Texas judge’s ruling puts free preventive care in jeopardy

WASHINGTON – A federal judge in Texas ruled Wednesday that the Affordable Care Act’s process for determining what kinds of preventive care must be fully covered by private health insurance is unconstitutional, ramping up another legal battle over the 12-year-old law.

The ruling, by Judge Reed O’Connor of U.S. District Court for the Northern District of Texas, could jeopardize millions of Americans’ access to preventive services, including cancer screenings, alcohol abuse counseling and drugs that prevent HIV infection. It does not take effect immediately, however, and legal experts said the Biden administration would almost certainly appeal.

O’Connor concluded that the Preventive Services Task Force – a volunteer panel of experts that recommends what kinds of preventive care must be covered under the law – violated the Constitution because its members are not appointed by the president or confirmed by the Senate, yet its recommendations become binding.

The ruling also took explicit aim at the HIV drug regimen known as pre-exposure prophylaxis, or PrEP, saying the law’s requirement that it be fully covered violated the religious freedom of a plaintiff in the case, Braidwood Management.

The company’s owner, Dr. Steven F. Hotze, a well-known Republican donor and doctor from Houston, has previously challenged the Affordable Care Act on other grounds.

“The PrEP mandate substantially burdens the religious exercise of Braidwood’s owners,” the judge wrote, adding that Hotze believes that covering PrEP drugs “facilitates and encourages homosexual behavior, intravenous drug use and sexual activity outside of marriage between one man and one woman.”

A spokesperson for Xavier Becerra, the health and human services secretary who is named as a defendant in the suit, said the department was evaluating the ruling. O’Connor has asked the government and the plaintiffs to file supplemental briefs proposing remedies and “outlining the major issues to be decided” Friday.

The American Medical Association was among many health-focused groups to denounce the ruling.

“Today’s ruling throws into jeopardy key preventive health services that reduce the incidence of HIV and other health conditions or disease,” said Dr. Jack Resneck Jr., the association’s president, in a statement. “The data are clear that PrEP works, with new HIV infections falling 8% from 2015 to 2019, in part due to this drug and its increased use.

“Stripping this key coverage mandate is inequitable, harmful and will make people sicker.”

The Affordable Care Act, former President Barack Obama’s signature legislative achievement, requires insurers and group health plans to cover more than 100 preventive health services recommended by the volunteer task force, with no cost to patients.

Experts say the mandate has increased the use of preventive services – including cancer screenings and contraception – and has improved health outcomes through earlier detection and treatment of disease and chronic conditions.

The Department of Health and Human Services has estimated that in 2020, 151.6 million people had access to free preventive care under the law. If the requirements were eliminated, it would mark a dramatic shift in the way American health care is provided, said Katie Keith, director of the Health Policy and the Law Initiative at Georgetown University’s law school.

“If Judge O’Connor’s decision stands, you wouldn’t have the standardization anymore,” she said. “You would go back to pre-ACA, when each employer, each insurance company picked and chose the preventive services they were going to cover, and the cost sharing they were going to provide.”

The case stems from a lawsuit filed in 2020 by Hotze and other Christian business owners and employees in Texas; they maintained that the preventive care mandate violates their constitutional right to religious freedom by requiring companies and policyholders to pay for coverage that goes against their faith.

The ruling was a victory for conservatives who have spent more than a decade trying to undo the Affordable Care Act. O’Connor, who was appointed to the federal bench by President George W. Bush in 2007, has long been known as a go-to judge for Republicans and conservatives seeking to challenge government policies.

He ruled for Texas in 2015, when it challenged an Obama administration measure extending family leave benefits to married same-sex couples. That decision came just months before the Supreme Court established a constitutional right to same-sex marriage nationwide.

In 2018, O’Connor struck down the Affordable Care Act in its entirety, concluding that Congress rendered the law invalid when it zeroed out the tax penalty – the so-called individual mandate – for Americans who lacked insurance. The Supreme Court ultimately sustained the law.

Tuesday’s ruling has once again made O’Connor a target for Democrats, progressives and gay-rights activists.

The two main PrEP drugs, Truvada and Descovy, are made by Gilead Sciences. The drugs are meant for people who are at high risk of HIV infection – primarily men who have sex with men but also intravenous drug users, some transgender Americans and some cisgender women.

The Centers for Disease Control and Prevention estimates that 1.2 million Americans are eligible for PrEP treatment. But less than one-quarter of those eligible take the drugs, partly because many who are eligible are uninsured and cannot pay for them. President Joe Biden has proposed $9.8 billion in his 2023 budget for a national program to distribute PrEP.

Advocates for HIV prevention said the ruling demonstrates the necessity of such a program; they say that PrEP saves both lives and dollars.

“It’s unfortunate to have it appear that there are some groups trying to politicize such an important health intervention,” said Jeremiah Johnson, PrEP program manager of PrEP4All, an advocacy group. “At the end of the day, it’s going to cost all of us more money if this type of approach goes forward, and it’s ultimately asking us to subsidize the somewhat illogical beliefs of these particular individuals bringing this suit.”