Texas judge strikes Obamacare provisions on preventive care

WASHINGTON — A federal judge Thursday reversed a major Obamacare provision requiring plans to cover preventive care ranging from cancer and chronic disease screenings to pregnancy care and certain drugs.

The ruling could deal a massive blow to President Joe Biden’s moonshot goal of slashing cancer rates through early screenings . It also leaves the door open for insurers to refuse coverage of statins, drugs preventing HIV transmission known as PrEP, and a vast range of health screenings recommended by federal officials. It could also eventually threaten the  Biden administration’s efforts to lower maternal and infant mortality rates and bolster reproductive rights in the wake of Roe’s overturn. 

Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas said the Affordable Care Act requirement for insurers to cover care and products recommended by the U.S. Preventive Services Task Force is unconstitutional because members of that panel — 16 volunteers, typically doctors and scientists — were not appointed by the president and approved by the Senate, violating the U.S. Constitution’s appointments clause.

O’Connor wrote that two other federal groups – the Health Resources and Services Administration and the Advisory Committee on Immunization Practices – are allowed to require insurers to cover certain products and services because they were created by the Health and Human Services Secretary, a presidential appointee. HRSA covers a range of women’s health care including contraceptives, while ACIP requires routine vaccinations.

Some cancer screenings are also covered by HRSA or pre-ACA task force requirements, but others, like BRCA mutation, skin, and lung cancer screenings, are not. HRSA’s guidelines also pertain only to women, so there could be coverage gaps for services like HPV screenings.

Besides the cost of PrEP itself, the task force also requires coverage of related bloodwork and testing that can run into the thousands of dollars per patient, public health and health law experts said.

The preventive HIV medications are “a cornerstone of the federal plan to address HIV,” said Lindsey Dawson, Kaiser Family Foundation’s director of LGBTQ policy. While it is unlikely that plans – except some with religious affiliations – would drop the class of drugs, they could introduce cost-sharing, she said. “For a generic that might be nominal, but for a brand-name drug that could be substantial, if you have 20% or 50% coinsurance on a $2,000 a month drug.”

Insurers are also required to cover drugs that reduce the risk of breast cancer, known as aromatase inhibitors, by the preventive services task force.

The ruling was somewhat expected: O’Connor last year ruled that religious groups did not have to cover PrEP and in 2018 attempted to strike down the entire ACA law, before appeals led to the Supreme Court’s 2021 reversal of the decision.

The lawsuit was brought by Braidwood Management, which represents a handful of Christian-owned businesses in Texas who argued they should not be required to cover birth control and PreP. O’Connor had previously ruled that employers could refuse to cover contraceptives on religious grounds.

The reverberations of Thursday’s ruling are still unclear. HHS could ask for a stay on the ruling pending appeal, so changes would not be immediate. The agency did not immediately respond to a request for comment.

Even without a stay, insurers are unlikely to make sudden changes to existing plans, said Nicholas Bagely, a health care law expert at University of Michigan.

However the ruling does have national implications.

“Insurers have the money to continue to cover these lifesaving services at no cost. I call on insurance companies to continue to do so, despite what one judge in Texas says,” Rep. Anna Eshoo (D-Calif.) said in a statement, adding that “preventive care in California will continue to be covered thanks to current state law.

That’s not quite true, said Bagley. While state-administered plans can still be required to cover preventive care at no cost, commercial plans — used by most employers — operate on national guidelines.

The Biden administration last week celebrated the 13th anniversary of the Affordable Care Act.

“Because of the Affordable Care Act, millions of Americans can get free preventive care like cancer screenings. [That] saves the country millions and millions of dollars if they detect it early,” Biden said last week. “Because of the Affordable Care Act, millions of Americans have access to basic services like maternity care when they wouldn’t otherwise have that.”

The president last year relaunched the Cancer Moonshot he first spearheaded as vice president in the wake of his son Beau’s death from brain cancer. The moonshot’s new chapter is aimed at halving cancer deaths and eventually ending new cases entirely through screenings, early care, and education.

While insurers are required to cover contraceptives through a separate federal agency, public health experts said that authority is still under threat. The Braidwood plaintiffs could appeal the decision, eventually sending the case to the U.S. Supreme Court, where Justice Clarence Thomas signaled in his Dobbs opinion overthrowing Roe that he thought federal officials over-extended their mandate with birth control coverage requirements.

“This can [be] a very troubling and frightening slippery slope,” said Sinsi Hernández-Cancio, Vice President for health justice at National Partnership for Women & Families.

The Biden administration asked in its 2024 budget request for a 72% increase in funding for Title X, the reproductive care program that provides contraceptives, screenings for sexually transmitted diseases, and some pregnancy care.

Separately, the Food and Drug Administration is slated to hear from experts in May over whether to allow a low-hormone birth control pill to be available over the counter in pharmacies. While that could ease access for people who don’t get contraceptives through insurance plans, those users would have to pay out of pocket. The pills’ maker, Perrigo, has not yet said what it would charge.

Correction: The article has been updated to clarify that contraception guidance is covered under HRSA and not subject to the U.S. Preventive Task Force ruling.