Hearing on June 6 Will Determine if Judge O’Connor’s Disastrous Ruling Takes Immediate Effect Nationwide
In March, District Judge Reed O’Connor in Braidwood Management v. Becerra struck down a provision of the Affordable Care Act (ACA) that requires insurers to cover lifesaving preventive services without cost sharing. Braidwood is a politically-driven effort to dismantle the ACA, brought by longtime foes of abortion rights, women’s health, LGBTQI+ rights, and affordable health care. Now, the same judge who ruled that the ACA should be overturned entirely is ending lifesaving protections under the health care law that 150 million Americans rely on.
Judge O’Connor applied his order to every company nationwide, refusing to limit it to the two companies and six individuals that are the plaintiffs that brought the case. The US Court of Appeals for the Fifth Circuit is holding a hearing June 6 to decide if the ACA’s protections should stay in place for everyone other than the plaintiffs while the case works its way through the courts. The ruling puts millions at the mercy of insurance companies and employers, who could eliminate the benefits entirely or start charging for them, increasing costs for patients and creating major obstacles to care.
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 people. Guaranteed no-cost coverage of preventive services, including screenings for chronic disease, is critical to ensuring everyone has access to the same quality health care, no matter where they live or the color of their skin.
Patient and provider groups, public health experts, and organized labor — including the American Medical Association, the American Lung Association, the American Cancer Society, SEIU, the American Public Health Association and 68 academic deans and scholars, and dozens more organizations — overwhelmingly agree that this case is built on unfounded legal arguments and have submitted briefs affirming that, if Judge Reed O’Connor’s ruling stands, the consequences for patients would be disastrous.
Department of Justice: “The Public and the United States Will Face Significant Harm” Unless the Ruling Is Stayed. “[T]he public and the United States will face significant harm if the broad and universal relief ordered is not stayed during the pendency of this appeal. […] Collectively, the vacated and enjoined coverage requirements have ensured that more than 150 million Americans can benefit from the above-listed and other preventive services without cost sharing. ROA.2170. Absent a stay, those people will lose the federally-backed protection that their health plans must include that coverage, or the ability to have those services covered without cost sharing. Available data suggests that more than a third of group health plans (which, in 2020, covered approximately 14 million participants) may begin new plan years before January 1, 2024. That includes more than 20% of group health plans (which, in 2020, covered approximately 6.3 million participants) that may start a new plan year prior to July 1, 2023. ROA.2179. Many additional plans will begin new plan years in January 2024. If the nationwide vacatur and injunction ordered by the district court remain in effect pending appeal, many of these plans could either eliminate coverage of the relevant preventive services or impose cost sharing for those services.” [Department of Justice, Motion For A Partial Stay Of Final Judgment Pending Appeal, 4/27/23]
Health Care Organizations and Advocates
American Hospital Association et al. Fifth Circuit Amicus Brief: Preventive Care Is Essential to Population Health And A Stay Is In The Public Interest. A coalition comprising 12 top public health organizations—the American Hospital Association, Federation of American Hospitals, the Catholic Health Association of the United States, America’s Essential Hospitals, and the Association of American Medical Colleges—filed an amicus brief in support of an appeal to Judge Reed O’Connor’s ruling: “Evidence-based preventive-care services free from political influence are essential to patient wellbeing and population health and lead to lower health care costs over the long term. Upending coverage of preventive-care services will increase the risk that acute illnesses or chronic diseases will not be timely detected or treated. […] Estimates show that an increased uptake of recommended preventive services could save over 100,000 additional lives every year. […] In addition to providing vital screenings, the ACA’s preventive-care coverage requirement ensures access to life-saving medications. […] Without zero-cost-sharing access to PrEP, many at-risk populations—particularly Black and Hispanic adults—will face an increased chance of contracting HIV. […] The ACA’s preventive-care coverage requirement saves lives and improves population health, saving the public costs in the long term. Maintaining these benefits pending appeal is therefore in the public interest.” [American Hospital Association et al. Brief, 5/4/23]
