Twelve years after the Affordable Care Act was enacted, it appears to be here to stay, fully integrated into the nation’s health care system, extending coverage to more than 30 million Americans and protecting coverage against pre-existing conditions. The Supreme Court has ruled three times that the law is constitutional, and neither political party seems interested in overhauling it.
Yet the ACA remains under legal attack, and one key part of it is in jeopardy. In early September, a U.S. district judge in Texas ruled in a lawsuit, Braidwood Management Inc. et al. v. Becerra, that a part of the popular provision guaranteeing preventive care services without cost-sharing for those in most private health plans violates the Appointments Clause of the U.S. Constitution.
Specifically, this ruling applies to 52 evidence-based preventive services recommended by the United States Preventive Services Task Force, a group of nationally recognized experts in prevention, evidence-based medicine, and primary care. The services include, for example, screenings for cancer, heart disease, depression, and a variety of infectious diseases. According to the judge, these experts should be considered officers of the government but, since the president and Senate do not appoint and confirm them, respectively, their appointments are unconstitutional.
The judge’s ruling also stated that one of these services, providing pre-exposure medicines to individuals at high risk of HIV, also violates the Religious Freedom Restoration Act. These medicines, known as PrEP, have been shown to substantially reduce the risk of HIV infection.
While the judge ruled in favor of this plaintiff, he did not order an immediate nationwide injunction on these policies and continues to deliberate on the appropriate remedy. The judge is also still considering a separate plaintiff claim related to the free coverage of FDA-approved contraception.
Although the full scope of the court’s final ruling has not been determined, here’s what’s at stake. An estimated 152 million people with private health plans now benefit from free preventive services. The ACA also extends this policy to 61 million Medicare beneficiaries and 20 million people covered by Medicaid expansion.
Covering these preventive services has increased screening for colon cancer, high blood pressure, and high cholesterol screening, along with vaccinations for the flu and HPV and the use of contraception. Importantly, the use of preventive care has risen substantially among financially vulnerable individuals and minoritized populations. If the court strikes down the preventive services provision nationwide, states and private and public insurers would have to decide which of these services to cover without imposing costs on beneficiaries. The result would be a nonuniform, patchwork system akin to the coverage of preventive services before the ACA.
But there’s a bigger issue at stake here. The United States is far from a healthy country. Even before Covid-19, the life expectancy of Americans had stagnated for nearly a decade due to a combination of factors, including a plateauing decline of death rates from cardiovascular disease and the growing epidemics of drug overdoses, diseases of despair, and obesity.
Key health metrics vary significantly by income, race, and geography. In fact, the Centers for Disease Control and Prevention has estimated that 250,000 deaths could be prevented each year from the five leading causes of death — heart disease, cancer, stroke, chronic obstructive lung disease, and unintentional injuries — if all states performed as well as the best ones in reducing mortality.
Today, the vast majority of deaths in America stem from preventable chronic diseases, and 90% of the nation’s $4.1 trillion in annual health care spending goes for people with chronic and mental health conditions.
To address America’s health challenges, the country needs to build a culture of prevention in which individuals, families, communities, businesses, health care systems, and government all contribute to the effort. Policymakers play a critical role, and they need to provide greater leadership by investing more in public health and community-based health organizations, strengthening primary care, and increasing payments to, and demanding more accountability by, health care providers to not only manage but also prevent illness.
Complementary to these actions is the ACA policy to increase the use of evidence-based clinical preventive services by removing cost-sharing requirements on consumers. Not only do many of these services save lives, but some of them — including childhood immunizations, screening and counseling for tobacco use and alcohol use, the use of aspirin by individuals at high risk for heart attack, and more — also save health care costs.
Various studies suggest that many Americans have fallen behind on their essential preventive screenings due to Covid-19. Insurers re-imposing cost-sharing requirements on individuals and families as a result of this lawsuit would create another barrier to accessing care at a time when Americans can least afford it.
The U.S. urgently needs to build a culture of prevention to help Americans become as healthy as possible. I hope the Texas court’s final ruling doesn’t prevent that from happening.
Anand Parekh is an internal medicine physician, chief medical advisor for the Bipartisan Policy Center, former deputy assistant secretary of health at the U.S. Department of Health and Human Services, and author of “Prevention First: Policymaking for a Healthier America” (Johns Hopkins University Press, 2019).
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