March 2023

Washington, DC — Today, CMS released the finalized 2024 Medicare Advantage & Part D Rate Announcement policies to protect the program for generations to come. Under the plan, Medicare will improve payment accuracy and strengthen the program for millions of seniors. In response, Protect Our Care Chair Leslie Dach issued the following statement: 

“The final Rate Announcement demonstrates the Biden-Harris administration’s commitment to protecting Medicare by increasing payments, holding insurance companies accountable by reining in their abuse of the system, and taking steps to make our health system more accessible and more equitable. The CMS plan protects seniors and takes important steps to limit insurance company greed.

“The policies finalized today take on insurance companies who game the system by discriminating against the sickest enrollees or using fraudulent billing practices that abuse taxpayer dollars. Importantly, CMS is aligning Medicare Advantage with the rest of the health system by requiring accuracy in billing and utilizing the most up-to-date diagnosis codes. It’s time for the industry and Republicans to stop their false attacks on the Biden administration and instead provide seniors with the quality care they have earned.”

Washington, DC — Today, the Biden administration issued a notice that it is appealing the devastating ruling in Braidwood Management v. Becerra, which ends a major provision of the Affordable Care Act (ACA) that requires no-cost coverage of lifesaving preventive health care services. Braidwood is the latest effort by ACA opponents and their Republican allies to dismantle American health care. Judge O’Connor’s ruling applies nationwide and ends the benefits covered under the U.S. Preventive Services Task Force, including lifesaving colorectal and other cancer screenings, anxiety and depression screenings for children and adults, heart disease screenings, and access to PrEP (pre-exposure prophylaxis), which can substantially reduce the chance of contracting HIV.

In response, Protect Our Care Chair Leslie Dach issued the following statement: 

“President Biden is continuing the fight against the GOP war on our health care. From the very beginning, this lawsuit was politically-driven, brought by longtime foes of the ACA, abortion rights, women’s health, LGBT rights, and affordable health care. Now, the same judge who ruled that the ACA should be overturned entirely is ending life-saving protections under the health care law that 150 million Americans rely on. If Judge O’Connor’s ruling stands, more people will get sick, more people will die, and more people will have to choose between paying for health care and food or rent.”

Latest Republican Attack on the ACA Targets Lifesaving Preventive Care That 150 Million Americans Rely On

Yesterday, U.S. District Judge Reed O’Connor struck down a major provision of the Affordable Care Act (ACA) that requires no cost coverage of lifesaving preventive health care services. Braidwood Management v. Becerra is the latest effort by ACA opponents and Republicans to use the courts to dismantle American health care. News coverage and reactions from lawmakers make clear that ending guaranteed free preventive care will disrupt health care for millions of patients, blocking access to lifesaving care. 

Elected Officials

Majority Leader Senator Chuck Schumer: “Yet again, a Republican activist judge has issued a ruling based on MAGA ideology and not the law, that would decimate our healthcare system and is opposed by a vast majority of Americans… Whether it is attacking laws like this, taking away a woman’s right to choose or trying to gut Medicaid, Republicans must stop their non-stop onslaught on Americans’ health care.” [Senator Chuck Shumer, 3/30/23]

Former Speaker of the House Nancy Pelosi: “Today, a GOP-appointed federal judge ruled to eliminate free, life-saving preventative health care – like cancer screenings and immunizations – guaranteed by the ACA. Every day, MAGA Republicans prove that they will stop at nothing to rip away health care from America’s families.” [@SpeakerPelosi, 3/30/23]

Majority Whip Senator Dick Durbin: “A district judge in Texas just issued an extreme ruling blocking free insurance coverage for preventive health care. Under threat? Cancer screenings, mental health checks, colonoscopies, mammograms… the list goes on. It’s Republicans’ latest ploy to strip away health care.” [@SenatorDurbin, 3/30/23]

Vice Chair of Conference Senator Elizabeth Warren: “This decision will prevent millions from receiving free preventive health services—from cancer screenings to medication preventing HIV. The ruling, issued by a single, Republican-appointed judge, threatens access to life-saving services & will cost lives.” [@SenWarren, 3/31/23]

President Pro Tempore Senator Patty Murray: “This is a downright dangerous decision. More than a decade after we passed the ACA, Republican interests are still working around-the-clock to roll back critical protections for patients.” [The Washington Post, 3/30/23]

Chairman of the Committee on Finance Senator Ron Wyden: “The only thing this ruling [Braidwood v. Becerra] will achieve is making Americans sicker. Shameful.” [@RonWyden, 3/30/23]

Ranking Member of Energy and Commerce Committee Representative Frank Pallone: “This decision striking down the ACA’s preventive services coverage requirement imperils access to lifesaving care including mammograms, lung cancer and skin cancer screenings, screenings for pregnant women and newborns, and PrEP.” [@FrankPallone, 3/30/23]

Ranking Member of Ways and Means Committee Representative Richard Neal: “Over the last 13 years, Americans have come to rely on the ACA’s life- and cost-saving care while Republicans attempt to make people sicker and poorer every chance they get. Yet again, a judicial activist, despite a failed track record, is redefining health care law and taking our country backward. While courts across the country have reaffirmed the ACA time and time again, this decision is based not on legal merit but rather steeped in partisan warfare on Americans’ access to care.” [Rep. Richard Neal, 3/30/23]

Ranking Member on Health Subcommittee Representative Anna Eshoo: “This ruling is another example of the Republican 13-year war against the Affordable Care Act that puts politics ahead of the lives of children, pregnant women, and adults. Fortunately for many of my constituents, California law requires individual insurance to cover preventive care. Insurers have the money to continue to cover these lifesaving services at no cost. I call on insurance companies to continue to do so, despite what one judge in Texas says.” [Rep. Anna Eshoo, 3/30/23]

Headlines

Axios: Obamacare Ruling Gives Democrats New Political Ammo. “It’s unclear how insurers would respond should the decision be upheld by higher courts, but even the threat of new patient costs for some cancer screenings, statins for heart disease or HIV prevention drugs presents an opportunity to rail on Republican extremism… All of this takes place against a backdrop of sustained messaging from Democrats and the White House about Republican attempts to cut Medicare, Medicaid and Social Security, even though the GOP hasn’t formally proposed any such cuts this Congress.The ruling puts Democrats in a familiar and comfortable position and will likely force Republicans to once again answer for a politically unpopular court decision.” [Axios, 3/31/23]

