By: Ranier Simons, ADAP Blog Guest Contributor
March 23, 2023, was the 13th anniversary of the signing of the Affordable Care Act (ACA). The landmark legislation forever changed the landscape for healthcare insurance and healthcare access in the United States. About 35 million people presently have ACA-related healthcare coverage, with 21 million of those enrolled in Medicaid expansion coverage.[1] The law enabled many to obtain robust healthcare coverage who were previously uninsured or underinsured. Most importantly, while not perfect, the ACA is an effective tool to support equity in healthcare coverage and treatment. Through the ACA, participants receive comprehensive and affordable care regardless of their income or lack of.
Unfortunately, from its inception to the present day, there have been political battles over the ACA that are ideological instead of evidence-based. Politicians, judges, and media personalities continually attempt to dismantle the ACA without having the plan to replace it. Opponents of the law have found an ally in Judge Reed O’Connor, a federal judge in Texas. In 2018, Judge O’Connor ruled that the entire ACA was unconstitutional. The Supreme Court eventually defeated the ruling. Judge O’Connor has previously made rulings against the ACA’s non-discrimination provisions, contraceptive coverage requirement, and regulation of insurance provider fees in states.[2]
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| Photo Source: Law.com |
Judge O’Connor’s latest challenge to the ACA is in Braidwood Management Inc. v. Becerra. In this case, six individuals and Christian-owned businesses claim that private health insurance coverage requirements are unconstitutional. Additionally, they argue that being required to provide coverage for PrEP under their insurance plans violates their religious beliefs and thus violates the Religious Freedom Restoration Act (RFRA).[3]
The ACA requires insurers to cover certain preventative care services without any cost-sharing by the insured. Those services will be provided for free when obtained through a provider in an insurance plan’s network. The ACA uses guidance from the United States Preventative Task Force (USPSTF) to determine the aforementioned services. The USPSTF was created in 1984 by the U.S. Public Health Service Act to improve public health through evidence-based recommendations to prevent disease and increase life expectancy.[4] Sixteen national experts on preventative medicine and primary care comprise the USPSTF. They make their recommendations based on scientific evidence with no conflicts of interest or political influence.
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| Photo Source: Axios |
In September 2022, Judge O’Connor ruled that the USPSTF violates the Appointments Clause because the members are not appointed by the President and subsequently confirmed by the Senate; nor are their recommendations reviewed by Constitutionally specified officials. Thus, he decided that the Braidwood Management plaintiffs should not be required to pay for conventional medical insurance plans that mandate coverage of preventative services recommended by the USPSTF because the entity and its recommendations are unconstitutional. Judge O’Connor further ruled that the PrEP coverage mandate violated Braidwood’s religious freedom rights under the RFRA. Braidwood argued that paying for coverage that included provisions for PrEP made them implicit in supporting homosexuality, drug use, and sex between a man and a woman outside of marriage. At the time of the initial ruling, legal remedies had not been specified, and both sides were instructed to present briefs relating to the scope of relief. Moreover, the initial focus was explicitly on Braidwood being required to pay for plans that provided PrEP without cost sharing and the non-religious plantiffs not being required to pay for preventative services such as contraception and std testing.
March 30, 2022, Judge O’Connor ruled on the case's legal remedy. He invalidated the ACA's HIV treatment mandate of providing PrEP, stating it violated Christian employers' rights under the RFRA. Thus, the government could not take any legal action requiring the Braidwood parties and religious objectors to pay for PrEP. He went a step further, stating that any recommendations for preventative services made by the USPSTF on or after March 30, 2010, are unlawful. Effectively, this is a national block meaning insurance plans no longer must cover many preventative services for free. These services include biennial mammography screening for women aged 50-74, cervical cancer screening in women aged 21-65, colorectal cancer screening in adults aged 45-49, and PrEP. The complete list of these services is here.
