Texas lawsuit targets preventive care coverage for birth control, STD testing

A lawsuit in Texas, targeting specific preventive care requirements in the Affordable Care Act including birth control, HIV medication and testing for sexually transmitted diseases, could end up in the Supreme Court.

The case of Kelley vs. Becerra, now before a federal judge, challenges one of the provisions of the law that requires health plans to pay for certain preventive care, with no cost to consumers, that the two plaintiffs argue are not needed and conflict with their religious beliefs.

The plaintiffs argue some of ACA's preventive care coverage rules violate the Religious Freedom Restoration Act, which states governments should not substantially burden religious exercises without compelling justification.

They also argue that the mandate to cover certain preventive services, like birth control and testing for STDs, raises the price of insurance coverage.

In the complaint, plaintiff John Kelley argues he "has no desire to purchase health insurance that includes contraceptive coverage because his wife is past her child-bearing years."

The complaint also states Kelley is a Christian and does not want to purchase health insurance that subsidizes contraception or PrEP drugs "that encourage homosexual behavior and intravenous drug use."

Judge Reed O'Connor of the U.S. District Court, Northern District Texas heard the case last month and is expected to make a decision in the next few weeks. O'Connor is the same judge who ruled the Affordable Care Act was unconstitutional in 2018.

If the judge rules in favor of the plaintiffs, preventive services including cancer screenings, vaccines and counseling for alcohol misuse could be in jeopardy, according to leading medical organizations.

"With an adverse ruling, patients would lose access to vital preventive health care services, such as screening for breast cancer, colorectal cancer, cervical cancer, heart disease, diabetes, preeclampsia and hearing, as well as access to immunizations critical to maintaining a healthy population," the American Medical Association said in a statement.

But some legal scholars warn the way the ACA was written leaves the phrase "preventive care" open to interpretation and could allow the lawsuit to hold up in court.

"I've argued for years that the phrase preventive care is very open-ended," said Josh Blackman, a constitutional law professor at South Texas College. "The courts might react to this position by saying, 'Congress: If you want something like birth control covered, you have to be more precise,'" Blackman said.

While the Supreme Court has upheld the Affordable Care Act in previous cases, such as Little Sisters vs. Pennsylvania, Justice Clarence Thomas disagreed with one of the groups charged with defining preventative care for the ACA, writing it had "virtually unbridled discretion to decide what counts as preventative care and screenings," he said.

With the current justices sitting on the Supreme Court, Kelley vs. Becerra has doctors and medical groups "sounding the alarm."

"Our patients cannot afford to lose this critical access to preventive health care services," the AMA said. "Rolling back this access would reverse important progress and make it harder for physicians to diagnose and treat diseases and medical conditions that, if caught early, are significantly more manageable."