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Behind the push to strike down free preventative health care in America

In this photo illustration, Obamacare logo is seen on a smartphone screen. (Photo Illustration by Pavlo Gonchar/SOPA Images/LightRocket via Getty Images)
In this photo illustration, Obamacare logo is seen on a smartphone screen. (Photo Illustration by Pavlo Gonchar/SOPA Images/LightRocket via Getty Images)

The Affordable Care Act says you don’t have to pay for preventative health care.

But a federal judge in Texas recently struck down the preventative care provision of the ACA.

It could change the way more than 150 million Americans get their care.

“It’s a big deal. If we want to improve health in America, we really need to embrace a culture of prevention and that this is what this particular provision in the Affordable Care Act does.”

The case is currently being appealed and is expected to end up at Supreme Court.

“One judge in a single courthouse in Texas shouldn’t have the ability to drive national policy on a question as important as this one.”

Today, On Point: The plaintiffs claimed they didn’t want health care coverage that they individually didn’t need. But what’s the real story behind the push to strike down zero cost preventative health care in America?

Guests

Nicholas Bagley, professor of law at the University of Michigan. He’s an expert on administrative and health law. Author of an op-ed in The AtlanticThe Next Major Challenge to the Affordable Care Act and Health Affairs: A Texas Judge Just Invalidated the Preventive Services Mandate. What Happens Next?

Also Featured

Dr. Mark Fendrick, professor of medicine and public health at the University of Michigan where he directs the Center for Value-Based Insurance Design. He helped draft the preventive care provision in the Affordable Care Act.

Dr. Anand Parekh, chief medical advisor at the Bipartisan Policy Center.

Transcript

MEGHNA CHAKRABARTI: Patrick Sarback lives in North Carolina. In 2016, he was diagnosed with non-Hodgkins’s lymphoma. He’s relied on the Affordable Care Act heavily since then, particularly the free preventive health care mandated by the law.

PATRICK SARBACK: The preventive screening has shown five other tumors and allowed us to get on them. It gives me a better chance at. Seeing my kids graduate and get married and stuff. I lost my wife to brain cancer two years ago. And again, the ACA not only saved her life for a good period of time. It also allowed us to stay in our house and maintain a family. So I really hope they don’t pull that from the policy.

CHAKRABARTI: From 2010 until last month, Americans had the right to zero cost access to screenings for cancer, Hepatitis B and C, osteoporosis, STDs, diabetes and pre-diabetes, mental health screenings, genetic testing, antibody tests for pregnant women, prophylactic drugs for HIV, elderly counseling, information about substance abuse, and more. Which is why Dr. Mark Fendrick says, of this aspect of the ACA:

DR. MARK FENDRICK: I cannot think of another health policy that impacts more Americans than the preventive services provision.

CHAKRABARTI: But then, last month, a U.S. District Court judge in Texas ruled that no cost preventative health care in America is unconstitutional.

FENDRICK: The clinical implications of this ruling are real, and I think they’re being underestimated just because of the tumult of the news cycle that we have. But as more and more people look at what we believe is the potential impact of a worst-case scenario of restoration of patient out-of-pocket costs for these preventive services, the health of Americans will clearly suffer. And I believe that the disparities in health care delivery that we’re fighting so hard to ameliorate will actually get worse.

CHAKRABARTI: This is On Point. I’m Meghna Chakrabarti. And that’s Dr. Mark Fendrick, now at the University of Michigan. Should the Texas court’s ruling stand? At least 150 million Americans could lose access to free preventive health care. Something Fendrick knows a great deal about. Because he is one of the people who helped create those very provisions that are a signature part of the Affordable Care Act.

Fendrick’s belief in the importance of preventive care dates back before 2010, back to the beginning of his medical career.

FENDRICK: I’m a primary care physician, and very early on in my career, I realized that patients, even with good insurance, weren’t able to afford those services that I begged them to do. And many of these were preventive care services.

CHAKRABARTI: Dr. Fendrick and his team wanted to figure out how to change that.

FENDRICK: So, we developed this idea of an insurance product, that actually didn’t set patient out-of-pocket costs on what things priced, but in fact, the clinical value. So instead of cheap things being cheap, we said maybe good things in terms of your health should be inexpensive. You know, I’m not a super smart guy to come up with the fact that, you know, patients shouldn’t have to have a bake sale to afford their mammogram.

CHAKRABARTI: This was in the early 2000s. The new healthcare policy started to catch on.

