When Congress passed the Affordable Care Act in 2010, its authors cited three overarching goals: to improve access to health care, to slow rising medical costs and to improve health outcomes.
One of the main vehicles for achieving all three missions was a requirement that health insurers provide preventive health care services at no cost to patients. If there were no financial barriers, backers argued, patients would be more likely to get preventive services, from colonoscopies to vaccines to heart disease screenings, which would help keep people healthier and out of the hospital and, consequently, lower health care costs.
As a result of that requirement, more than 150 million Americans now have access to scores of preventive health measures at no cost, sparing many from illness and catching diseases early for others.
Now, a federal lawsuit heard in Texas last month could upend or even eliminate the preventive care requirement in the law, known as Obamacare or the ACA. A group of patients and employers are arguing that the requirement is unconstitutional. They also contend that some preventive health measures violate protections under the Religious Freedom Restoration Act of 1993 that prohibit federal and state rules from unduly burdening one’s exercise of religion.
The ACA provisions “make it impossible for these plaintiffs to purchase health insurance unless they agree to pay for preventive-care coverage that they do not want and do not need” and prevent them from buying less expensive health insurance without that coverage, they argue.
And a requirement that health plans pay for a drug that prevents HIV “forces religious employers to provide coverage for drugs that facilitate and encourage homosexual behavior, prostitution, sexual promiscuity, and intravenous drug use,” the group argues.
Neither the lawyers representing the plaintiffs in the case nor the U.S. Department of Health and Human Services (HHS), the defendant, responded to requests for comment.
The federal judge hearing the case, Reed O’Connor of the U.S. District Court for the Northern District of Texas, in 2018 struck down the Affordable Care Act as unconstitutional, only to be overturned by the U.S. Supreme Court in 2021. Supporters of the law are worried he will decide in favor of the plaintiffs in the new case.
“This judge has shown he is not shy about abolishing the entire Affordable Care Act and issuing nationwide injunctions,” said Wayne Turner, senior attorney at the National Health Law Program, which litigates on behalf of health equity and access to health care for underserved populations. O’Connor has a history of issuing nationwide injunctions involving federal laws, including the ACA.
And ACA supporters are not confident that a ruling striking down the preventive health requirements would be overturned by the conservative U.S. Court of Appeals for the 5th Circuit or ultimately by the U.S. Supreme Court, with its majority of Republican-appointed justices.
Eliminating the preventive care mandate, many health policy analysts agree, could have far-reaching and dramatic effects, potentially causing millions of patients to put off or neglect health screenings that could detect diseases early.
The requirement provides free access to preventive health services that have improved people’s health, said Sara Collins, a senior scholar and vice president at The Commonwealth Fund, a private foundation promoting quality and equitable health care. Forcing people to pay for those services, she said, would inevitably create a disincentive, likely leading to undetected and untreated health conditions.
More than 60 professional medical organizations, including the American Medical Association, published a joint statement last month warning of a dire impact of striking down the provision.
“Rolling back this access would reverse important progress and make it harder for physicians to diagnose and treat diseases and medical conditions that, if caught early, are significantly more manageable,” the statement said. “Patients would lose access to vital preventive health care services such as screening for breast cancer, colorectal cancer, cervical cancer, heart disease, obesity, diabetes, preeclampsia, and hearing, as well as well child visits and access to immunizations critical to maintaining a healthy population.”
Twenty Democratic-leaning states and Washington, D.C., have signed a brief supporting the federal government in the lawsuit. Conservative states have not weighed in, and no prominent GOP officeholder has championed the plaintiffs’ cause. Despite repeated attempts by Republicans to strike down the ACA, polls show that the law remains popular with Americans.
Tens of Millions of Beneficiaries
Many millions of people could potentially be affected by a court victory for the plaintiffs. An HHS analysis in January found that more than 150 million people with private health coverage have access to scores of cost-free preventive health services as a result of the requirement. Tens of millions of others in Medicare and Medicaid also benefit from the provisions, the report said.
