On Thursday, a federal judge in Texas ruled that Obamacare’s requirement that health insurance cover preventive health care at no cost is unconstitutional and struck it down nationwide. The ruling affects PrEP for HIV, cancer screenings, mammograms, and some prenatal care including screenings for gestational diabetes and preeclampsia. (It does not affect the birth control coverage mandate, as the judge dismissed that part of the lawsuit, and it also doesn’t affect the HPV vaccine, coverage of which plaintiffs also objected to in their original claim.) Some insurance companies will continue to cover these services cost-free as it makes financial sense to do so, but others may decide to go back to charging deductibles or co-pays.
All of these changes could lead to people not getting adequate health care and getting sick and dying. Preeclampsia, for instance, can be imminently life-threatening for pregnant people, who are now subject to abortion bans in almost 20 states.
How did we get here? Two Texas companies sued the Department of Health and Human Services in 2020, claiming that they wanted to provide health insurance to employees that didn’t cover PrEP drugs because they objected to it “on religious grounds.” The judge summarized their bigoted argument like so:
Each claims that the preventive care mandates requiring compulsory coverage for those services violates their religious beliefs by making them complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman as a condition of purchasing health insurance.
Of course, that reasoning ignores that even monogamous, heterosexual people who don’t use intravenous drugs can and do get HIV. The companies argued more generally that it’s unconstitutional for the government to let medical agencies decide what health insurance has to cover without cost-sharing. And they also wanted “the option to impose copays or deductibles” for other preventive care.
On Thursday, Judge Reed O’Connor—a George W. Bush appointee—ruled that the U.S. Preventive Services Task Force (USPSTF), an agency that decides what preventive care should be covered, doesn’t have the constitutional authority to do so. He said that any recommendations made by the USPSTF were no longer valid. O’Connor had previewed his opposition to requiring PrEP coverage back in September, but didn’t issue a nationwide injunction at that time. The case is Braidwood Management Inc. v. Xavier Becerra and the plaintiffs’ lawyer is none other than Jonathan Mitchell, the architect of the Texas bounty-hunter abortion ban and a strident homophobe. Braidwood’s owner is Republican megadonor Steven Hotze, who, in 2016, compared gay people to termites that “eat away at the very moral fabric of the foundation of our country.” He’s also been charged for bankrolling a 2020 election fraud scheme.
Experts noted after Donald Trump won in 2016 that his administration could target the preventive care mandate; while he didn’t do that, he did litter the federal court system with ideologue judges in the mold of O’Connor that have lifetime appointments. O’Connor’s decision comes as we await a ruling from a different Texas judge in a case where anti-abortion groups sued the Food and Drug Administration to revoke approval for a key medication abortion drug.
The Biden administration will likely appeal the Obamacare ruling but, as I wrote last year, the road ahead looks bleak:
Since the case is filed in Texas, an appeal to any verdict would land in the lap of the 5th Circuit Court of Appeals, the same venue that upheld the Texas abortion ban last September. Next stop after that? The 6-3 conservative supermajority Supreme Court which hasn’t considered an Obamacare challenge since Justice Amy Coney Barrett joined. I predict a big ole mess.
We live in the worst timeline.