“The government cannot possibly show that forcing private insurers to provide PrEP drugs, the HPV vaccine, and screenings and behavioral counseling for STDs and drug use free of charge is a policy of such overriding importance that it can trump religious-freedom objections,” the lawsuit reads.
The Texans suing the Biden administration also argue that Congress never gave the civil servants and outside advisers at the Department of Health and Human Services the authority to come up with the list of preventive health services all insurance plans have to cover. Only someone nominated by the president and confirmed by the Senate, they argue, should have that power.
The lawyer arguing on their behalf is Jonathan Mitchell, the architect of Texas’ six-week abortion ban that offers a $10,000 bounty to private citizens who successfully sue an abortion provider. He is supported by an array of conservative groups, including one led by Roger Severino, the former head of HHS’ Office for Civil Rights.
“This has the potential to have a very big impact beyond the particular issues at play,” Severino told POLITICO. “It’s about who gets to decide what a health care plan must contain and what you must pay for.”
An analysis released Monday by Urban Institute, a left-leaning think tank, funded by the Robert Wood Johnson Foundation, found a ruling in the Texans’ favor could threaten coverage of preventive services for nearly 168 million people on employer health insurance and on Obamacare’s individual market. The study predicts that could, in turn, reverse health gains made since Obamacare was enacted, such as the decrease in unintended pregnancies and the increase in cancer screening rates.
“Ending the requirement that preventive services be free to patients will have negative health and financial consequences for millions,” warned Katherine Hempstead, senior policy adviser at the Robert Wood Johnson Foundation.
The Biden administration is arguing that the case should be thrown out because the Texans do not have legal standing because they aren’t being harmed by their insurance covering preventive services — a line of argument that has been successful in past defenses of the Affordable Care Act.
They also argue that there’s a clear government interest in preventing the spread of HIV and STDs for the health of the population at large which justifies the policy.
The suit comes amid record rates of STDs and uneven progress on HIV. Health experts and advocates say that makes the threat of coverage loss for preventive care particularly damaging — not only for the people who get infected but also for everyone whose premiums could rise to cover the cost of treating them.
“Even the Trump administration was a big supporter of PrEP as part of the plan to end HIV,” said Wayne Turner, a senior attorney with the National Health Law Program. “It’s something we’ve had bipartisan support for. This is trying to turn the clock back to 1983.”
Judge O’Connor has sided with groups challenging Obamacare’s individual mandate, the law’s non-discrimination provisions, its contraceptive coverage requirement, and the insurance provider fees imposed on states through the law.
This case, regardless of O’Connor’s ruling, will likely be appealed to the right-leaning 5th Circuit Court of Appeals, and then the Supreme Court, which has upheld the Affordable Care Act multiple times but has not considered the issue since Justice Amy Coney Barrett replaced Justice Ruth Bader Ginsburg, giving conservatives another voice on the court.
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