Preventive services, drugs covered by ACA deemed ‘unconstitutional’ by Texas judge

By Jules Murtha | Fact-checked by Jessica Wrubel
Published October 6, 2022

Key Takeaways

  • Judge Reed O’Connor of Texas ruled the Affordable Care Act’s (ACA) requirement for most healthcare plans to cover preventive services, screenings, and vaccines for free was “unconstitutional.”

  • O’Connor’s decision primarily affects access to HPV vaccines, contraception, pre-exposure prophylaxis (PrEP), and screenings and behavioral counseling for STDs and drug use. As of now, this ruling is not in effect.

  • Experts say that more patients should be taking PrEP, and they are more likely to do so at the recommendation of their PCP.

Federal Judge Reed O’Connor recently ruled that parts of the ACA that require most healthcare plans to provide free coverage for preventive health services, screenings, and vaccines were “unconstitutional.”

If this decision stands, it could negatively impact health outcomes for patients—possibly defeating the ACA’s intended purpose.

Physicians should consider recommending that patients take advantage of ACA offerings such as pre-exposure prophylaxis (PrEP).

Preventive health at risk

This is the latest in a series of efforts by O'Connor, a district judge of the United States District Court for the Northern District of Texas, to dismantle the ACA.

The first came in 2018, on the heels of Congress eliminating the ACA’s mandate to purchase health insurance. The U.S. Supreme Court overturned O’Connor’s ruling in 2021, as noted in an article published by[]

On September 7, 2021, O’Connor reached a decision on Braidwood Management v. Becerra, which challenged the ACA’s preventive services coverage mandate. Prior to this ruling, the ACA required most health plans—individual and group—to cover a wide range of preventive health services, screenings, and vaccines for free. In turn, nearly 152 million people have accessed cancer screening and vaccinations, contraception, and early detection and treatment of chronic conditions like diabetes.

A Commonwealth Fund article stated that the ACA’s primary goal is to create access to preventive health services to encourage patients to use them—and by doing so, create better health outcomes for all.[] Additionally, relieving patients of financial burdens has led to fewer racial and ethnic disparities in access to the above services.

O’Connor’s decision, however, calls the accessibility of these services into question.

Braidwood Management sued partly on the basis that the ACA’s requirements are unconstitutional. O’Connor agreed, stating that any recommendations from the US Preventive Services Task Force (USPSTF)—which would normally be covered by the ACA—are invalid.

This was due to O’Connor’s belief that current USPSTF members were “unconstitutionally appointed.” According to the judge, the president must appoint all members instead of the HHS—followed by Senate confirmation.

In addition, individual and employer plaintiffs sued to zero out some of the ACA’s preventive service requirements—including HPV vaccines, access to PrEP, and screenings and behavioral counseling for STDs and drug use—on religious and nonreligious grounds.

Some argued that covering PrEP, a drug that can reduce the risk of contracting HIV by 77%–90%, would make them “complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman,” according to court documents.[]

O’Connor agreed, stating that the requirement for health plans to provide free coverage for PrEP violated Braidwood’s rights under the Religious Freedom Restoration Act, a decision that may affect who has access to PrEP and the other aforementioned preventive health services.

Talk to patients about PrEP

As lawmakers decide what level of access patients will have to PrEP, medical experts say that more patients would benefit from starting it.

“Unfortunately, only about 78,000 people have been put on PrEP to date,” Kristin Englund, MD, staff physician, Department of Infectious Disease, told the Cleveland Clinic in 2019.[]

This statistic pales in comparison to the 1.1 million people aged 13 and older who live with an active HIV infection in the United States, approximately 15% of who are undiagnosed.

According to Dr. Englund, doctors may be the biggest influence on a patient’s decision to start PrEP, and more primary care physicians can start the conversation with those at risk of contracting HIV.

Dr. Englund encouraged physicians to approach conversations about HIV and PrEP like they would for any other preventive health topic.

"A patient may not want to disclose or discuss at-risk behaviors, but this conversation is an important step in protecting your patients’ overall health."

Kristin Englund, MD

“The main goal is to let patients know we want to keep them safe from HIV,” she added.

What this means for you

The 2022 ruling by Federal Judge O’Connor could thwart the ACA's primary goals—to provide preventive health services that (when free to the public) lead to better health outcomes and fewer racial and ethnic disparities in access to care. As for PrEP, patients who could benefit from taking it are more likely to do so when their PCPs recommend it. Experts encourage doctors to approach discussing HIV prevention as they would any preventive health conversation.

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