Fort Worth judge sides with plaintiffs in lawsuit challenging key provision of Obamacare [Fort Worth Star-Telegram]

A federal judge in Fort Worth has ruled that a mandate requiring health insurers to pay the full cost of preventive health care is unconstitutional. The ruling could threaten access to dozens of health services, including lung and skin cancer screenings and the HIV prevention drug known as pre-exposure prophylaxis, or PrEP.

U.S. District Judge Reed O’Connor issued a ruling Thursday that struck down a key component of the Affordable Care Act, better known as Obamacare. The landmark 2010 health care law required insurance companies to cover the cost of preventive care in full, with no charge to insured patients. In effect, the law required that anyone with health insurance couldn’t be charged for a service considered “preventive,” like screenings for cervical cancer, flouride varnishes for children’s teeth, and tests for syphilis infection in pregnant women, among dozens of other services.

O’Connor’s ruling says that some of these services don’t have to be covered in full, meaning that patients could be charged co-payments by their insurance companies. O’Connor’s ruling applies nationwide. The plaintiffs in the case include multiple Tarrant County residents, who said they opposed some types of preventive care because of their religious beliefs.

“Over time, millions of people could end up paying more for prevention if this ruling stands,” said Larry Levitt, the executive vice president for health policy at the Kaiser Family Foundation.

KFF, a health policy think tank, has estimated that in a given year more than 100 million people will get free preventive health care through their insurance plans.

“A lot of these services are really widely used,” said Allison Hoffman, a law professor at the University of Pennsylvania Law School. “Manly people are going to feel the effects of this ruling.”

What does this mean for preventive health care if I have health insurance?

O’Connor’s ruling focused on recommendations from the U.S. Preventive Services Task Force. The task force is an independent, volunteer group of national experts in primary care medicine. Under the Affordable Care Act, any preventive service given an “A” or “B” rating from the task force meant health insurance companies had to cover the cost of that service in full, with no charge to the patient.

O’Connor ruled that the task force doesn’t have the authority to make these recommendations, and ruled that any recommendation the task force has made since 2010 doesn’t have to be covered in full by health insurance, Levitt said.

“If this ruling stands, it effectively locks in coverage of evidence-based prevention as of 13 years ago,” Levitt said.

Levitt and his colleagues have interpreted the ruling to apply only to recommendations from the task force from 2010 and later, meaning that services like mammograms and colonoscopies should still be paid for in full by insurance companies.

But changes to recommendations, or new recommendations that have come out in the last 13 years, are unlikely to be covered. This includes taking statins to prevent heart disease for adults who are at risk of developing heart disease, a recommendation that was issued in August 2022. Also included in the newer recommendations are lung cancer screenings for adults with a history of heavy smoking. (It’s possible that the ruling could have broader implications: Some legal experts have interpreted the ruling as affecting all recommendations by the task force, which include services like mammograms and colonoscopies.)

Although O’Connor’s ruling is effective immediately, health plans are unlikely to change their policies until new plans begin next year. And, experts said, some health plans might still decide to cover the cost of certain services in full. Most of the services in question will still be covered by health insurers, but individuals might have to pay a co-pay or deductible. Whether or not you have to pay for a service will depend on the fine print of your insurance plan, said Alina Salganicoff, the senior vice president and the director of Women’s Health Policy at the Kaiser Family Foundation.

“That’s what’s going to determine what it’s going to cost for the services that are no longer included,” said

Hoffman said that because this year’s health plans are already in effect, most people with health insurance likely won’t see any changes until next year, after they’ve picked new plans either through their employer or the Affordable Care Act marketplace. And some insurance companies might still decide to cover the full cost of these services, because of their popularity among consumers. In a public opinion poll from March 2022, 62% of those surveyed said free preventive care was a very important piece of Obamacare, and that it needed to be kept in place.

Although the ruling could have major implications, it is not the death blow to the health care law that some court watchers had expected. The plaintiffs in the case had asked O’Connor to overturn all preventive care coverage, including access to contraception, vaccines, and testing for sexually transmitted infections. This ruling does not affect access to birth control or vaccines.

It’s unclear if the federal government will appeal the case, and it is possible that the ruling won’t remain in effect.

What about PrEP?

The ruling will also have implications for pre-exposure prophylaxis drugs, which can prevent the transmission of HIV. Best known as PrEP, the treatment has been considered a game-changing drug in the fight to stop AIDS. When taken daily, PrEP can reduce the risk of getting HIV through sex by about 99%, according to the U.S. Centers for Disease Control and Prevention.

Health insurance plans will probably still continue to include coverage of the drug in their benefits, said Lindsey Dawson, an HIV expert at KFF, although some plans could decide to drop coverage.

“What we’re more likely to see is cost sharing,” Dawson said. That means that patients who take PrEP every day could have to pay a co-pay for the prescription, and for the regularly blood work and office visits required while taking the medication.

The federal government has outlined a goal to reduce the number of new HIV infections by 90% by 2030. In 2020, at least 4,302 Texans were diagnosed with new cases of HIV, according to federal data.

What is the case’s connection to Fort Worth?

The case was brought by multiple Tarrant County residents, including Fort Worth orthodontist John Kelley, as well as Dr. Steven Hotze and his company Braidwood Management Inc. The plaintiffs were opposed to the law’s preventive care mandate because it required insurance companies to cover the cost of care including birth control, testing for sexually transmitted infections, and antivirals like PrEP. The plaintiffs said they didn’t want to offer health insurance as employers, or buy it as individuals, because they were morally and religiously opposed. Kelley, a member of the Christ Chapel Bible Church in Fort Worth, is “a Christian, and he is therefore unwilling to purchase health insurance that subsidizes abortifacient contraception or PrEP drugs that encourage homosexual behavior and intravenous drug use,” according to the lawsuit, which was filed in 2020 in U.S. District Court in Fort Worth.

The original lawsuit sought to end cost-sharing for all types of preventive care, including free vaccines and birth control. O’Connor’s ruling invalidated just those recommendations from the preventive services task force, leaving recommendations from the other two main bodies — the Advisory Committee on Immunization Practices and the Health Resources and Services Administration — in effect.

Hotze’s company is based in the Houston area, where it sells supplements like colloidal silver, which is used in jewelry and dental fillings, as a diet supplement. (Health experts and drug regulators including the Food and Drug Administration have long said that humans should not ingest any products containing colloidal silver, as they can have dangerous side effects.) The physician was recently asked to leave a hearing at the Texas Capitol after he repeatedly referred to trans people as pedophiles.

In 2018, O’Connor ruled the entire Affordable Care Act unconstitutional, setting off years of litigation before the law ultimately made its way to the U.S. Supreme Court. In 2021, the nation’s highest court disagreed with O’Connor, ruling that the health care law could remain in effect and upholding it for the third time since it was signed into law in 2010.

Do you take PrEP? The Star-Telegram wants to hear about what this ruling could mean for you and your health care. If you’d like to share your experience, contact health reporter Ciara McCarthy at [email protected], or call or text 817-203-4391.

This is a developing story. Check back for updates.

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