How the end of free preventative health care could affect us all

A federal district court ruled last week that health insurers are no longer required by the Affordable Care Act to provide “free” preventive care for services identified as important by the Preventive Services Task Force.

Judge Reed O’Connor ruled that the volunteer members of this task force are officers of the United States and must be appointed by the president or at least the head of a government department. What Congress thought was a hallmark of the ACA — isolating those tough decisions from political pressure — turned out to be a constitutional bug.

The decision may well be upheld on appeal. Since enacting the ACA in 2010, the Supreme Court has reemphasized political accountability in appointments. While the political independence of important task forces can be both creative and a good idea, the current tribunal sees a problem. If neither the president nor Congress can control the task force, how do voters express their dissatisfaction with its decisions? The task force could load contracts with luxury preventive care or fail to properly designate certain medical services as preventive.

The decision will upend health care unless reversed, but that does not mean those services will disappear immediately. Insurers have already been paid to provide these services and cannot unfairly enrich themselves by denying coverage while current contracts are in effect. In addition, coverage and pricing will be subject in most states to the same negotiation process as other health services. Fifteen states require free preventive services in individual insurance policies.

Insurers may very well agree to provide “free” the least expensive preventive services such as cholesterol-lowering drugs. However, for the 51 services listed by the PSTF in 2010, most insurers in most states will no longer be obligated to provide them for free after their existing contracts expire. In many places, this could mean no free prophylactic drugs for those concerned about HIV transmission, and no free colonoscopies.

The decision ends up being an inkblot test through which to view modern America. Proponents of public health see a resurfacing flaw buried in the ACA of our private health insurance system. If insurers covered someone for 20 years, they would also want preventive services. But our fractured healthcare system means insurers tend to only cover people for a few years; it is often cheaper for insurers to deny PrEP drug reimbursement now and assign HIV treatment costs to another future insurer. Will employers who negotiate health contracts for their employees resist the natural preference of insurers? They probably won’t behave much differently than they did before the ACA. Neither do the insured: often, imperfect judgment and limited funds lead people to cut back on even economically reasonable but paid preventive services.

Advocates of judicial reform are suffering from PTSD as they consider this PSTF case. The plaintiffs here chose a forum (Fort Worth, Texas) that has no particular connection to health care. The tactic increased the odds of getting a judge presumably unfavorable to the ACA. In 2018, Justice O’Connor struck down the entire ACA only to be struck down by a conservative Supreme Court.

This decision will further divide legal scholars on the role of federal courts.

Some think the courts should adapt to the dysfunctional Congress by relaxing i-dotting, especially given laws passed before the Supreme Court’s recent insistence on political accountability. Would it really be so terrible if the court issued a “don’t do it again” warning to Congress, or issued a one-time fix for older laws? The court could save the law by letting the president’s appointed health and human services secretary veto bad PSTD recommendations.

Others, like Justice O’Connor, view reparations as the role of Congress rather than the judiciary. If congressional gridlock means reparations are unlikely to be timely and people suffer, that’s the price of democracy.

This answer, however, will understandably infuriate those who look at our society and do not see it as particularly democratic.

Professor Seth J. Chandler teaches constitutional law and insurance law at the University of Houston Law Center.