Texas judge strikes down ObamaCare's free preventive services requirement

A federal judge in Texas struck down a key provision of the Affordable Care Act (ACA) that requires insurers and employers to cover preventive services for free, including cancer screenings and HIV drugs.

The ruling by Judge Reed O’Connor of U.S. District Court for the Northern District of Texas — who previously struck down the entire ObamaCare law before it was upheld by the Supreme Court — applies nationwide and takes effect immediately.

The decision jeopardizes access to treatment for the approximately 100 million Americans who use free preventive services annually, and it leaves the door open for insurers to impose deductibles and copays for potentially life-saving screening tests.

The ACA requires insurers to cover, without cost-sharing, more than 100 preventive health services recommended by the U.S Preventive Services Task Force. Cost sharing will likely deter patients — particularly those of limited means — from scheduling those procedures.

O'Connor, who was appointed by former president George W. Bush, ruled that the panel itself is unconstitutional because its members — 16 volunteer scientists and medical professionals — are not appointed by the president or confirmed by the Senate, yet its recommendations are binding.

O'Connor's decision was not unexpected. He ruled last year the preventive services mandate was unconstitutional, but at the time waited to decide on the scope of remedy. 

O’Connor also invalidated ObamaCare’s HIV treatment mandate, saying it violated the Religious Freedom Restoration Act by forcing the plaintiff, a Christian employer and well-known GOP donor, to pay for insurance that covers HIV prevention drugs.

The company's owner argued HIV drugs, known as PrEP, promote homosexual behavior that conflicts with their faith and personal values. 

PrEP reduces the risk of getting HIV by 99 percent when taken as recommended, according to the Centers for Disease Control and Prevention. There are two pills approved for use as PrEP: Truvada and Descovy. The drugs are also recommended for monogamous partners of people with HIV and people who share needles and other drug paraphernalia.

The lawsuit was led by Jonathan Mitchell, the architect of Texas’s six-week abortion law that offers a $10,000 bounty to private citizens who successfully sue abortion providers.

It is likely that the Biden administration will appeal, but if the conservative judges on the Fifth Circuit Court of Appeals uphold the order, ObamaCare could once again go to the Supreme Court.

Larry Levitt, vice president of health policy at the Kaiser Family Foundation said the ruling hits at a hugely popular section of the ACA, but is not a death blow to the law.

"Previous cases to the ACA threatened the very existence of the law and its fundamental protections and coverage. This case does does not do that," Levitt said. "It would strike down a portion of the law. Now, albeit a very popular one that's used by a lot of people."

White House press secretary Karine Jean-Pierre said the Justice Department and the Department of Health and Human Services were reviewing the decision.

“This case is yet another attack on the Affordable Care Act,” Jean-Pierre said. “Preventive care saves lives, it saves families money and protects and improves our health.”

Democratic leaders in Congress swiftly condemned the ruling.

"It has no basis in the law, will unnecessarily cause confusion, and will put lives at risk if people are forced to forgo routine screenings and treatment," said Rep. Frank Pallone Jr. (D-N.J.), ranking member of the House Energy and Commerce committee.

"Free access to preventive care, such as cancer and heart disease screenings, pregnancy-related care, and vaccinations, saves lives. Millions of Americans will forgo this essential care if it is not covered," said Rep. Anna Eshoo (D-Calif.)

Pallone and Eshoo separately called on insurers to commit to continuing to cover all preventive services without cost-sharing, despite the ruling.

Health experts said insurance companies operate on yearlong contracts, so if the ruling is upheld the effects likely won't be felt by consumers until the next plan year starts.

The ruling won't impact every single preventive screening, as some recommendations predate the ACA. So breast cancer and colon cancer screenings won't be impacted, but newer recommendations on skin cancer and lung cancer would be.

Levitt said Congress could easily fix the problem with a simple one-line bill. But the politics of the ACA, even 13 years after it passed, make it unlikely anything would pass.

"it would not require a lot of words to fix this in legislation, but it potentially requires very difficult politics," Levitt said.

Updated at 6:00 p.m.