Even before the Affordable Care Act became fully effective in 2014, more than 94% of Americans buying contraceptives were paying some amount out-of-pocket. That dropped to 10% by 2018, according to a May 2023 KFF report. Accessed July 5, 2023. Image courtesy KFF, reprinted with permission
A key provision of the Affordable Care Act is in jeopardy in the case of Braidwood Management Inc. v. Becerra in the U.S. Court of Appeals for the Fifth Circuit.
Among the plaintiffs, Braidwood Management is a Christian-owned business challenging the requirement that most health insurers and employers must cover many preventive-care services at no cost to patients. Defendants include U.S. Secretary of Health and Human Services Xavier Becerra.
In the case, Christian-owned businesses and six individuals in Texas assert that the requirements in the ACA to have expert committees and a federal agency recommend covered preventive services is unconstitutional and the requirement to cover pre-exposure prophylaxis (called PrEP), which patients use to prevent the spread of HIV, violates their religious rights.
U.S. District Judge Reed O’Connor ruled in March that the mandate under the ACA to cover the full cost of preventive services is unconstitutional,and the federal government appealed that decision in April.
For journalists, this case is significant for many reasons:
- What happens on appeal will determine whether 150 million people with private health insurance through employers and about 80 million Americans who have Medicare and Medicaid will continue to have access to preventive care without having to pay out of pocket, according to a March article in Health Affairs.
- Requiring patients to pay for preventive care will make such services unaffordable for many, meaning fewer Americans will get immunizations, screening and other care linked to greater longevity.
- Forcing consumers to pay for these services increases health care disparities because only consumers who can afford them will get such care.
- In addition to challenging the ACA’s no-cost preventive care provisions, the plaintiffs also want O’Connor to invalidate the ACA’s contraception mandate requiring employers and health insurers to provide contraceptives without requiring consumers to pay any amount out-of-pocket. “There’s a decent chance the Fifth Circuit Court could side with those challenging the contraceptives mandate,” said Nicholas Bagley, a professor at the University of Michigan Law School and an expert on administrative and health law. “If that happens, the case will become a major culture war.”
- Congress could provide a remedy for those concerned about losing access to no-cost preventive care, Bagley added, but that fix would require political will in a divided Congress.
- Depending on how the judge rules, journalists should follow the proceedings closely as the parties could appeal any adverse ruling to the U.S. Supreme Court, according to a May KFF report.
Preventive care is cost-effective
In its May report, KFF researchers noted that the ACA provision requiring insurers to cover evidence-based preventive services without patient cost-sharing is cost effective and can save lives by identifying illnesses early. Without this coverage, 40% of U.S. adults would not pay out-of-pocket for 11 of 12 preventive services, according to a Morning Consult survey conducted in January.
Health policy experts Paul Fronstin, Ph.D., M. Christopher Roebuck, Ph.D., M.B.A, and A. Mark Fendrick, M.D., also addressed the cost issue in a June Health Affairs article. They note that the case could affect more than 100 essential preventive services, including routine immunizations, contraceptive care, and screenings for heart disease, diabetes, cancer and other common conditions.
“If the Braidwood decision is upheld and employers reimpose cost sharing on preventive services that are currently free to enrollees, individuals using those services could face a significant increase in out-of-pocket spending,” Fendrick wrote in an email. “Although this potentially onerous financial burden could deter care on the individual beneficiary level and likely worsen health inequities, employers would see little impact on their overall spending.”
The legal issues
From now until at least November, Judge O’Connor has asked the parties in the case to submit legal briefs. One brief is from Academy Health, the American Heart Association, the American Lung Association, Families USA, Public Citizen, and others; and another is from a coalition of national medical societies that the American Medical Association filed early in June. Journalists can track filings in the Braidwood case at the O’Neill Institute for National and Global Health Law at the Georgetown University Law Center.
For an in-depth discussion of this case, see this recording of an AHCJ webinar in March featuring Fendrick’s comments on the history of how no-cost preventive services were included in the ACA and the risks that many Americans would need to pay more for those services.
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