Medical groups urge judge to preserve Obamacare's preventive care coverage

The American Medical Association logo is seen at their office in Washington, D.C., U.S., August 30, 2020. REUTERS/Andrew Kelly
  • Judge previously found panel recommending cost-free services to be unconstitutional
  • Groups say he should, at most, enter a narrow order applying to parties in lawsuit before him

(Reuters) - A slew of national medical groups, including the American Medical Association and American Cancer Society, are urging a federal judge in Texas not to interfere with free access to preventive health care services under the Affordable Care Act.

In a pair of amicus briefs filed Wednesday in Fort Worth, Texas, federal court, the groups said that U.S. District Judge Reed O'Connor should not issue a nationwide order invalidating the work of a federal task force that decides which preventive services should be covered under ACA plans at no cost to patients, even though he found in September that the task force is illegally appointed.

O'Connor previously drew attention in 2018 for ruling the entire ACA, also called Obamacare after former Democratic President Barack Obama, was unconstitutional in a decision that was later overturned. Services that could be impacted by the case now before him include flu shots, prenatal screenings and screening for diseases like diabetes, high blood pressure and cancer.

Lawyers for individuals and businesses in Texas suing to challenge the so-called Preventive Services Task Force (PSTF) did not immediately respond to requests for comment.

The people and businesses brought their 2020 lawsuit to challenge the requirement that businesses cover HIV pre-exposure prophylaxis, or PrEP, for employees. PrEP is among the preventive services that the PSTF has determined should be covered at no cost to patients.

The plaintiffs argued that the free PrEP requirement violated business owners' religious freedom by requiring them to pay for services that "encourage homosexual behavior, prostitution, sexual promiscuity and intravenous drug use."

They also argued that the members of the PSTF are "principal officers" who must be appointed by the President and confirmed by the Senate under the so-called Appointments Clause of the U.S. Constitution. Because the PSTF was in fact appointed by the Secretary of the Department of Health and Human Services, they said, it is unconstitutional and its recommendations are invalid.

O'Connor in September agreed with both arguments and asked both sides for further briefing about what effect his finding should have. The plaintiffs argued that the judge should enter a nationwide order invalidating all coverage requirements for plans determined by the PSTF, while the government argued that he should enter an order applying only to a single plaintiff, Braidwood Management Inc, which manages an alternative medicine treatment center in Houston.

Of the plaintiffs, Braidwood is the only large employer required to buy insurance for its employees under the ACA. The other plaintiffs only claim that they wish to buy individual or small group insurance policies that exclude PrEP but cannot, and O'Connor has not yet decided whether they have standing to sue.

The AMA, along with the American College of Obstetricians and Gynecologists, American Academy of Pediatrics and others, said in their brief that a nationwide ruling "could jeopardize the coverage of preventive health care services for millions of Americans."

The American Cancer Society, joined by the American Lung Association, Cystic Fibrosis Foundation, Epilepsy Foundation and others said in a separate brief that a nationwide order would result in "worsening patient outcomes, leading to preventable deaths, and creating higher long-term medical costs."

The case is Braidwood Management Inc et al v. Xavier Becerra et al, U.S. District Court, Northern District of Texas, No. 4:20-cv-00283.

For plaintiffs: Jonathan Mitchell of Mitchell Law, Gene Hamilton of America First Legal Foundation and others

For the government: Christopher Lynch of the U.S. Department of Justice

For the AMA and others: John Lewis of Democracy Forward Foundation

For the ACS and others: Beth Petronio of K&L Gates

Read more:

Texas judge deems Obamacare HIV prevention drug mandate unlawful

Federal judge rules Obamacare unconstitutional

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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.