By Paul Shafer and Kristefer Stojanovski
Many Americans breathed a sigh of relief when the Supreme Court left the Affordable Care Act in place following the law’s third major legal challenge in June 2021. The decision left widely supported policies in place, such as providing coverage regardless of pre-existing conditions, providing coverage for dependents up to age 26 on their parents’ plan, and removing annual and lifetime limits on benefits.
But now millions of people in the United States are holding their breath following a March 30, 2023 decision in Braidwood v. Becerra that would eliminate free coverage for many preventive care services and basic medications.
Preventive care litigation
ACA Section 2713 requires insurers to provide comprehensive coverage for preventive services approved by one of three federal groups: the U.S. Task Force on Preventive Services, the Advisory Committee on Immunization Practices, or Health Resources and Services Administration. If one of these groups recommends a preventive care service as essential to good health outcomes, you shouldn’t have to pay anything out of pocket. For example, the CARES Act, which allocated emergency funding in response to the COVID-19 pandemic, used this provision to ensure that COVID-19 vaccines would be free for many Americans.
Immunizations, including COVID-19 vaccines, require recommendation from the Centers for Disease Control and Prevention’s Advisory Committee on Immunization Practices, while women’s health services require approval from the Health Resources and Services Administration. Most other preventive services require an A or B grade from the US Task Force on Preventive Services, an independent body of experts trained in research methods, statistics, and medicine, and supported by the Agency for Research and the quality of health care.
The lead plaintiff in the ACA case, Braidwood Management, is a Christian for-profit company owned by Steven Hotze, a physician and conservative activist who has previously filed several lawsuits against the Affordable Care Act. Braidwood and his co-plaintiffs, a group of conservative Christian employers, objected to a requirement to provide their 70 employees with free access to pre-exposure prophylaxis, or PrEP, a nearly 100% effective drug for prevent HIV infection. Hotze claimed that PrEP “facilitates and encourages homosexual behavior, intravenous drug use, and sexual activity outside of marriage between a man and a woman,” despite the lack of supporting evidence. He also claimed that his religious beliefs prevented him from providing insurance covering PrEP.
PrEP received an A grade from the US Task Force on Preventive Services in June 2019, paving the way for its free coverage for millions of people.
Although ACA Section 2713 does not work perfectly, sometimes leaving patients frustrated with unexpected bills, it has made a huge difference in reducing the cost of services such as healthy child visits and mammograms, to name a few.
More than 150 million Americans are enrolled in private health insurance, providing them with free preventive care, with about 60% using at least one free preventive service each year. Raising the cost barrier again for PrEP, for example, would disproportionately hurt younger patients, people of color, and low-income people.
As public health researchers from Boston University and Tulane University who study health insurance and sexual health, we believe that prevention and health equity in the United States should do a big step backwards with this policy in jeopardy.
Which preventive services are concerned?
The decision in Braidwood rests largely on the nomination clause of the US Constitution, which specifies that some government positions require presidential nomination and Senate confirmation, while other positions have a lower bar.
Texas Federal District Judge Reed O’Connor ruled that because the U.S. Preventive Services Task Force is an independent volunteer group and not comprised of U.S. government officers, it has no l appropriate authority to make decisions about which preventive care should be free. , unlike the Advisory Committee on Immunization Practices or the Health Resources and Services Administration. O’Connor also ruled that being forced to cover PrEP violated the plaintiffs’ religious freedom.
Following his initial ruling in September, both sides submitted briefs that attempted to inform the “cure,” or solution, that the judge would ultimately recommend. He could have chosen, as recommended by the federal government, to grant only plaintiffs an exemption from PrEP coverage under the Religious Freedom Restoration Act. But O’Connor opted instead to make his “cure” apply nationwide and cover more services.
It struck down every task force recommendation since the Affordable Care Act was passed in March 2010, returning to insurers and employers the power to decide what, if any, preventative care would remain free for patients in their homes. planes. Some of the recommendations covered by his decision include PrEP; screening for blood pressure, diabetes, lung and skin cancer; and drugs to lower cholesterol and reduce the risk of breast cancer. In 2022, 15 states have laws with ACA-like requirements for in-market insurance plans, but not for large employer plans generally exempt from state oversight.
Insurance contracts are usually defined by calendar year, so most people won’t see these changes until 2024. It’s important to note that these services will likely still need to be covered by health insurance plans. as essential health benefits through a separate provision of the ACA. will no longer be free.
Other recommendations from the U.S. Task Force on Preventive Services and those made by the Advisory Committee on Immunization Practices or the Health Resources and Services Administration—namely, immunizations and contraception, respectively—will remain free. for patients at this time.
The federal government appealed the decision to the 5th United States Circuit Court of Appeals on March 31, 2023, supported by a coordinated response from 23 patient advocacy groups. They asked for a stay while the case continues, which pauses the effects of the decision. If O’Connor or a higher court grants their request, that will leave the status quo of free preventive care in place.
But there are also fears that the 5th Circuit or the Supreme Court could push the decision even further, jeopardizing the free coverage of contraception and other preventive care that remains in place.
The end of this case could still take several years, with even more frustration to come as the courts undermine the national goals of fighting cancer, diabetes and ending the HIV epidemic.
Paul Shafer is Assistant Professor of Health Law, Policy and Management at Boston University. Kristefer Stojanovski is a
Research Assistant Professor of Social, Behavioral and Population Sciences at Tulane University. Portions of this article originally appeared in previous articles published September 7, 2021, December 1, 2021, and September 13, 2022.
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