A key part of the Affordable Care Act (ACA) that requires insurers to cover key preventive services without cost-sharing is facing a major legal challenge that could wind up going to the Supreme Court.
The U.S. District Court for the North District of Texas held a hearing Tuesday on a lawsuit surrounding whether the preventive services requirement in the ACA is constitutional. Experts say the loss of the requirement could hurt low-income access to vaccinations, birth control and other services.
“This case will set the country back more than a decade,” said Cheryl-Fish Parcham, director of access initiatives for advocacy group Families USA, in an interview with Fierce Healthcare. “It would be a blow to people who could least afford to protect their own health.”
The lawsuit—led by Texas residents Joel Starnes and John Kelley—states that requirements under the provision to offer no cost-sharing for birth control and preexposure prophylaxis (PrEP) drugs for HIV prevention violate their religious beliefs.
ACA’s preventive services provision requires all insurers to offer 100 preventive services without any cost-sharing to beneficiaries.
The lawsuit argues that this provision violates the U.S. Constitution because it relies on recommendations from the U.S. Preventive Services Task Force and Advisory Committee on Immunization Practices as well as the Health Resources and Services Administration.
The plaintiffs say that because none of these panels have members appointed by the president or confirmed by the U.S. Senate, as required by the constitution’s Appointments Clause, the provision should be scrapped as unconstitutional.
However, the federal government responded that the plaintiffs do not have the standing to bring the lawsuit, which would get rid of the entire provision. The plaintiffs only said they are harmed by the PrEP and birth control mandate, not the other services under the provision.
The government also argued in legal filings that the plaintiffs haven’t provided evidence on how the PrEP mandate imposes a burden on their religious beliefs. They also failed to establish that the preventive services provision will cause economic harm to them, another contention in the initial lawsuit.
The judge presiding over the case, Reed O’Connor, had previously ruled to scrap the entire ACA back in 2018, a decision that was eventually overturned by the U.S. Supreme Court in a 7-2 decision in 2021.
If O’Connor sides again with ACA opponents, then the decision will likely be appealed to the Fifth Circuit Court of Appeals and could wind up back before the high court. However, it remains unclear whether O’Connor would stay a decision striking down the provision until the appeals have been exhausted. O'Connor did stay the 2018 decision on the ACA.
Advocates and experts are worried that a decision, even a temporary one, peeling back the cost-sharing provision will have major ramifications for access to needed services.
“Overturning this requirement could have far-reaching consequences for the 167.5 million Americans who rely on private health insurance,” an analysis from the think tank Urban Institute said.
Parcham said the threat is especially dire for low-income and underserved Americans that at times can’t afford screenings because “they are the most price-sensitive.”
Some people on modest incomes must pay a deductible that could be up to $2,000 or coinsurance before getting preventive care, she added.
Screenings targeted at improving maternal mortality—a major priority for the Biden administration—such as preeclampsia screening and breastfeeding support would be affected, as would screenings for cholesterol and osteoporosis, Parcham said.
A group of blue states led by California filed an amicus brief opposing the lawsuit. In addition to the ramifications on access, the affected states say they have expended “considerable resources” to create the infrastructure to support the provisions.
“Many states have passed statutes and promulgated regulations expressly incorporating the recommendations of the advisory boards that the plaintiffs challenge,” the brief said.