A federal appeals court is set to hear arguments Monday on the Biden administration’s appeal of a case that threatens the Affordable Care Act’s (ACA) promise of free preventive care to more than 150 million people.
A federal judge in Texas last year ruled that the law’s mandate requiring employers and insurers to cover a host of preventive services, like certain cancer screenings and HIV prevention, was unconstitutional.
The ruling also invalidated the law’s requirement that employers cover preexposure prophylaxis (PrEP), a medication for HIV prevention.
If the U.S. Court of Appeals for the 5th Circuit upholds the decision, it could put patients on the hook for the full cost of potentially lifesaving treatments and screenings that are currently free, reshaping the health coverage landscape.
Without the requirement, health plans and employers can pick and choose which preventive services they cover. Cost-sharing will likely deter patients — particularly those of limited means — from scheduling those procedures.
“Everything is at stake. Vaccines, disease screening, PrEP for HIV, contraceptives … So we’re really looking at a risk to a lot of current recommended preventive services,” said Richard Hughes, a health care attorney at Epstein Becker Green.
Since the enactment of the ACA, or ObamaCare, in 2010, more than 2,000 legal challenges have been filed in state and federal courts contesting all or part of the law. While it remains a popular law, lawsuits and conservative judges continue to try to weaken it.
The ACA requires insurers to cover, without cost-sharing, more than 100 preventive health services recommended by the U.S. Preventive Services Task Force.
A lawsuit put forward by a group of conservative Texas employers and individuals challenged that requirement, arguing the task force’s members are not appointed by the president or confirmed by the Senate, yet its recommendations are binding.
Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas — who in 2018 said the entire ObamaCare law was unconstitutional before the Supreme Court overturned his decision — agreed and invalidated the entire task force.
O’Connor also invalidated ObamaCare’s HIV treatment mandate, saying it violated the Religious Freedom Restoration Act by forcing one of the plaintiffs, a Christian employer, to pay for insurance that covers HIV prevention drugs.
The Biden administration appealed to the 5th Circuit, one of the most conservative appeals courts in the country. The panel hearing arguments Monday is comprised of two judges appointed by former President Trump and one appointed by President Biden.
The ruling was partially paused by the 5th Circuit last summer to let the appeals process play out. The appeals court allowed the administration to continue enforcing the coverage requirements nationwide, except against the plaintiffs.
But the lawsuit was sweeping. O’Connor ruled against the preventive services mandate, but rejected arguments that would have eliminated the law’s contraceptive coverage mandate, as well as requirements that insurers cover other services like vaccines.
Those could be overturned on appeal.
Laurie Sobel, associate director for women’s health policy at KFF, said O’Connor’s split decision did not make either side happy, and the stakes are extremely high.
“This case is going to end up at the Supreme Court, there’s no doubt about that,” Sobel said, but depending on what the 5th Circuit decides, timing is critical.
“What if the 5th Circuit were to rule in favor of the plaintiffs on any of these claims? And would that take effect? Would there be a stay? How exactly would that be implemented? And how would insurance companies react to that?” Sobel said.
The case hits at a hugely popular section of the ACA but is not a death blow to the law.
Still, part of what makes the impact so uncertain is that O’Connor’s decision applies only to preventive care recommendations adopted after 2010, when the Affordable Care Act was passed.
Those include anxiety screenings for kids, statins for cardiovascular disease and high-risk breast cancer screenings.
Many recommendations, including mammograms to screen women over the age of 50 for breast cancer, as well as certain cervical cancer screenings, were adopted before 2010. But over the years those recommendations have been updated, so insurers would be operating in an outdated landscape.
The administration and public health advocates have warned about the impact of a nationwide remedy for one company and a handful of individuals challenging the requirements.
“The district court’s universal remedies … pose a grave threat to the public health,” the Biden administration said in a brief last year. “No plaintiff in this case has an interest in the terms of the plans that insurers offer through the exchanges in Minnesota, Kentucky, California, Maine, or any other state apart from Texas.”