Dangerous ACA ruling threatens preventive care for tens of millions of Americans 


April 7, 2023

The Biden Administration has announced it will appeal a Texas judge’s ruling striking down a key part of the Affordable Care Act (ACA) that allows tens of millions of Americans free access to cancer screenings and other forms of preventive health care. 

Last week, U.S. District Judge Reed O’Connor struck down provisions of the ACA that require insurers to provide certain preventive health care services free of charge. If allowed to stand, the ruling could affect all Americans who receive their health care through employer-based insurance or through the ACA marketplace. 

The Biden Administration has appealed the ruling to the conservative-leaning Fifth Circuit Court of Appeals. It has not yet asked that the judge’s ruling be stayed, but is expected to do so. Whatever the Fifth Circuit decides, an appeal to the U.S. Supreme Court is anticipated, although that does not mean the high court will agree to review the case. 

Health care advocates and experts warn that the district court’s ruling could be harmful for three reasons. First, Americans are more likely to seek out preventive care if it is free, as opposed to having to make copayments or face an expensive deductible. Second, some people with lower incomes may not be able to afford some types of preventive care. And third and most important: preventive care saves lives. 

The ruling could “ultimately result in more individuals being diagnosed with their cancer at later stages, where our treatments are more toxic, less effective and far, far more expensive,” Dr. Craig Bunnell, Chief Medical Officer of the Dana-Farber Cancer Institute in Boston, told NBC News. “The ruling essentially disregards preventive measures that have been shown to be effective at preventing disease and saving lives over the last 13 years.” 

“Early cancer screening — whether it’s mammography, whether it’s cervical cancer, prostate cancer, colorectal cancer — being able to screen and have early detection is critical,” agreed Donna Grande, CEO of the American College of Preventive Medicine. 

Last month, the Kaiser Family Foundation released a poll showing that in 2018, about 60 percent of the 173 million Americans with private health insurance accessed at least one of the free preventive services mandated by the ACA. 

O’Connor largely based his ruling on the argument that the advisory board that recommends what preventive care should be mandated by the ACA without cost, the Preventive Services Task Force, is illegally constituted because its members are not directly appointed by the President and do not report to the executive branch. 

It is not O’Connor’s first attack on the ACA; in 2010, he struck down the entire law, but was overturned by the Supreme Court. 

The lawsuit was brought by eight individuals and two businesses, all located in Texas, and all objecting to a mandate that the ACA provides drugs that prevent HIV. The lawsuit contends that the ACA requires business owners and consumers to pay for services that “encourage homosexual behavior, prostitution, sexual promiscuity and intravenous drug use” despite their religious beliefs. 

O’Connor at least partly agreed with that argument, ruling that HIV prevention efforts violate the plaintiffs’ rights under a federal law guaranteeing religious freedom. 

It is far from certain that the Fifth Circuit Court of Appeals will uphold O’Connor’s ruling, despite the fact that most judges who sit on that court are Republican-appointed. But if the ruling does stand, advocates warn it will cost lives – especially among already marginalized communities. 

“It’s going to exacerbate all the leading causes of death in this country,” Georges C. Benjamin, Executive Director of the American Public Health Association told the Washington Post. “In a nation that had enormous health inequities, it is going to disadvantage communities of color.” 

A Morning Consult survey released Wednesday shows O’Connor’s ruling is not popular with the public. The survey found that 50 percent of respondents disagreed with the ruling, 28 percent agreed and 22 percent were unsure. Among Democrats, 55 percent disagreed and 33 percent agreed; among Republicans, 40 percent agreed and 33 percent agreed. 


Affordable Care Act