FENDRICK: The idea of removing cost sharing for high value services was not a far-left liberal idea. The early adoption of value-based insurance design were by big for-profit companies who felt it was worthwhile to invest more in evidence based medical services because it would produce a return in moderating health care cost growth, but more importantly, keeping their employees healthier.

That support from corporate America that vaulted Dr. Fendrick and the concept of free preventive care all the way to Congress.

FENDRICK: And in 2006, we were very fortunate to be met by very rare bipartisan support of this idea of lowering out-of-pocket costs for high value services, particularly preventive care services, and those that treat chronic conditions. And then in 2008, the ACA discussions started to develop, and we were very fortunate to have this idea of no cost preventive care services be swept up in every conversation and was supported by both Republicans and Democrats.

CHAKRABARTI: President Obama’s most important legislative accomplishment, the Affordable Care Act, was signed into law on March 23, 2010. Not without considerable rancor of course. No Republican members of Congress voted for the ACA in 2010.

And in the next six years, the GOP would have the House vote more than 70 times to repeal, replace, or modify the ACA. The Republican party came close in 2017, with its so-called “Skinny Repeal,” which would have ended insurance coverage for 16 million Americans.

The effort was defeated by a 49-51 vote. But it’s important to note that in the years’ long repeal efforts, no legislator ever vocally attacked the free preventive care access made possible by the ACA. They had other targets.

FENDRICK: Before the ACA and afterwards, the preventive care provisions have always polled among the top three aspects of the Affordable Care Act. And even among Republicans who didn’t like the ACA for whatever reason. Preventive care services at no cost has always polled at a very high favorability level. And I often ask myself who would be against free shots for kids and screening for conditions like cancer, diabetes, depression and illicit drug use.

CHAKRABARTI: As of last month, we have an answer. An interesting group of plaintiffs and a Texas federal judge who agreed with their argument that they should not have to purchase preventive health care that they “do not want or need.”

And in so doing, this case – currently in appeal – could put those same preventive services at risk for half of the country. Why? And how did this happen?

Nicholas Bagley, a professor of law also at the University of Michigan. … He’s an expert on administrative and health law and has been closely watching this case. He joins us from Ann Arbor. Welcome to On Point.

NICHOLAS BAGLEY: Thanks for having me.

CHAKRABARTI: So, first of all, at this moment, what is the status of zero cost preventive care for 150 million Americans? Can they access it post this ruling?

BAGLEY: It’s a little complicated. The short answer is yes. The longer answer is we’re not sure for how long. The judge’s ruling has taken effect, which means that across the entire country, insurers and employers are free to reconsider whether they’re going to ask Americans to pay out of pocket for needed preventive care. And right now, we haven’t seen a whole lot of movement from employers and insurers. I think there’s at least a sentiment that maybe they want to wait and see how the case turns out.

So most people will not see an immediate change in their insurance coverage. But over time, as employers kind of look hard at the dollars and cents question of how much they want to pay for their employees’ health care or how much they’re spending to cover their insureds, they’re going to start making different choices and people are going to start being asked to chip in to cover these needed preventive services.

CHAKRABARTI: And it’s this district court ruling in Texas that is allowing employers to make that choice, whereas they didn’t have the choice before because of what was in the ACA.

BAGLEY: That’s exactly right. The Affordable Care Act says in no uncertain terms that all employers and insurers have to cover preventive services at $0 cost sharing. Those preventive services that have to be covered are in turn selected by three different professional bodies that identify the services that are high quality that people need that can save lives and potentially even save us money.

CHAKRABARTI: So this is why we have things like vaccinations and diabetes screening and prophylactic care for HIV aids in this list of zero cost preventive care. Now, we’re going to spend the rest of the hour diving deep into how and why this happened and who’s behind it. But the case is currently in appeal. Do you expect it to work its way through the higher courts and possibly even get to the Supreme Court?

BAGLEY: Yeah. So right now, the fight that’s going on is whether the district court’s opinion is going to be paused while those appeals run their course. And the government has asked for what they call a stay pending appeal. And the district court judge is considering that request as we speak. If a stay is entered, then nothing will change for Americans for some time because the appeals will take at least a year in front of the Fifth Circuit. And then I expect the case to go to the U.S. Supreme Court, and that’ll take another year after that.

