tag:theconversation.com,2011:/us/topics/judge-reed-oconnor-64056/articlesJudge Reed O'Connor – The Conversation2023-04-07T13:48:03Ztag:theconversation.com,2011:article/2030372023-04-07T13:48:03Z2023-04-07T13:48:03ZMillions of Americans at risk of losing free preventive care after Texas ruling on ACA<figure><img src="https://images.theconversation.com/files/519403/original/file-20230404-473-pq24if.jpg?ixlib=rb-1.1.0&rect=19%2C0%2C2121%2C1406&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Raising the cost barriers for health care will harm the most vulnerable patients.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/mother-talking-with-daughter-while-male-doctor-royalty-free-image/1321467310">Maskot via Getty Images</a></span></figcaption></figure><p>Many Americans breathed a sigh of relief when the Supreme Court left the Affordable Care Act in place following the law’s <a href="https://www.supremecourt.gov/opinions/20pdf/19-840_6jfm.pdf">third major legal challenge</a> in June 2021. This decision left <a href="https://source.wustl.edu/2017/02/americans-divided-on-obamacare-repeal-poll-finds/">widely supported policies</a> in place, like ensuring coverage <a href="https://www.healthcare.gov/coverage/pre-existing-conditions/">regardless of preexisting conditions</a>, granting coverage for <a href="https://www.healthcare.gov/young-adults/children-under-26/">dependents up to age 26</a> on their parents’ plan and removing <a href="https://www.healthcare.gov/health-care-law-protections/lifetime-and-yearly-limits/">annual and lifetime benefit limits</a>.</p>
<p>But now, millions of people in the U.S. are holding their breath again <a href="https://storage.courtlistener.com/recap/gov.uscourts.txnd.330381/gov.uscourts.txnd.330381.114.0_1.pdf">following a March 30, 2023 ruling</a> in Braidwood v. Becerra that would <a href="https://www.healthaffairs.org/content/forefront/texas-judge-just-invalidated-preventive-services-mandate-happens-next">eliminate free coverage</a> for many basic preventive care services and medications.</p>
<h2>Litigating preventive care</h2>
<p><a href="https://www.law.cornell.edu/cfr/text/29/2590.715-2713">Section 2713</a> of the ACA requires insurers to offer <a href="https://www.healthcare.gov/coverage/preventive-care-benefits/">full coverage of preventive services</a> endorsed by one of three federal groups: the U.S. Preventive Services Task Force, the Advisory Committee on Immunization Practices or the Health Resources and Services Administration. If one of those groups recommends a preventive care service as essential to good health outcomes, then you shouldn’t have to pay anything out of pocket. For example, <a href="https://www.congress.gov/bill/116th-congress/house-bill/748/">the CARES Act</a>, which allocated emergency funding in response to the COVID-19 pandemic, used this provision to ensure COVID-19 vaccines would be free for many Americans.</p>
<p>Immunizations, including COVID-19 vaccines, require a recommendation from the <a href="https://www.cdc.gov/vaccines/acip/index.html">Advisory Committee on Immunization Practices</a> of the Centers for Disease Control and Prevention, while women’s health services require approval from the <a href="https://www.hrsa.gov/womens-guidelines/index.html">Health Resources and Services Administration</a>. Most other preventive services require an A or B rating from the <a href="https://uspreventiveservicestaskforce.org/uspstf/home">U.S. Preventive Services Task Force</a>, an independent body of experts trained in research methods, statistics and medicine, and supported by the <a href="https://www.ahrq.gov/cpi/about/otherwebsites/uspstf/index.html">Agency for Healthcare Research and Quality</a>.</p>
<p>The lead plaintiff in the ACA case, <a href="https://khn.org/news/article/braidwood-becerra-aca-preventive-services-court-decision-reed-oconnor/">Braidwood Management</a>, is a Christian for-profit corporation owned by Steven Hotze, a physician and conservative activist who has <a href="https://www.texastribune.org/2013/05/15/republican-donor-releases-songs-opposing-obamacare/">previously filed</a> multiple lawsuits against the Affordable Care Act. Braidwood and its co-plaintiffs, a group of conservative Christian employers, objected to being forced to provide their 70 employees free access to pre-exposure prophylaxis, or PrEP, a medicine that is <a href="https://www.cdc.gov/hiv/basics/prep/prep-effectiveness.html">nearly 100% effective</a> in preventing HIV infection. Hotze claimed that PrEP “facilitates and encourages homosexual behavior, intravenous drug use and sexual activity outside of marriage between one man and one woman,” despite a lack of evidence to support this. He also claimed that his religious beliefs prevent him from providing insurance that covers PrEP.</p>
<p>PrEP received an <a href="https://www.uspreventiveservicestaskforce.org/uspstf/recommendation/prevention-of-human-immunodeficiency-virus-hiv-infection-pre-exposure-prophylaxis">A rating</a> from the U.S. Preventive Services Task Force in June 2019, paving the way for it to be covered at no cost for millions of people. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/434528/original/file-20211129-19-1jm1jvh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Red ribbon hanging from the North Portico of the White House" src="https://images.theconversation.com/files/434528/original/file-20211129-19-1jm1jvh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/434528/original/file-20211129-19-1jm1jvh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=408&fit=crop&dpr=1 600w, https://images.theconversation.com/files/434528/original/file-20211129-19-1jm1jvh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=408&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/434528/original/file-20211129-19-1jm1jvh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=408&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/434528/original/file-20211129-19-1jm1jvh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=512&fit=crop&dpr=1 754w, https://images.theconversation.com/files/434528/original/file-20211129-19-1jm1jvh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=512&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/434528/original/file-20211129-19-1jm1jvh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=512&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">PrEP is a key tool to helping the U.S. reach its goal of substantially reducing new HIV infections by 2030.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/ObamaWorldAidsDay/c146dee7e944420482f3e5786d4d2e50">AP Photo/Pablo Martinez Monsivais</a></span>
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<p>Though Section 2713 of the ACA <a href="https://doi.org/10.1016/j.ypmed.2021.106690">doesn’t work perfectly</a>, sometimes leaving patients frustrated by <a href="https://www.washingtonpost.com/national/health-science/getting-charged-for-free-preventive-care/2014/01/17/98fbd1fa-7ec2-11e3-95c6-0a7aa80874bc_story.html">unexpected bills</a>, it has made a huge difference in reducing costs for services like <a href="https://doi.org/10.1001/jamanetworkopen.2021.1248">well-child visits</a> and <a href="https://doi.org/10.1097/MLR.0000000000000610">mammograms</a>, just to name a few.</p>
<p><a href="https://aspe.hhs.gov/sites/default/files/documents/786fa55a84e7e3833961933124d70dd2/preventive-services-ib-2022.pdf">Over 150 million Americans</a> are enrolled in private health insurance, allowing them to benefit from free preventive care, with <a href="https://www.healthsystemtracker.org/brief/preventive-services-use-among-people-with-private-insurance-coverage/">about 60%</a> using at least one free preventive service each year. Raising the cost barrier again for PrEP, for example, would <a href="https://doi.org/10.1001/jamanetworkopen.2021.22692">disproportionately harm</a> younger patients, people of color and those with lower incomes.</p>
<p>As public health researchers at <a href="https://www.bu.edu/sph/profile/paul-shafer/">Boston University</a> and <a href="https://sph.tulane.edu/sbps/kristefer-stojanovski-phd-mph">Tulane University</a> who study <a href="https://scholar.google.com/citations?user=bDT820kAAAAJ&hl=en">health insurance</a> and <a href="https://www.researchgate.net/profile/Kristefer-Stojanovski-2">sexual health</a>, we believe that prevention and health equity in the U.S. stand to take a big step backward with this policy in jeopardy.</p>
<h2>What preventive services are affected?</h2>
<p>The ruling in Braidwood rests in large part on the <a href="https://www.law.cornell.edu/constitution/articleii">appointments clause</a> of the U.S. Constitution, which specifies that certain governmental positions require presidential appointment and Senate confirmation, while other positions have a lower bar. </p>
<p>Texas federal <a href="https://www.healthaffairs.org/content/forefront/texas-judge-just-invalidated-preventive-services-mandate-happens-next">District Judge Reed O'Connor ruled</a> that because the U.S. Preventive Services Task Force is an independent volunteer panel and not made up of officers of the U.S. government, they do not have the appropriate authority to make decisions about which preventive care should be free, unlike the Advisory Committee on Immunization Practices or Health Resources and Services Administration. O'Connor also ruled that being forced to cover PrEP violated the religious freedom of the plaintiffs.</p>
