Judge invalidates parts of the ACA that mandate health coverage of many preventive services and drugs

A federal judge in Texas has ruled that parts of the Affordable Care Act mandating health insurance companies cover many preventive services and drugs for free are unconstitutional.

Judge Reed O’Connor also said the ACA’s requirement that health plans cover HIV pre-exposure prophylaxis, or PrEP, at no cost violates religious freedom law.

The decision, released Wednesday, is a temporary win for the plaintiffs, which include Steven Hotze, a physician and conservative activist who has campaigned against the ACA and previously called same-sex marriage a “wicked, evil movement.” The Department of Health and Human Services did not immediately say if it would appeal the decision, although an appeal is considered likely.

Under the ACA, health insurers are required to cover an array of preventive health services — like cancer screenings and vaccines — at no cost. In particular, any service or drug that gets an “A” or “B” rating from the U.S. Preventive Services Task Force must automatically be added to that list of free services.

However, the plaintiffs in this case argued they should not be compelled, as individuals or as business owners, to buy and offer coverage that includes “PrEP drugs, contraception, the HPV vaccine, and the screenings and behavioral counseling for [sexually transmitted diseases] and drug use.”

O’Connor specifically agreed that any services recommended by members of the USPSTF are invalid because those members “are unconstitutionally appointed.” Instead of being appointed by those within HHS, “they must be appointed by the President and confirmed by the Senate,” O’Connor wrote.

The specific requirement that health insurers cover PrEP drugs violates religious freedom, O’Connor said in his ruling. The plaintiff had previously argued that covering PrEP — which reduces the risk of getting the deadly infectious disease HIV, and which is widely prescribed to men who have sex with men and people who inject drugs — “would make him complicit in those behaviors.” O’Connor agreed.

The list price of brand-name PrEP drugs also is more than $22,000 annually. But O’Connor argued the government does “not show a compelling interest in forcing private, religious corporations to cover PrEP drugs with no cost-sharing and no religious exemptions.”

The requirements that insurers cover some kids’ services, reproductive services, and vaccines still stand for now.

This is not O’Connor’s first attempt at dismantling the ACA. Most recently, in 2018, he ruled the ACA was unconstitutional after Congress zeroed out the law’s individual mandate to purchase health insurance. The Supreme Court overturned O’Connor’s ruling in 2021.