The Washington Post: Texas Judge Invalidates ACA Promise Of Free Preventive Health Services. “With the mandate gone, at least for now, it will be up to insurers and employers to choose whether to continue the coverage of various forms of preventive care or to save money by charging patients part of their cost… “It’s going to exacerbate all the leading causes of death in this country,” said Georges C. Benjamin, executive director of the American Public Health Association. “In a nation that has enormous health inequities, it is going to disadvantage communities of color…” Critics of the ruling predicted that while the Biden administration seeks to overturn O’Connor’s decision on appeal, the plaintiffs were likely to try to broaden it to cover contraception and other services that are spared for now.” [The Washington Post, 3/30/23]

The New York Times: Judge Strikes Down Critical ACA Preventive Care Mandate. “The decision, by Judge Reed O’Connor of the Federal District Court for the Northern District of Texas, applies nationwide. If it stands, it could have far-reaching implications for millions of Americans, bringing the United States back to the days before the 2010 health law known as Obamacare, when insurers were free to decide which preventive services they would cover. The ruling, which is in the form of a nationwide injunction, takes effect immediately, said Lawrence O. Gostin, an expert on health policy at Georgetown University who has followed the case.” [The New York Times, 3/30/23]

Stat: Key Provision in the ACA Overturned by District Judge. “It [The Braidwood v. Becerra ruling] also leaves the door open for insurers to refuse coverage of statins, drugs preventing HIV transmission known as PrEP, and a vast range of health screenings recommended by federal officials. It could also eventually threaten the Biden administration’s efforts to lower maternal and infant mortality rates and bolster reproductive rights in the wake of Roe’s overturn. The lawsuit was brought by Braidwood Management, which represents a handful of Christian-owned businesses in Texas who argued they should not be required to cover birth control and PreP.” [Stat, 3/30/23]

Reuters: U.S. Judge Blocks Obamacare Coverage Mandate For Some Cancer Screenings, PrEP. “More than 150 million people were eligible for preventive care free of charge as of 2020 under the ACA, according to data from the U.S. Department of Health and Human Services. If O’Connor’s ruling is not paused or overturned on appeal, insurers will be able to charge patients copays and deductibles for such services in new insurance plans… Major medical groups criticized the decision… Lisa Lacasse, president of the American Cancer Society Cancer Action Network, said the ruling could have ‘huge implications’ and make it more difficult to catch treatable cancers early. ‘We cannot emphasize enough how important screenings are for early detection of cancer,’ she said…” [Reuters, 3/30/23]

Yale Daily News: Researchers Predict Rapid Increase in HIV Infections Due Directly to Braidwood Ruling. “In a recent study led by the Yale School of Public Health, researchers found that the Sept. 2022 Texas ruling in Braidwood Management v. Becerra could potentially result in more than 2,000 predictable cases of human immunodeficiency virus in the U.S. in the coming year. In the study, the researchers tried to estimate how many new HIV infections would result from the outcome of this court ruling, focusing on men who have sex with men… In addition, the researchers estimated that coverage would drop from 28 percent to 10 percent after the Braidwood Management v. Becerra decision… However, according to Paltiel, this number is almost certainly an underestimate.” [Yale Daily News, 3/31/23]

Bloomberg Law: ACA Preventive Care Mandate Limited by Texas Judge. “A federal judge blocked on Thursday an Obamacare requirement for health plans to pay in full for certain preventive health-care services, including PrEP drugs for HIV. Judge Reed O’Connor of the US District Court for the Northern District of Texas vacated actions taken by the US Health and Human Services Department to implement or enforce certain Affordable Care Act preventive services coverage requirements.” [Bloomberg Law, 3/30/23]

Braidwood Decision Ends Free Lifesaving Preventive Health Care for 150 Million Americans

Yesterday, U.S. District Judge Reed O’Connor struck down a major provision of the Affordable Care Act (ACA) that requires no-cost coverage of lifesaving preventive health care services.

Braidwood Management v. Becerra is the latest effort by ACA opponents and Republicans to use the courts to dismantle American health care. Judge O’Connor invalidated all of the benefits covered under the U.S. Preventive Services Task Force, including lifesaving colorectal and other cancer screenings, anxiety and depression screenings for children and adults, heart disease screenings, and access to PrEP (pre-exposure prophylaxis), which can substantially reduce the chance of contracting HIV. The ruling applies nationwide. 

Patient groups, health care experts, and advocates sounded the alarm that yesterday’s decision to end the ACA’s guaranteed free access to essential preventive services will harm patients and dismantle “bedrock protections” in our health care system. 

American Medical Association Said This “Court Ruling Jeopardizes Access To Vital Preventive Health Services.”  “The AMA is alarmed by today’s deeply flawed court ruling in Texas that jeopardizes access to preventive health services guaranteed under federal health reform, including drugs preventing HIV transmission. A critical section of the Affordable Care Act (ACA) required insurers and health plans to cover dozens of preventive health services with no cost to patients—eliminating copays and deductibles for the early detection of potentially fatal medical conditions, including cancer, hypertension, diabetes, and sexually-transmitted infections. Millions of patients could lose first-dollar coverage for cholesterol treatment, tobacco and alcohol cessation, immunizations, and childhood screenings for lead poisoning, hearing loss, and autism. Care that is critical to reducing maternal mortality would also be jeopardized. These preventive-care requirements that for ten years have enabled millions of Americans to improve their health could just go away as a result of this flawed ruling. Providing insurance coverage for screenings and interventions that prevent disease saves lives—period. Invalidating this provision jeopardizes tools physicians use every day to improve the health of our patients. And the burden of losing this first-dollar coverage will fall disproportionately on low-income and historically marginalized communities that are least able to afford it and are often at high risk of developing preventable medical conditions.”  [AMA, 3/30/23] 

