“The government cannot demonstrate that forcing private insurers to provide free PrEP drugs, the HPV vaccine, testing and behavioral counseling for STDs and drug use is a policy of such paramount importance that it can override objections to religious freedom,” the lawsuit reads.
The Texans suing the Biden administration also argue that Congress never gave officials and outside advisers to the Department of Health and Human Services the authority to list preventive health services that all insurance plans must cover. According to them, only a person appointed by the president and confirmed by the Senate should have this power.
The attorney 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 backed by an array of conservative groups, including one led by Roger Severino, the former head of the HHS Civil Rights Office.
“It has the potential to have a very big impact beyond the particular issues at stake,” Severino told POLITICO. “It’s about who decides what a health care plan should contain and what you should pay.”
An analysis published on Monday by Urban Institute, a left-wing think tank, funded by the Robert Wood Johnson Foundation, found a ruling in favor of Texans could threaten preventive services coverage for nearly 168 million people on employer-sponsored health insurance and in the individual Obamacare market. The study predicts that this could, in turn, reverse health gains made since Obamacare’s adoption, such as fewer unintended pregnancies and increased cancer screening rates.
“Ending the requirement that preventive services be free to patients will have negative health and financial consequences for millions of people,” warned Katherine Hempstead, senior policy adviser at the Robert Wood Johnson Foundation.
The Biden administration argues the case should be dismissed because Texans lack legal status because they are not harmed by their insurance covering preventive services — an argument that has succeeded in past defenses of the Affordable Care Act.
They also argue that there is a clear government interest in preventing the spread of HIV and STDs for the health of the population as a whole, which justifies the policy.
The suit comes in the middle recording rate STDs and uneven progress on HIV. Experts and health advocates say that makes the threat of loss of coverage for preventive care particularly damaging — not just for those infected, but also for anyone whose premiums might rise to cover the cost of their treatment.
“Even the Trump administration was a big proponent of PrEP as part of the plan to end HIV,” said National Health Law Program senior counsel Wayne Turner. “It’s something we had bipartisan support for. It’s trying to go back to 1983.”
Justice O’Connor sided with groups challenging Obamacare’s individual mandate, the law’s non-discrimination provisions, its requirement for contraceptive coverage, and state-imposed insurance provider fees. .
This case, regardless of O’Connor’s decision, will likely be appealed to the right-wing 5th Circuit Court of Appeals and then to the Supreme Court, which has upheld the Affordable Care Act multiple times but has not considered the matter since Judge Amy Coney. Barrett replaced Justice Ruth Bader Ginsburg, giving conservatives another voice on the court.