By Rachel Schwab and Nia Gooding

This Mother’s Day,* CHIR assessed the potential impact of a new legal challenge to the Affordable Care Act (ACA) for women. To date, the ACA’s impact on women’s health has been considerable, as millions of women have gained access to either private or public coverage and benefitted from no-cost coverage for preventive services, caps on out-of-pocket spending, and protections against sex-based discrimination in the insurance market. Judge Reed O’Connor – a frequent flyer in ACA litigation – recently allowed a challenge to the ACA’s preventive services coverage provision to move forward in a U.S. district court. Invalidating this provision could jeopardize access to a broad set of preventive services for millions of women.

The ACA’s Preventive Services Requirement

The ACA requires non-grandfathered private health plans, including employer plans, to cover a set of preventive services at no cost to enrollees. These include many women’s health services, such as breast and cervical cancer screenings, prenatal tests, breastfeeding services, mammograms, bone density screenings for older women, and contraception. Early data showed that the ACA expanded access to free preventive services for 71 million people, including 26.9 million women and an estimated 41 percent of the individual market. As of 2019, 12.7 million individual market enrollees and 133 million people enrolled in employer plans benefited from this provision by enrolling in plans required by law to cover preventive services without cost sharing.  

The Lawsuit

The challenge to the ACA’s no-cost preventive services provision is a lawsuit brought last year by individuals and businesses against the federal government. The plaintiffs in Kelley v. Azar (now Kelley v. Becerra) requested, among other things, a declaration that the requirement for insurers to cover preventive services without cost sharing is unconstitutional on various legal grounds. In a recent order, Judge O’Connor ruled that several of the plaintiffs’ claims could advance to the next stage of litigation.

Nondelegation Claim

One of the plaintiffs’ claims, which may be compelling to current members of the Supreme Court, involves the way that the ACA defines which preventive services must be covered without cost sharing. The ACA as enacted does not include a specific list of preventive services – instead, it requires health plans to cover a set of services recommended by the U.S. Preventive Services Task Force (USPSTF), the Health Resources and Services Administration (HRSA), and the Advisory Committee on Immunization Practices (ACIP). Had Congress spelled out a precise set of services when the law was passed over a decade ago, changes to recommended preventive care would have to go through the legislative process prior to being added to the list of services that insurers must cover at no cost to enrollees. Instead, insurers must keep pace with what experts deem to be appropriate preventive care by covering the services they recommend at no cost to consumers.

The plaintiffs allege that Congress “delegating” this power to identify preventive services is unconstitutional. Enduring legal precedent allows Congress to delegate power to federal agencies. The Supreme Court has historically been extremely reluctant to invalidate a law on the basis of what is called the “nondelegation doctrine,” and has upheld congressional delegations that include an “intelligible principle” for agencies to follow, such as a directive to serve the public interest or protect public health. However, a majority of justices on the country’s highest court have indicated an interest in adopting a new standard regarding the nondelegation doctrine. If Kelley makes it to the Supreme Court, the plaintiffs may find a bench that will accept one of their key legal arguments that the requirement to cover recommended preventive services without cost sharing is unconstitutional.

Appointments Clause and Vesting Clause Claims

Judge O’Connor also allowed plaintiffs to proceed with claims that the preventive services mandate violates the Appointments Clause and Vesting Clause of the U.S. Constitution.

The Appointments Clause claim asserts that because the members of ACIP, HRSA, and USPSTF were not appointed by the President or confirmed by the Senate, Congress cannot give their recommendations and guidelines binding effect. The federal government has refuted this argument, in part by pointing out that the presidentially appointed and senate confirmed Secretary of Health and Human Services (HHS) as well as the Director of the Centers for Disease Control and Prevention (an officer constitutionally appointed by the HHS Secretary) ratified HRSA’s guidelines and ACIP’s recommendations, respectively. The government also maintains that members of ACIP and USPSTF need not be appointed pursuant to the Appointments Clause because they are not “officers,” or, alternatively, that ACIP members have been appointed by a department head with the requisite authority to appoint “inferior officers.” Some legal experts are more concerned about the Appointments Clause challenge than the nondelegation challenge, and others have suggested a ruling in the plaintiffs’ favor on this claim could jeopardize the adoption of thousands of evidence-based standards in federal law.

The Vesting Clause argument is grounded in the insulation between the President and members of USPSTF. Plaintiffs argue that USPSTF is making binding recommendations without adequate executive control, violating the constitutional requirement that “[t]he executive Power shall be vested in a President of the United States.” The government refutes this claim, asserting that USPSTF is not exercising executive power.

Religious Freedom Restoration Act Claim

Plaintiffs allege that the USPSTF recommendation to cover pre-exposure prophylaxis (PrEP) incorporated under the ACA’s preventive services mandate violates the Religious Freedom Restoration Act (RFRA). Judge O’Connor allowed this claim to proceed over the government’s objections.

What’s at Stake in this Legal Challenge to the ACA

Preventive services are central to effective health care delivery for women. Before the ACA, 1 in 5 women reported that they delayed or went without preventive care because of cost.

Implementation of the ACA’s preventive services requirement is associated with:

• A significant decrease in the consumer-borne cost of contraception, and an increase in the use of contraception among reproductive-age women with high-deductible health plans;
• An increase in receipt of screenings such as blood pressure and cholesterol checks as well as flu vaccinations among adults;
• Reductions in certain racial and ethnic preventive care disparities;
• An increase in colorectal cancer screening prevalence among low-income adults.

If the legal challenge is successful, full coverage for preventive services would no longer be required by federal law. Although some states have their own requirements for coverage of certain preventive services, such as contraception, most employer plans are exempt from state insurance regulation. If this provision of the ACA is struck down, insurers may impose consumer cost sharing on preventive services. When consumers have to bear out-of-pocket costs for services, they are less likely to obtain care.

Takeaway

The ACA’s requirement to eliminate cost sharing for preventive services increased consumers’ access to care, including to key women’s health services. This progress is in jeopardy.  After withstanding numerous legal challenges and partisan battles in Congress, Texas v. California, the lawsuit that threatens to invalidate the entire ACA, appears unlikely to succeed. But as legal experts have noted, the ACA is not out of the woods, and the Kelley plaintiffs’ challenge to one of the law’s more popular provisions poses a real threat to women’s health care access. If insurers aren’t required to cover the recommended preventive services at no cost to enrollees, they may make decisions not based on the advice of health care experts, but instead to protect their bottom line. Many consumers could face out-of-pocket costs when seeking vaccines, cancer screenings, contraception, and other forms of essential care. In the wake of an economic crisis that disproportionately impacted women, an adverse ruling on this ACA protection would hinder women’s access to preventive care.

*This post was updated in July 2022 to add information about the Appointments Clause, Vesting Clause, and RFRA claims to provide a more comprehensive overview of the case in light of an impending decision by Judge O’Connor.