The American Lung Association and 25 Other Patient Groups Released a Joint Statement Highlighting “This Ruling Directly Threatens These Benefits And Would Result In A Return To Financial And Other Barriers Proven To Discourage Americans From Obtaining Lifesaving, Preventive Care.” “Individuals will not immediately lose access to these preventive services because the Court has not yet ruled on the scope of relief or remedy. However, this decision could ultimately allow the reinstatement of financial barriers that in the past discouraged all too many Americans from obtaining preventive care, such as screenings for cancer and hypertension, helping people who smoke quit, and preventive care for pregnant women and babies. Among the Affordable Care Act’s most popular and effective provisions have been the requirement that insurance cover – without cost-sharing – services that help screen for and prevent disease. Access to preventive healthcare can prevent both disease and early death. In recent years, more than 150 million Americans have benefited from expanded access to preventive services under the Affordable Care Act. Studies repeatedly show that high-quality coverage, complete with preventive services, improves the overall health of individuals and our country, lowers overall health spending, and reduces health disparities. This ruling directly threatens these benefits and would result in a return to financial and other barriers proven to discourage Americans from obtaining lifesaving, preventive care. Our organizations are deeply committed to ensuring everyone has access to the care they need, and we will vigorously defend individuals’ rights to access these critical services.” [American Lung Association, 3/30/23]

• Signatory groups:  The AIDS Institute, American Cancer Society Cancer Action Network, American Heart Association, American Kidney Fund, American Lung Association, Arthritis Foundation, Cancer Support Community, Cystic Fibrosis Foundation, Epilepsy Foundation, Hemophilia Federation of America, JDRF , The Leukemia & Lymphoma Society, Lupus Foundation of America, The Mended Hearts, Inc., Muscular Dystrophy Association, National Alliance on Mental Illness (NAMI) , National Coalition for Cancer Survivorship, National Health Council, National Hemophilia Foundation, National Kidney Foundation, National Multiple Sclerosis Society, National Organization for Rare Disorders, National Patient Advocate Foundation, National Psoriasis Foundation, Susan G. Komen, WomenHeart: The National Coalition for Women with Heart Disease

American College of Obstetricians and Gynecologists Said “Allowing Personal Or Political Bias To Interfere With The Practice Of Medicine Will Cause Harm To Our Patients.” “No-copay coverage of critical preventive care like HIV prevention is intended to increase access in order to keep people healthier. Preventive care improves health and saves lives, and it also reduces overall costs to the health care system. An individual’s personal belief does not change the fact that HIV prevention helps people live healthy lives. To improve health outcomes, we should be working toward increased access to and utilization of all preventive care recommended by the U.S. Preventive Services Task Force. Instead, we find ourselves once again defending health care from outside interference and responding to attempts to dismantle our current preventive care system. Today’s decision will leave more people without access to preventive care and will grow health inequities among those who will now find themselves underinsured.” [ACOG, 3/30/23]

Dr. Georges C. Benjamin, Executive Director of the American Public Health Association Said “The Impact Of This Decision Is Disastrous For The Public.” “As a physician, the impact of this decision is disastrous for the public. The Affordable Care Act was designed to move our health system to address prevention and it has been highly successful in doing that. Preventative services are highly effective, and we know that from a medical perspective, this will undermine our ability to protect people and save lives.” [Protect Our Care Event, 3/30/23] 

Margaret A. Murray, CEO of the Association for Community Affiliated Plans, Said “Families Deserve Better Than Having Bedrock Protections Of The Health Reform Law Invalidated With A Two-Page Ruling.” “We call on the Justice Department to appeal this ruling such that this decision can be stayed to give the necessary acts of jurisprudential hygiene time to occur. In the interim, our Safety Net Health Plans will continue to work to equitably improve the health of all their members – regardless of their sexual orientation or their gender identity.” [ACAP, 3/30/23]

The Philadelphia Health Department’s Dr. Kathleen Brady Makes Statement Regarding How This Ruling Will Hurt Local Government Initiatives. “With an ambitious goal of reducing HIV infections by 90% by 2030, Philadelphians need access to PrEP without barriers, financial or otherwise. This ruling hurts the members of our communities who routinely face discrimination and are at increased risk of HIV exposure, particularly Black, Latino, and LGBTQ+ Philadelphians. This decision has been heavily criticized by medical professionals throughout the nation and we add our voice to that chorus. The Health Department is here to ensure that everyone who needs HIV prevention services can get them.” [Philadelphia Health Department, 3/30/23]

Cofounder of United States of Care, Natalie Davis, Said “The Resulting Impacts Of This Decision Will Be Widespread, Starting With The Fact That It Creates Uncertainty For People Seeking Care.” “Free preventive screenings are one of the most popular parts of the health care system across demographics and party lines, with nearly two-thirds of people expressing support for these policies. To put it bluntly, no-cost preventive services save lives. Since these protections went into effect, cancer deaths have dropped by 17%, while new HIV infections have decreased by 73% since the mid-1980’s. Changes to preventive services benefits will have a disproportionate impact on communities of color and communities who are always pushed to the margins of our health care system, exacerbating existing health disparities and erecting additional barriers to services. People need more access to no-cost preventive services, not less.The progress we have made with prevention through access to no cost screenings –  in narrowing health disparities, and increasing access to needed – care is now in jeopardy –  people’s lives are at stake. We can’t go backwards.” [United States of Care, 3/30/23]

The National Coalition of STD Directors: A Joint Statement from the Group Wholly Condemns the Ruling by Judge Reed O’Connor. “Today’s ruling threatens the most powerful tools this nation has to fight the epidemic of sexually transmitted infections (STIs) – guaranteed insurance coverage for basic preventive medical care. We cannot reduce the devastating impact of completely preventable infections like congenital syphilis if people cannot count on their insurance to help them pay for essential routine health services. As our public health systems have buckled under the strain of rising disease rates and falling funding, we have grown increasingly reliant on the routine, privately funded health services that most people use to access services like standard syphilis testing during routine prenatal care or HIV tests in our yearly check-ups. This ruling rips out the backbone of the U.S. health care system, and risks the future health of every single American. STIs impact people of all walks of life and can have devastating consequences when left undetected and untreated. The overreach of one judge should not threaten the health and safety of hundreds of millions of lives. We are calling on the Biden administration to use its full weight to safeguard preventive services coverage for all Americans.” [National Coalition of STD Directors, 3/30/23]

