U.S. judge rules insurers don’t have to cover many free preventive health services

The decision could affect millions of Americans’ access to no-cost preventive health care — including pregnancy-related care, cancer screenings, HIV prevention pharmaceuticals and more — that a federal agency given new powers under Obamacare required health insurance companies to cover. 

It was not immediately clear when or how the decision could take effect in consumer insurance plans. The Biden administration is likely to appeal the case.

U.S. Senate Majority Leader Chuck Schumer called for an immediate stay and appeal of the ruling and for insurance providers to “publicly commit they will retain free preventive care.”

“This ruling is not only misguided, it is outright dangerous and could cost lives,” Schumer, a New York Democrat, said in a statement. 

New Jersey Democratic Rep. Frank Pallone, ranking member on the U.S. House Energy and Commerce Committee, said in a written statement the judge’s decision “imperils access to lifesaving care including mammograms, lung cancer and skin cancer screenings, screenings for pregnant women and newborns, and PrEP.” 

“It has no basis in the law, will unnecessarily cause confusion, and will put lives at risk if people are forced to forgo routine screenings and treatment,” he added. “The Department of Justice should immediately move to appeal this reckless decision and have it stayed so that Americans do not lose access to care.”

The U.S. Justice Department and the Department of Health and Human Services did not respond to requests for comment Thursday morning on the case, Braidwood Management v. Becerra. The White House also did not return a request for comment on the ruling. 

Judge Reed O’Connor, from the U.S. District Court in the Northern District of Texas, wrote in his ruling that preventive services required by the U.S. Preventive Services Task Force to be covered are unlawful because they violate the Appointments Clause.

That section of the Constitution requires the president to nominate certain positions, sometimes referred to as principal officers, that the U.S. Senate then confirms. 

Government officials whose positions are generally considered “inferior” are often left for the president, Cabinet secretaries, or others in the executive branch to hire without Senate involvement. 

The conservative Christian business owners who filed the lawsuit argue the preventive care measure mandates are unconstitutional, due to a lack of oversight on how recommendations are made by the U.S. Preventive Services Task Force.

The business owners argue that because the ACA does not allow the secretary of HHS — or other leaders of the agency — to reject recommendations made by that committee, it has insufficient oversight.

O’Connor, nominated by former president George W. Bush, sided in his ruling with the businesses owners, who want to provide health insurance without coverage for “PrEP drugs, the HPV vaccine, contraceptives, and screenings and behavioral counseling for STDs and drug use.” They argued their employees had no need for such coverage and that it violated their religious beliefs under the Religious Freedom Restoration Act. 

PrEP, also known as pre-exposure prophylaxis, are drugs that have a 99% prevention rate for HIV, and are used by all Americans, but primarily by men who have sex with men. The Centers for Disease Control and Prevention found the drugs “played a part in recent decreases in new HIV infections.” The CDC estimates that 1.2 million Americans are eligible for PrEP. 

The business owners argue that requiring health insurance to cover preventive HIV medication, such as PrEP, violates their faith. They also argue it’s unconstitutional for the federal government to recommend covered preventive services.

O’Connor wrote in Thursday’s ruling that Braidwood Management Inc. and Kelley Orthodontics, as well as others “need not comply with the preventive care coverage recommendations of the U.S. Preventive Services Task Force issued on or after March 23, 2010, because the members of the Task Force have not been appointed in a manner consistent with Article II’s Appointments Clause.” The Affordable Care Act was signed into law on that date.

Numerous medical groups — the American Medical Association, The American College of Obstetricians and Gynecologists, the Society for Maternal-Fetal Medicine, the American Academy of Pediatrics, the American Medical Women’s Association, the American Academy of Family Physicians, the National Medical Association and the Infectious Diseases Society of America — warned against revoking no-cost preventive care services in a brief filed in November. 

“??Ultimately, if this Court invalidates the Task Force’s recommendations nationwide, physicians and healthcare professionals will be left in an untenable situation,” they wrote.

“Amici will struggle to encourage their patients to accept services that they know will save lives and to help their patients navigate a new and confusing insurance situation,” they added. “Amici will see many of their patients, including some of their most vulnerable, turn down medically indicated services because of the very financial barriers that Congress sought to remove.” 

“The past ten years have shown the benefits of no-cost preventive coverage, and amici ask that the Court hesitate before ordering a remedy that could upset that substantial progress,” they said. 

The preventive care services in question receive either an “A” or “B” rating from the Preventive Services Task Force. They include domestic violence counseling, postpartum depression counseling, breastfeeding support, and treatment for heart disease. 

