The Affordable Care Act’s popular and far-reaching requirements for private health insurers to fully cover many preventive services and medications, from birth control to cancer screenings, is under legal attack — and the consequences could be huge.
On Wednesday, a federal judge ruled that requiring private insurance to provide PrEP — a drug regimen that is 99 percent effective at preventing HIV infection — violates the religious liberty of the business owners and employers who brought the case, aimed at a key provision of the ACA.
U.S. District Judge Reed O’Connor also found that the U.S. Preventive Services Task Force, one of the federal panels that decides which healthcare services deserve full coverage, is unconstitutional, because its members are appointed by the Department of Health and Human Services rather than confirmed by the Senate or appointed by the president. The Biden administration is expected to appeal the decision, which could ultimately land before the Supreme Court.
Grid spoke with Andrew Twinamatsiko, an associate director of the Health Policy and the Law Initiative at Georgetown University’s O’Neill Institute, about the ruling and the potentially profound impact it could have on public health in the U.S. This interview has been edited for length and clarity.
Grid: Can you tell me a bit about this case and who brought it?
Andrew Twinamatsiko: Basically, this case challenges a centerpiece of the Affordable Care Act, the preventive health services requirement, which has a central requirement that most private health insurance must cover preventive care. That includes screenings for breast cancer, colonoscopies, coverage for hepatitis B and C, heart disease, FDA-approved contraception, and cessation for tobacco — a whole host of preventive services so that people can access without cost-sharing.
There’s a wide range of plaintiffs in this case. So mostly, it’s six individuals and two businesses that don’t want to pay for services that they believe they don’t need, or services they claim violate their sincerely held religious beliefs.
They use five lines of attack, [but ultimately] claim that the only preventive services that should be covered are those that were in place when the ACA was enacted.
G: Who decides what preventive measures should get covered?
AT: How this works is that three agencies make recommendations on what preventive services are evidence-based: the U.S. Preventive Services Task Force, the CDC’s Advisory Committee on Immunization Practices [ACIP], which advises on immunizations, and the Health Resources and Services Administration [HRSA], which advises on recommendations for infants, children, adolescents and women.
PrEP is just one among hundreds of services that are recommended by the Preventive Services Task Force.
G: What did the judge decide, and on what basis?
AT: The main thrust of the judge’s ruling today was to say that giving those agencies, the Preventive Services Task Force, ACIP and HRSA, the authority to recommend these services violates the appointments clause of the Constitution, since these officials aren’t appointed by the president or confirmed by the Senate. The court found that ACIP and HRSA appointments were OK because the Health and Human Services secretary has some oversight. So immunizations, and screenings for infants, children, adolescents and women are OK.
But the court found that the Preventive Services Task Force violates the appointments clause. That means that requiring private insurers to fully cover all those services like PrEP and colonoscopies that have [approval] from the Preventive Task Force violates the Constitution and is invalid. It’s a significant, significant part of preventive health services.
The court also found that requiring PrEP violates the religious beliefs under the Religious Freedom Restoration Act for specific plaintiffs in that case.
G: What happens now?
AT: It’s potentially going to have devastating consequences for coverage. One hundred fifty million people are bound to lose preventive care. I’m not sure how it’s going to shake out. This year, most plans are already in place, but for next year, then those plans won’t be there anymore, and the public health consequences of that are going to be significant.
We were seeing a good minimization of gaps in healthcare disparities, more folks getting covered [because of preventive-care requirements], but the gains that have been made over the last few years are bound to be scaled back.
There will be appeals, and the case will likely go all the way to the Supreme Court, so a lot remains to be seen. But if this ruling stays intact, an insurance company can say, “Well, we’re not going to cover this anymore.” And I don’t think I’m saying anything radical that if coverage cuts into their bottom line, they’re going to be scaling back.
G: If the Biden administration appeals the ruling, does that delay effects on insurance while the legal case plays out?
AT: That depends on what the court does. The court could stay the order, pending appeal, or it could not, and the parties would have to go to the Fifth Circuit [Court of Appeals] and say, “Hey, this ruling has devastating consequences. Could you please grant a stay, pending appeal?”
G: What’s the public health cost if these guarantees go away?
AT: I think that remains to be seen, but for example, PrEP is 99 percent effective at preventing HIV. Without insurance it’s like $20,000 [a year]. HIV doesn’t discriminate based on sexual orientation, but sexual minorities, racial minorities and people of lower socioeconomic status will be disproportionately affected by these restrictions. It goes beyond PrEP too. These people won’t be having access to preventive services and screening that guards against further deterioration of their health.
From a public health standpoint, you’re going to see the most vulnerable populations being most affected immediately by the absence of this legislative measure that was put in place to close that gap in coverage.
Thanks to Lillian Barkley for copy editing this article.