<p>Following his initial ruling in September, both sides submitted briefs that tried to inform the “remedy,” or solution, the judge would ultimately recommend. He could have chosen, as the <a href="https://storage.courtlistener.com/recap/gov.uscourts.txnd.330381/gov.uscourts.txnd.330381.112.0_3.pdf">federal government advocated</a>, to grant only the plaintiffs an exemption from covering PrEP under the Religious Freedom Restoration Act. But O'Connor instead chose to make his “remedy” apply nationally and cover more services.</p>
<p>He invalidated all of the task force’s recommendations since the Affordable Care Act was passed in March 2010, returning the power to insurers and employers to decide which, if any, preventive care would remain free to patients in their plans. A few of the <a href="https://www.bloomberg.com/opinion/articles/2023-04-01/braidwood-ruling-further-weakens-aca-on-prep-drugs-preventive-care">recommendations covered by his ruling</a> include PrEP; blood pressure, diabetes, lung and skin cancer screenings; and medications to lower cholesterol and reduce breast cancer risk. As of 2022, <a href="https://www.commonwealthfund.org/blog/2022/aca-preventive-services-benefit-jeopardy-what-can-states-do">15 states</a> have laws with ACA-like requirements for plans in the insurance marketplace, but not for large employer plans generally <a href="https://blog.petrieflom.law.harvard.edu/2023/04/03/three-reactions-to-braidwood-v-becerra/">exempt from state oversight</a>.</p>
<p>Insurance contracts are typically defined by calendar year, so most people will <a href="https://www.kff.org/policy-watch/qa-implications-of-the-ruling-on-the-acas-preventive-services-requirement/">see these changes</a> starting only in 2024. Importantly, these services will likely still need to be covered by health insurance plans as <a href="https://www.law.cornell.edu/uscode/text/42/18022">essential health benefits</a> through a separate provision of the ACA – they just won’t be free anymore. </p>
<p>Other U.S. Preventive Services Task Force recommendations and those made by the Advisory Committee on Immunization Practices or Health Resources and Services Administration – namely, immunizations and contraception, respectively – will remain free to patients <a href="https://www.kff.org/womens-health-policy/issue-brief/explaining-litigation-challenging-the-acas-preventive-services-requirements-braidwood-management-inc-v-becerra/">for now</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/419002/original/file-20210902-19-azgfs0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Demonstrator holds a sign saying 'Save the ACA' in front of the U.S. Supreme Court." src="https://images.theconversation.com/files/419002/original/file-20210902-19-azgfs0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/419002/original/file-20210902-19-azgfs0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/419002/original/file-20210902-19-azgfs0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/419002/original/file-20210902-19-azgfs0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/419002/original/file-20210902-19-azgfs0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/419002/original/file-20210902-19-azgfs0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/419002/original/file-20210902-19-azgfs0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">The Affordable Care Act has faced many legal challenges over the years.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtHealthCare/af7a18ea1fc84b39af301fa84aec0672">AP Photo/Alex Brandon</a></span>
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<h2>What’s next?</h2>
<p>The <a href="https://storage.courtlistener.com/recap/gov.uscourts.txnd.330381/gov.uscourts.txnd.330381.115.0.pdf">federal government appealed</a> the ruling to the 5th U.S. Circuit Court of Appeals on March 31, 2023, buoyed by a <a href="https://newsroom.heart.org/news/23-national-health-organizations-respond-to-braidwood-v-becerra-ruling-that-threatens-no-cost-preventive-care">coordinated response</a> from 23 patient advocacy groups. They have asked for a stay while the case continues, which pauses the effects of the ruling. If either O'Connor or a higher court grants their request, it will leave the status quo of free preventive care in place. </p>
<p>But there are also concerns that either the 5th Circuit orthe Supreme Court could take the ruling even further, endangering the free coverage of contraception and other preventive care that remains in place. </p>
<p>The ending to this case may still be several years off, with <a href="https://news.yahoo.com/americans-surprise-medical-bills-health-care-loopholes-131630868.html">even more frustration</a> ahead as the courts undermine national goals in <a href="https://www.whitehouse.gov/cancermoonshot/">fighting cancer</a>, <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2022/10/31/a-proclamation-on-national-diabetes-month-2022/">diabetes</a> and <a href="https://www.cdc.gov/endhiv/index.html">ending the HIV epidemic</a>.</p>
<p><em>Portions of this article originally appeared in previous articles published on <a href="https://theconversation.com/the-next-attack-on-the-affordable-care-act-may-cost-you-free-preventive-health-care-166087">Sept. 7, 2021</a>, <a href="https://theconversation.com/hiv-prevention-pill-prep-is-now-free-under-most-insurance-plans-but-the-latest-challenge-to-the-affordable-care-act-puts-this-benefit-at-risk-171086">Dec. 1, 2021</a>, and <a href="https://theconversation.com/free-preventive-care-under-the-aca-is-under-threat-again-a-ruling-exempting-prep-from-insurance-coverage-may-extend-nationwide-and-to-other-health-services-190317">Sept. 13, 2022</a>.</em></p><img src="https://counter.theconversation.com/content/203037/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Paul Shafer has received funding in the past three years from the Commonwealth Fund, Arnold Ventures, Robert Wood Johnson Foundation, Kate B. Reynolds Charitable Trust, Starbucks Coffee Company, and Renova Health.</span></em></p><p class="fine-print"><em><span>Kristefer Stojanovski does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>On the basis of government appointment technicalities and religious freedom, Americans may lose free coverage for cancer and blood pressure screenings, HIV prevention medication and other essential services.Paul Shafer, Assistant Professor of Health Law, Policy and Management, Boston UniversityKristefer Stojanovski, Research Assistant Professor of Social, Behavioral and Population Sciences, Tulane UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1903172022-09-13T12:33:27Z2022-09-13T12:33:27ZFree preventive care under the ACA is under threat again – a ruling exempting PrEP from insurance coverage may extend nationwide and to other health services<figure><img src="https://images.theconversation.com/files/484101/original/file-20220912-5769-hqsuwm.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C1024%2C683&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">PrEP is almost 100% effective in preventing HIV infection when taken as directed.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/thembelani-sibanda-shows-the-pre-exposure-prophylaxis-an-news-photo/888296568">The Times/Gallo Images via Getty Images Editorial</a></span></figcaption></figure><p>Many Americans breathed a sigh of relief when the Supreme Court left the Affordable Care Act in place following the law’s <a href="https://www.supremecourt.gov/opinions/20pdf/19-840_6jfm.pdf">third major legal challenge</a> in June 2021. This decision left <a href="https://source.wustl.edu/2017/02/americans-divided-on-obamacare-repeal-poll-finds/">widely supported policies</a> in place, like ensuring coverage <a href="https://www.healthcare.gov/coverage/pre-existing-conditions/">regardless of preexisting conditions</a>, coverage for <a href="https://www.healthcare.gov/young-adults/children-under-26/">dependents up to age 26</a> on their parents’ plan, and removal of <a href="https://www.healthcare.gov/health-care-law-protections/lifetime-and-yearly-limits/">annual and lifetime benefit limits</a>.</p>
<p>But the hits keep coming. One of the most popular benefits offered by the ACA, <a href="https://www.kff.org/health-reform/fact-sheet/preventive-services-covered-by-private-health-plans/">free preventive care</a>, is under legal threat again by <a href="https://www.vox.com/policy-and-politics/2022/9/7/23341076/obamacare-reed-oconnor-prep-supreme-court-braidwood-becerra-affordable-care-act">Braidwood Management v. Becerra</a> – originally Kelley v. Becerra. The Braidwood plaintiffs are a mix of individuals and business owners who object to purchasing insurance that covers preexposure prophylaxis – or PrEP – a medicine that is <a href="https://www.cdc.gov/hiv/basics/prep/prep-effectiveness.html">almost 100% effective</a> in preventing HIV infection. One of the plaintiffs claimed that PrEP “facilitates and encourages homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman” and that his religious beliefs prevent him from providing insurance that covers PrEP.</p>
