The Department of Health and Human Services did not respond to a request for comment.
Giving people access to preventive services without charge has increased early detection of cancer and other serious medical problems and has saved lives, said Skye Perryman, general counsel for the American College of Obstetricians and Gynecologists. “It’s been a true women’s health success story, and any threat to those services is incredibly concerning,” she said.
The ACA’s elimination of cost sharing for screening of colorectal cancer led to a significant increase in the number of colorectal cancer cases diagnosed at an early stage in Medicare beneficiaries, according to a 2017 Health Affairs study.
But it’s not clear how insurers and employers view the costs and benefits of this first-dollar coverage, and whether they would reestablish cost sharing if the mandate were struck down. Several insurance groups did not respond to requests for comment.
The plaintiffs’ most effective argument, legal experts said, may be that members of the three agencies that decide which preventive services must be provided at no charge to consumers are not appointed by the president and confirmed by the Senate. That means they are not constitutionally authorized to make binding regulatory decisions, the plaintiffs argue.
Under the ACA, the U.S. Preventive Services Task Force, the Advisory Committee on Immunization Practices and the Health Resources and Services Administration — whose members are medical professionals — make these determinations based on research.
Another issue that could prove compelling to conservative judges on the 5th Circuit and the Supreme Court is the plaintiffs’ argument that Congress cannot delegate responsibility to executive branch agencies to make binding regulatory decisions without providing clear guidance. At least four Republican-appointed justices have indicated a desire to limit this kind of agency discretion.
“This case provides a vehicle for the conservative legal movement to cripple the American administrative state,” said Bagley. “I suspect this will get to the Supreme Court.”
O’Connor also permitted the plaintiffs’ claim that the mandate to cover drugs to prevent HIV infection in high-risk people violates the Religious Freedom Restoration Act of 1993 by forcing them to subsidize “homosexual behavior” to which they have religious objections. The Supreme Court, he wrote, “has held that compelling the purchase of insurance that includes medications that violate one’s sincerely held religious beliefs can be a violation of the RFRA.”
Even if the Supreme Court leaves the ACA mostly or fully intact in its California v. Texas decision, some legal experts say, the preventive services case shows that anti-ACA groups will continue to try to chip away at it through lawsuits brought before conservative judges, likely in the 5th Circuit.
“ACA litigation isn’t over,” Jost cautioned. “The Supreme Court may never again hear a challenge to the entire ACA, but that does not mean the law is now secure.
(KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism about health issues. Together with Policy Analysis and Polling, KHN is one of the three major operating programs at KFF (Kaiser Family Foundation). KFF is an endowed nonprofit organization providing information on health issues to the nation.)(c)2021 Kaiser Health News Distributed by Tribune Content Agency, LLC