Some of the screenings for cancer include breast, colorectal, ovarian, lung and skin for patients as young as 6 months to 24-year-olds with fair skin.  

HHS estimated in 2020 that nearly 152 million people had access to preventive care services under the law. That breaks down to about 58 million women, 57 million men, and 37 million children, according to HHS data.

Health experts weigh in

Health policy experts at the Kaiser Family Foundation said during a briefing Thursday afternoon the ruling’s impacts aren’t likely to be immediate, since health insurance companies typically set plans for a full year and the Biden administration is expected to both request a stay of the ruling and appeal it to the 5th Circuit Court of Appeals.

In the event the case is appealed to the U.S. Supreme Court and the justices side with this judge’s ruling, Larry Levitt, executive vice president for health policy, said health insurance companies will likely keep coverage for prevention activities covered under the ruling, but that patients could have to pay some of the cost.

How much someone pays for one of those health care services would depend on the type of insurance they have, their deductible and several other factors.

Laurie Sobel, associate director of women’s health policy, said it wouldn’t be especially challenging for Congress to fix the issue at the heart of the lawsuit.

“The main argument is that the agency, that Health and Human Services, has no power to approve or reject the recommendations by USPSTF, so a fix could be that you just include that (HHS has) to approve the recommendations,” Sobel said. “So it makes it clear that USPSTF is in an advisory role and not actually determining what has to be covered.”

Levitt, however, noted that the ACA is a “political lightning rod,” making any changes in a divided Congress somewhat unlikely.

“It does not require a lot of words to fix this in legislation, but it potentially requires very difficult politics,” Levitt said.

Alina Salganicoff, senior vice president and director of women’s health policy, said because the judge’s ruling didn’t impact the Health Resources and Services Administration, or the Advisory Committee on Immunization Practices there are still several preventive services that insurance companies must cover.

“An important message is that mammograms will likely still be covered without cost sharing, so people shouldn’t fear that they won’t have coverage for their mammogram at this point,” Salganicoff said, noting those are under the Health Resources and Services Administration recommendations.

There are also several other cancer screenings and types of preventive care that will be covered, since the judge’s ruling applies to recommendations the U.S. Preventive Services Task Force made on or after March 23, 2010.

One issue with that is health care providers have updated the types of screenings available as well as timing in the 13 years since.

Sexually transmitted infection testing is one of the recommendations, Salganicoff said, that pre-dates March 2010, though public health experts have tweaked and adjusted it over the years.

“These are updated every five years, so those will likely still be covered,” Salganicoff said.

“I think it’s too soon to tell how insurance plans are going to respond to some of the tweaks over time,” Salganicoff added. “My anticipation would be that clinicians and plans do want to have coverage to current standards rather than requirement to standards set based on research that was conducted 13 years ago or before.”

Other legal challenges to ACA coverage

Several cases challenging whether employers should have to comply with the ACA’s birth control mandate have come before the U.S. Supreme Court. Thursday’s ruling does not change that section of the ACA. 

In 2020 the court granted a victory to those opposed to offering health plans that cover contraception.

In a 7-2 decision, with an opinion written by Justice Clarence Thomas, the Supreme Court ruled in favor of the Little Sisters of the Poor, which challenged that the mandate violated its rights under the Religious Freedom Restoration Act.

The case brought by the nonprofit Catholic religious organization, which operates homes for the elderly, upheld a Trump administration expansion of an exemption under the ACA that allowed private employers to object to the birth control mandate for religious or moral reasons.

The Trump administration widened the exemptions in November 2018.

In 2016, the Supreme Court unanimously returned a case brought by a Pittsburgh-based Catholic priest to the lower court level. 

Bishop David Zubik, the main plaintiff, had argued that religious freedoms were violated by the contraceptive mandate. Zubik argued that a special carve-out exemption for religious organizations did not go far enough and therefore burdened the exercise of their religious freedoms. The Catholic Diocese of Pittsburgh and Erie, as well as the nonprofit Catholic Charities, joined as plaintiffs.

In 2014, Hobby Lobby, a Christian-owned craft supply retailer, won at the Supreme Court level after it became the first high-profile plaintiff to challenge coverage of birth control under the ACA.

In a 5-4 decision, Justice Samuel Alito wrote in the majority opinion that a requirement for “closely held” for-profit corporations to provide employees with access to no-cost contraception under ACA plans violated the Religious Freedom and Restoration Act.