<p>On Sep. 7, 2022, Texas Judge Reed O’Connor issued a <a href="https://affordablecareactlitigation.files.wordpress.com/2022/09/gov.uscourts.txnd_.330381.92.0_1.pdf">ruling</a> that the requirement for insurance plans to cover PrEP violated the religious freedom of the plaintiffs. He also ruled that the ACA overstepped in delegating decisions about cost-sharing for preventive care to the U.S. Preventive Services Task Force. Who this ruling will ultimately affect and whether it will eventually get rid of the requirement to fully cover other preventive care, like free flu shots and cancer screening, has <a href="https://www.healthaffairs.org/content/forefront/court-holds-key-aca-preventive-services-requirements-unconstitutional">yet to be confirmed</a>.</p>
<p>We are public health researchers at <a href="https://www.bu.edu/sph/profile/paul-shafer/">Boston University</a> and <a href="https://sph.tulane.edu/sbps/kristefer-stojanovski-phd-mph">Tulane University</a> who study health insurance, prevention and sexual health. With this policy now in jeopardy, prevention and the push for health equity in the U.S. stand to take a big step backward.</p>
<h2>The ACA and preventive care</h2>
<p><a href="https://www.law.cornell.edu/cfr/text/29/2590.715-2713">Section 2713</a> of the ACA requires insurers to offer <a href="https://www.healthcare.gov/coverage/preventive-care-benefits/">full coverage of preventive services</a> that are endorsed by one of three federal groups: the U.S. Preventive Services Task Force (with an A or B rating), the Advisory Committee on Immunization Practices and the Health Resources and Services Administration. If they recommend the procedure or intervention as important preventive care, then you shouldn’t have to pay anything out of pocket. For example, <a href="https://www.congress.gov/bill/116th-congress/house-bill/748/">the CARES Act</a> used this provision to ensure COVID-19 vaccines would be free for many Americans.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/418993/original/file-20210901-13-wnh1xo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Healthcare provider examining child in exam room." src="https://images.theconversation.com/files/418993/original/file-20210901-13-wnh1xo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/418993/original/file-20210901-13-wnh1xo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/418993/original/file-20210901-13-wnh1xo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/418993/original/file-20210901-13-wnh1xo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/418993/original/file-20210901-13-wnh1xo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/418993/original/file-20210901-13-wnh1xo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/418993/original/file-20210901-13-wnh1xo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Affordable Care Act significantly reduced the costs of well-child visits since it was instated.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/girl-having-checkup-in-doctors-office-royalty-free-image/153337724">John Fedele/The Image Bank via Getty Images</a></span>
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<p>PrEP received an <a href="https://www.uspreventiveservicestaskforce.org/uspstf/recommendation/prevention-of-human-immunodeficiency-virus-hiv-infection-pre-exposure-prophylaxis">A rating</a> in June 2019, paving the way for both PrEP and related services like clinic visits and lab tests to be covered at no cost for millions of people. </p>
<p>Though Section 2713 of the ACA <a href="https://doi.org/10.1016/j.ypmed.2021.106690">doesn’t work perfectly</a>, sometimes leaving patients frustrated by <a href="https://www.washingtonpost.com/national/health-science/getting-charged-for-free-preventive-care/2014/01/17/98fbd1fa-7ec2-11e3-95c6-0a7aa80874bc_story.html">unexpected bills</a>, it has made a huge difference in reducing costs for services like <a href="https://doi.org/10.1001/jamanetworkopen.2021.1248">well-child visits</a> and <a href="https://doi.org/10.1097/MLR.0000000000000610">mammograms</a>, just to name a few.</p>
<h2>The legal arguments</h2>
<p>The latest case rested on <a href="https://theconversation.com/the-next-attack-on-the-affordable-care-act-may-cost-you-free-preventive-health-care-166087">legal technicalities</a> that have nothing to do with PrEP, but rather whether the U.S. Preventive Services Task Force can wield the authority granted to them by the ACA, and whether the religious freedom of the plaintiffs was violated.</p>
<p>O’Connor <a href="https://www.healthaffairs.org/content/forefront/court-holds-key-aca-preventive-services-requirements-unconstitutional">agreed</a> that allowing the U.S. Preventive Services Task Force this authority violated the <a href="https://www.law.cornell.edu/constitution/articleii">appointments clause</a> of the Constitution, which specifies that people using government powers must be “officers of the United States.” In this case, O'Connor ruled that U.S. Preventive Services Task Force members do qualify as officers, but their appointment is unconstitutional because they are not appointed by the President and confirmed by the Senate.</p>
<p>This paves the way for the repeal of Section 2713 and allowing insurers to decide what, if any, preventive care would remain free to patients in their plans. He also argued that because the ACA “force[s] Braidwood to [cover] services to which it holds sincere religious objections … offering coverage is itself a tacit endorsement of the behaviors that [the plaintiff] believes the services encourage.”</p>
<h2>Losing access to preventive care</h2>
<p>PrEP is a major component of the prevention pillar of the United States’ “<a href="https://www.cdc.gov/endhiv/about.html">Ending the HIV Epidemic</a>” initiative and has <a href="https://www.aidsmap.com/news/sep-2019/prep-reducing-hiv-diagnoses-us-cities-independently-effect-treatment">successfully reduced HIV diagnosis rates</a> in areas where it is highly used. If this ruling were to extend nationally, over <a href="https://dx.doi.org/10.1016%2Fj.annepidem.2018.06.009">170,000 current PrEP users</a> and <a href="https://doi.org/10.1016/j.annepidem.2018.05.003">over 1 million people</a> who can benefit from this medicine could be affected.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/434528/original/file-20211129-19-1jm1jvh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Red ribbon hanging from the North Portico of the White House" src="https://images.theconversation.com/files/434528/original/file-20211129-19-1jm1jvh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/434528/original/file-20211129-19-1jm1jvh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=408&fit=crop&dpr=1 600w, https://images.theconversation.com/files/434528/original/file-20211129-19-1jm1jvh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=408&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/434528/original/file-20211129-19-1jm1jvh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=408&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/434528/original/file-20211129-19-1jm1jvh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=512&fit=crop&dpr=1 754w, https://images.theconversation.com/files/434528/original/file-20211129-19-1jm1jvh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=512&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/434528/original/file-20211129-19-1jm1jvh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=512&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">PrEP is a key tool to helping the U.S. reach its goal of substantially reducing new HIV infections by 2030.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/ObamaWorldAidsDay/c146dee7e944420482f3e5786d4d2e50">AP Photo/Pablo Martinez Monsivais</a></span>
</figcaption>
</figure>
<p>Removing the cost barrier to PrEP made it more accessible with commercial insurance, the primary source of health coverage for <a href="https://www.cdc.gov/nchs/data/nhis/earlyrelease/insur202108-508.pdf">over two-thirds of the population</a> under age 65. Raising the cost barrier again would <a href="https://doi.org/10.1001/jamanetworkopen.2021.22692">disproportionately harm</a> younger patients, people of color and those with lower incomes. Black men who have sex with men could be particularly affected because of the structural barriers they face, despite having <a href="https://doi.org/10.1016/S0140-6736(12)60899-X">no more “risky” sexual behavior</a> on average than other men who have sex with men.</p>
<h2>What’s next?</h2>
<p>For now, the religious freedom portion of the ruling is specific to PrEP and Braidwood Management’s purchase of plans that cover PrEP. It is unclear whether the order will apply only to these plaintiffs or nationwide. </p>
<p>The next filings, where both sides will begin to provide more information on how they believe the ruling should be applied, are due by <a href="https://storage.courtlistener.com/recap/gov.uscourts.txnd.330381/gov.uscourts.txnd.330381.94.0_1.pdf">Sept. 16, 2022</a>. As of yet, there is no timeline for a concrete decision.</p>
<p>For the time being, access to PrEP, contraception, cancer screenings and all other forms of preventive care made free by the ACA continue to be available. Regardless of O’Connor’s final decision, this case seems likely to be appealed to the Supreme Court, where another showdown over the fate of a substantial part of the ACA will be decided.</p>