National Partnership For Women And Families:  “This Ruling From Judge O’Connor Is Devastating.”  “This ruling from Judge O’Connor is devastating. Striking down coverage for preventative care hurts all of us but especially folks of color and low-income people who have overwhelmingly benefited from this provision.” [@NPWF, 3/30/23] 

Professor of Pediatrics at Yale, Meredithe McNamara: Ruling in Braidwood Case is More “Sinister” Than Even Burwell v. Hobby Lobby Stores, Inc. “Per Braidwood, anyone with an objection to LGBTQ identity can claim that providing healthcare for LGBTQ people harms their religious beliefs. In a time when the rights of transgender people are debated in state legislatures throughout the U.S., Braidwood is a clear example of a judicial attack meant to embolden those with prejudice to further harm LGBTQ people.” [Yale Daily News, 3/31/23]

Dr. A. Mark Fendrick of the University of Michigan, One of the Original Drafters of the Preventive Care Mandate, Blasts the Braidwood Ruling. “Requiring patients to pay significant amounts out-of-pocket for high-quality preventive services shouldn’t be a partisan issue. Whether you’re a Democrat or a Republican, it’s just good policy to promote access to services that have been proven to prevent diseases or to detect conditions while they’re still treatable.” [University of Michigan, 3/30/23]

Attorney General Rob Bonta Released a Statement on the Braidwood Ruling. “Preventive healthcare is crucial to saving lives and keeping people healthy and safe. From cancer screenings to pregnancy-related care, to HIV medication, preventive care is a critical aspect of healthcare. I am deeply disappointed in today’s dangerous and short-sighted court ruling in Texas. It puts ordinary Americans’ lives at risk and deprives them of access to the medical care and services they need. We will not let this stand.” [State of California Department of Justice, 3/30/23]

Ben Klein, GLBTQ Legal Advocates & Defenders (GLAD) Senior Director Said “Today’s Order In Braidwood V. Becerra Will Have Direct And Devastating Consequences For Efforts To Combat The HIV Epidemic.” “We have a safe, approved therapy PrEP (Preexposure Prophylaxis), that is nearly 100% effective at preventing transmission of HIV but that remains underutilized, particularly among Black and Latinx communities. Ending the requirement that insurers cover PrEP with no cost-sharing will increase new HIV diagnoses and exacerbate racial health disparities when what we need is to be ensuring more people have access to PrEP. Copays and deductibles deter people from accessing healthcare. Make no mistake, we will see more HIV transmission as a result of this ruling.” [GLAD Legal Advocates and Defenders, 3/30/23]

On March 30, 2023, District Judge Reed O’Connor struck down portions of the Affordable Care Act (ACA) that require insurers to cover lifesaving preventive services without cost sharing. Judge O’Connor invalidated all of the benefits covered under the U.S. Preventive Services Task Force (USPSTF), including lifesaving cancer and heart disease screenings, prenatal care,  pre-exposure HIV treatments, and more.

This lawsuit was initiated and driven by extremist, longtime foes of the ACA, abortion rights, marriage equality, vaccination mandates, and diversity policies—and decided by the same Federal District Court judge whose decision invalidating the entire ACA was reversed by the Supreme Court in 2021. Judge O’Connor’s ruling will once again put Americans at the mercy of insurance companies and employers, who could eliminate the benefits entirely or start charging for them, increasing costs for patients by thousands of dollars a year and creating major obstacles to care. Guaranteed no-cost coverage of preventive services, including screenings for chronic disease, is a key factor in expanding access to these services – which together with actions to address other social and structural determinants of health – and advancing health equity.

The ACA’s requirement that insurers provide services recommended by the USPSTF without cost-sharing guarantees access to dozens of health services with zero out-of-pocket costs. Eliminating costs for these lifesaving screenings and services has transformed how preventive care is delivered, saved countless lives, improved health outcomes, reduced disparities in care, and cut consumer health care costs for more than 150 million Americans. Judge O’Connor’s decision in the Braidwood Management (formerly Kelley) v. Becerra lawsuit ends the requirement that insurance plans cover these lifesaving, no-cost benefits. Here are just some of the preventive services invalidated by Judge O’Connor:

• GONE – Free, Guaranteed Cancer & Health Screenings. This decision strikes down the ACA requirements that insurers cover screenings for serious health issues including colorectal cancer, lung cancer, hypertension, and prediabetes. 
• GONE – Free, Guaranteed Mental Health & Substance Use Screenings. This decision strikes down the ACA requirements that insurers cover screenings for depression and anxiety for children and adolescents, as well as depression screenings for adults. This decision also strikes down the requirement that insurers cover screenings for unhealthy alcohol and drug use and tobacco cessation counseling and products. 
• GONE – Free, Guaranteed PrEP. This decision strikes down the ACA requirements that guarantee access to pre-exposure prophylaxis (PrEP), a drug proven to substantially reduce the risk of contracting HIV. PrEP has been associated with a significant decrease in the number of new HIV diagnoses.

Here’s What Health Experts Have Said About The Case

• A coalition of 16 patient advocacy organizations—led by the American Cancer Society—urged the court not to end guaranteed preventive coverage because it “would be highly disruptive to the health care system and patient care,” noting, “USPSTF’s preventive care recommendations have been adopted and relied on by patients and providers in the health care system for over 12 years…It is a popular provision of the law favored by 62% of Americans.”
• A coalition of 8 leading medical organizations—led by the American Medical Association—warned that O’Connor’s ruling would “revert to the pre-ACA regulatory regime, where insurers could charge their enrollees…for mammograms, colonoscopies, and other services at will. […] All Americans…will be affected by the confusion that emerges from gutting the ACA’s decade-old preventive-care requirements. Doing so would yield a “confusing patchwork of health plan benefit designs offered in various industries and in different parts of the country,’ making it difficult for ‘patients who have serious medical conditions or are at high risk for such conditions’ to ‘find a plan that fully covers preventive and screening services.’ […] Many will instead decide to forgo basic preventive services entirely.”
• Twenty-four organizations representing millions of people with or at risk for serious or chronic illnesses released a letter highlighting the need to protect access to preventive services.

What Happens Next

If the federal judiciary allows O’Connor’s ruling to stand, a full reversal of the preventive services requirement would set off a massive disruption in the American health care system with over 150 million Americans at risk of losing access to no-cost preventive care at the end of this year or when they renew their insurance.