American Medical Association et al. Fifth Circuit Amicus Brief: Ruling Threatens to Reverse Recent Public Health Advancements Must Be Stayed. A coalition comprising 12 top public health organizations—the American Medical Association, American College Of Obstetricians And Gynecologists, Society For Maternal-Fetal Medicine, American Academy Of Pediatrics, American Medical Women’s Association, American Academy Of Family Physicians, National Medical Association, Infectious Diseases Society Of America, American College Of Chest Physicians, American Thoracic Society, National Hispanic Medical Association, and American Society Of Clinical Oncology—filed an amicus brief in support of a motion to stay Judge Reed O’Connor’s ruling: “As professional organizations representing physicians across the country, Amici know that no-cost preventive care saves lives, saves money, improves health outcomes, and enables healthier lifestyles. Ensuring that patients can receive these services is of the utmost importance to public health. The district court’s unprecedented decision imperils access to these services nationwide. Amici file this brief to inform this Court of the repercussions that decision could have on preventive care access. […] 151.6 million individuals currently have private health coverage that covers preventive services with zero cost-sharing,” including “approximately 58 million women, 57 million men, and 37 million children.” The Task Force requirements can also apply to Medicaid expansion enrollees, adding another 20 million adults,10 and to Medicare enrollees, if HHS has determined that a given service is appropriate for inclusion in the program, adding 61.5 million individuals more.11 In other words, approximately 233 million individuals are currently enrolled in plans that must cover preventive services without cost-sharing. […] Finally, the availability of no-cost preventive care has improved utilization and health outcomes among populations that have historically faced difficulty accessing health care. In particular, a recent study concluded that “[g]iven the large differences in the share of uninsured and the use of clinical preventive services among Black and Hispanic adults relative to White adults pre-ACA, the ACA does appear to have reduced the differences between minority adults and White adults.” Eliminating coverage requirements would impose further barriers, making it even harder to ensure that patients receive the requisite care.” [American Medical Association et al. Brief, 4/28/23]
American Lung Association et al. Fifth Circuit Amicus Brief: Ruling Could Hold Hazardous Consequences for Public Health Unless Stayed. A coalition comprising eight primarily public health-oriented non-profit organizations—the American Lung Association, Adult Vaccine Access Coalition, American Heart Association, Campaign for Tobacco-Free Kids, GO2 for Lung Cancer, LUNGevity Foundation, Public Citizen, and Truth Initiative—filed an amicus brief in support of a motion to stay Judge Reed O’Connor’s ruling: “The provisions of the Affordable Care Act (ACA) that require insurers to provide coverage for certain preventive services without cost to patients reflect Congress’s recognition that barrier-free access to preventive care is critical for safeguarding Americans’ health. The district court’s judgment upends Congress’s careful policy choices and creates the risk that insurers will reinstate cost-sharing for vital preventive services or even exclude them from coverage entirely. To avoid the hazardous consequences the district court’s judgment could hold for public health, this Court should stay the judgment pending appeal. […] If preventive care costs increase even for “just” a few million Americans, the health consequences could be serious…If insurers now respond to the district court’s judgment by imposing cost-sharing requirements for patients to receive these life-saving medications, research suggests that patients could discontinue use despite the risks to their health…More broadly, according to a recent survey, 40 percent of American adults would be unable or unwilling to pay out of pocket for the majority of the evidence-based preventive services affected by the district court’s judgment.” [American Lung Association et al. Brief, 4/27/23]