<p><em>Portions of this article originally appeared in previous articles published on <a href="https://theconversation.com/the-next-attack-on-the-affordable-care-act-may-cost-you-free-preventive-health-care-166087">Sep. 7, 2021</a> and <a href="https://theconversation.com/hiv-prevention-pill-prep-is-now-free-under-most-insurance-plans-but-the-latest-challenge-to-the-affordable-care-act-puts-this-benefit-at-risk-171086">Dec. 1, 2021</a>.</em></p><img src="https://counter.theconversation.com/content/190317/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Paul Shafer has received funding in the past three years from the Commonwealth Fund, Arnold Ventures, Robert Wood Johnson Foundation, Kate B. Reynolds Charitable Trust, Starbucks Coffee Company, and Renova Health.</span></em></p><p class="fine-print"><em><span>Kristefer Stojanovski has received funding in the past from the Robert Wood Johnson Foundation, the National Institute of Minority Health & Health Disparities, the National Institute of Mental Health, and the Fulbright Program</span></em></p>Judge Reed O'Connor ruled in a case that coverage for HIV prevention medicine PrEP violated the religious freedom of the plaintiffs. It is unclear whether the order will extend nationwide.Paul Shafer, Assistant Professor of Health Law, Policy and Management, Boston UniversityKristefer Stojanovski, Research Assistant Professor of Social, Behavioral and Population Sciences, Tulane UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1660872021-09-07T12:48:49Z2021-09-07T12:48:49ZThe next attack on the Affordable Care Act may cost you free preventive health care<figure><img src="https://images.theconversation.com/files/419146/original/file-20210902-23-1rk6juj.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C1998%2C1488&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A provision of the Affordable Care Act makes it easier for patients to receive preventive care.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/doctor-listening-to-heartbeat-of-patient-royalty-free-image/633707477">Jose Luis Pelaez Inc/Digital Vision via Getty Images</a></span></figcaption></figure><p>Many Americans breathed a sigh of relief when the Supreme Court left the Affordable Care Act (ACA) in place following its <a href="https://www.supremecourt.gov/opinions/20pdf/19-840_6jfm.pdf">third major legal challenge</a> in June 2021. This decision left <a href="https://source.wustl.edu/2017/02/americans-divided-on-obamacare-repeal-poll-finds/">widely supported policies</a> in place, like ensuring coverage <a href="https://www.healthcare.gov/coverage/pre-existing-conditions/">regardless of preexisting conditions</a>, coverage for <a href="https://www.healthcare.gov/young-adults/children-under-26/">dependents up to age 26</a> on their parents’ plan and removal of <a href="https://www.healthcare.gov/health-care-law-protections/lifetime-and-yearly-limits/">annual and lifetime benefit limits</a>.</p>
<p>But the hits keep coming. One of the most popular benefits offered by the ACA, <a href="https://www.kff.org/health-reform/fact-sheet/preventive-services-covered-by-private-health-plans/">free preventive care</a> through many employer-based and marketplace insurance plans, is under attack by another legal domino, <a href="https://www.vox.com/2021/4/2/22360341/obamacare-lawsuit-supreme-court-little-sisters-kelley-becerra-reed-oconnor-nondelegation">Kelley v. Becerra</a>. As University of Michigan law professor Nicholas Bagley sees it, “[t]his time, the law’s opponents <a href="https://www.theatlantic.com/ideas/archive/2021/06/next-major-challenge-affordable-care-act/619159/">stand a good chance of succeeding</a>.”</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1405860623372754945"}"></div></p>
<p>We are <a href="https://scholar.google.com/citations?user=bDT820kAAAAJ&hl=en">public health</a> and <a href="https://scholar.google.com/citations?user=Ks-_ZlIAAAAJ&hl=en">economics</a> researchers at Boston University who have been studying how preventive care is covered by the ACA and what this means for patients. With this policy now in jeopardy, health care in the U.S. stands to take a big step backward. </p>
<h2>What did the ACA do for preventive health?</h2>
<p>The Affordable Care Act tried to achieve the twin ideals of <a href="https://www.healthcare.gov/glossary/affordable-care-act/">making health care more accessible while reducing health care spending</a>. It <a href="https://www.healthcare.gov/glossary/marketplace/">created marketplaces</a> for individuals to purchase health insurance and <a href="https://www.healthcare.gov/medicaid-chip/medicaid-expansion-and-you/">expanded Medicaid</a> to increase coverage for more low-income people.</p>
<p>One way it has tried to reach both goals is to prioritize <a href="https://www.kff.org/health-reform/report/preventive-services-tracker/">preventive services</a> that maximize patient health and minimize cost, like cancer screenings, vaccinations and access to contraception. Eliminating financial barriers to health screenings increases the likelihood that common but costly chronic conditions, such as heart disease, will be <a href="https://doi.org/10.1377/hlthaff.2008.0701">diagnosed early on</a>.</p>
<p><a href="https://www.law.cornell.edu/cfr/text/29/2590.715-2713">Section 2713</a> of the ACA requires insurers to offer <a href="https://www.healthcare.gov/coverage/preventive-care-benefits/">full coverage of preventive services</a> that are endorsed by three federal groups: the U.S. Preventive Services Task Force, the Advisory Committee on Immunization Practices and the Health Resources and Services Administration. This means that eligible preventive services ordered by your doctor won’t cost you anything out of pocket. For example, <a href="https://www.congress.gov/bill/116th-congress/house-bill/748/">the CARES Act</a> used this provision to ensure COVID-19 vaccines would be free for many Americans.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/418993/original/file-20210901-13-wnh1xo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Healthcare provider examining child in exam room." src="https://images.theconversation.com/files/418993/original/file-20210901-13-wnh1xo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/418993/original/file-20210901-13-wnh1xo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/418993/original/file-20210901-13-wnh1xo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/418993/original/file-20210901-13-wnh1xo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/418993/original/file-20210901-13-wnh1xo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/418993/original/file-20210901-13-wnh1xo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/418993/original/file-20210901-13-wnh1xo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Affordable Care Act significantly reduced the costs of well-child visits since it was instated.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/girl-having-checkup-in-doctors-office-royalty-free-image/153337724">John Fedele/The Image Bank via Getty Images</a></span>
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<p>Removing the financial barrier has drastically reduced the average cost of a range of preventive services. Our study found that the costs of <a href="https://doi.org/10.1001/jamanetworkopen.2021.1248">well-child visits</a> and <a href="https://doi.org/10.1097/MLR.0000000000000610">mammograms</a> were reduced by 56% and 74%, respectively, from 2006 to 2018. We also found that the ACA reduced the share of children’s preventive checkups that included out-of-pocket costs <a href="https://doi.org/10.1001/jamanetworkopen.2021.1248">from over 50% in 2010 to under 15% in 2018</a>. </p>
<h2>Residual costs for preventive services remain</h2>
<p>Despite these reductions in costs, there are limitations to this benefit. For example, it <a href="https://www.carecredit.com/well-u/health-wellness/what-is-covered-in-preventive-care-what-isnt/">doesn’t cover follow-up tests or treatments</a>. This means that if a routine mammogram or colonoscopy reveals something that requires further care, patients may have to pay for the initial screening test, too. And some patients still <a href="https://www.washingtonpost.com/national/health-science/getting-charged-for-free-preventive-care/2014/01/17/98fbd1fa-7ec2-11e3-95c6-0a7aa80874bc_story.html">receive unexpected bills</a> for preventive care that should have been covered. This can happen, for example, when providers submit incorrect billing codes to insurers, which have <a href="https://www.consumerreports.org/health-insurance/what-to-do-when-your-insurer-wont-cover-free-preventive-care/">specific and often idiosyncratic preventive care guidelines</a>. </p>
<p>We also studied the <a href="https://doi.org/10.1016/j.ypmed.2021.106690">residual out-of-pocket costs</a> that privately insured Americans had after using eligible preventive services in 2018. We found that these patients paid between $75 million to $219 million per year combined for services that should have been free for them. Unexpected preventive care bills were most likely to hit patients living in rural areas or the South, as well as those seeking women’s services such as contraception and other reproductive health care. Among patients attempting to get a free wellness visit from their doctor, nearly 1 in 5 were later asked to pay for it.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/418998/original/file-20210901-17-1llknsw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Medical bills stacked on top of each other with a credit card nestled between forms." src="https://images.theconversation.com/files/418998/original/file-20210901-17-1llknsw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/418998/original/file-20210901-17-1llknsw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/418998/original/file-20210901-17-1llknsw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/418998/original/file-20210901-17-1llknsw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/418998/original/file-20210901-17-1llknsw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/418998/original/file-20210901-17-1llknsw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/418998/original/file-20210901-17-1llknsw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Lack of standardized billing and policy compliance has led to unexpected bills.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/medical-bills-royalty-free-image/184284259">DNY59/E+ via Getty Images</a></span>