It is imperative Judge O’Connor’s ruling be stayed pending appeal. The case will almost certainly be appealed to the 5th Circuit Court of Appeals, and it will eventually end up at the Supreme Court. 

Who Is Behind It? 

The Braidwood Management v. Becerra Plaintiffs Have Repeatedly Sued To Overturn Parts Of The ACA. John Kelley, his wife, and his company, Kelley Orthodontics, filed an earlier and similar class action lawsuit against the ACA’s contraceptive mandate known as DeOtte v. Azar. Another plaintiff, Braidwood Management, owned by Dr. Steven Hotze, was also a plaintiff in DeOtte and has previously brought and lost challenges to other parts of the ACA. In addition to being a plaintiff in previous efforts to overturn the ACA, Hotze is a vocal advocate for multiple far-right conspiracy theories, claiming COVID-19 was an invention of the “deep state,” suggesting equal rights for LGBTQ+ individuals would lead to child molestation, and bankrolling election fraud vigilantism after making false claims regarding voter fraud in the 2020 election. 

The Lead Attorney For The Plaintiffs In Braidwood Management V. Becerra Is One of the Key Authors of SB8, Texas’ Vigilante Anti-Abortion Law. The lead attorney for the plaintiffs is Jonathan Mitchell, “who helped craft the Texas abortion law that was designed to evade judicial review by leaving enforcement to private citizens instead of government officials.”

• Mitchell Filed Briefs Arguing the Supreme Court Should Overrule its Decisions Protecting Marriage Equality and Invalidating Anti-Sodomy Laws. Mitchell filed a brief in the Dobbs case urging the Supreme Court to overturn Roe v. Wade–and criticized Mississippi for suggesting that the Court could leave in place its 2015 ruling in Obergefell v. Hodges, holding that same-sex couples have the right to marry in all states. He said that Obergefell and Lawrence v. Texas, the 2003 ruling that invalidated all remaining state anti-sodomy laws, “are judicial concoctions, and there is no other source of law that can be invoked to salvage their existence.” Mitchell has also referred to PrEP, a life-saving medication that prevents HIV infection as a drug that would “facilitate and encourage homosexual behavior, prostitution, sexual promiscuity, and intravenous drug use.” 

The Plaintiffs In Braidwood Management v. Becerra Are Also Represented By The Trump-Aligned America First Legal Foundation. The plaintiffs are “represented by America First Legal Foundation, a nonprofit led by senior members of President Donald Trump’s administration, including Trump senior adviser Stephen Miller.” 

• America First Legal Has Supported Suits To Overturn Vaccine Mandates And Block “Critical Race Theory.” America First Legal is involved in numerous hot-button conservative legal actions. AFL has supported suits seeking to overturn vaccine mandates and sued companies that have policies to increase diversity in their workforces. The group has also filed suits alleging that pandemic aid for minority farmers is “racist” and trying to force the Biden administration to stop allowing immigrant children into the country.
• America First Legal Was Established By Former Trump Aide Stephen Miller “To Make Joe Biden’s Life Miserable.” America First Legal was founded by former Trump aide and white nationalist Stephen Miller who was “looking to use it to make Joe Biden’s life miserable.” He was also the architect of the Trump administration’s harshest immigration policies and a supporter of the forced sterilizations committed by ICE in Georgia.

The Judge Ruling on Braidwood Management v. Becerra Is Well-Known For His Anti-Obamacare Beliefs. According to CNN, U.S. District Judge Reed O’Connor is, “a Texas-based judge who has become notorious for his rulings against the Affordable Care Act under the Trump and Obama administrations.” O’Connor — an appointee of President George W. Bush and a former advisor to Sen. John Cornyn on the Senate Judiciary Committee — has issued opinions spanning over a decade that would dismantle key Obamacare provisions and now, with Braidwood Management v. Becerra, has ruled once again to strip Americans of their quality and affordable health care. 

• Judge O’Connor Has Previously Ruled To Strike Down The Entire ACA, To Overturn Contraceptive Coverage Requirements, To Invalidate Vaccine Mandates, And Limit LGBTQ+ Rights. O’Connor presided over the last major Obamacare challenge to land on the Supreme Court’s doorstep. In that case, O’Connor invalidated the entire ACA — and his decision was overturned by a 7-2 majority that included four of the Supreme Court’s conservative Justices. In addition to the individual mandate case, O’Connor also sided with Obamacare challengers who took aim at the law’s non-discrimination provisions, its contraceptive coverage requirement, and at insurance provider fees imposed on states through the law. He also recently ruled against the military’s Covid-19 vaccine mandate and has in the past issued decisions against policies that expanded LGBT rights. 
• For Opponents Of The ACA, Judge O’Connor Is “Their Guy.” Describing Judge O’Connor’s string of anti-ACA rulings, John Cogan, a health law professor at the University of Connecticut School of Law said, “There are plaintiffs who simply will not give up, despite years of defeats. They’ve had some successes, but years of defeats, and there’s just no lack of an appetite for continuing litigation. […] The whole approach to challenging the ACA … he’s their guy.” 

Why The Plaintiffs’ Legal Arguments Are Wrong

The plaintiffs make three primary legal arguments – all are wrong. The plaintiffs will likely raise these arguments as the case is appealed.

The Plaintiffs’ First Argument: The law violates the Appointments and Vesting Clauses of the Constitution because members of the United States Preventive Services Task Force (USPSTF), Advisory Committee on Immunization Practices (ACIP), and Health Resources and Services Administration (HRSA) have not been nominated by the President or confirmed by the Senate and, according to the plaintiffs, can “unilaterally determine” the preventive care that must be covered by insurers and plans. 

Why The Plaintiffs Are Wrong: Congress made a conscious decision to require coverage of preventive services — specifying bodies that utilized well-established standards to guide their decisions — and ensured each entity in question (USPSTF, ACIP, and HRSA) is overseen by federal agencies whose heads have been appointed by the President and who all report to a senior official appointed by the President and confirmed by the Senate (the Secretary of Health and Human Services [HHS]). USPSTF members are appointed by the head of the Agency for Healthcare Research and Quality, who reports to the Secretary of HHS. The HRSA Administrator reports to the Secretary of HHS. The members of ACIP are appointed by the CDC Director who reports to the Secretary of HHS. HRSA is a component of HHS.