CHAKRABARTI: But let me just jump in here for a second. Just to be clear, it’s the same judge who ruled, too, that this the preventive care required preventive care was unconstitutional. He is now being asked to stay his own ruling.

BAGLEY: That’s right. And that’s the typical approach as you go to the trial court first. But as your question suggests, sometimes the trial court is not the most hospitable forum for that kind of request.

CHAKRABARTI: Today we’re talking about what happened in a Texas court on March 30th. So just last month when a Texas district court judge ruled that mandatory free preventive health care in this country, as mandated by the Affordable Care Act, is unconstitutional, and what that might mean for the future of preventive care in this country. Nicholas Bagley joins us.

He’s a professor of law at the University of Michigan. He’s been following this case closely. So, okay, Professor Bagley, let’s wade into the weeds here. The case is called Braidwood Management versus Javier Becerra, who is of course, the HHS secretary. Let’s talk about who the plaintiffs are first. Who and what is Braidwood Management?

BAGLEY: Braidwood Management is the management company for wellness center run by a doctor named Steven Hotze outside of Houston, Texas. And it objects to the preventive services mandate because it does not want to offer certain preventive services to its employees. And in particular, Doctor Hotze objects to the requirement that he cover pre-exposure prophylaxis for people who are at risk of contracting HIV, and that PREP drug, pre-exposure prophylaxis drug, prevents them from getting HIV. He thinks it spurs, you know, contributes to lifestyles that he disagrees with, especially for gay men.

CHAKRABARTI: Okay. So Dr. Hotze, though, has a history of attacking the Affordable Care Act, right? I mean, he sued in 2013 or thereabouts … to undermine the ACA. Can you tell us about that?

BAGLEY: Right. He’s a pretty familiar player here. He brought one of the kind of first wave challenges trying to get the whole law knocked out. And his lawsuit was dismissed on the grounds that he didn’t have standing to bring it. But he clearly is not done. And so Dr. Hotze is kind of a widely known figure in Texas politics. He’s a conservative, mega-donor. He came to prominence in 2020 because of a very strange escapade in which he hired a private investigator to run an air conditioner repair men’s truck off the road and then search it for allegedly blank ballots that they were then filling out on behalf of people who shouldn’t have been voting. He’s been indicted for that since. So he definitely comes with some baggage here.

CHAKRABARTI: There were no ballots to be clear.

BAGLEY: There was just air conditioning equipment.

CHAKRABARTI: Okay. So that’s Dr. Hotze, who, again, has this history of antagonism towards the Affordable Care Act. And then there’s several other players here I want to discuss. Jonathan Mitchell. Tell us about him and his involvement in this case.

BAGLEY: Sure. So Jonathan Mitchell is the lawyer who brought this lawsuit. And Jonathan Mitchell’s claim to fame is that he is the author of SB 8 and SB 8 is the Bounty hunter law, so-called in Texas that effectively banned abortion prior to the Supreme Court overruling Roe v Wade. And the law was very controversial and it was designed to evade federal court review and successfully did so. And so abortion was effectively unlawful in Texas even before Roe was overturned.

CHAKRABARTI: Okay. Now, we also have in the original complaint, we have some other names which then disappeared in the actual ruling itself, John Kelley and Joel Starnes and I guess John Kelly’s business, Kelley Orthodontics. I mean, are they also familiar names in conservative circles, you know, in opposition to the ACA?

BAGLEY: Not to my knowledge. And they’re still very much involved in the litigation. The caption on the case has shifted, but they’re still plaintiffs. And each of these plaintiffs has slightly different claims, some object on religious grounds to covering some of the preventive services. Some just don’t want to buy insurance that covers things that they would prefer not to purchase. And so each of them has a slightly different cut at the problem. But the headliner attraction here really is Braidwood.

Okay. So speaking of Braidwood, the business, we did reach out to Dr. Steve Hotze and also to attorney Jonathan Mitchell for comment or requested, invited them to appear on the show. We received no response from them or any of the other people associated with the plaintiffs in this case. So, Professor Bagley, though, take us into a little more detail. … So regarding the argument in which requiring preventive care is unconstitutional, what part of the constitution were they looking at?

BAGLEY: Yeah, the chief fighting in the case is over something called the appointments clause, which is a pretty obscure part of the Constitution. And basically, what it says is that when you have government officials making important decisions for Americans, they’ve got to be appointed in the right way.