The requirement applies to almost all private health plans, including employer-sponsored plans and the individual and small business plans sold on the ACA marketplaces. It also applies to Medicare and the Medicaid beneficiaries who joined that program as a result of a Medicaid expansion allowed under the ACA for adults with incomes up to 138% of the poverty level. (With some exceptions, it’s up to each state to determine whether preventive services are free for the Medicaid participants with lower income levels, but all cost-sharing fees in Medicaid are minimal.)
According to a July report by the Urban Institute, a nonprofit research organization, health plans now cover more than 100 preventive health services with no out-of-pocket cost to patients. Among them are screening and counseling for alcohol misuse and obesity, screenings for blood pressure and depression, and immunizations.
For children and adolescents, insurers must provide cost-free coverage for assessments of alcohol, tobacco and drug use, newborn hearing screening, blood pressure screening, screening for development abnormalities for children under 3 and all routine immunizations. For women, the requirement includes screenings for anxiety, breast and cervical cancer, and for signs of domestic abuse, as well as breastfeeding services and supplies, contraception, screenings for gestational diabetes for pregnant women and for diabetes after pregnancy, and preventive health visits.
Even if O’Connor sides with the plaintiffs, he has options besides stripping away the entire preventive care services provision. He could, for example, exempt certain services, such as provision of pre-exposure prophylaxis, or PrEP, a medicine used to prevent HIV and stop its transmission. He also could issue an injunction to preserve the current policy until appeals have been heard.
States can require coverage of preventive health services, but that would only apply to individual and small business health plans, not large employer plans, which the federal government regulates. According to a 2019 Commonwealth Fund post, as of that date, Connecticut, Louisiana, Maine, New Mexico, Vermont and Washington had done so.
The plaintiffs in the lawsuit, Kelley v. Becerra, include individual Texas patients as well as owners of a Fort Worth orthodontics practice and the owner of a Houston “health and wellness center,” both of which provide health insurance for employees and describe themselves as adhering to Christian values.
They object to having to pay for health insurance coverage for services they do not want or need, such as contraceptives, PrEP and screenings for sexually transmitted diseases. They also have religious objections to the provision of some of those services.
The “Becerra” named as defendant in the lawsuit is Xavier Becerra, the current HHS secretary. The original defendant in 2020, when the suit was filed, was Alex Azar, then-President Donald Trump’s HHS secretary.
In the lawsuit, the plaintiffs make two main arguments, one related to the process of selecting the preventive health measures covered by the law, and the other, a religious objection to two specific services that are covered.
In the first argument, the plaintiffs say Congress improperly delegated authority to the U.S. Preventive Services Task Force, the Advisory Committee on Immunization Practices, and the Health Resources and Services Administration to choose which preventive health measures would be covered under the law.
Those agencies, some comprised of non-governmental representatives, were not nominated by the president or confirmed by the Senate, the lawsuit says.
The plaintiffs also object to the requirement that insurers provide cost-free coverage of contraceptives and PrEP. They argue that requires employers and health insurance marketplaces to offer health plans that cover services that could conflict with employers’ or individuals’ religious beliefs.
Roger Severino, a vice president for the conservative Heritage Foundation, said the plaintiffs are right on both counts: HHS improperly adopted the specific preventive health measures under the law, and religious objections should prevail.
“There should be a wide berth to make sure people aren’t forced to violate their private beliefs when there are other options,” Severino said.
The federal government and ACA backers refute the argument that HHS improperly created the list of preventive health measures covered under the law. Ultimately, they pointed out, the various agencies did not set the policy; it was the HHS secretary who did so.
Other critics expressed dismay that the plaintiffs would object to measures, such as coverage of PrEP, intended to save lives.
“It’s peculiar to me that plaintiffs are against using the drugs to prevent people from being infected by a terrible disease,” said Wayne Turner of the National Health Law Program. “It’s also peculiar that an animus toward one particular population would lead you to try to eliminate the entire preventive care requirement. It’s extraordinary and disturbing and sad.”
