A Republican-appointed federal judge in Texas just continued the party’s longtime attack against the Affordable Care Act. The ACA requires insurers to cover certain preventive care without charge to patients. But Judge Reed O’Connor says the requirement is illegal and can’t be enforced. The case is Braidwood Management v. Becerra.
What protections do we have in the ACA?
The law requires coverage without pay for numerous preventive care measures, like cancer screenings and HIV-prevention drugs like PrEP. But the statute doesn’t list them in detail. Instead, it lets a panel of volunteer scientific experts not subject to political pressure develop the list. It’s called the U.S. Preventive Services Task Force (PSTF). The panel is selected by the head of a subagency within the Department of Health and Human Services.
Who went to court?
Several individuals and businesses wanted to purchase insurance that did not offer these protections. In some cases, the business owners were also the employees, and they did not want to spend money on a policy providing services they did not want. In other cases, opponents of the law claimed that spending money for a policy providing employees with HIV-prevention medication forced them to subsidize conduct that violated their religious beliefs.
Who is Reed O’Connor?
Judge O’Connor has been on the bench since 2007, and he is a notorious opponent of the ACA. In fact, in 2018, he struck down the entire law on the basis of a legal attack so contrived and so flimsy that even the far-right Supreme Court rejected it in 2021.
How has O’Connor attacked the ACA this time?
The current lawsuit didn’t give him an excuse to strike down the entire law again. But he was still able to limit an important part of it.
He had two attacks. In the first, he ruled that the volunteer scientists on the task force were appointed in violation of the Constitution. Because their recommendations become law, he wrote, they should at least be government employees hired by (and removable by) an agency head. Even better, he wrote, they should be nominated by the president and confirmed by the Senate. Either way, he concluded that as volunteers selected by the head of a subagency, they cannot have the authority they exercise.
And second, he ruled that requiring policies to cover PrEP violated the Religious Freedom Restoration Act. That’s the law that was intended to be a shield to protect religious exercise, but which the Far Right has turned into a sword to deprive others of their rights.
A nationwide impact
Judge O’Connor had actually reached these conclusions last fall. He asked the parties to address what the remedy should be. Today, he told us: a nationwide injunction. While many preventive services must still be covered, O’Connor struck down the requirement that they be covered without cost to the patient.
As The Hill notes:
[The decision] immediately jeopardizes access to treatment for the approximately 100 million Americans who use free preventive services annually, and it leaves the door open for insurers to impose deductibles and copays for potentially life-saving screening tests.
This is yet another example of the profound impact that federal judges have on our lives, including federal district court judges who sometimes issue decisions with nationwide impact. Getting more dangerous decisions like this is why Donald Trump, George W. Bush, and Senate Republicans made it their priority to stack the courts with like-minded conservative extremists.
It’s also why President Biden and Senate Democrats have made it a priority to fill our courts with fair-minded judges who will protect everyone’s rights.
There are currently seven district court vacancies in Texas, none with nominees. That’s because under current Judiciary Committee practice, Sens. Ted Cruz and John Cornyn get an automatic veto over any nominee. Decisions like today’s make clear what happens as a result.