The Plaintiffs’ Second Argument: The preventive services provision violates the nondelegation doctrine because it delegates legislative power to the USPSTF, ACIP, and HRSA without providing an “intelligible principle” to guide their exercise of discretion. 

Why The Plaintiffs Are Wrong: Congress required the coverage of evidence-based and preventive services, and it specified bodies that applied well-established standards to guide their decisions. By specifying those bodies, Congress plainly endorsed and incorporated the standards that they utilized, and those standards provide a sufficient “intelligible principle” to limit discretion and govern the recommendations and guidelines that must be covered under the ACA.

The Plaintiffs’ Third Argument: The plaintiffs claim they have religious objections to paying for one of the preventive services mandated by the ACA — PrEP, a drug essential to HIV prevention – and that requiring coverage of this medication is a violation of the Religious Freedom Restoration Act (RFRA).

Why The Plaintiffs Are Wrong: As the Department of Justice explains in its court filings, the plaintiffs have not shown that their religious beliefs are burdened because they failed to prove that the availability of PrEP medications encourages behavior inconsistent with their beliefs or that the PrEP requirement causes an increase in their cost for health insurance. In addition, preventing the spread of HIV, a potentially fatal, infectious disease, is a compelling government interest–which is a separate basis for rejecting the RFRA claim.

Watch the Full Event Here.

Washington, DC — Today, American Cancer Society Cancer Action Network President Lisa Lacasse, National Partnership for Women & Families’ Sinsi Hernández-Cancio, American Public Health Association Executive Director Dr. Georges Benjamin, and Andrew Pincus joined Protect Our Care for a virtual press conference discussing U.S. District Judge Reed O’Connor’s devastating decision to strike down a major provision of the Affordable Care Act (ACA) that requires no-cost coverage of lifesaving preventive health care services. Today’s decision in Braidwood Management v. Becerra would end ACA’s guaranteed free access to essential preventive services. In 2020 alone, more than 150 million Americans benefited from these preventive services. Read Protect Our Care’s fact sheet here.

Judge O’Connor invalidated all of the benefits covered under the U.S. Preventive Services Task Force, including lifesaving breast cancer screenings, colorectal and other cancer screenings, anxiety and depression screenings for children and adults, heart disease screenings, intimate partner violence screenings, and access to PrEP (pre-exposure prophylaxis), which can reduce the chance of contracting HIV. The ruling applies nationwide. During the call, speakers will make clear that this decision is a tragedy for millions of Americans’ access to lifesaving health care services. 

“This ruling would undoubtedly negatively impact health outcomes and reverse progress,” said Lisa Lacasse, president of the American Cancer Society Cancer Action Network. “We know that any cost barrier can be a deterrent to accessing evidence-based and potentially lifesaving prevention services – including cancer screenings and early detection. If upheld, this ruling could mean reduced cancer screenings, leading to later stage diagnoses, when cancer is more expensive to treat and survival less likely.”

“Judicial extremism is on clear display here,” said Sinsi Hernández-Cancio, Vice President for health justice at National Partnership for Women & Families. “What started as an attack on LGBTQ people is now undermining preventive health care for all of us. This egregious holding harms women’s access to life-saving care and worsens health inequities. From screenings for depression, diabetes, and heart health to essential pregnancy and postpartum care, critical services are no longer guaranteed to be available without copays or cost-sharing. And even though the ACA’s women-specific preventive services such as contraceptive coverage are safe for now, the motives of the plaintiffs are clear, and we must be on high alert that these services, too, could be at risk as this case moves through the courts.”    

“Not only is Judge O’Connor’s decision wrong on the legal merits, it would be highly disruptive to our health care system and roll back health care gains made over the years,” said Andrew Pincus, Visiting Lecturer in Law at Yale Law School and experienced Supreme Court and appellate lawyer. “This ruling would eliminate guaranteed free access to life-saving preventive services for more than 150 million Americans.”

“As a physician, the impact of this decision is disastrous for the public,” said Dr. Georges C. Benjamin, Executive Director of the American Public Health Association “The Affordable Care Act was designed to move our health system to address prevention and it has been highly successful in doing that. Preventative services are highly effective, and we know that from a medical perspective, this will undermine our ability to protect people and save lives.”

“The results of this decision will be that more Americans get sick, more Americans will die, and more Americans will have to make painful choices between their health and paying for other essential needs, like food and shelter,” said Leslie Dach, Chair of Protect Our Care. “This case was brought by long-term opponents of the ACA who have failed over fifty times to repeal the law in Congress and whose policies were rejected by voters in three straight elections.”

Braidwood Decision Ends Free Lifesaving Preventive Health Care for 150 Million Americans

Washington, DC — Today, March 30, 2023 at 2:30 PM EDT, American Cancer Society Cancer Action Network President Lisa Lacasse, National Partnership for Women & Families’ Sinsi Hernández-Cancio, American Public Health Association Executive Director Dr. Georges Benjamin, and Andrew Pincus will join Protect Our Care for a virtual press conference to discuss U.S. District Judge Reed O’Connor’s devastating decision to strike down a major provision of the Affordable Care Act (ACA) that requires no cost coverage of lifesaving preventive health care services. Today’s decision in Braidwood Management v. Becerra would end ACA’s guaranteed free access to essential preventive services. In 2020 alone, more than 150 million Americans benefited from these preventive services.  

Judge O’Connor invalidated all of the benefits covered under the U.S. Preventive Services Task Force, including lifesaving breast cancer screenings, colorectal and other cancer screenings, anxiety and depression screenings for children and adults, heart disease screenings, intimate partner violence screenings, and access to PrEP (pre-exposure prophylaxis), which can reduce the chance of contracting HIV. The ruling applies nationwide. During the call, speakers will make clear that this decision is a tragedy for millions of Americans’ access to lifesaving health care services. 