This whole extremest religious movement meddling in politics and stepping on human rights is despicable. I saw footage from a Trump rally where people were interviewed and were absolutely against Obamacare, but when asked about the affordable healthcare act they were all for it.
This is ridiculous politics at work again, destroying peoples lives because someone’s scared that a gay person might get healthcare too. God forbid.
They should rename it Trump care or DeSantis care and then these people will be thrilled with it, and that will be the end of the lawsuits. Those boys will get full credit for rescuing the nation again. I’m surprised they’re not calling it communism, maybe they can eliminate Medicare and Medicaid too, Social Security next. No one should have to tolerate something that makes life better for most Americans.
The best way to get rid of everything that benefits Americans now is to call it Biden care. Maybe if the people pushing for this lawsuit are told this will benefit heterosexual Christian fetuses only they’ll want to keep it.
Can the people suing the government afford healthcare insurance themselves or do they need to use the affordable healthcare act?
My guess is those people have a good medical insurance, don’t live paycheck to paycheck, don’t have to be worried about being financially ruined by an illness or accident.
If eliminating this law doesn’t affect them personally, so no one else should have access to it either – especially if they’re not Christian! If parts of it could be altered to make everybody happy let’s do that instead of eliminating something entirely that so many people depend upon, literally for their lives.
This makes me sick, which is dangerous because I might not have healthcare insurance to help me recover.
Ha! Great idea – Trump care.
Religious people are tedious.
Let these backwards people be exempt without gutting the ACA. If you work somewhere that wants to push their religious views on you, quit and go somewhere else. Basically, that’s why I don’t shop at Chick-fil-A (easy not to go there for me as I don’t like their food) and rarely, rarely go to Hobby Lobby.
It’s particularly sad that the right want to deprive health care to the American public, which wants it. Healthy people mean more workers which in turn spend more money in the economy. Oh well, they know better, the fiscally responsible and compassionate right.
There’s nothing affordable about it.
“both of which provide health insurance for employees and describe themselves as adhering to Christian values.”
Pushing their “Christian values” on 150 Million others, not to sure “God” would be happy to see people die when preventative medicine was available to help them but so-called “Christians” would rather see them suffer.
when I had my own business I hated Obama care- it cost me a fortone. in 2011 I was paying $12K for 3 people with open access plans w/ low deductibles. then 2012 $18k, 2013 $24k , 2014 $32k ….etc until I sold the business in 2018. before Obama care my cost only went up about $400 a year . Only making the insurance companies richer.
Obama care is a big rip off. Cost on drugs went way up. People lost there health care plans. You couldn’t see your past health care provider. The plan increased your share 10 times. Deductibles went from 500, 1500 to 5000 , 7000 . That’s not free. It’s illegal under cover originator directed to welfare people for free. The working class pays thru the nose for it. What we had before him was working. Hillery tried to mess it up before him. Didn’t go thru. Employers stopped giving it because the cost went thru the roof of because of Obama care. It is phoney like him.
Everything you say didn’t affect my family at all. We kept our providers, deductibles never were outrageous and we received the same care as before. $7,000 deductible?
The fascist GQP doesn’t think anyone should have free will, freedom, health care, social security, etc. They want to control your thoughts and actions, what you read, and what you view on the internet. Soon they will want to control your purchases, what you watch on TV, what you spend your money on, and where you work. They are out of control and they have a radical Supreme Court on their side.
It’s quite scary actually how the Republican Party had embraced Naziism/fascism. God help our freedoms if they ever gain full power again. Think they won’t target you? Think again. I refuse to compromise to fit their mold of what they view as “good.” I am against fascism and proud of that.
Save Anerica says
Ah Mate, I believe you have your “Fascist” accusations backwards. DemonRATS are the FASCIST .
