Another Legal Challenge to the ACA

The plaintiffs in Kelley v. Becerra are arguing that the Affordable Care Act’s requirement that preventive services be covered without cost sharing is unconstitutional. In a factsheet published yesterday, the Urban Institute says that the ACA requirement has had an especially a large effect on women, partly because contraception is among the services covered by the no-cost-sharing rules that apply to private insurers.

The plaintiffs in Kelley v. Becerra are arguing that the Affordable Care Act’s requirement that preventive services be covered without cost sharing is unconstitutional. The Urban Institute says the ACA coverage requirement has had an especially a large effect on women, partly because contraception is among the services covered by the no-cost-sharing requirement.

The Affordable Care Act (ACA) has shown itself to a pretty tough cookie when it comes to legal challenges.

Three cases challenging the healthcare law have gone to the Supreme Court and each time, the 2010 healthcare reform law has survived (although in the first case, National Federation of Independent Business v. Sebelius, the court ruled that states could opt out of the ACA’s Medicaid expansion provisions).

Now another legal challenge to the law is underway. If successful, it would end the ACA requirement that insurers cover preventive services. According to a Commonwealth Fund summary of the lawsuit, Kelley v. Becerra, the employers and individuals mounting the legal challenge are arguing that the prevention requirements are unconstitutional because they delegate decision-making authority to the U.S. Preventive Services Task Force (USPSTF) , the CDC’s Advisory Committee on Immunization Practices (ACIP), and the Health Resources and Services Administration (HRSA). They are also arguing that the coverage of some preventive services, such as the pre-exposure prophylaxis (PrEP) for HIV prevention, violates the Religious Freedom Restoration Act.

Judge Reed O’Connor, a federal district court judge in Texas, is scheduled to hear the case. O’Connor, who was nominated by George W. Bush, is a conservative judge who ruled in 2018 that the ACA was unconstitutional after the individual mandate was eliminated. In 2021, the Supreme Court reversed his ruling because, the court said, the plaintiffs did not have standing.

The ACA preventive services requirements apply to private insurers in the small, large, individual and self-funded markets. Importantly, the services must be covered without cost sharing. The services that covered by the requirement include those that have received an A or B rating from the USPSTF, vaccinations recommended by the ACIP and services included in the HRSA preventive care guidelines for women and children.

According to an Urban Institute factsheet published yesterday, the 35.3 million children, 67.7 million women and 64.5 million men are enrolled in health plans that cover preventive services without cost sharing because of the ACA requirements. The Urban Institute says the ACA preventive services requirements have had particularly large effect on women because they include contraception. The factsheet notes that the USPSTF recommended the use of PrEP at high risk of contracting HIV in 2019 and that insurers were required to cover it without cost sharing beginning last year.

It is unclear how insurers would respond if the plaintiffs were to prevail, resulting in the end of the ACA preventive services coverage requirement. Some insurers might continue to sell policies with no cost sharing for preventive services. Polling shows the ACA requirement is popular. But as the Urban Institute factsheet points out, many polices sold in the individual market before the ACA often excluded coverage of prenatal care and maternity care. Some experts and advocates worry that no-cost-sharing coverage would again get spotty,

Moreover, says the Urban Institute, the “burdens of increased cost sharing and reduced coverage for preventive services would likely fall hardest on people least able to afford such services.”