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<p>Nevertheless, the preventive health provision of the ACA has resulted in <a href="https://doi.org/10.1001/jamanetworkopen.2021.1248">significant reductions in patient costs</a> for many essential and popular services. And <a href="https://labblog.uofmhealth.org/industry-dx/what-happens-when-preventive-care-becomes-free-to-patients">removing financial barriers</a> is a key way to encourage patients to use preventive services intended to protect their health.</p>
<h2>The threat of Kelley v. Becerra</h2>
<p>The plaintiffs who brought the <a href="https://khn.org/news/article/lawsuit-targets-health-law-no-charge-coverage-of-preventive-exams-like-mammograms/">latest legal challenge</a> to the ACA, Kelley v. Becerra, object to covering contraception and preexposure prophylaxis (PrEP) for HIV on religious and moral grounds. The case is currently awaiting decision in a district court in Texas, but seems to be headed to the Supreme Court.</p>
<p>The case rests on <a href="https://www.theatlantic.com/ideas/archive/2021/06/next-major-challenge-affordable-care-act/619159/">two legal issues</a>: 1) violation of the nondelegation doctrine, and 2) the appointments clause of the Constitution. The <a href="https://ballotpedia.org/Nondelegation_doctrine">nondelegation doctrine</a> is a rarely used legal argument that requires Congress to specify how their powers should be used. It essentially argues that Congress was too vague by not specifying which preventive services would be included in Section 2713 up front. The <a href="https://constitution.congress.gov/browse/essay/artII_S2_C2_2_1_4/">appointments clause</a> specifies that the people using government powers must be “officers of the United States.” In this case, it is unclear whether those in the federal groups that determine eligible preventive care services qualify.</p>
<p>Texas District Judge Reed O’Connor has indicated so far that he <a href="https://www.latimes.com/business/story/2021-06-21/obamacare-legal-threat-remains">takes a kind view</a> toward the plaintiff’s case. He could rule that this provision of the ACA is unconstitutional and put the case on a path to the Supreme Court. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/419002/original/file-20210902-19-azgfs0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Demonstrator holds a sign saying " src="https://images.theconversation.com/files/419002/original/file-20210902-19-azgfs0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/419002/original/file-20210902-19-azgfs0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/419002/original/file-20210902-19-azgfs0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/419002/original/file-20210902-19-azgfs0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/419002/original/file-20210902-19-azgfs0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/419002/original/file-20210902-19-azgfs0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/419002/original/file-20210902-19-azgfs0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Affordable Care Act has faced many legal challenges over the years.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtHealthCare/af7a18ea1fc84b39af301fa84aec0672">AP Photo/Alex Brandon</a></span>
</figcaption>
</figure>
<h2>Patients stand to lose more than just money</h2>
<p>If Section 2713 were repealed, insurers would have the freedom to reimpose patient cost-sharing for preventive care. In the short run, this could increase the financial strain that patients face when seeking preventive care and discourage them from doing so. In the long run, this could result in increased rates of preventable and expensive-to-treat chronic conditions. And because Section 2713 is what allows free COVID-19 vaccines for those with private health insurance, some patients <a href="https://acasignups.net/21/06/20/updated-well-was-fun-while-it-lasted-next-big-aca-lawsuit-coming-down-pike">may have to pay</a> for their vaccines and future boosters if the provision is axed.</p>
<p>[<em>Over 100,000 readers rely on The Conversation’s newsletter to understand the world.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=100Ksignup">Sign up today</a>.]</p>
<p>The ACA has been instrumental in expanding access to preventive care for millions of Americans. While the ACA’s preventive health coverage provision isn’t perfect, a lot of progress that has been made toward lower-cost, higher-value care may be erased if Section 2713 is repealed.</p>
<p><a href="https://labblog.uofmhealth.org/industry-dx/what-happens-when-preventive-care-becomes-free-to-patients">Lower-income patients</a> will stand to lose the most. And it could make ending the COVID-19 pandemic that much harder.</p><img src="https://counter.theconversation.com/content/166087/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Paul Shafer has received funding in the past three years from the Commonwealth Fund, Kate B. Reynolds Charitable Trust, Robert Wood Johnson Foundation, Horowitz Foundation for Social Policy, Starbucks Coffee Company, and Renova Health.</span></em></p><p class="fine-print"><em><span>Alex Hoagland does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Affordable Care Act has allowed many preventive health services, including cancer screenings and vaccines, to be free of charge. But legal challenges may lead to costly repercussions for patients.Paul Shafer, Assistant Professor, Health Law, Policy, and Management, Boston UniversityAlex Hoagland, PhD Candidate in Health Economics, Boston UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1143522019-03-27T10:33:47Z2019-03-27T10:33:47ZDOJ efforts to kill Obamacare, the cat with 9 lives, could cause health care havoc for millions<figure><img src="https://images.theconversation.com/files/266004/original/file-20190326-139374-dd9569.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Speaker of the House Nancy Pelosi, D-Calif., announces legislation at the Capitol on March 26 to lower health care costs and protect people with pre-existing conditions.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump-Health-Care-Act/ee60a8cdd73945aa958c63f8cf988ceb/2/0">J. Scott Applewhite/AP Photo</a></span></figcaption></figure><p>If the Affordable Care Act, or Obamacare, were a cat, it would be just about out of its nine lives. </p>
<p>It is amazing that this law, which represented a sea change in how we provide care to almost everyone in the country, has survived all the challenges so far, including two cases before the Supreme Court and untold efforts by Republicans in Congress to overturn the law. </p>
<p>The move by the Trump administration on Monday, March 25, to basically say that the <a href="https://www.washingtonpost.com/politics/trump-surprises-republicans--and-pleases-democrats--with-push-to-revive-health-care-battle/2019/03/26/068cc2c4-4fd3-11e9-a3f7-78b7525a8d5f_story.html?utm_term=.c78d26f030e0">law should be thrown out</a> entirely, might be the final blow. </p>
<p>Here’s what happened. In December 2018, a <a href="https://theconversation.com/why-the-texas-ruling-on-obamacare-is-on-shaky-legal-ground-108884">federal district judge</a> in Texas ruled that the individual mandate in the ACA, which requires people to buy health insurance or face a penalty, is unconstitutional. Judge Reed O'Connor then stretched to say that the <a href="https://theconversation.com/why-the-texas-ruling-on-obamacare-is-on-shaky-legal-ground-108884">entire law is unconstitutional</a>. Many health policy experts <a href="https://theconversation.com/why-the-texas-ruling-on-obamacare-is-on-shaky-legal-ground-108884">shrugged off the ruling</a> as mere political maneuvering. The next decision is expected to come from a federal appeals court in New Orleans, possibly in the summer.</p>
<p>But the Trump administration tightened its stranglehold on March 25. The <a href="https://www.nytimes.com/2019/03/25/us/politics/obamacare-unconstitutional-trump-aca.html">Department of Justice</a>, which typically defends the law of the land, said it cared nothing about defending this law. In a <a href="https://www.documentcloud.org/documents/5781212-190235-DOJ-ACA-Lawsuit-Letter.html">two-sentence letter</a>, the DOJ said it would not urge “that any portion of the district court’s judgment be reversed.” </p>
<p>As a former CEO of a health insurance company and longtime researcher of this industry, I see trouble ahead not just for individuals but the vast network of companies that are part of the health care economy.</p>
