The fate of preventive care services covered under the Affordable Care Act (ACA) now lies in the hands of a conservative Texas federal court judge who once tried to strike down the entire ACA.

Judge Reed O’Connor, who once declared the ACA to be unconstitutional — a ruling that was later invalidated by the Supreme Court — heard oral arguments on July 26 in a case known as Kelley v. Becerra. That case is based on the idea that the ACA’s requirement that insurers must cover particular preventive services is unconstitutional, as explained in an article from the Commonwealth Fund.

STD Prevention, Contraceptive Benefits Mentioned

Although the suit would invalidate the mandate for all preventive services — including vaccines and cancer screenings — some of the plaintiffs, which include eight individuals as well as an orthodontics practice and a management services company, seem to object more to certain services in particular. “[Four plaintiffs] do not need or want contraceptive coverage in their health insurance,” the original complaint stated. “They do not want or need free STD [sexually transmitted disease] testing covered by their health insurance because they are in monogamous relationships with their respective spouses. And they do not want or need health insurance that covers Truvada or PrEP [pre-exposure prophylaxis] drugs because neither they nor any of their family members are engaged in behavior that transmits HIV.”

“[These plaintiffs] also object to contraceptive coverage and the coverage of PrEP drugs on religious grounds. Each of these plaintiffs is a Christian, and they are unwilling to purchase health insurance that subsidizes abortifacient contraception or PrEP drugs that encourage and facilitate homosexual behavior,” the suit continued.

Two of the other defendants, a married heterosexual couple, don’t have religious or moral objections to contraceptive coverage, but “their objection to the contraceptive mandate is based solely on the fact that they [do] not need or want contraceptive coverage on account of [the wife’s] hysterectomy.” Another plaintiff doesn’t want the contraceptive coverage because “his wife is past her childbearing years.”

As the Commonwealth Fund noted, the lawsuit argues that the preventive services mandate violates certain parts of the Constitution because it uses requirements developed by federal and non-federal employees — such as those at the Advisory Committee on Immunization Practices (ACIP) and the U.S. Preventive Services Task Force (USPSTF) — who were not appointed by the president or confirmed by the Senate. It also argues that requiring coverage of preventive services like PrEP violate the Religious Freedom Restoration Act.

Biden Administration Defending the Mandate

The Biden administration is defending the mandate with help from 21 state attorneys general, as well as the American Public Health Association, among others. They argue that “the USPSTF [and] ACIP … are overseen by federal agencies whose heads have been nominated by the president and confirmed by the Senate, consistent with the Constitution. Moreover, Congress itself mandated the coverage of these services, by leveraging the well-established processes used by the USPSTF, ACIP, and HRSA [the Health Resources and Services Administration] as expert bodies,” the Commonwealth Fund analysis said.

The question at issue in the case “is, does HRSA have the authority to mandate … people to provide health insurance coverage for certain devices and drugs when [the agency hasn’t] gone through the notice-and-comment rulemaking process?” Roger Severino, JD, vice president of domestic policy at the Heritage Foundation, a right-leaning think tank, said in a phone interview. “What about the rule of law?”

Katie Keith, JD, MPH, director of the Health Policy and the Law Initiative at the Georgetown University Law Center, said there are several possible outcomes to the case: first, that O’Connor could reject the plaintiffs’ arguments and leave everything status quo, which isn’t considered likely; second, that he could strike down the entire preventive services provision; and third, that he could strike down only some parts of the provision that pertain to certain agencies, such as, for example, invalidating only the preventive services requirements developed by HRSA.

If he does strike down all or part of the requirement, the other question is whether he would stay his decision to give the government time to appeal. Keith said she hopes he does stay the decision “so there is not massive confusion” and people don’t suddenly lose their preventive benefits, she said in a phone interview.

Even if he doesn’t stay the decision, “people would keep their preventive services until they renewed their coverage,” after which a hodgepodge of coverage would probably appear, she added. “People would be at the whim of their insurer or employer … The next plan year would be a lot of potential disruption and variation.” And if he doesn’t stay the decision, the Biden administration would likely petition for an emergency stay. No matter what happens, there’s a 2- or 3-year process where the decision — whichever way it goes — is likely to be appealed, including all the way up to the Supreme Court, she said.

Possible Effects on Public Health

From a public health standpoint, stopping the preventive benefit mandate, which requires many of the benefits to be provided at no cost to the patient, “is really like cutting off your nose to spite your face,” said Katherine Hempstead, PhD, senior policy advisor at the Robert Wood Johnson Foundation. “A lot of research shows that if people have to make out-of-pocket payments for care they use less care.” Making these benefits free “removes a disincentive for patients to get care that’s really beneficial to prevent disease.” And striking down the mandate would affect everyone with private insurance — not just those who purchase insurance on the ACA marketplace — which is about 167 million people, she added.

While the court case has been going on, the Department of Health and Human Services appears to be considering narrowing the exceptions to the federal contraceptive coverage mandate, which allows religious organizations and those with conscience objections to refrain from providing employees with no-cost contraceptive coverage. HHS has sent to the Office of Management and Budget (OMB) for review a proposed rule entitled “Coverage of Certain Preventive Services Under the Affordable Care Act.” The description of the rule reads: “This rule would propose amendments to the final rules regarding religious and moral exemptions and accommodations regarding coverage of certain preventive services” under the ACA.

Originally, as drafted under the Obama administration, the exemption allowed religious institutions to not pay for contraceptive coverage, but also required those organizations’ insurers to provide the coverage directly, at no charge to patients. An order of nuns known as the Little Sisters of the Poor challenged that latter part of the exemption; the case went all the way to the Supreme Court, which in 2020 ruled in the nuns’ favor.

“Do you really have to force nuns to provide contraceptive coverage for their fellow nuns?” said Severino, who headed the HHS Office for Civil Rights under former President Trump. He testified earlier this week before OMB in opposition to changing the exemption.

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    Joyce Frieden oversees MedPage Today’s Washington coverage, including stories about Congress, the White House, the Supreme Court, healthcare trade associations, and federal agencies. She has 35 years of experience covering health policy. Follow

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