A new Obamacare fight
Jessica Dobrinsky Harris
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The Affordable Care Act, former President Barack Obama’s signature domestic achievement, has survived a series of legal and political landmines. The Supreme Court in 2012 upheld the health law, and five years later, then-President Donald Trump couldn’t muster enough votes in the GOP-controlled Congress to kill it.
But the ACA, also known as Obamacare, faces new challenges. On March 30, U.S. District Judge Reed O’Connor of the Northern District of Texas struck down an ACA provision that had required employers to cover specified preventive health services.
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The ruling, effective nationwide immediately, had originated in an employer-based challenge, including several religiously based objections to preventive care requirements, Braidwood Management v. Becerra. The case focused primarily on the issues of separation of powers. Specifically, the judge found unconstitutional regulations issued by the U.S. Preventive Services Task Force, a volunteer panel of primary care clinicians (including those from internal medicine, pediatrics, family medicine, obstetrics and gynecology, nursing, and psychology). The PSTF, established in 1984, evaluates scientific evidence to determine whether medical screenings, counseling, and preventive medications work for adults and children who have no symptoms.
The Braidwood case was brought forth by six people and two Christian-owned businesses who argued that the requirements in the ACA for recommended covered preventive services were unconstitutional. They argued further that mandated coverage of HIV PrEP violated their religious rights under the 1993 Religious Freedom Restoration Act.
HIV PrEP, or pre-exposure prophylaxis, is medicine that people at risk for HIV take to prevent getting HIV from sex or injection drug use. PrEP can stop HIV from taking hold and spreading throughout your body. Currently, there are two Food and Drug Administration-approved daily oral medications for PrEP. A long-acting injectable form of PrEP has also been approved by the FDA.
Under the ACA, most insurance plans must cover several preventive services, including HIV testing for those aged 15-65. PrEP reduces the risk of contracting HIV by 99% when taken as suggested, according to the Centers for Disease Control and Prevention.
Relying on the Supreme Court’s decision in the Hobby Lobby case, O’Connor found that the HIV PrEP coverage mandate violated religious rights under the Religious Freedom Restoration Act.
Yet, plaintiffs’ challenge to PSTF, the group that makes preventive care recommendations, may be the most notable aspect of the judge’s decisions. In arguments, plaintiffs asserted that task force members have not been appointed according to standards explicitly mandated in the Constitution’s appointments clause: nominated by the president and confirmed by the Senate. Instead, these members are appointed by the head of agencies within the Department of Health and Human Services.
In a September 2022 ruling, O’Connor addressed this constitutional issue. He struck down ACA preventive mandates issued by the task force but upheld several others issued by other constitutionally challenged agencies, including the Advisory Committee on Immunization Practices and the Health Resources and Services Administration.
The most recent decision imposes a nationwide injunction: All PSTF recommendations made on or after March 23, 2010, the day Obama signed the ACA into law, cannot be used to create preventive care coverage requirements.
It is unclear what the immediate effect will look like for those with ACA policies. These insurance companies will likely continue no-cost coverage for the remainder of the contracts, typically lasting one calendar year.
The ACA necessitates that most private medical insurance companies encompass a range of recommended preventive services without any patient cost-sharing. Covered services include examination tests, vaccinations, and medication that may prevent developing or worsening disease and health conditions.
White House press secretary Karine Jean-Pierre called the decision “yet another attack on the Affordable Care Act.”
Since the ACA was enacted, more than 2,000 legal challenges have been filed in state and federal courts, contesting a portion of or all of the law. Roughly 60% of the millions of people enrolled in private health coverage used at least one of the ACA’s no-cost preventive services in 2018, before the COVID-19 pandemic. The most common preventive care includes vaccination, heart disease screenings, and various cancer screenings.
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The Biden administration told the district court the case’s outcome could “create extraordinary upheaval in the United States’ public health system.”
On March 31, the Justice Department filed a notice of appeal.