<h2>An expensive system</h2>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/266006/original/file-20190327-139374-o2brri.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/266006/original/file-20190327-139374-o2brri.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/266006/original/file-20190327-139374-o2brri.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/266006/original/file-20190327-139374-o2brri.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/266006/original/file-20190327-139374-o2brri.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/266006/original/file-20190327-139374-o2brri.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/266006/original/file-20190327-139374-o2brri.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Health care spending in the U.S. is higher than in any other country, but millions receive excellent care.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/doctor-discussing-records-senior-female-patient-126687980">Monkey Business Images/Shutterstock.com</a></span>
</figcaption>
</figure>
<p>The U.S. <a href="https://www.modernhealthcare.com/article/20180407/NEWS/180409939/why-does-the-u-s-spend-so-much-more-on-healthcare-it-s-the-prices">spends more on health care</a> than any other country, has more highly paid professionals and better equipped facilities and, for the last few years, almost as much access as our peers. But the constant assault on the ACA has had its effect, especially on self-employed individuals and <a href="https://www.commonwealthfund.org/publications/issue-briefs/2018/oct/affordable-care-act-impact-small-business">small businesses</a>. </p>
<p>Both of these have seen increases in out-of-pocket costs that were completely due to legal and regulatory changes to the original act. It looks to me as if these changes were designed to drive this subgroup of job creators to the poorhouse and into the arms of politicians who never wanted this in the first place and would do whatever it took to eliminate it. </p>
<p>Insurance is all about risk: how to manage and spread it among all the parties so that each one is covered when the need arises. The “affordable” in the ACA was only about the out-of-pocket cost that each party could absorb after paying for essentials. The subsidies the law provided were designed to reduce the premium that competitive insurers had to charge to a net level of no more than 2 percent of disposable income for people at the poverty level and 9.5 percent at the top.</p>
<p>But that risk-sharing structure has fallen apart. Ongoing challenges in the courts, the federal government defaulting on what insurers were promised, cuts in marketing and assistance, and elimination of measures designed to get everyone in the pool <a href="https://www.kff.org/health-reform/press-release/2019-premiums-for-aca-silver-plans-will-be-16-percent-higher-than-they-would-have-been-absent-the-repeal-of-the-individual-mandate-expansion-of-short-term-plans-and-loss-of-federal-cost-sharing-payme/">have forced insurers to cover</a> their monumentally higher risks with much higher premiums.</p>
<p>To <a href="https://www.cbpp.org/blog/many-marketplace-consumers-eligible-for-zero-premium-coverage">low-income individuals</a>, this is hardly noticeable, since the subsidies from the government simply rose enough to cover the higher premiums. </p>
<p>But for <a href="https://khn.org/news/health-insurance-costs-crushing-many-people-who-dont-get-federal-subsidies/">higher-income people buying on the exchanges</a>, this has been disastrous. </p>
<p>In effect, the Republicans have made Obamacare look like an extended version of Medicaid with the poor protected by subsidies. But those with higher income had to bear the price for these changes through higher premiums not offset by subsidies. Congress also invited people to leave the exchanges by <a href="https://www.commonwealthfund.org/blog/2018/understanding-impact-elimination-individual-mandate-penalty">eliminating the tax</a> people would owe if they did not buy insurance. </p>
<p>While it may be laudable that the country still supports those with little means of payment, it is at the price of driving entrepreneurs and successful individuals out of the market.</p>
<h2>Danger ahead?</h2>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/266007/original/file-20190327-139349-15wqk99.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/266007/original/file-20190327-139349-15wqk99.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/266007/original/file-20190327-139349-15wqk99.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/266007/original/file-20190327-139349-15wqk99.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/266007/original/file-20190327-139349-15wqk99.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/266007/original/file-20190327-139349-15wqk99.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/266007/original/file-20190327-139349-15wqk99.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The ACA has been like a cat with nine lives, the author writes.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/cute-sleeping-gray-domestic-cat-closeup-169542317">Katerina Maksymenko.</a></span>
</figcaption>
</figure>
<p>Now to add insult to injury, the Texas court has held that without the tax penalty <a href="https://www.commonwealthfund.org/blog/2018/understanding-impact-elimination-individual-mandate-penalty">eliminated by the recent cut in taxes</a>, the mandate requiring individuals to purchase coverage is void. The ruling is a logical extension of the debate about whether the government can compel a citizen to pay for health care plans.</p>
<p>But then to strike down the whole ACA is, in my opinion, an enormous reach that does damage far beyond concern over whether the exchanges are valid. </p>
<p>I believe there would be an uprising if people knew that this means that insurers can go back to <a href="https://www.hhs.gov/healthcare/about-the-aca/pre-existing-conditions/index.html">denying coverage for pre-existing conditions</a> and selling worthless plans to uninformed people; that the largest funding to address the opioid crisis, the <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/puar.12065">Medicaid expansion</a>, would disappear; that their local hospital may have to close due to skyrocketing bad debts; and that individual bankruptcies would once again hit record levels as bill collectors return in force.</p>
<p>In addition, more subtle improvements in the way we provide health care would be in jeopardy. The <a href="https://innovation.cms.gov">Center for Medicare and Medicaid Innovation</a> has fostered major changes in how we organize care and improve quality through their payment incentives. The <a href="https://www.pcori.org/research-results/patient-centered-outcomes-research">Patient-Centered Outcomes Research Institute</a> that compares alternative treatment to see what is best would disappear. </p>
<p>And even the collection of quality measures that have let us see who is best and provided a guide to our choices would be in question. In other words, the wholesale elimination of the ACA would take us back to a more primitive time and place.</p>
<p>The Obamacare cat with nine lives may soon be gasping for breath. The ensuing chaos would be enormous to investors in health care businesses, suppliers to the industry, professionals and support staff of providers, medical schools and training programs and local businesses which depend on them.</p>
<p>But even worse would be the loss of almost 10 years of attention to the patient as the center of care and improved coordination that the ACA has fostered. I really don’t think we as a country want to go back. The price is far too high for a few political points that one side might score in the short term. As those who thought Brexit was a good idea are learning, disruptive change to a whole economic and social system is a very dangerous game to play.</p><img src="https://counter.theconversation.com/content/114352/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>J.B. Silvers is A board member of MetroHealth in Cleveland, Ohio</span></em></p>Obamacare, while highly controversial, has been a tough law to kill. The efforts of a federal district judge in Texas had seemed yet another ineffective assault. Then came the DOJ’s actions Monday.J.B. Silvers, Professor of Health Finance, Weatherhead School of Management & School of Medicine, Case Western Reserve UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1088142018-12-20T21:23:37Z2018-12-20T21:23:37ZHow wealth inequality in the US affects health inequality in the US: 4 essential reads<figure><img src="https://images.theconversation.com/files/251331/original/file-20181218-27779-1xpmye1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Even when black men attain higher education and greater social status, their health is still not as good as white men's health, a study this year found. </span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/close-portrait-young-african-american-man-258784235?src=YYiM9VMl0ObIrBcCwJ2Dcg-1-70">mimagephotography/Shutterstock.com</a></span></figcaption></figure><p><em>Editor’s note: As we come to the end of the year, Conversation editors take a look back at the stories that – for them – exemplified 2018.</em></p>
<p>If you have health insurance, a nice home and a decent job, why should you care about health inequality in the U.S.? </p>