And what that means is they’ve got to be appointed generally either by the president or by the head of a major department. And the reason that the appointments clause matters here is that the Affordable Care Act delegated to three professional bodies the authority to determine which specific preventive services had to be covered. And so what the plaintiffs are saying is, hey, you know, the people who sit on those three bodies, they’re making important decisions about which preventive services have to be covered. But they weren’t appointed in the right way.

They weren’t appointed by the president or by the head of a department that, depending on the body, they were appointed by lower level officials. Now, this might all seem highly technical, but the point of the appointments clause is to make sure that there’s a direct line of accountability in the executive branch. All the way up to the president. So that you don’t have people who aren’t accountable to a politically elected leader for the decisions that they make. It’s an important way to assure that there’s someone taking responsibility for important decisions that affect Americans.

CHAKRABARTI: Okay. Well, then, given what you just described, Professor Bagley, it would seem on the face of it then, that the plaintiffs, obviously they have a persuasive argument. I mean, it was persuasive enough for Judge Reed O’Connor.

BAGLEY: Well, I’ll say that the appointments clause litigation, it is always complicated, and it is always a place, given that there’s a kind of a dearth of hard and fast case law in this. This is always a space in which lawyers are going to disagree with each other. So the government has good arguments for why it thinks that this arrangement is, in fact, constitutional. And actually, Judge O’Connor didn’t declare the decisions of all three of these bodies to be invalid.

He said two of them are okay, and two of them are okay. The ones made by the Advisory Committee on Immunization Practices and the ones made by the Health Resources and Services Administration. He says those two bodies, they can make decisions about immunizations, about women’s health care, about adolescent health care. And that’s okay because the HHS secretary took responsibility for them. But there’s another body. This is the Preventive Services Task Force. And Judge O’Connor said that body … the decisions haven’t been ratified in the same way by the HHS secretary. They are supposed to be politically insulated. And so they’re not responsible in the way that the Constitution requires.

CHAKRABARTI: Okay. So again, for clarity sake, I’m just going to repeat this and I want you to correct me if I’m wrong. The ruling said that preventive screenings for everything related to maternal health and, you know, immunizations and vaccinations, those are okay because there’s that direct line of accountability, as you said, from HHS. So those things are not on the chopping block, so to say for now.

BAGLEY: For now. So that includes, and I think it’s important to flag it for people, the decisions about preventive health care for women are fine for now, and that includes the contraception mandate that has attracted so much controversy over the past 13 years. But the plaintiffs did bring a challenge to those other the decisions of those other bodies.

And they object in many cases to providing contraception coverage. And they’re going to raise those issues on appeal. And so although Judge O’Connor’s ruling only applies to some of the preventive services that are required under the ACA, his decision could be expanded by a very conservative Fifth Circuit Court of Appeals. So, you know, I’m watching this very closely because I think it has implications that extend even further than it may appear on first blush.

Okay. So about the portion which is ruling did say it’s unconstitutional about the Preventive Services Task Force. Again, that’s the task force that has said that things like prophylactic care for HIV-AIDS should come at zero cost, correct?

BAGLEY: That’s exactly right.

CHAKRABARTI: Now, about Judge O’Connor, though, if memory serves, he has made previous rulings when it comes to access to care for HIV-AIDS. Is that right?

BAGLEY: He has. This is not Judge O’Connor’s first rodeo, and it is certainly not his first encounter with the Affordable Care Act. He’s been a pretty reliable conservative, stalwart judge ruling in favor of challengers who are seeking to take down aspects of the law. And that includes a decision that he issued invalidating the entire Affordable Care Act on a theory that was later rejected by a vote of 7 to 2 at the U.S. Supreme Court. So, you know, he is definitely throwing hard balls here.

Braidwood Management Inc. v Xavier Becerra lawsuit

Related Reading

KFF Health News: “No-Cost Preventive Services Are Now in Jeopardy. Here’s What You Need to Know.” — “When a federal judge in Texas declared unconstitutional a popular part of the Affordable Care Act that ensures no-cost preventive care for certain services, such as screening exams for conditions such as diabetes, hepatitis, and certain cancers, it left a lot of people with a lot of questions.”

Wall Street Journal: “Most Major Insurers to Continue Preventive Care Services” — “The majority of insurers in the U.S. don’t expect to drop no-cost preventive healthcare services as a lawsuit challenging the Affordable Care Act requirement works its way through the courts, according to a letter to lawmakers from the six trade groups representing the insurance industry.”

This article was originally published on WBUR.org.

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