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‘Incredibly concerning’ lawsuit threatens no-charge preventive care for millions

Harris Meyer, Kaiser Health News on

Published in Health & Fitness

With a challenge to the Affordable Care Act still pending at the Supreme Court, conservatives are continuing to launch legal attacks on the law, including a case in which a Texas federal judge seems open to ending the requirement that most Americans must receive preventive services like mammograms free of charge.

Businesses and individuals challenging the ACA’s first-dollar coverage mandate for preventive services have legal standing and legitimate constitutional and statutory grounds to proceed with their lawsuit to overturn it, U.S. District Judge Reed O’Connor ruled late last month in Fort Worth. O’Connor, who previously found the entire ACA to be unconstitutional, denied most of the federal government’s motion to dismiss the case, Kelley v. Azar.

The plaintiffs cite religious and free-market objections to the ACA requirement in their class action suit against the government seeking to halt enforcement of the requirement.

The ACA requires most private individual and group health plans and some Medicaid programs to cover recommended preventive services for adults and children without charging deductibles or copayments. Medicare’s preventive care benefits also were enhanced.

These changes have made it more affordable for Americans to get a wide range of services, such as cancer screenings, contraception, HIV prevention drugs, vaccines, tobacco cessation treatment, alcohol abuse counseling and domestic violence counseling.

“This is a huge deal,” said Tim Jost, a retired Washington & Lee University law professor who tracks ACA litigation and has written about the suit and other efforts by conservative groups in Texas to undermine the ACA and other health policies. “It’s billions and billions of dollars of services that Americans get every year, not just from ACA health plans but also from employer plans. If this benefit ends, it would mean a lot of people would forgo preventive services and end up with much worse medical problems.”

 

Based on O’Connor’s Feb. 25 order, it appears likely he will rule in favor of the plaintiffs, said Nicholas Bagley, a University of Michigan law professor who also studies ACA litigation. “We know where he’s going, and it worries me.”

The attorney representing the plaintiffs, Jonathan Mitchell of Austin, a former Texas solicitor general, declined to speak on the record about the case.

O’Connor, a Republican-appointed conservative, could issue a preliminary injunction blocking first-dollar coverage of preventive services nationwide, which he did in an earlier ACA lawsuit involving coverage for contraceptives. If he does that, or if he moves directly to a summary decision in favor of the plaintiffs, the Biden administration likely would appeal to the 5th U.S. Circuit Court of Appeals, a conservative court that partly upheld O’Connor’s 2018 finding that the ACA is unconstitutional.

The Supreme Court is expected to issue a ruling soon in that case, California v. Texas, in which 21 Republican attorneys general claimed that Congress’ decision in 2017 as part of its tax cut bill to zero out the ACA’s monetary penalty on individuals for not obtaining health insurance made the entire law unconstitutional.

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