There’s another pesky legal challenge to the Affordable Care Act (yes, another one because the 2,000-plus that have been filed in the past decade apparently didn’t do the trick). Last month, a federal judge ruled that parts of the ACA mandating no-additional-cost preventive care are unconstitutional. On its face, this case is about a single thing: whether the federal government can require the health insurance plans that businesses must provide to cover STD screenings and HIV prevention drugs at no out-of-pocket cost to subscribers. But as with many of the challenges to the law, there’s more at stake.
Once again, anti-Obamacare activists shopped their challenge to U.S. District Judge Reed O’Connor, the “go-to” conservative judge for nihilists. In just the first two years of Trump’s term, he “struck down Obama administration rules that expanded civil rights protections to cover sexual orientation, ruled that the Affordable Care Act illegally prohibited discrimination of gender identity, threw out a federal voting rights lawsuit against the city of Farmers Branch, and declared portions of the Indian Child Welfare Act unconstitutional because it supported racial preferences.” O’Connor infamously struck down the whole of the ACA in 2018, but was overruled by the Supreme Court, 7-2.
He’s not going to stop trying, knowing that the friendly Fifth Circuit Court of Appeals will uphold his rulings and that the Supreme Court will hear them. O’Connor didn’t go whole-hog again, like he did in 2018, perhaps calculating that a more measured ruling would likely achieve another bite out of Obamacare. That’s what this case would do—not just undermining preventive care for HIV and other STDs, but potentially other preventive services, as well as the authority of federal agencies over a wide range of regulatory issues.
The Kaiser Family Foundation released an issue brief explaining the challenge and what’s at stake for the law this time around, and it’s a lot.
Under the law, four expert medical and scientific bodies—the U.S. Preventive Services Task Force (PSTF), the Advisory Committee on Immunization Practices (ACIP), the Health Resources and Services Administration’s (HRSA’s) Bright Futures Project, and the HRSA-sponsored Women’s Preventive Services Initiative (WPSI)—evaluate and recommend preventive services, determining which are of proven quality, cost-effectiveness, and sufficient public health necessity to merit being included in the services that insurers have to cover entirely, with no cost-sharing required from patients. They evaluate treatments regularly, and make sure that as new public health challenges and treatments emerge—like with COVID-19—treatment is widely available.
O’Connor ruled that one of the organizations making recommendations—the PSTF—is a volunteer body, not appointed by the president and confirmed by the Senate, and as such any recommendations it makes are invalid and unconstitutional. He also ruled that the ACA’s requirement that HIV pre-exposure prophylaxis, or PrEP, be covered at no cost violates religious freedom law. He stopped there, for the time being, asking for further briefs from HHS and from the plaintiffs, with those due from this week through mid-January 2024.
O’Connor didn’t hand down an injunction on the law so the preventive services coverage policy remains in effect, but since the suit is ongoing, that could change. As could the broad range of preventive care insurance companies are required to cover at no cost. Right now the recommendations from PSTF that are included cover “cancer screenings, preventive medications for chronic conditions such as cardiovascular disease, counseling on health behaviors related to nutrition and weight management, alcohol and drug use, tobacco cessation services, screening for depression, and prenatal services.” If O’Connor’s ruling that PSTF’s recommendations are invalid stands, all of those services could come off the list of what has to be covered without cost sharing.
Rolling back the government’s ability to enforce these care requirements could impact the millions of people covered by private insurance. That’s really bad, but there’s a larger threat still:
The potential implications are much broader, however, if the Supreme Court revisits and revises the nondelegation doctrine and restricts Congress’ ability to delegate the development of very precise standards to federal agencies. Without allowing the agencies to update the recommended preventive services, Congress would have to pass a new law every time the USPSTF recommend a new preventive service in order for it to be covered without cost-sharing. Any decision that changes the standard for Congress’ delegation could limit agency discretion to address a broad range of health and other issues through regulation.
The nondelegation doctrine is kind of a sleeper theory that courts have mostly ignored for the past century. It posits that Congress can’t delegate its duties to other branches of government, though Congress’ legislative powers, where the limits are, and what constitutes delegating them is ill-defined in the theory. But Justice Neil Gorsuch resurrected it in a dissent in an unrelated case in 2019, and the new extremist supermajority on the court is flirting with it again.
In his decision on this case, O’Connor conceded that he doesn’t have precedent to say that the whole of Obamacare’s preventive care structure is declared unconstitutional under the nondelegation doctrine, but he sure is providing a big, neon, blinking arrow to the Supreme Court to rethink that.
There’s no telling what creative nihilists would do to the whole regulatory structure of government should the Supreme Court crack the door open on this one.
Republished with permission from Daily Kos.
