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

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

Judge Reed O’Connor ruled that the volunteer members of that task force are officers of the United States and need to be appointed by the president or at least by the head of a governmental department. What Congress thought was a feature in the ACA — insulating these difficult decisions from political pressure — has turned out to be a constitutional bug.

The decision may well stand up on appeal. Since the ACA was enacted in 2010, the Supreme Court has reemphasized political accountability in appointments. While political independence for important task forces may be both creative and a good idea, the current court sees a problem. If neither the president nor Congress can control the task force, how do voters express their unhappiness with its decisions? The task force might load up contracts with luxury preventative care or fail properly to designate some medical service as preventative. 

The decision will shake up healthcare unless it is reversed, but it doesn’t mean those services will go away immediately. Insurers have already been paid to provide these services and can’t unjustly enrich themselves by refusing coverage while current contracts are in effect. Additionally, coverage and pricing will be subject in most states to the same negotiation process as other healthcare services. Fifteen states require some free preventative services in individual insurance policies. 

Insurers may well accept providing “for free” the less expensive preventative services such as anti-cholesterol 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 run out. In many places, this could mean no free prophylactic drugs for those fearing HIV transmission, and no free colonoscopies for some.

The decision ends up being an inkblot test through which to see modern America. Supporters of public health see an ACA-buried flaw of our private health insurance system reemerging. If insurers covered someone for 20 years, they’d want preventative services too. But our fractured healthcare system means that insurers tend to cover people for only a few years; it’s often cheaper for insurers to deny reimbursement for PrEP drugs now and stick some other future insurer with the costs of treating HIV. Will employers who negotiate health contracts for their employees resist the insurers’ natural preference? Probably they won’t behave much differently than they did before the ACA. Nor will insureds: Often, imperfect judgment and limited funds lead people to cut back on even economically sensible but not-free preventative services.

Supporters of judicial reform suffer PTSD when examining this PSTF case. The plaintiffs here picked a forum (Fort Worth, Texas) that has no special relationship to healthcare. The tactic upped the chances of getting a judge arguably unfavorable to the ACA. In 2018, Judge O’Connor struck down the entire ACA only to be reversed by a conservative Supreme Court.

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

Some think courts ought to adjust to congressional dysfunction by loosening up on i-dotting, particularly considering 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 statutes? The court could save the statute by letting the presidentially-nominated secretary of Health and Human Services effectively veto bad recommendations of the PSTD. 

Others, like Judge O’Connor, see repairs as the role of Congress rather than the judiciary. If congressional gridlock means the repairs are unlikely to be timely and people suffer as a result, that’s the price of democracy. 

That response, however, will understandably infuriate those who look at our society and don’t see it as particularly democratic.

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

Editor’s note: This piece was updated on April 7 to clarify potential changes in coverage for colonoscopy screenings.