Jul 26, 2022 - Health

Affordable Care Act lawsuit threatens contraception access

Illustration of a caduceus and question mark.

Illustration: Lindsey Bailey/Axios

The Affordable Care Act is once again being challenged in federal court, this time with big implications for the private insurance market that dovetail with concerns about contraception access in the post-Roe world.

Why it matters: A pending federal case takes up whether part of the law requiring coverage of preventive services is unconstitutional. If the plaintiffs are successful, millions of people could lose access to free services like cancer screenings, immunizations and contraception.

Driving the news: The plaintiffs of Kelley v. Becerra and the federal government will each make their case this morning in a federal district court hearing before Judge Reed O'Connor.

  • If that name sounds familiar, it should. O'Connor is the same Texas judge who sided with the plaintiffs of the last major ACA court case, ruling that the law is unconstitutional and should be struck down.
  • That case ultimately went to the Supreme Court, where the justices last summer ruled 7-2 against the GOP plaintiffs.

What's at stake: The ACA requires most private insurers — not just those participating in the ACA marketplaces — to cover a set of preventive services without cost-sharing, a measure intended to get more enrollees to use them.

  • Specifically, the law outlines four categories of preventive care that must be covered, including recommendations and guidelines from the U.S. Preventive Services Task Force, the Advisory Committee on Immunization Practices and the Health Resources and Services Administration.
  • These recommendations include more than 100 services, per The Commonwealth Fund.

What we're watching: If the plaintiffs ultimately win, the ACA's preventive services requirement would become voluntary, and insurers could either drop coverage of these services altogether or start charging enrollees for them.

  • If O'Connor sides with the plaintiffs after today's hearing, a critical question will be whether the decision is effective immediately or put on hold during the appeal process.
  • If O'Connor makes the ruling immediately effective and the 5th U.S. Circuit Court of Appeals or the Supreme Court doesn't put the decision on hold, there could be “draconian effects," Andrew Pincus, a visiting lecturer at Yale Law School, told reporters yesterday.
  • The case could ultimately follow the same trajectory as the last ACA lawsuit that O'Connor ruled on, and put the law's fate once again in the hands of SCOTUS.
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