PRESS CALL:

WHO:
Lisa Lacasse, President for American Cancer Society Cancer Action Network
Sinsi Hernández-Cancio, Vice President for health justice at National Partnership for Women & Families
Andrew Pincus, Visiting Lecturer in Law at Yale Law School and and experienced Supreme Court and appellate lawyer
Dr. Georges C. Benjamin, Executive Director, American Public Health Association
Leslie Dach, Chair of Protect Our Care

WHAT: Virtual Press Conference

WHERE: Register for the Event Here.

WHEN: Thursday, March 30, 2023 at 2:30 PM EDT

Braidwood Case is Latest Effort by ACA Opponents and Republicans to use the Courts To Dismantle American Health Care 

Washington DC — Today, U.S. District Judge Reed O’Connor struck down a major provision of the Affordable Care Act (ACA) that requires no cost coverage of lifesaving preventive health care services. Today’s decision in Braidwood Management v. Becerra would end ACA’s  guaranteed free access to essential preventive services. In 2020 alone, more than 150 million Americans benefited from these preventive services. 

Judge O’Connor invalidated all of the benefits covered under the U.S. Preventive Services Task Force, including lifesaving breast cancer screenings, colorectal and other cancer screenings, anxiety and depression screenings for children and adults, heart disease screenings, intimate partner violence screenings, and access to PrEP (pre-exposure prophylaxis), which can reduce the chance of contracting HIV. The ruling applies nationwide. 

Protect Our Care Chair Leslie Dach issued the following statement: 

“Judge O’Connor’s decision will increase costs and hurt millions of families across the country who depend on free preventive care to stay healthy. From the start, this was a politically-driven lawsuit, financially supported by people with extreme views, and placed in front of a judge with a proven record of attempting to dismantle the ACA. As a result of this devastating ruling, Americans will again be at the mercy of insurance companies who could increase costs for cancer screenings, prenatal care, mental health screenings, and more. This ruling will upend how Americans receive preventive care in this country, and more Americans will die because their cancers will be detected too late or they won’t receive the mental health or prenatal care they need. The courts must stay this ruling pending appeal. The health and financial security of millions of Americans is now at grave risk.”

Washington, D.C. – Beginning Saturday, April will mark the fifth annual Medicaid Awareness Month, and there has never been a better time to raise awareness about Medicaid’s importance for communities across the nation. A record 92 million Americans are enrolled in Medicaid, providing affordable, quality health care to people from all backgrounds, including children, mothers, people of color, people with disabilities, rural Americans, and seniors. 

Medicaid Awareness Month comes as Republicans in Congress are seeking serious cuts to the program and proposing bureaucratic work reporting requirements while GOP leaders in 10 states have failed to expand Medicaid under the Affordable Care Act, blocking millions of families from affordable coverage. President Biden and Democrats in Congress, on the other hand, are working to strengthen Medicaid for years to come. 

Congress passed legislation at the beginning of the COVID-19 pandemic to protect access to Medicaid by ensuring no one could lose their coverage during the public health emergency. This provision, which has helped secure the lowest level of uninsured Americans ever, is set to expire on April 1. As states begin to redetermine who is eligible for Medicaid, an estimated 15 million people are vulnerable to losing coverage, disproportionately affecting people of color and children. 

Throughout the month of April, Protect Our Care will release reports, publish fact sheets, and host events nationwide with elected officials, storytellers, and health care advocates. These activities will highlight Medicaid’s critical role in America, underscore what needs to be done to expand and strengthen the program, and make clear the dire consequences of Republican threats. 

To mark the start of Medicaid Awareness Month, Protect Our Care Executive Director Brad Woodhouse released the following statement: 

“This month is a critical reminder that Medicaid is working for people in America. Regardless of who you are or where you live, you or someone you love has almost certainly benefited from Medicaid. And with more Americans relying on Medicaid coverage than ever before, it is essential that lawmakers fight to protect people with Medicaid coverage from Republican attacks. As they continue to block Medicaid expansion in 10 remaining states and pursue reckless cuts to Medicaid, Republicans continue to play politics with people’s lives.”

The month will include the following themes each week:

• Week 1: Republican threats to Medicaid. Week one will focus on how Republicans are actively seeking cuts to Medicaid while GOP leaders in 10 states continue to block Medicaid expansion. 
• Week 2: Medicaid helps women and kids. Week two will bring attention to the vital role of Medicaid for mothers and children across the country. 
• Week 3: Medicaid helps people of color and rural Americans. Week three will highlight how Medicaid is a critical tool to expand access to coverage, which together with policies that address other social and structural determinants of health, narrow stark disparities in health care, improve families’ financial security, and make people healthier.
• Week 4: Medicaid helps seniors and people with disabilities. The final week will focus on how Medicaid helps seniors and people with disabilities access lifesaving care.

BACKGROUND:

Over 2 Million People Are Stuck In The Medicaid Coverage Gap. Prior to North Carolina voting to expand Medicaid earlier this month, 2.1 million people were stuck in the Medicaid coverage gap. These people are too poor to qualify for the Affordable Care Act marketplace subsidies but are ineligible for Medicaid due to their state’s failure to expand the program. North Carolina’s expansion allowed nearly 180,000 people to gain coverage and no longer be stuck in the gap.

Almost Half Of Births Are Covered By Medicaid. Medicaid covers nearly 20,000,000 women of reproductive age, giving them access to reproductive health care services such as birth control, cancer screenings, and maternity care without cost-sharing. Over 40 percent of births in the United States were covered by Medicaid in 2022. Thanks to the American Rescue Plan, states were given the option to extend coverage to new mothers for one year postpartum, which improves maternal health outcomes. Congress subsequently made this option permanent as part of end-of-year legislation signed into law at the end of 2022. So far, 29 states have elected to extend postpartum coverage.

Over 50 Percent Of American Children Are Enrolled In Medicaid And CHIP. Over 40 million children in the United States are enrolled in Medicaid or CHIP. Medicaid eligibility during childhood lowers the high school dropout rate, raises college enrollment, and increases four-year college attainment. Medicaid for children also has a positive impact on employment opportunities later in life. For each additional year of Medicaid eligibility as a child, adults by age 28 had higher earnings and made $533 additional cumulative tax payments due to their higher incomes.

