A lawsuit challenging the Affordable Care Act's requirement that insurers and group health plans cover dozens of preventive services at no cost to consumers jeopardizes access to lifesaving healthcare for tens of millions of people, a coalition of U.S.-based medical organizations warned Monday.
"The cruelty of MAGA extremists always breaks new barriers."
"With an adverse ruling, patients would lose access to vital preventive healthcare services, such as screening for breast cancer, colorectal cancer, cervical cancer, heart disease, diabetes, preeclampsia, and hearing, as well as access to immunizations critical to maintaining a healthy population," reads a joint statement led by the American Medical Association and signed by 61 groups that represent physicians who treat millions of people each year.
"Our patients cannot afford to lose this critical access to preventive healthcare services," the statement continues. "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."
A group of Texas residents and employers—represented by attorney Jonathan Mitchell, the Republican former solicitor general of Texas and chief architect of the state's draconian six-week abortion ban enforced by private bounty hunters—claim that the ACA's preventive services mandate violates the Religious Freedom Restoration Act, a statute cited in other reactionary efforts to crack down on reproductive rights and gender-affirming care.
Mitchell's Christian clients—Kelley Orthodontics, Braidwood Management Inc., and several individuals—don't want to "subsidize or provide insurance that encourages and facilitates homosexual behavior, drug use, or sexual activity outside of marriage," the lawyer wrote in a November 2021 court filing. The case was first filed in March 2020.
"The government cannot possibly show that forcing private insurers to provide PrEP drugs, the HPV vaccine, and screenings and behavioral counseling for STDs and drug use free of charge is a policy of such overriding importance that it can trump religious freedom objections," states the lawsuit.
Syringe Access, a coalition of harm reduction groups, fired back Tuesday on social media: "There is no religious freedom justification for stripping healthcare plans of their responsibility to provide free PrEP and STI screenings. This is just thinly veiled homophobia, anti-drug user sentiment, and a raging contempt for public health."
Truvada and Descovy, two pre-exposure prophylaxis (PrEP) medications taken daily by hundreds of thousands of people at risk of contracting HIV, particularly men who have sex with men, were added last year to the list of preventive services that the ACA requires health insurance plans to cover at no cost to patients.
While Mitchell singles out these HIV prevention drugs as well as the human papillomavirus (HPV) vaccine, sexually transmitted infection screenings, and drug use counseling in his motion for summary judgment, he and his Christian clients are seeking to block the ACA's entire preventive care mandate without a trial.
"This is trying to turn the clock back to 1983."
The list of services covered by one of the ACA's most popular provisions has grown to more than 100 and allowed an estimated 151.6 million people with private health insurance to receive free preventive care in 2020 alone, ranging from colonoscopies and mammograms to flu shots, birth control, and depression checks. Studies have shown that the elimination of patient cost-sharing has reduced racial disparities in the use of preventive care.
Hearings in the case began Tuesday. Judge Reed O'Connor—the author of numerous anti-ACA rulings, including a 2018 one deeming the program unconstitutional—is presiding over the affair at the U.S. District Court for the Northern District of Texas, meaning that the latest right-wing effort to gut the 12-year-old law could succeed.
If it does, insurers would be able to deny coverage or charge exorbitant copays for common preventive services that have improved the early detection and treatment of diseases and saved countless lives. In an analysis published Monday, the Urban Institute predicted that a ruling on behalf of the Christian plaintiffs from Texas could undermine access to healthcare for nearly 168 million people on employer-based plans or the ACA's individual market.
"Ending the requirement that preventive services be free to patients will have negative health and financial consequences for millions," Katherine Hempstead, senior policy adviser at the Robert Wood Johnson Foundation, which funds the liberal think tank, told Politico on Tuesday.
According to Politico, the Biden administration is arguing that "the Texans do not have legal standing because they aren't being harmed by their insurance covering preventive services" and that "there's a clear government interest in preventing the spread of HIV and STDs for the health of the population at large."
"Even the Trump administration was a big supporter of PrEP as part of the plan to end HIV," Wayne Turner, a senior attorney with the National Health Law Program, told the outlet. "It's something we've had bipartisan support for. This is trying to turn the clock back to 1983."
As Bloomberg Law reported earlier this year, "Conservatives are trying to revive an arcane legal principle," the nondelegation doctrine, to argue that "the ACA unconstitutionally lets a federal agency, advisory committee, and lone task force decide what preventive services and screenings insurers have to cover, without any guardrails on that decision making."
Legal experts expect the case to be appealed to the U.S. Court of Appeals for the 5th Circuit, which is stacked with far-right judges appointed by former President Donald Trump, and then to the U.S. Supreme Court.
As last month's decision weakening the U.S. Environmental Protection Agency's authority to reduce greenhouse gas pollution—and by extension, calling into question the ability of the federal government to regulate anything—made clear, the high court's right-wing majority includes several proponents of the nondelegation doctrine, which seeks to dismantle the administrative state and democratic self-governance by limiting Congress' ability to delegate rulemaking powers to agencies.