(CN) — Parties in a Texas lawsuit challenging the Affordable Care Act’s preventive service requirements have agreed in principal to a partial stay of a March order which struck down part of the law’s requirement for coverage of certain preventive services at no cost.
The ACA, also known as Obamacare, dictates four categories of preventive care private insurers must cover, relying upon three agencies to identify the qualified treatments. One agency, the Preventive Services Task Force, or PSTF, was described by the court as “a volunteer body of non-federal experts that provides evidence-based recommendations related to preventative care services and health promotion.”
The lawsuit was filed by six individual plaintiffs and two businesses in March 2020, arguing mandates to cover all FDA-approved contraceptive methods and PSTF’s inclusion of preexposure prophylaxis, or PrEP, medications for HIV prevention violate the Constitution and the Religious Freedom Restoration Act. More specifically, the plaintiffs maintain they should have the option to purchase health care insurance that provides exclusions for preventive care they “do not want or need,” while they also believe they should not have to carry insurance that provides coverage for “behaviors that makes [sic] this preventive treatment necessary.”
According to the Centers for Disease Control and Prevention, PrEP medications reduce the risk of contracting HIV by 99% when used as directed.
In March, U.S. District Judge Reed Charles O’Connor of the Northern District of Texas, an appointee of President George W. Bush, declared the PSTF itself was unconstitutional and ruled the plaintiffs’ religious freedom was indeed infringed upon by the ACA mandates.
“These plaintiffs object to purchasing or providing coverage for PrEP drugs because they believe that the bible is ‘the authoritative and inerrant word of God,’ the ‘bible condemns sexual activity outside marriage between one man and one woman, including homosexual conduct,’ providing coverage of PrEP drugs ‘facilitates and encourages homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman,’ and purchasing coverage of PrEP drugs by purchasing such coverage for personal or business use makes them complicit in those behaviors,” O’Connor wrote. “Yet … the ACA forces these plaintiffs to choose between purchasing health insurance that violates their religious beliefs and forgoing conventional health insurance altogether. It is undisputed that putting individuals to this choice imposes a substantial burden on religious exercise.”
O’Connor further ruled the government has no compelling interest in requiring all private insurers to cover PrEP drugs in every one of their insurance policies and therefore the plaintiffs “need not comply” with the ACA’s preventative care mandates, while also concluding the ruling should apply nationwide.
In oral arguments before a three-judge panel of the Fifth Circuit last week, Department of Justice attorney Alisa Beth Klein said she was attempting to prevent the ruling from being applied nationwide while the appeal was pending.
“We’re not objecting to the plaintiffs' specific relief, but they overwhelmingly precluded universal remedies that extinguished the rights of about 150 million people who are not party to this case or before the court,” Klein said. “They have no interest in the terms of the 2.5 million group health plans that are offered by employers for whom they don’t work.”
Instead, Klein argued for a “tailored remedy” allowing insurers on the Texas exchange to temporarily sell plans excluding particular drug coverage. Attorney Jonathan F. Mitchell, representing plaintiff Braidwood Management Incorporated, argued against a stay in the proceedings, offering “no rational employer or insurer will take the risk” of incurring federal penalties before a final order in the case is filed.
On Monday, the parties signed a joint stipulation agreeing to a partial stay of O’Connor’s judgment pending appeal, “in exchange for the defendants’ commitment not to seek penalties against the named plaintiffs for actions taken on the basis of Judge O’Connor’s injunction and judgment, even if the judgment is later vacated or reversed on appeal.”
In the stipulation, the plaintiffs acknowledge “the district court’s judgment and universal remedy are incapable of immunizing the plaintiffs or anyone else from statutory penalties or enforcement action if the district court’s judgment is later vacated or reversed on appeal.”
O’Connor was the same judge in a separate case in 2018 who invalidated the tax penalty on the ACA’s individual mandate, a decision which was subsequently upheld by the Fifth Circuit.
Sitting on the Braidwood case's panel were Senior U.S. Circuit Judge Edith Brown Clement and U.S. Circuit Judge Leslie H. Southwick, both appointees of George W. Bush, and U.S. Circuit Judge Stephen A. Higginson, an appointee of Barack Obama.
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