Reduced Racial Disparities In Coverage. Increasing Medicaid access is the single most important action available to expand coverage and address access to quality care as a driver of health. This together with other actions to address other social and structural determinants of health can reduce racial disparities in the American health care system. The majority of Americans who would gain coverage if the remaining 10 holdout states expanded Medicaid are people of color. The ACA led to historic reductions in racial disparities in access to health care, but racial gaps in insurance coverage narrowed the most in states that adopted Medicaid expansion. States that expanded their Medicaid programs saw a 51 percent reduction in the gap between uninsured white an Black adults after expansion, and a 45 percent reduction between white and Hispanic adults. 

Millions Of Rural Americans Depend On Medicaid. Nearly 14 million Medicaid enrollees reside in rural areas. Uninsurance rates in rural America are 2-3 percentage points higher than in urban areas. States that expanded Medicaid experienced a 7 point increase in insured rates after the passage of the Affordable Care Act.

Medicaid Helps Seniors And Older Americans Stay Retired And Out Of Poverty. Many seniors and older Americans survive off of low incomes or have chronic health conditions that prohibit them from working. Medicaid allows these individuals living on fixed incomes and often have chronic diseases to continue getting the care they need by filling in the gaps in their Medicare coverage without having to worry about choosing between food and housing or their health. Medicaid has long been considered one of the most effective anti-poverty programs in the nation, and its expansion has significantly improved health outcomes for seniors and older adults.

As we enter the 5th annual Medicaid Awareness Month, millions of children and families are at risk of losing coverage. Protections put into place by Congress to keep people enrolled in Medicaid during the public health emergency will expire on April 1. States have up to a year to complete the “unwinding” process to determine who is still eligible for Medicaid coverage. A record 91.8 million Americans rely on Medicaid or the Children’s Health Insurance Program (CHIP) for their health care, including 34.2 million children – or 54 percent of children in America. It is predicted that approximately 15 million people may lose their coverage due to the unwinding. Children and families in Texas, Florida, and other states that have not expanded Medicaid are particularly vulnerable.

Many of those who could lose coverage are eligible for coverage through the Affordable Care Act (ACA) or traditional Medicaid. States have the responsibility to assess eligibility in a way that will minimize coverage losses, particularly for children, people of color, and people with disabilities. The Biden administration is working hard to support states and to demand a fair process. However, to date, many states have not committed to taking common sense measures to keep people covered.

By The Numbers

• Nearly 7 Million Children Are Expected To Lose Medicaid/CHIP Coverage Due To Unwinding. 15 million enrollees, including as many as 6.7 million children, are expected to lose coverage during unwinding. 
• More Than 50 Percent Of Children Are Covered By Medicaid/CHIP. Nationally 54 percent of American children are covered by Medicaid/CHIP. 
• 72 Percent Of Children Will Lose Coverage Largely Due To Procedural Errors. The majority of children who will be disenrolled during the unwinding will still be eligible for Medicaid/CHIP, but will lose coverage due to procedural errors. These barriers include preventable language barriers, lack of support and communication from the state, confusing renewal notices, technology hiccups, and slight income fluctuations.
• Medicaid Unwinding Disproportionately Impacts Children Of Color And Children In Rural Communities. 68 percent of Black children, 60 percent of Latino children, and nearly 50 percent of American Indian and Alaskan Native and Native Hawaiian and other Pacific Islanders are enrolled in public coverage. Children in rural communities are 24 percent more likely than those in urban areas to rely on Medicaid/CHIP for their health care.
• Half Of Non-Expansion States Each Have Over 1 Million Children Covered By Medicaid. These states include Texas, Florida, Alabama, South Carolina, Mississippi, Georgia, Wyoming, Wisconsin, Kansas, and Tennessee. Texas and Florida are dealing with large amounts of staff shortages and increased enrollment applications making evaluations challenging and a lengthy process.

Nearly 7 Million Children Are Expected To Lose Medicaid/CHIP Coverage Due To Unwinding. 91.8 million people are enrolled in Medicaid/CHIP as of November 2022. Since February 2020, enrollment has increased by over 20 million people. 15 million people, including as many as 6.7 million children, are expected to lose coverage during unwinding. This is largely due to economic conditions due to the pandemic, Medicaid expansion in Nebraska, Missouri, and Oklahoma, and the federal continuous coverage provision that began in December 2020. Continuous coverage provided a 6.2 percent increase in federal Medicaid match rate to states to keep Americans enrolled without having to re-enroll each period.

More Than 50 Percent Of Children Are Covered By Medicaid/CHIP, Most Are From Marginalized Communities. Nationally 54 percent of American children are covered by Medicaid/CHIP. These children are largely Black or Latino or live in rural areas. Currently, 68 percent of Black children and 60 percent of Latino children are enrolled in public coverage, as well as nearly 50 percent of American Indian and Alaskan Native and Native Hawaiian and other Pacific Islanders. Children in rural communities are 24 percent more likely than those in urban areas to rely on Medicaid/CHIP for their health care. Children of color are more likely to experience churn or gaps in coverage than their white counterparts, due to parents of color being more likely to work low-wage jobs that are less likely to offer coverage.

Millions Are Expected To Lose Coverage Due To Red Tape Barriers During Re-Enrollment. Starting April 1st, states may disenroll ineligible people from Medicaid. Millions of people are expected to lose coverage due to either income increases making them ineligible or red tape barriers in re-enrolling that will prevent people from accessing coverage. These barriers include preventable language barriers, lack of support and communication from the state, confusing renewal notices, technology hiccups, and slight income fluctuations. Children of parents who hold part-time, hourly, or seasonal jobs are more vulnerable due to the slight variations in income throughout the year that could cause changes in their eligibility. The majority of children who will be disenrolled during the unwinding will still be eligible for Medicaid/CHIP, but will lose coverage due to procedural errors.

Texas And Florida Are Among 10 States That Refuse To Expand Medicaid. Half of non-expansion states, Alabama, Mississippi, Florida, Georgia, and South Carolina each have over 1 million children covered by Medicaid. In Texas and Florida specifically, unwinding is going to be challenging with a lack of staffing to review the millions of cases in each state and increase in Medicaid applications. Texas is short 300 eligibility advisors and has seen an increase of nearly 70 percent in enrollment applications compared to 2019. Meanwhile, due to similar staffing shortages and influx of applications, Florida has been taking weeks to review applications, while other states can review an application in as quickly as a day.