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O’Connor also found that requiring free coverage of one form of care, PrEP to prevent HIV, violates the plaintiffs’ rights under a federal law guaranteeing religious freedom.
Thursday’s opinion, in a 2020 lawsuit brought by a group of Christian businesses, applies nationwide immediately. But its practical impact is murky.
That is partly because the Department of Health and Human Services, the defendant in the lawsuit, is widely expected to ask the court for a stay preventing the ruling from taking effect while the Biden administration appeals the ruling. The administration did not react immediately to the ruling. But President Biden is a strong adherent to the broad health-care law created in 2010, long latching onto it as the best tool to expand insurance coverage and make care more affordable. Biden has also made it a core element of his political identity.
With the mandate gone, at least for now, it will be up to insurers and employers to decide whether to continue the popular coverage of various forms of preventive care or to save money by charging patients part of their cost.
This case “is not like the previous brushes with death that the Affordable Care Act had,” because it pertains to one facet of the law, said Nicholas Bagley, a University of Michigan law professor who specializes in health law, including the ACA. But he added, “We are talking about preventive services.”
According to estimates by the Kaiser Family Foundation, a nonpartisan health-care policy organization, more than 170 million people in the United States have private health insurance that could be affected by the ruling, and roughly 100 million of them receive some sort of preventive care in a given year.
“The preventive services requirement in the ACA is the part of the law that likely affects the most people,” said Larry Levitt, a Kaiser executive vice president.
O’Connor’s ruling does not knock out the requirements for insurers to provide coverage, with no co-payments, of every preventive service. It applies to those services compelled by the U.S. Preventive Services Task Force. The task force predates the ACA, so the ruling affects only those types of preventive care the group has required since the law took effect — or types the group has updated since then.
The judge ruled that the task force’s role in requiring certain forms of services be provided free of cost is improper under a constitutional “appointments clause,” which stipulates that any people exercising significant federal authority must be presidential appointees.
The opinion does not, however, touch free preventive services required by two other parts of HHS. One is an advisory body to the Centers for Disease Control and Prevention that sets standards for children’s immunizations and coronavirus vaccines. The other involves women’s health services defined by the Health Resources and Services Administration. The judge rejected a part of the plaintiff’s arguments that would have invalidated coverage of contraceptive services.
The ruling swiftly touched off political waves, with congressional Democrats lambasting the ruling.
The case is Braidwood Management vs. Xavier Becerra.
In late 2018, O’Connor was the judge who invalidated the entire ACA in a case that eventually went to the Supreme Court, becoming the third time in a decade that the high court ruled the law constitutional.
This is a developing story. It will be updated.
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