Without coverage for PrEP, it is estimated that over 2000 preventable HIV infections will occur within a year.[7] For every 10% decrease in PrEP coverage, there would be an additional 1,140 HIV infections among MSM the following year. Generic PrEP costs $30 per month, and brand-name products that don’t have generic versions can cost over $20K annually. Additionally, there are lab work and provider visits associated with the administration of PrEP. Those expenses are around two thousand dollars a year. Blocking the HIV treatment mandate would result in cost-sharing or complete denial of coverage resulting in out-of-pocket costs that those needing help cannot afford.
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| Photo Source: NPR |
Blocking the coverage mandate for other preventative services would also have dire consequences. Lack of certain screenings means that many conditions, including cancers, will go undiscovered until late stages. This would result in many preventable diseases, decreased healthcare outcomes, including death, and increased medical costs. Such a future is in opposition to the Institute for Healthcare Improvement’s “Triple Aim”: improving the individual experience of care, improving the health of populations, and reducing the per capita costs of care for populations.[8]
Judge O’Connor’s ruling is not the final law. There will be appeals, and it could reach the Supreme Court. Presently in 2023, no plans are affected since the current coverages are in place via the contracts policyholders have with their insurance companies. Additionally, it is possible a hold will be placed on the order as it makes its way through the courts. The American College of Obstetricians and Gynecologists, in a statement, said: "Allowing personal or political bias to interfere with the practice of medicine will cause harm to our patients."[6] Unfortunately, recent policy decisions in Tennessee, New York, and now Texas seem to be setting up the harm the American College of Obstetricians and Gynecologists warns against.
[1] U.S. Department of Health and Human Services. (2022, April 29). New Reports Show Record 35 Million People Enrolled in Coverage Related to the Affordable Care Act, with Historic 21 Million People Enrolled in Medicaid Expansion Coverage. Retrieved from https://www.hhs.gov/about/news/2022/04/29/new-reports-show-record-35-million-people-enrolled-in-coverage-related-to-the-affordable-care-act.html
[2] Sneed,T. (2022, January 28). Judge notorious for anti-Obamacare rulings has another crack. Retrieved from https://www.cnn.com/2022/01/28/politics/obamacare-reed-oconnor-biden-doj-health/index.html
[3] Sobel, L., Ranji, U., Pestaina, K., Dawson, L., Cubanski, J. (2022, October 26). Explaining Litigation Challenging the ACA’s Preventive Services Requirements: Braidwood Management Inc. v. Becerra. Retrieved from https://www.kff.org/womens-health-policy/issue-brief/explaining-litigation-challenging-the-acas-preventive-services-requirements-braidwood-management-inc-v-becerra/
4) USPSTF. (2021). USPSTF: An Overview. Retrieved from https://www.uspreventiveservicestaskforce.org/uspstf/about-uspstf/task-force-resources/uspstf-overview#:~:text=The%20U.S.%20Preventive%20Services%20Task,prevent%20disease%20and%20prolong%20life.
5) Braidwood v. Becerra, 2022, https://storage.courtlistener.com/recap/gov.uscourts.txnd.330381/gov.uscourts.txnd.330381.92.0_2.pdf
6) Pierson, B. (2023, March 30). U.S. judge blocks Obamacare coverage mandate for some cancer screenings, PrEP. Retrieved from https://www.reuters.com/business/healthcare-pharmaceuticals/texas-judge-blocks-obamacare-coverage-mandate-prep-cancer-screening-2023-03-30/
7) Klein, H. (2023, March 29). PrEP court ruling could lead to thousands of preventable HIV cases. Retrieved from https://www.ajmc.com/view/prep-court-ruling-could-lead-to-thousands-of-preventable-hiv-cases
8) IHI.(2023) The IHI Triple Aim. Retrieved fromhttps://www.ihi.org/Engage/Initiatives/TripleAim/Pages/default.aspx
Disclaimer: Guest blogs do not necessarily reflect the views of the ADAP Advocacy Association, but rather they provide a neutral platform whereby the author serves to promote open, honest discussion about public health-related issues and updates.
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