Hiltzik: The lingering legal threat to Obamacare


Supporters of the Affordable Care Act breathed a sigh of relief heard from coast to coast last week when the The Supreme Court refused what looks like the latest federal challenge to overturn the law on constitutional grounds.

They shouldn’t become overconfident. The wait behind the scenes is still another federal lawsuit attacking the law. It seeks to overturn a key provision that requires insurers to provide Americans with dozens of services, including contraceptives and anti-HIV drugs, with no deductible or co-payment.

If the lawsuit is successful, it could even mean that Americans would have to start paying for COVID-19 vaccines and recalls, jeopardizing the battle against the pandemic in the distant future.

The Contraceptive Mandate is not called the Contraceptive Suggestion.

Federal Judge Reed O’Connor, dismissing a motion to dismiss another trial to restrict Obamacare

“The Supreme Court ruling truly marks the end of the general challenge to the Affordable Care Act,” said Nicholas Bagley of the University of Michigan Law School. Future challenges could focus on separate elements of the law, he said.

“Contraceptive cases are important in terms of broader cultural wars, through what they signal about reproductive autonomy, the role of women in society and the kind of support we will provide for autonomy. sexual, ”Bagley says.

What is telling about this latest challenge is that it features repeated plaintiffs who attacked Obamacare from the right, using some of the same arguments in the past, and he landed before Federal Judge Reed O’Connor of Ft. Value.

O’Connor tried to position himself as a team of one-man legal wreckers on the law. Some of his efforts were reversed – last week the Supreme Court dismissed its ruling that the ACA was unconstitutional because Congress reduced the sentence for failing to bring health coverage to zero.

Because of O’Connor’s case, ACA opponents tend to file their cases in federal court in Fort Worth in the hope that they will end up in his courtroom. This is what happened with the latest case, in which the plaintiffs were led by a Texas orthodontist named John Kelley.

O’Connor isn’t expected to make a final decision in the lawsuit until next year, and anything he decides will likely be subject to another year or more of appeals. ACA’s mandates are therefore unlikely to be overturned immediately.

The case, however, creates a new area of ​​uncertainty over the essential provisions of a law which has shown its virtues in terms of insurance coverage and public health gains since its promulgation in 2010. (Harris Meyer of Kaiser Health News understood the implications of this trial in March.)

Kelley identifies in court documents as a Christian who is unwilling to purchase health coverage that “subsidizes” contraception that is tantamount to abortion, or “drugs that encourage homosexual behavior and drug use through the process. intravenous ”. This last reference relates to pre-exposure prophylaxis or “PrEP” drugs, which prevent HIV.

Since these medical approaches are to be provided without cost sharing by all policies subject to ACA, their costs are built into the policy premiums. Therefore, Kelley and her fellow plaintiffs claim that they are obligated to pay them implicitly. They would rather buy policies that do not provide for any of these reprehensible treatments, but do not find any on the market because they are prohibited by the ACA.

The Obama administration has attempted to deal with similar objections to the ACA’s mandates for contraceptive coverage by removing general liability for that coverage from religious institutions that purchase insurance and transferring it to insurance companies themselves. same, which would be reimbursed by the government.

Although clients only had to file a document stating their objection, some even refused to do so; their case went to the Supreme Court, which referred him to lower courts in 2020. At that time, the case had been rendered moot by a Trump administration rule that absolved opponents of filing a notice of withdrawal of the contraceptive mandate.

The Kelley case was filed in March 2020. It encompasses an orthogonal attack on its targets – not just the contraceptive mandate, but the ACA’s other mandates.

These mandates are enshrined in article 2713 of the ACA law, which obliges insurers to cover a menu of dozens of preventive and screening services. These include not only contraceptives and anti-HIV drugs PrEP, but also drug counseling, anti-smoking programs, screening for cancer and sexually transmitted diseases, and immunization of children and adults. for 14 different conditions.

The trial’s argument is that most of these warrants are unconstitutional because they were not enshrined in the law itself.

Instead, they’re on the list because they’re recommended by one of three different government agencies – the Preventive Services Working Group (PSTF), the Immunization Practices Advisory Committee (ACIP), and the Health Resources and Services Administration (HRSA). The first two are advisory committees and the last is an agency of the Department of Health and Social Services.

As Bagley described the case of the plaintiffs in a recent Atlantic article, it is based on two assertions. The first is the “non-delegation doctrine,” according to which if Congress cedes its decision-making power to an agency, it must give that agency clear and detailed instructions on how to act.

The doctrine has not been invoked since the 1930s, when it was brought together against the New Deal. However, he received a favorable opinion from Supreme Court justices Neil M. Gorsuch and Clarence Thomas, albeit in rulings in which he did not enter the results.

The second argument, which Bagley argues is perhaps the strongest, is based on the Constitution’s “appointment clause” which states that “” officers of the United States “must at a minimum be appointed by either the president. or by the head of a large department, ”he explains.

Whether the members of the PSTF and ACIP advisory bodies are “officers of the United States” is not entirely clear. (HRSA is likely to succeed in the rally.) If they are not, then they were not properly named and their recommendations could be rejected. This would jeopardize the mandates of contraceptives and PrEP drugs.

It would also mean throwing away free COVID-19 vaccines; This is because vaccines fall under a provision of the CARES 2020 law in which Congress required insurers to cover without cost sharing all pandemic-related services recommended by these two agencies. Pfizer, Moderna and J&J vaccines are free because they are recommended by ACIP.

Justice O’Connor, in a decision published on February 25, looked kindly at Kelley’s non-delegation and appointment claims, rejecting a government motion to dismiss those claims.

He also smiled on a third ground for their trial – that the warrants violate the religious rights of plaintiffs as set out in the Restoration of Religious Freedom Act 1993, which prohibits government regulations or actions that impose an undue burden on religious observance.

Even though nothing in the ACA compels anyone to purchase or use contraceptives or PrEP drugs, O’Connor accepted the complainants’ argument that their rights were violated by the inability to obtain policies from health insurance that does not cover these treatments at all, premiums for available policies caused by the execution of mandates.

“It makes sense,” he wrote. “The contraceptive mandate is not called the contraceptive suggestion precisely because not all insurers offered contraceptive coverage before the mandate.” He said the plaintiffs “plausibly allege” that if the mandate was removed, insurers would return to the pre-ACA world and “meet demand for policies that do not cover these products.”

O’Connor also accepted in principle that some of the plaintiffs have sufficiently demonstrated that they are legally prejudiced by the ACA’s coverage requirements “they don’t want or need – for example, free tests. of STDs ”and therefore their case should move forward.

The legal circus surrounding the Affordable Care Act looks certain to continue for years to come. Opponents have lost in the Supreme Court in all of the major challenges brought so far.

These findings led Judge Samuel A. Alito Jr. to an outburst of anger (to which Gorsuch agreed and Thomas implicitly endorsed) in a dissent he issued against last week’s ruling:

“Today’s ruling is the third installment in our epic Affordable Care Act trilogy,” he complained. “In all three episodes, as the Affordable Care Act faces a serious threat, the court has managed an unlikely rescue … Fans of forensic inventiveness will applaud once again.”

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