The Washington PostDemocracy Dies in Darkness

Opinion This federal judge may be hazardous to your health

A CT scan in hospital. (iStock)
5 min

Reed O’Connor should have to carry a Surgeon General’s warning: This federal judge may be hazardous to your health.

O’Connor, a George W. Bush appointee, is a federal district judge in Texas, and he has it in for the Affordable Care Act. In 2018, on the flimsiest of rationales, he declared the entire Obama-era statute unconstitutional.

That ruling was eventually overturned by the Supreme Court, on the grounds that Texas didn’t have standing to challenge the law. But O’Connor is back at it, this time going after one of the ACA’s most successful and popular provisions: the requirement that insurers cover preventive services without additional costs, such as requiring co-payments or applying deductibles.

It is common sense — buttressed by numerous studies — that people are more likely to seek preventive care when they don’t have to pay out of pocket for it. This incentive, as Congress found in enacting the Affordable Care Act, isn’t just good for individuals — it’s good for society, helping to head off illness and lower overall health-care costs.

So millions of Americans have relied on this coverage for everything from cancer screening to efforts to head off diabetes and cardiovascular disease. According to a friend-of-the-court brief filed by the American Medical Association, 233 million individuals are enrolled in health plans — employer-sponsored coverage, plans available in the ACA marketplace, Medicare or Medicaid — that are subject to the preventive care rules.

No longer, if O’Connor has his way. On Thursday, following up on a September 2022 ruling, he issued an order prohibiting its enforcement — not just against the plaintiffs in this particular case, but anywhere, anytime. Yes, a single judge in Fort Worth determines whether you have to pay out of pocket for your colorectal cancer screening.

Congress could have specified which preventive services it wanted to see covered. Instead, under the terms of the Affordable Care Act, it sensibly delegated such medical decisions to medical experts, in the form of the Preventive Services Task Force, a volunteer, part-time group appointed by the director of a Health and Human Services agency.

And this move, in O’Connor’s judgment, violated the separation of powers — specifically, the Constitution’s appointments clause, which provides that all “officers of the United States” must be nominated by the president and confirmed by the Senate. (He said two other entities, one that advises on vaccines, the other that recommended no-cost contraceptive coverage, didn’t suffer from the same constitutional flaw.)

Assume for the moment that he’s right, though it seems like a stretch. It still wouldn’t justify Thursday’s broad ruling. As the Biden administration argued, O’Connor had a far less drastic alternative available. If, as he found, the constitutional problem with the task force was that its rulings weren’t subject to being second-guessed by the HHS secretary, he could have tossed out that part of the law and let the secretary — a duly constituted “officer of the United States” — approve the task force decisions. Problem, if there was one, solved. The Supreme Court regularly uses this approach to sidestep such constitutional problems.

It won’t surprise you to learn that this dispute has a culture war component. It was brought by Jonathan Mitchell, the lawyer behind the Texas S.B. 8 abortion bill, on behalf of various plaintiffs, including a Christian-run firm, Braidwood Management. Braidwood’s owner challenged the requirement to provide no-cost contraception (O’Connor rejected this argument) and claimed that the requirement to cover pre-exposure prophylaxis drugs to prevent HIV infection “facilitates and encourages homosexual behavior” in violation of his religious convictions. (O’Connor agreed and also upheld the broader challenge under the appointments clause.) Thursday’s ruling addressed the question of what the proper remedy should be.

Liberals loved it and conservatives chafed when Democratic-appointed judges blocked regulations issued by the Trump administration. Now the shoe is on the other foot, the litigation is in different federal courts (goodbye California, hello Texas), and the conundrum remains: Should a single federal judge be able to exercise such sweeping powers, with such far-reaching effects?

As Mitchell noted in his brief, “The issue of universal remedies” — orders that apply beyond the immediate parties to the case — “is one of the most contentious and unresolved issues in modern litigation.” Indeed, but whatever the right answer, it can’t be that a few plaintiffs with a particular beef about coverage provisions, a dozen years after the law was passed, can upend the settled expectations about health-care coverage for millions of Americans.

The Biden administration had warned O’Connor against “a sweeping invalidation of numerous regulations and recommendations that would create extraordinary upheaval in the United States’ public health system.” The judge wasn’t moved, saying that anything short of blocking the rules nationwide “will not cure Plaintiffs’ injuries.” No surprise there — remember, this is the man who previously struck down the entirety of Obamacare.

Maybe O’Connor will get slapped down again by the Supreme Court. Or maybe they will seize the opportunity to do even more mischief. The conservative justices toyed a few years back with the loaded question of whether Congress had delegated too much power to one of the other HHS advisory bodies, a claim that O’Connor rejected in the current lawsuit.

The Affordable Care Act has been good for the health of millions of Americans. It’s less clear — and still to be determined — whether it’s been good for American law.