<p>This question was the underlying theme of several articles penned by health policy scholars in The Conversation in 2018. They explained such topics such as threats to the Affordable Care Act, insurance coverage, Medicaid expansion and the lack of access to health care for many people – the so-called health care gap. These experts argued that this gap is actually a threat to the system that serves all Americans. </p>
<h2>1. A political ruling</h2>
<p>The ACA was passed in part to narrow the health care gap in the U.S., but the law constantly has been under attack. The most recent attempt to gut the law occurred on Dec. 14, 2018, when a Texas judge deemed the law unconstitutional. West Virginia University health policy scholars Simon Haeder and Valarie Blake <a href="https://theconversation.com/why-the-texas-ruling-on-obamacare-is-on-shaky-legal-ground-108884">analyzed the ruling</a> and unpacked some of the potential consequences if the law were overturned. </p>
<blockquote>
<p>“Gone would be provisions that combat fraud and abuse in Medicaid and Medicare.</p>
<p>"Gone would be provisions <a href="https://www.npr.org/sections/health-shots/2017/01/24/510668899/obamacare-repeal-threatens-a-health-benefit-popular-in-coal-country">for coal miners suffering from black lung and their survivors</a>.</p>
<p>"Gone would be efforts to improve provider quality, medical innovation, and data collection efforts to reduce health disparities. </p>
<p>"The list keeps going,”
they wrote.</p>
</blockquote>
<h2>2. The costs of delayed care</h2>
<p>While estimates vary, studies that have looked at health gaps have suggested that as much as <a href="https://jointcenter.org/sites/default/files/Economic%20Burden%20of%20Health%20Inequalities%20Fact%20Sheet.pdf">30 percent of direct medical costs</a> for African-Americans, Hispanics or Asian-Americans were excess costs because of health care disparities. </p>
<p>Some of these differences start at birth, or even before. As Jessica Young, an assistant professor at American University, <a href="https://theconversation.com/being-born-in-the-wrong-zip-code-can-shorten-your-life-104037">found in a study</a> of health outcomes in various ZIP codes, where a person lives makes a great deal of difference in his or her health.</p>
<blockquote>
<p>“My unpublished results show that infants are about 20 percent more likely to die before their first birthday in distressed counties. Adults in distressed counties are 18 percent more likely to report poor or fair health than those in prosperous counties,” she wrote.</p>
</blockquote>
<h2>3. Black women are more likely to die from breast cancer</h2>
<p>The gaps in health outcomes are particularly apparent between African-American women and white women who have breast cancer. African-American women are <a href="https://theconversation.com/why-is-breast-cancer-mortality-higher-for-african-american-women-than-for-white-women-91381">more likely to die from the disease</a> than white women, wrote Padmashree Rida and Ritu Aneja from Georgia State University. And while biology plays a role, access to care also is a significant factor, the researchers wrote:</p>
<blockquote>
<p>“In the U.S., about 23.1 percent of black women live in poverty, compared to 9.6 percent of white women. Studies have shown that a lack of resources makes a huge difference in survival rates, treatment responses, and progression of disease. Poor women are less likely to have good quality health insurance, to get as much information on early detection and screening, and to have access to the best health care and latest treatments.”</p>
</blockquote>
<h2>4. Not an easy fix</h2>
<p>These health gaps are not easy to close, in part because of broader societal reasons, scholars wrote. For example, African-Americans do not derive benefit from the same advances, such as higher educational attainment and better jobs, that help whites achieve upward mobility and better health. <a href="https://theconversation.com/why-its-hard-for-blacks-to-pull-themselves-up-by-bootstraps-when-it-comes-to-health-92717">Shervin Assari</a> from the University of Michigan wrote this:</p>
<blockquote>
<p>“Although indicators of individualism are beneficial to the health and well-being of whites, according to several studies by my team, these indicators fail to protect blacks. Ironically, a high sense of desire to take control over their lives puts blacks at an increased risk for mortality. So, it appears that, due to systemic, persistent injustice and pervasive inequalities, the health gain from being able to pull oneself up by the bootstraps is considerably smaller for blacks compared to whites.”</p>
</blockquote><img src="https://counter.theconversation.com/content/108814/count.gif" alt="The Conversation" width="1" height="1" />
If a person in the US has lots of money, he or she has access to some of the best health care in the world. The story is very different for poor people and minorities.Lynne Anderson, Senior Health + Medicine Editor, The Conversation, USLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1088842018-12-17T11:37:57Z2018-12-17T11:37:57ZWhy the Texas ruling on Obamacare is on shaky legal ground<figure><img src="https://images.theconversation.com/files/250816/original/file-20181216-185268-11x860f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Austin, Texas contractor Mike Hewitt, who depends on insurance provided by the Affordable Care Act. A Texas judge ruled Dec. 14, 2018 that the law is unconstitutional.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Health-Overhaul-Sign-Ups/f140d67d338f4576a1b744a09a79ded4/17/0">Eric Gay/AP Photo</a></span></figcaption></figure><p>A Texas judge has ruled that the Affordable Care Act is unconstitutional. For now, his decision has no immediate effect except to toss <a href="https://theconversation.com/trump-isnt-letting-obamacare-die-hes-trying-to-kill-it-81373">another fire bomb</a> at a law that has helped 20-plus million people gain insurance and expanded insurance for almost all Americans by such things as requiring insurers to cover pre-existing conditions.</p>
<p>Based on our expertise as health policy scholars, we argue that the ACA is <a href="https://theconversation.com/republicans-attacking-obamacare-one-more-time-92568">well-settled law by now</a>. This ruling will likely not undo the law. It does, however, add more uncertainty to the ACA while also showing how much Republicans continue to be willing to fight to destroy the law.</p>
<h2>How did we get to the Texas verdict?</h2>
<p>Republicans in Congress spent much of 2017 seeking to <a href="https://theconversation.com/how-the-tax-bill-opens-wide-a-big-back-door-to-overhaul-health-care-88624">repeal and replace the Affordable Care Act</a>. After repeated failed attempts, they celebrated a victory with the passage of the <a href="https://www.congress.gov/bill/115th-congress/house-bill/1">Tax Cuts and Jobs Act of 2017</a>. The tax bill included the <a href="https://theconversation.com/republicans-attacking-obamacare-one-more-time-92568">repeal of the ACA’s individual shared responsibility penalty</a>, or the penalty imposed on individuals who fail to purchase qualified insurance coverage. </p>
<p>Health policy experts agreed that this would <a href="https://theconversation.com/how-the-tax-bill-opens-wide-a-big-back-door-to-overhaul-health-care-88624">destabilize the individual insurance market</a> without destroying the ACA. And indeed, enrollment in the ACA insurance marketplaces has been <a href="https://www.cnbc.com/2018/12/15/heres-how-trump-hobbled-obamacare-and-drove-enrollment-down.html">decidedly lower this year</a>. Yet, millions of Americans continue to enroll, and a number of states are <a href="https://theconversation.com/the-votes-have-been-counted-the-results-are-mostly-in-whats-next-for-health-care-106574">moving toward expanding Medicaid</a>.</p>
<p>Emboldened by the legislative success of GOP tax reform, however, <a href="https://www.texasattorneygeneral.gov/files/epress/Texas_Wisconsin_et_al_v._U.S._et_al_-_ACA_Complaint_(02-26-18).pdf">20 states</a>, led by Texas and Wisconsin, renewed their efforts to have the <a href="https://www.texasattorneygeneral.gov/files/epress/Texas_Wisconsin_et_al_v._i/10.1111/j.1541-0072.2012.00446.x/full">ACA declared unconstitutional</a>. </p>
<p>They got every wish. Texas Judge Reed O’Connor struck down the Affordable Care Act as <a href="https://www.nytimes.com/2018/12/14/health/obamacare-unconstitutional-texas-judge.html">unconstitutional in its entirety</a>. </p>
<p>Politics heavily shaped this case. Republican-led states sought a friendly judge in a Texas district court to yet again challenge the constitutionality of the ACA. And California took over the defense of the ACA when the Department of Justice refused to defend its own law.</p>
<p>While many experts anticipated that Judge O'Connor would rule against the ACA, legal experts from both sides of the aisle were <a href="https://thehill.com/policy/healthcare/421541-five-takeaways-from-the-court-decision-striking-down-obamacare">baffled by his legal reasoning and the departing from well-established legal precedent</a>. </p>