American Cancer Society et al. Amicus Brief: Ruling Substantially Harms Our Patients and Must Be Stayed. A coalition comprising 15 public health organizations—the American Cancer Society (ACS), American Cancer Society Cancer Action Network (ACS CAN), American Kidney Fund (AKF), Arthritis Foundation, CancerCare, Cancer Support Community (CSC), Cystic Fibrosis Foundation, Epilepsy Foundation, Hemophilia Federation of America, Leukemia and Lymphoma Society (LLS), National Minority Quality Forum (NMQF), National Multiple Sclerosis Society, National Patient Advocate Foundation, The AIDS Institute, and WomenHeart—filed an amicus brief in support of a motion to stay Judge Reed O’Connor’s ruling: “All Americans use or will use health care services, and the lifetime risk that individual Americans will contract one of the diseases or conditions towards which amici direct our efforts is high. Preventive services can aid in prevention, early detection and treatment of many diseases, which increases patients’ chances of survival and extends life expectancies. Preventive care also helps control patients’ costs of treating these diseases and conditions. […] A review of 65 papers published from 2000-2017 found that “even relatively small levels of cost sharing in the range of $1 to $5 are associated with reduced use of care, including necessary services.”…two out of five respondents stated that they would not pay out of pocket for eleven out of twelve preventive services included in the survey. […] The U.S. District Court’s March 30 decision threatens to imminently and drastically reduce insurance coverage of preventive services, deter utilization of those services, and worsen patient outcomes. Without a stay, the District Court’s order will substantially harm the patients amici serve and support.” [American Cancer Society et al. Brief, 4/28/23]
Physicians and Health Care Experts
American Public Health Association & Public Health Deans and Scholars Fifth Circuit Amicus Brief: Ruling Could Cause Irreparable Harm By Limiting Access to Life-Saving Services and Must Be Stayed. A group of 68 distinguished academic deans and scholars of public health, alongside the American Public Health Association, filed an amicus brief in support of a motion to stay Judge Reed O’Connor’s ruling: “To protect Americans’ health, the ACA requires virtually all private insurance plans to cover critical preventive services cost-free. And the statute relies on a body of medical experts to identify the services that qualify for that coverage. The district court’s nationwide order eliminates this requirement for dozens of life-saving services. If it is not stayed, some companies and insurers will re-impose cost-sharing—indeed, some plans could impose cost-sharing with just sixty days’ notice. As a result, many Americans will not use these services: studies consistently demonstrate that when people are required to pay part of the cost of preventive care, they often do not obtain it. That will lead to more serious illnesses and even deaths among the individuals deprived of coverage. It also will affect Americans more broadly, because many of the covered services prevent and treat illnesses that, if not detected and treated, can be spread among the population generally. […] A stay will maintain the status quo for the more than 150 million Americans who rely on cost-free coverage for preventive services. By contrast, the district court’s order will inflict irreparable harm by causing many Americans to suffer serious and life-threatening conditions and illnesses that otherwise would have been avoided. That harm is not outweighed by the temporary exclusion of non-parties from the relief granted by the district court.” [American Public Health Association and Public Health Deans and Scholars Brief, 4/28/23]
Service Employees International Union (SEIU) Fifth Circuit Amicus Brief: Ruling Will Threaten The Healthcare of More Than 130 Million Employees Unless Stayed. “SEIU respectfully urges the Court to grant Defendants-Appellants’ (“Defendants”) motion for a partial stay of the district court’s nationwide judgment. That judgment threatens the healthcare of the more than 130 million employees and families with private employment-based insurance plans by enjoining Defendants from taking any action to enforce or implement the requirement that preventive care services recommended by the Preventive Services Task Force (“Task Force”) be provided at no cost. As borne out by the experiences of SEIU’s physician members, the mandate to make preventive care available at no cost has saved lives, and the district court’s decision, by reducing access to that care, will negatively affect millions of Americans’ health. Yet the district court, in flagrant disregard of the governing legal standards, failed even to address or acknowledge the significant negative effects its judgment will have on millions of non-parties. The district court’s judgment also interferes with the statutory and due process rights of non-party employees and their families. […] Many of those affected workers are SEIU members. Yet the interests of employees and their families in retaining access to preventative care services are not adequately represented in this case by the agency Defendants-Appellants.” [SEIU Brief, 4/28/23]