On March 30, a single federal judge in Texas struck down a provision of the Affordable Care Act (ACA) that required free coverage for a host of preventive health services for people with private insurance. Under this decision, private health plans are no longer required to cover certain cancer screenings, services or medications to prevent heart disease, or perinatal depression preventive interventions, among others, with no cost sharing. The decision will likely apply to those tests or treatment recommendations made after 2010 (when the ACA went into effect). While most insurers will continue covering preventive health services, many may require significant co-pays and deductibles, which could drive people away from clinical care that could . The impacts will be distributed inequitably, with lower-income and working-class Americans most affected.
Agreeing with conservative plaintiffs, District Court Judge Reed O'Connor that the preventive care coverage requirement was unconstitutional since the members of the U.S. Preventive Services Task Force (USPSTF) are not appointed by the President or confirmed by the Senate. And they are not overseen by the Secretary of HHS who did undergo Senate confirmation. The USPSTF, since 2010, has designated the services that private health plans must cover under the law. "A" or "B" services are those with a high certainty of substantial or moderate net benefit. O'Connor also ruled that the requirement to cover the HIV pre-exposure prophylaxis (PrEP) -- assigned an -- violated the religious rights of the Christian plaintiffs, "by making them complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman." While threatened, coverage for vaccination and contraception remained untouched by this decision, but could be challenged in the appellate phase.
As upsetting and discriminatory as this ruling was, it was also unsurprising, as O'Connor with the plaintiffs challenging the ACA coverage requirements last September. That decision also found USPSTF's authority unconstitutional. But this new ruling went further by supplying the remedy, which was an audacious one: a nationwide injunction against HHS enforcing the ACA preventive service mandate for USPSTF-recommended preventive services.
Last September, we explained the legal mechanisms for this disastrous ruling. With looming consequences for so many Americans, we'll explain the disparate health impacts for patients and families, and what might come next as the ruling is appealed. We'll also discuss the wider implications for the future of the ACA at large.
Health Impacts and Inequities
can save lives, improve health, and reduce costs by identifying illnesses at earlier stages, helping patients manage conditions more effectively, and enabling providers to treat them before they develop into more complicated, debilitating, and costlier conditions. Screenings have been critical to declines in , and for every 1,000 adults screened for , up to 28 deaths are avoided. In March, researchers estimated that for every 10% decrease in PrEP coverage among men who have sex with men, an additional will occur. By eliminating cost sharing for preventive services with a moderate to substantial predicted net benefit, the ACA increased access to and use of these services for millions of working-class Americans -- especially among individuals who saw cost as a major barrier.
With the ACA requirement eliminated, coverage for preventive services will now be at the discretion of insurers, and many private health plans are likely to require cost-sharing in the future -- meaning that many Americans will be required to pay out-of-pocket. While still require individual market plans to fully cover preventive services, the large majority of private plans are not covered by these state laws. The impact of the ruling may not be felt immediately, as most health plans are locked in place until the end of the year. Yet, ultimately, the ruling will dissuade patients from utilizing preventive services due to cost sharing, or merely fear of cost sharing, with co-pays known to reduce healthcare utilization. According to one study, increasing co-pays by just $10 has been found to by nearly 20%. Co-pays will likely drive working class Americans away from primary care. Access barriers for groups that already face the greatest hurdles to healthcare will grow, including for low-income people and racial and ethnic minorities, resulting in greater disparities in health outcomes.
What Comes Next
Not long after celebrating the , the Biden administration to the highly conservative 5th Circuit Court of Appeals and could also request a stay of the decision pending appeal. Given the huge stakes for the American public, an immediate stay on enforcing the judgment is vital, pending a decision on the merits. The plaintiffs may also appeal the judge's ruling on contraception, meaning that required coverage for contraception could also land in jeopardy. Ultimately, the case could land before the Supreme Court -- where the ACA may face hostility. The Supreme Court has at the ACA since its inception. While Chief Justice John Roberts has saved the ACA in the past, his views on the law are likely in the minority. At least five highly conservative justices have shown strong antipathy to the ACA and the , and have made nearly absolute.
The implications of a Supreme Court decision would depend on the precise ruling, but they could be very broad. For example, the Supreme Court could revive the arguments that O'Connor dismissed, including that the non-delegation doctrine forbids Congress from giving federal agencies, like HHS, the authority to develop specific standards and regulations. Such a ruling could affect cost-free preventive services not only designated by the USPSTF, but also by the Advisory Committee on Immunization Practices (ACIP) and the Health Resources and Services Administration (HRSA). Congress might be forced to act to save ACA preventive services, but we all know what a heavy lift that would be. More broadly, the ruling could restrict Congress's ability to delegate wide authority to federal agencies to issue standards and regulations addressing complex health and environmental issues.
The harm that could result from this ruling is immeasurable. Allowing healthcare plans to impose costs on evidence-based preventive services will result in millions of vulnerable Americans effectively losing access to potentially life-saving care. This ruling represents a significant regression in health policy in America. Unless it is stayed or overturned -- and the chances of either are far from certain -- it will cost lives, undoing decades of health progress nationwide.
is university professor, Georgetown University's highest academic rank, where he directs the O'Neill Institute for National & Global Health Law. He is also director of the World Health Organization Collaborating Center on National & Global Health Law, and the author of . You can read more of his writing in "The Health Docket" column. is an associate with the Health and Human Rights Initiative at the O'Neill Institute.