Kelley v. Becerra, a lawsuit before a federal district court judge in my “favorite” state—Texas!—threatens the section of the Affordable Care Act (ACA) requiring insurers and group health plans to cover more than 100 preventive health services—with no additional cost to consumers.
Preventive care coverage is one of the ACA’s most popular and recognizable benefits, with health plans covering services such as annual physicals, prenatal care, cancer and heart disease screenings, diabetes screening, childhood immunizations, flu shots, FDA-approved contraception, and other preventive services. This has led to more than 152 million consumers taking advantage of preventive services and has reduced racial disparities in health care access. The requirement has been particularly beneficial to women. (The Commonwealth Fund).
But a group of employers and individuals are challenging this provision. Their argument is that Congress, in passing the ACA, did not itself define the meaning and scope of preventive services. Instead, lawmakers called upon experts at the U.S. Preventive Services Task Force (USPSTF) , the CDC’s Advisory Committee on Immunization Practices (ACIP), and the Health Resources and Services Administration (HRSA). The heads of these groups were not directly appointed by the President and are regulating where they have no right to, and therefore the preventives services provision is unconstitutional because it violates the Appointments and Vesting Clauses of the U.S. Constitution and the nondelegation doctrine. It’s deep-in-the-weeds legal reasoning in the service of a political agenda. Plus, who needs experts to guide us in health care?
A similar argument, that agencies are asserting highly consequential power beyond what Congress could reasonably be understood to have granted, was deployed in West Virginia vs. Environmental Protection Agency. In that case, the Supreme Court struck down the Clean Power Plan, a set of rules governing fossil-fuel-fired electric generators, thus stripping the EPA’s power to protect the environment. Because what reasonable person really thinks the environment needs regulatory protections? Free markets should be able to handle that job, right?
The federal district court judge in the ACA case is Reed O’Connor, who in a previous lawsuit struck down the ACA in its entirety, a decision the Supreme Court eventually overturned. So his ruling on this one aspect of the ACA is likely a foregone conclusion.
The America Medical Association responded in this way to the lawsuit:
With an adverse ruling, patients would lose access to vital preventive health care services, such as screening for breast cancer, colorectal cancer, cervical cancer, heart disease, diabetes, preeclampsia, and hearing, as well as access to immunizations critical to maintaining a healthy population. Our patients cannot afford to lose this critical access to preventive health care services. Rolling back this access would reverse important progress and make it harder for physicians to diagnose and treat diseases and medical conditions that, if caught early, are significantly more manageable.
American Medical Association
A factsheet produced by the Urban Institute concluded that “burdens of increased cost sharing and reduced coverage for preventive services would likely fall hardest on people least able to afford such services.”
What a surprise. Keep the poor down. Keep women in their place. Keep the marginalized in the margins. Keep the sick sicker. All in the name of . . . what? I guess some libertarian, constitutionalist fantasy around the glories of unfettered freedom and pugilistic capitalism, and the need to fight back against the encroaching socialist, regulatory state.
If the plaintiffs prevail in Kelley vs. Becerra, it will be up to insurers and health plans in each state to decide whether they will continue to offer policies that cover preventive services without consumers having to cost share. You might get an opportunity to find out where your health plan stands.
