Scotus Agrees To Hear Challenge To Obamacare’s Preventive Care Coverage

The Supreme Court on Friday agreed to hear a broad challenge to the Affordable Care Act’s coverage of preventive services in its upcoming term, the latest in more than a decade of battles over the health reform law.

A ruling for the conservative Texas employers who filed the case would erode the coverage of tens of millions of people who get their health insurance from their employer or through Obamacare’s marketplace, removing requirements that insurers cover the full cost of everything from birth control to vaccines to mental health screenings.

The case, which is expected to be decided next year, goes before a high court that has moved further to the right since it first started chipping away at the Affordable Care Act 10 years ago, giving some health policy experts reason to believe the preventive services mandate is now in jeopardy.

The lawsuit takes aim at the panels of experts that advise HHS on which services must be covered without cost-sharing, arguing the panels are unconstitutional because their members are not confirmed by the Senate nor chosen by a Senate-confirmed agency head. It separately argues that certain requirements, such as insurance coverage of the HIV prevention drug PrEP and “contraceptive methods that some regard as abortifacients,” violate the religious rights of employers.

Lower courts dominated by Republican appointees have backed the challengers on some of these points. The 5th U.S. Circuit Court of Appeals in New Orleans ruled this summer that the U.S. Preventive Services Task Force is unconstitutional. But the appeals court declined to enforce its ruling nationwide and declined to issue similar decisions against the Advisory Committee on Immunization Practices or the Health Resources and Services Administration — the panels that recommend which vaccines, contraceptives and other preventive services must be covered by insurance.

The challengers are now trying to add back some of the arguments the 5th Circuit rejected in their appeal to the Supreme Court. Their recent cross petition makes explicit appeals to the Supreme Court’s skepticism of federal administrative power, which the court dramatically curtailed in multiple decisions this year, arguing that none of the panels had the proper authority to impose insurance requirements on employers.

The Biden Justice Department argued in its petition to the Supreme Court in September that the task force and its decade of coverage recommendations are legal and should be upheld, warning that a rollback “jeopardizes healthcare protections that have been in place for 14 years and that millions of Americans currently enjoy.”

The timing of the Supreme Court’s action and Donald Trump’s victory in November raise another question: whether lawyers for his incoming administration will stand by the Biden team’s position or elect not to defend the panels that set the coverage requirements under the Affordable Care Act, which Trump has roundly criticized. If the Justice Department doesn’t defend the arrangements, it’s possible the high court could appoint another lawyer to do so.

The case is likely to be set for argument in March or April and decided by the end of June.

Both the federal government and the challengers have been operating under a compromise while they await a decision from the Supreme Court: Obamacare’s insurance requirements will remain in place nationwide, but the government cannot enforce them against the Texas plaintiffs in the case.

In taking the case, explained Andrew Twinamatsiko, director of the Health Policy and the Law Initiative at Georgetown University’s O’Neill Institute, the high court is halting the ongoing litigation at the district court level over the fate of the law.

“We need certainty, and the Supreme Court stepping and defining what does and doesn’t stand would help everyone in the health care industry plan for future enrollment,” he said. “But granting cert also means there’s a likelihood that all the services might be gone, so it’s a mixed bag.”