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ACA’s Preventative Care Requirement Under New Attack

Plaintiffs in an Affordable Care Act lawsuit are now arguing to a federal judge that he toss all parts of the law requiring coverage of preventive health services. Late Monday Oct. 24, plaintiffs filed a supplemental brief in the closely watched case of Kelley and Braidwood Management v. Becerra now asking U.S. District Court Judge Reed O'Connor of the Northern District of Texas to rule that under the ACA, insurers cannot be required to cover ANY preventive services at no cost to patients.


Judge O'Connor ruled on Sept. 7, 2022, that the federal government cannot require a Christian-owned company to cover HIV preventive treatments to which they raised religious objections under the Religious Freedom Restoration Act, a federal law that according to the court, "ensures that interests in religious freedom are protected."


In September, the Court further decided that the U.S. Preventive Services Task Force was unconstitutional and that its A and B recommendations were invalid because task force members are "unconstitutionally appointed," questioning whether their recommendations can be considered requirements under law.


The U.S. government, which is defending the law, has 30 days to file a response to the new brief.


If Judge O'Connor sides with plaintiffs, millions of Americans could lose coverage for cancer screenings, behavioral counseling and other recommendations made by the U.S. Preventive Services Task Force. The services are now covered without cost-sharing for 167.5 million Americans in ACA-compliant private health plans, per a July 2022 analysis from the Urban Institute. Without the preventive services requirement, health plans and employers can pick and choose which preventive services they cover. They can also impose cost-sharing, meaning patients could first have to meet a deductible before the benefit kicks in.


Based on the schedule ordered by the federal district court, an opinion from the judge could come at some point early next year. Legal experts familiar with Judge O'Connor's jurisprudence expect him to rule in favor of the plaintiffs. The same judge ruled in 2018 that the ACA was unconstitutional. Regardless of what Judge O'Connor decides in this case, the ruling will likely be appealed to the U.S. Court of Appeals for the Fifth Circuit, the appellate court with federal jurisdiction over Texas, followed by a potential appeal to the U.S. Supreme Court.

Last Reviewed: November 2022