congress. Twinamatsiko of Georgetown points to another case, Little Sisters of the Poor v. Pennsylvania, which also centered on providing preventive services of the Affordable Care Act requiring employers to include free birth control in their health plans in accordance with Health Services and Resources Administration guidelines. In that case, “Judge Clarence Thomas specifically stated that the ACA’s preventive services requirement appears to give HRSA virtually unlimited power to determine what counts as preventive care”, stating what his opinion would be if Kelley v. Becerra comes before the Supreme Court.
State attorneys general in 20 states have filed a friend of the court brief defending access to free preventive care. And public health experts have also weighed in. “It’s really hard to take away something that people already have,” says A. Mark Fendrick, a physician who directs the Center for Value-Based Insurance Design at the University of Michigan. “If the preventive mandate were to be canceled, I think a lot of people would not get the preventive care they need.”