The Washington PostDemocracy Dies in Darkness

Texas judge invalidates ACA promise of free preventive health services

President Biden on March 23 marked the 13th anniversary of the Affordable Care Act, holding the son of Rep. Jimmy Gomez (D-Calif.). (Nathan Howard/Bloomberg News)
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A Texas federal judge who previously held the entire Affordable Care Act unconstitutional ruled Thursday against a part of the law that promises free preventive services to every American who has private health insurance, the latest twist in the long-running saga of the health-care law.

U.S. District Judge Reed O’Connor invalidated the ACA’s mandate that insurers must cover certain forms of prevention — including cancer screenings and medicines to avoid cardiovascular disease — at no cost to patients, finding that the federal task force that defines which services must be cost-free is not created in a proper way for its role.

O’Connor also found that requiring free coverage of one type of care, PrEP to prevent HIV, violates the plaintiffs’ rights under a federal law guaranteeing religious freedom.

The judge foreshadowed his decision in September in the lawsuit, lodged in 2020 by a group of conservative businesses and individuals in Texas. But he left hanging then the question of how broadly the mandate would cease to exist. Thursday’s opinion answered that question, with O’Connor saying his ruling applies nationwide immediately.

The practical impact, however, is murky.

That is partly because the Biden administration, the defendant in the lawsuit, is widely expected to ask the court for a stay preventing the ruling from taking effect while the administration appeals. Neither the Department of Health and Human Services, whose secretary is the named defendant, nor the Justice Department reacted immediately to the ruling. White House press secretary Karine Jean-Pierre said the agencies were reviewing the opinion.

President Biden is a strong adherent to the broad health-care law created in 2010, long latching onto it as the best tool to expand insurance coverage and make care more affordable. Biden has also made it a core element of his political identity.

Joined by a raft of public health advocates, disease-fighting groups and congressional Democrats, Jean-Pierre swiftly lambasted O’Connor’s decision. “It’s yet another attack on the ability of Americans to make their own health-care choices,” the press secretary said, calling the case one of “these attacks by these special interest groups that we see out there.”

The plaintiff’s lead attorney, Jonathan Mitchell, was instrumental in designing Texas’s 2021 antiabortion law.

With the mandate gone, at least for now, it will be up to insurers and employers to choose whether to continue the coverage of various forms of preventive care or to save money by charging patients part of their cost.

The preventive-care benefits are popular with the public and employers alike, surveys have shown. With O’Connor’s ruling pending, an October survey by the Employee Benefit Research Institute found that among 25 employers with a total of 600,000 workers, four in five companies said they would not switch to assessing co-payments for preventive care, even if the mandate ended.

The president of AHIP, the main trade group for the health insurance industry, said the organization was reviewing the decision’s impact. But given the likelihood of court appeals, “Americans should have peace of mind there will be no immediate disruption in care of coverage,” said Matt Eyles, the group’s president.

Insurers don’t typically revise their plans’ offerings in the middle of a calendar year, an effort that would be logistically complex. Still, some experts said nothing would preclude an insurer from doing so. And some predicted that, in coming years, insurers might keep covering preventive benefits but impose co-pays or deductibles.

Among health-policy specialists, debate has long flared over whether prevention actually lowers costs in a health-care system that is the world’s most expensive. But there is ample evidence that early detection of cancers and other medical problems translates into healthier patients and better survival rates. The premise behind the ACA’s guarantee of cost-free preventive services was to expand use of such tests, including by people who could not otherwise afford them.

“It’s going to exacerbate all the leading causes of death in this country,” said Georges C. Benjamin, executive director of the American Public Health Association. “In a nation that has enormous health inequities, it is going to disadvantage communities of color.”

This case “is not like the previous brushes with death that the Affordable Care Act had,” because it pertains to one facet of the law, said Nicholas Bagley, a University of Michigan law professor who specializes in health law, including the ACA. But, he added, “we are talking about preventive services.”

According to federal estimates, about 150 million people in the United States have private health insurance that could be affected by the ruling. And roughly 100 million of them receive some sort of preventive care in a given year, according to the Kaiser Family Foundation, a nonpartisan health-policy organization.

“The preventive services requirement in the ACA is the part of the law that likely affects the most people,” said Larry Levitt, a Kaiser executive vice president.

O’Connor’s ruling does not knock out the requirements for insurers to provide coverage of every preventive service without co-payments. It applies to those services compelled by the U.S. Preventive Services Task Force. The task force predates the ACA, so the ruling affects only preventive care the group has required since the law took effect — or types the group has updated since then.

The judge ruled that the task force’s role in requiring that certain forms of services be free is improper under a constitutional “appointments clause,” which stipulates that any people exercising significant federal authority must be presidential appointees.

The opinion does not, however, touch free preventive services required by two other parts of HHS. One is an advisory body to the Centers for Disease Control and Prevention that sets standards for children’s immunizations and coronavirus vaccines. The other involves reproductive health services defined by the Health Resources and Services Administration. The judge rejected a part of the plaintiff’s arguments that would have invalidated coverage of contraceptive services.

Critics of the ruling predicted that while the Biden administration seeks to overturn O’Connor’s decision on appeal, the plaintiffs were likely to try to broaden it to cover contraception and other services that are spared for now.

The ruling swiftly set off political reverberations, with Democrats condemning the ruling and tossing the law back into the partisan waters in which it has existed since it passed Congress 13 years ago without a single GOP vote.

“This is a downright dangerous decision,” said Sen. Patty Murray (D-Wash.), former chair of the Senate Health, Education, Labor and Pensions Committee. “More than a decade after we passed the ACA, Republican interests are still working around-the-clock to roll back critical protections for patients.”

Republicans, who after trying to rescind much of the ACA for years have backed away from the issue, were notably quiet.

The case is Braidwood Management Inc. v. Xavier Becerra.

In late 2018, O’Connor, appointed to the court by President George W. Bush, was the judge who invalidated the entire ACA in a case that eventually went to the Supreme Court, becoming the third time in a decade that the high court ruled the law constitutional.

Rachel Roubein and Perry Stein contributed to this report.