<h2>What’s in the verdict?</h2>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/250817/original/file-20181216-185255-1eobmrp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/250817/original/file-20181216-185255-1eobmrp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/250817/original/file-20181216-185255-1eobmrp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/250817/original/file-20181216-185255-1eobmrp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/250817/original/file-20181216-185255-1eobmrp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/250817/original/file-20181216-185255-1eobmrp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/250817/original/file-20181216-185255-1eobmrp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Open enrollment for 2019 ended Dec. 15, 2018. A judge in Texas ruled on Dec. 14 that the ACA is unconstitutional.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/caldwell-idahousa-december-6-view-healthcare-166155479?src=9hfDxcnI-cTaNlo2y8-d5w-1-2">txking/Shutterstock.com</a></span>
</figcaption>
</figure>
<p><a href="https://oag.ca.gov/system/files/attachments/press-docs/211-texas-order-granting-plaintiffs-partial-summary-judgment.pdf?rel=0">Judge O’Connor’s opinion</a> addresses three issues: standing, constitutionality of the individual mandate, and a legal principle called severability – that is, should the rest of the ACA stand if the individual mandate is held to be unconstitutional.</p>
<p>First, O’Connor agreed with the plaintiffs that they have standing to bring this case. The plaintiffs argued that the individual mandate injures their constitutional rights by forcing them to buy health insurance.</p>
<p>Yet ironically, it is the elimination of the tax penalty that prompted this lawsuit. O’Connor suggested that people will feel nonetheless beholden to follow the law even without the penalty. We find the argument that an unenforced law can cause harm is absurd and merits serious reconsideration on appeal. </p>
<p>Next, O’Connor held that the individual mandate is unconstitutional. In <a href="https://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf">NFIB v. Sebelius</a>, the Supreme Court upheld the individual mandate as a tax. With Congress reducing the individual mandate penalty to zero in the 2017 tax bill, the plaintiffs in the Texas case argue it no longer functions as such. </p>
<p>Yet, we think that once more Judge O'Connor ignored reasonable arguments. For one, California argued there are still ways in which the mandate functions as a tax, as some unpaid funds will still be collected in the future. Additionally, many related provisions of the ACA remain intact <a href="https://www.healthaffairs.org/do/10.1377/hblog20171220.323429/full/">such as hardship exemptions and reporting requirements</a>.</p>
<p>Moreover, the original rejection of the individual mandate in NFIB v. Sebelius was that it violated the commerce clause of the Constitution by coercing consumers. This may no longer be valid with the penalty being zeroed out.</p>
<p>This issue is, in some ways, the lowest stakes part of the case, as the new tax law ends the penalty (and effectively the individual mandate) on Jan. 1, 2019. But it does control whether the third issue – severability – arises. And, there is symbolic value in being allowed to say that no aspect of the ACA is unconstitutional. </p>
<p>Last, in what we consider the most drastic and overstepping aspect of the opinion, Judge O’Connor kills the entire ACA. Emphasizing how “essential” the mandate is to the law, he states that Congress would not want any of it to stand without the individual mandate. Yet, Congress did speak in 2017. It did not repeal the whole of the ACA when they effectively wiped out the individual mandate. It must have thought the rest of the ACA could stand without the mandate.</p>
<p>While important, the individual mandate also does not render the ACA completely worthless. The mandate, which had been used as the stick to enforce compliance, may be gone, but carrots like subsidies to purchase insurance remain and will keep many people in the insurance market. </p>
<h2>Wending its way to the Supreme Court?</h2>
<p>So what’s next? California has indicated that it intends to appeal the matter to the 5th Circuit Court (which covers Texas, Louisiana and Mississippi), but it is possible that Judge O'Connor may sit on the case for a period before this can happen. We believe that if the 5th Circuit is reasonable, it will overturn the verdict. </p>
<p>At the same time, <a href="https://www.baltimoresun.com/news/maryland/politics/bs-md-aca-lawsuit-20180914-story.html">another suit filed in district court in Maryland</a> asks that the ACA be deemed constitutional and that the complete law remain intact. </p>
<p>Actions of these two courts will determine whether there is sufficient uncertainty or danger to the ACA to merit the Supreme Court’s review. </p>
<p>Meanwhile, while heartburn medicine sales may have risen and Twitter has gone alight, in practice, nothing changes. Judge O’Connor did not issue any injunction to stop the enforcement of the ACA. And for now, the Trump administration has indicated that it will continue to enforce the law until ultimately settled. </p>
<p>Ultimately, the weakness of plaintiffs’ case means this litigation will likely end, whenever it does, with the ACA largely intact. But in the meantime uncertainty and confusion will reign, and <a href="https://read.dukeupress.edu/jhppl/article-abstract/43/2/271/133583">politicians will spin well-worn narratives that the ACA</a> is fundamentally flawed and unlawful. </p>
<h2>What if the ruling is upheld?</h2>
<p>If the ruling is ultimately upheld, and the ACA really is dead for good, the changes for the American health care system, and every American, would be dramatic.</p>
<p>Of course, most directly affected would be those Americans who obtained coverage through either <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/puar.12065">the Medicaid expansion or in the insurance marketplaces</a>. The popular provision that allows young adults to stay on their parents’ plan would also be undone. </p>
<p>Any large scale changes would cause dramatic harm to the entire U.S. health care system, and affect each and every American whether they rely on <a href="https://theconversation.com/us-health-care-system-a-patchwork-that-no-one-likes-85252">employer-sponsored insurance, other private insurance, or Medicaid and Medicare</a>.</p>
<p>Even eight years after the <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1541-0072.2012.00446.x">its passage</a>, many Americans do not fully grasp the sheer reach of ACA provisions. Look no further than its more than a thousand pages as evidence of its depth and scope.</p>
<p>Gone would be relatively minor, albeit important, provisions like requiring fast-food restaurants to post calorie counts, reviewing insurance premium increases by regulators, and taxing tanning beds. </p>
<p>More crucially, gone would be protections for Americans with <a href="https://theconversation.com/how-pre-existing-conditions-became-front-and-center-in-health-care-vote-77138">pre-existing conditions</a>. Gone would also be provisions that <a href="https://www.degruyter.com/view/j/for.2013.11.issue-3/for-2013-0056/for-2013-0056.xml">eliminate annual and lifetime restrictions by insurers</a>, and the requirement for insurers to provide a <a href="https://www.sciencedirect.com/science/article/pii/S0168851014002607">minimum level of benefits</a> including mental health, substance abuse and emergency room services. </p>
<p>Gone would also be the <a href="https://www.cms.gov/apps/files/Medicarereport2012.pdf">filling of the Medicare Part D donut hole</a> that hurt many seniors. </p>
<p>Gone would be provisions that combat fraud and abuse in Medicaid and Medicare.</p>
<p>Gone would be provisions <a href="https://www.npr.org/sections/health-shots/2017/01/24/510668899/obamacare-repeal-threatens-a-health-benefit-popular-in-coal-country">for coal miners suffering from black lung and their survivors</a>.</p>
<p>Gone would be efforts to improve provider quality, medical innovation, and data collection efforts to reduce health disparities. </p>
<p>The list keeps going.</p>
<p>As <a href="https://theconversation.com/republicans-attacking-obamacare-one-more-time-92568">we stated before</a>, we believe the ACA should be settled law both in the courts of law and public opinion. It should also finally be settled in the court of politics. </p>
<p>In our view, this frivolous lawsuit and the equally frivolous ruling should not distract us from the serious work ahead in addressing the <a href="https://theconversation.com/us-health-care-system-a-patchwork-that-no-one-likes-85252">inadequacies of the American health care system</a>.</p><img src="https://counter.theconversation.com/content/108884/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Simon is a Fellow in the Interdisciplinary Research Leaders Program, a national leadership development program supported by the Robert Wood Johnson Foundation to equip teams of researchers and community partners in applying research to solve real community problems.</span></em></p><p class="fine-print"><em><span>Valarie Blake does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A judge in Texas ruled Dec. 14 that the Affordable Care Act is unconstitutional. His ruling has no immediate effect, however, except to signal more perils ahead for the health care law.Simon F. Haeder, Assistant Professor of Political Science, West Virginia UniversityValarie Blake, Associate Professor of Health Law, West Virginia UniversityLicensed as Creative Commons – attribution, no derivatives.