They want TOTAL control of your life and money. SEEK HELP BEFORE YOU VOTE
Hey there Save Anerica, nice spelling. Websters says…
fas·cism | \ ˈfa-ˌshi-zəm
also ˈfa-ˌsi- \
Definition of fascism
1 often capitalized : a political philosophy, movement, or regime (such as that of the Fascisti) that exalts nation and often race above the individual and that stands for a centralized autocratic government headed by a dictatorial leader, severe economic and social regimentation, and forcible suppression of opposition
2 : a tendency toward or actual exercise of strong autocratic or dictatorial control early instances of army fascism and brutality— J. W. Aldridge
Save got it backwards. I highly recommend Rick Steve’s Fascism in Europe found on PBS. It’s a must watch for everyone who wants to know how the system works, and eventually breaks down.
P.S. Let’s get over the childish name calling like “DemoRats” and “DeathSantis” and so forth.
Gee , Can I refuse to pay my state and federal taxes because some of the monies are used for things of which I do not approve?
That’s the first similarity that comes to mind, but I am sure there are others.
I recall that people tried that during the Vietnam war. Guess what? They were arrested. Today the GOP wants the same thing and call it “good”.
Stephen Smith says
What the heck is wrong with these people? If they don’t want to purchase insurance with the ACA mandates, then get private insurance and stop trying to take away the ACA benefits from those that want them. I don’t really believe the religious excuse for what the GOP is trying to do. People like the ACA it save lives, and reduces costs all around. This is really the GOP trying to keep the populous in debt for medical expenses so they will be suceptable to the GOP saying they will do something about it. Except they won’t. They have promised a replacement for the ACA for years and have come up with nothing. Americ’a health system is the greatest in the world only if you can afford it. To me this is the same as their desire to defund schools and turn them into a private hands. They want to keep poor people down to where they can be controlled with no hope of ever bettering themselves. You will be fine if you’re white and rich. If your not. Oh well sucks to be you. I’ve had it with the GOP I’ll vote for Dems or independents thank you. The GOP does not represent me any longer. I’m at the point where I truly believe that the GOP has been infiltrated by those who wish America to return to to a time when individual freedom was possible when you could do what you pleased by moving out into the frontier away from goverment and people. That isn’t possible today. We live in a global community where we need to remember the common good not always just our own.
Stephen: I can tell you why: Insurance companies. They are responsible for taking away your right, as a “free” adult, to decide whether to wear seat belts or not. The real problem is corporate lobbyists. We should totally do away with lobbyists in government. You and I do not have the same representation. Both Dems an Repubs are influenced by lobbyists daily, not you, not me. We come around once every few years with votes, and the companies who hire these lobbyists pour lots of money into the campaigns of politicians who will back their agendas. They also provide misinformation that will influence the voters.
The time when elected officials actually worked for some benefit to their constituents is over. They demonize the opposition and tear down anything mainly good because the other party brings it up. There was a time when companies provided health care, pensions ( do you remember who was in power when they opened the 401k loopholes to companies so that they could wash their hands of your retirement Responsability?) .
Now they want to change a couple of things that actually are worth the funding and work , Social Security and Medicare . If you continue mindlessly giving your vote to populist loudmouth , grifters you deserve what you get.
Remember when Mr. Know It All #45 bragged about creating a better plan the Obama Care, yet asked a million times what it is and when that would happen he never could say and guess what it never happened.
So, now the Cult GOP party is attacking it again. Lets see what else they have plans taking away from people, remember when you vote they are taking away anything that benefits regular Joe Blow. If it isn’t paying them money or making them richer they are going to vote it down.
They want to take our democracy, create a dictatorship and not give anything that helps the middle class or lower class people.
It is the party of greed, lies and power, PERIOD>
If they eliminate Obama Care then they will have their new t-rump care – which is no care at all.
Keep voting Repubs see where it will get you. Look at what they are doing now, no abortion rights, taking away voting rights, now Obama Care again. Are voters that blind and sleep look at what this Party people, we need to wakeup before it is too late. Look at what this Party is doing people. Vote these jokers out of office. Pretty soon we will not have a right to breathe. They are showing us what they want to do. Are voters that blind?
A.j: Yes. The dumbing down of America is alive and well. How else could they follow Trump like people followed Jim Jones? America is slipping in intelligence, and will slip further with the current White, Christian Nationalist movement.