The Affordable Care Act’s requirement that private health care insurance plans cover preventive services at no cost is in danger of being rescinded.

A senior woman at home receiving health care. (LPETTET / Getty Images)

Earlier this month, a three-judge panel of the New Orleans–based US Court of Appeals for the Fifth Circuit signaled it will affirm a lower-court ruling striking down the Affordable Care Act (ACA)’s requirement that private insurance plans cover preventive services at no cost to patients. Once the Fifth Circuit issues its expected ruling, the Supreme Court will get another chance to strike a grievous blow to the public’s health.

In September 2022, Judge Reed O’Connor of the US District Court in the Northern District of Texas (the court where many anti-ACA rulings originate) declared that the executive branch could not use the US Preventive Services Task Force to determine which services would be covered by the mandate. The 2010 ACA said all services given an “A” or “B” rating by the task force must be covered without co-pays or deductibles. After the ruling, the government appealed to the Fifth Circuit.

The Fifth Circuit (six of whose twenty-six judges were appointed by Donald Trump, and two of whom sat on the panel) is the same court that in 2022 ordered a lower court to review whether the United Airlines requirement that its employees be vaccinated against COVID-19 violated their religious rights. In areas outside health care, the Fifth Circuit, whose judges, like Supreme Court justices, are appointed for life, slapped limits on the authority of federal agencies as diverse as the Securities and Exchange Commission, the Environmental Protection Agency, and the Consumer Financial Protection Bureau.

As lawyer-journalist Jeffrey Toobin recently noted in the New York Review of Books, “The most striking part of the court’s emerging agenda involves the usually staid realm of administrative law, where it is challenging the very structure of American government. The judges of the Fifth Circuit are seeking, it appears, to declare significant parts of the executive branch unconstitutional.”

Verbal Sparring Ignored Health

I listened to the Fifth Circuit oral arguments in Braidwood Management v. Becerra (for more background on this case’s impact on prevention and public health, see my posts here and here). I did not hear a single word about what effect repealing the requirement would have on health — not from the plaintiffs who brought the case, not from the government lawyers who defended the law, not from the judges.

Rather, the anti-prevention arguments and counterarguments turned on whether the Constitution’s appointments clause, which says presidential advisers must be appointed by the president and confirmed by the Senate, govern appointments to the US Preventive Services Task Force.

Braidwood lawyer Jonathan F. Mitchell made the anti-prevention argument. Mitchell is a former Texas solicitor general, a member of the Federalist Society, and recipient in 2022 of more than $400,000 from America First Legal Foundation, a nonprofit advocacy group run by Stephen Miller, who served as the anti-immigration czar during Donald Trump’s administration.

To counter, the government’s attorneys argued that because task force members were subordinate or “inferior” advisers appointed by a cabinet secretary, they could serve without confirmation hearings.

If the right-wing arguments prevail, it could call into question the entire structure of the Federal Advisory Committee Act, which governs the appointments and actions of the more than nine hundred committees that provide scientific, technical, and policy advice to virtually every executive branch agency. The Environmental Protection Agency and the Food and Drug Administration, in particular, frequently rely on the deliberations of their advisory committees. Federal Advisory Committee rules include prohibitions on conflicts of interest (with exceptions for necessary expertise), requirements for public meetings and public input, and measures designed to limit bias and protect the integrity of the advice provided to the federal agencies.

The sixteen-member US Preventive Services Task Force, whose delegates are appointed to four-year terms by the Health and Human Services secretary, was created in 1984. The job of this independent, volunteer panel of national experts is to rate the medical value of various clinical prevention services. How well does it work? What harms might occur? When and to whom should it be deployed?

Its findings are published in peer-reviewed journals. The architects of the ACA chose the US Preventive Services Task Force to determine which preventive services would automatically be covered without cost in the belief those choices would be insulated from political pressure or the appearance of political influence.

“That attempt to insulate it from political pressure has become its Achilles’ heel,” said Nicholas Bath, who served on the staff of the Senate Health Committee when the ACA was written and is now a lawyer with Manatt, Phelps & Phillips. He spoke at a recent online forum convened last week by the University of Michigan’s Center for Value-Based Insurance Design. “If they simply declare it unconstitutional, it will allow payers to do what they will.”

Anand Parekh, a physician who specializes in prevention and runs the health policy shop at the Bipartisan Policy Center think tank in Washington, warned that some employers and their insurers (or third-party administrators if they are self-insured) would begin setting their own rules, even though most employers who buy health insurance support the mandate. “They continue to advocate and support these services and people obtaining them without cost sharing,” he said.

“But if this goes away, you could lose that uniformity,” he said. “There would be a lot of people who might not be able to access these services without cost sharing again. We could go back to the days when a doctor recommends that it’s important to get a colorectal cancer screening, but the response may be, ‘I don’t have the $500 to pay for that.’”

ACA Spurred Growth in Prevention Services

In the fourteen years since the ACA passed, use of preventive services has grown due to the elimination of co-pays. About 75 percent of all adults now undergo routine cardiovascular screening. Cancer screening (all types) now reaches 60 to 70 percent of the adult population.

But prevention still lags in many areas. For instance, only 30 to 40 percent of people are screened for substance abuse and mental health conditions, Parekh said.

“There has been a spillover effect from the politicization of the COVID vaccine,” said Parekh. “We really don’t do as well as we need to.”

Bath said that if the Fifth Circuit and Supreme Court rule as expected, it will require an act of Congress to correct the situation. He’s hopeful.

“Bipartisan support is possible,” he said. “There is the obvious health-enhancing effect. People like it. And people don’t like it when you take away something they have, in health care especially. There is lack of concentrated opposition, the lawsuit notwithstanding. There is no loud lobbying coalition against prevention.”

A legislative fix could take two paths. It could codify that the US Preventive Services Task Force is merely advisory and empower the Health and Human Services secretary to make the decision as to what services are covered. Or a clarifying law could subject task force members to the presidential appointment and Senate confirmation process.

“That would flip the intention of the original law on its head,” Bath said. But “it would make the process more politically accountable. Sure, it opens it to political pressure, but it also opens the process to transparency and political accountability.”

However, those assumptions hold only if we have a Congress interested in holding meaningful confirmation hearings and a Health and Human Services secretary interested in making science-based medical decisions. What prevention services would be covered if Stephen Miller, the bigot behind the America First Legal Foundation, once again sits at the right hand of the president and has the power to give orders to Health and Human Services?

The America First Legal Foundation described its case on its website this way:

The Affordable Care Act empowers the “US Preventive Services Task Force,” the “Advisory Committee on Immunization Practices,” and the “Health Resources and Services Administration” to unilaterally decide the “preventive care” coverage that Americans must pay for in their health-insurance plans. Among other things, these bureaucrats decided that every private health-insurance plan must cover FDA-approved contraceptive methods and HIV “pre-exposure” drugs (PREP) without any cost-sharing arrangements such as copays or deductibles, regardless of whether a beneficiary wants or needs such coverage.

So under a Trump/Miller government, no guaranteed insurance coverage for PREP; no guaranteed coverage without co-pays for contraception.

The growing right-wing attack on the administrative state in the name of “freedom” is duplicitous. They don’t plan to get rid of the bureaucrats. They intend to ignore science and use the power of the administrative state to impose their own religion-based ideology on the American people.

That will not only worsen the health of the American people, it will cost the health care system dearly, because in the long run, as even a grade-school child knows, an ounce of prevention is worth a pound of cure.

You can subscribe to David Sirota’s investigative journalism project, the Lever, here.

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