Last week, the United States Supreme Court decided to hear Becerra v. Braidwood, a challenge to the constitutionality of some Affordable Care Act preventive-care requirements. Now, a court dominated by religious conservatives is going to tackle whether health care plans should be required to cover things like testing for sexually transmitted diseases. Even worse, if the court throws out the kind of preventive care that makes conservative Christians sad, a whole bunch of completely unobjectionable preventive care, like colorectal cancer screening and drugs that lower cholesterol, goes with it.
Conservative attacks on the ACA, broadly speaking, have followed two tracks. First, there are challenges to the law’s structure, fueled by conservative ire over the government’s meager steps to ensure people have basic health care. Second, there are challenges to the law’s provisions mandating insurance coverage for things evangelical Christians find objectionable. Becerra, distressingly, manages to be both.
The plaintiffs in Becerra—companies owned by religious conservatives—don’t want to be required to purchase health care plans that include preventive services that they don’t like. Braidwood Management is sort of an all-purpose Christian conservative plaintiff, having also recently gone to the mat for the right to fire people for being queer or gender nonconforming. Oh, and they’re represented in this case by Jonathan Mitchell, who came up with Texas’s bounty-hunter abortion law, which allowed citizens to sue those involved in administering abortion care.
In Becerra, they’re furious about no-cost coverage for PrEP—pre-exposure prophylaxis drugs that can prevent the transmission of HIV. They’re also mad that plans must pay for the human papillomavirus vaccine as well as STD testing and counseling. These requirements, they complain, make them “complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman,” and violate their religious freedom.
Taking a sort of belt-and-suspenders approach, the plaintiffs also said that the U.S. Preventive Services Task Force, part of the Department of Health and Human Services, violates the Constitution’s appointments clause. That clause requires all “principal” officers to be appointed by the president subject to the advice and consent of the Senate. President Joe Biden’s administration argued that the task force members are inferior officers who could be removed by the HHS secretary and, therefore, do not require Senate confirmation. If the task force members were improperly appointed, all their preventive health care recommendations would also be deemed improper.
The U.S. Supreme Court
The plaintiffs did one more thing to ensure success: They filed the case in the Fort Worth Division of the U.S. District Court for the Northern District of Texas. There, they were guaranteed to get either Judge Mark Pittman—a Trump appointee and anti-abortion hard-liner—or Judge Reed O’Connor—a George W. Bush appointee who has made it his mission to get rid of the ACA. In 2018, he declared the entire ACA unconstitutional, a decision ultimately reversed by the Supreme Court. In 2019, he permanently barred the government from enforcing the ACA’s contraception mandate. In 2021, he threw out the ACA’s health care protections for transgender people.
In this case, O’Connor came through for the plaintiffs with flying colors. He ruled that the PrEP requirement violated their religious freedom and also agreed with the claim about the appointments clause. He issued a nationwide injunction blocking all preventive-care requirements the task force had issued since passage of the ACA. So, no more zero-cost coverage of heart statins (drugs that lower cholesterol), lung cancer screenings, and drugs that reduce the risk of breast cancer. Physical therapy for older people to decrease falls? Gone. Prenatal nutritional supplements? Gone. Screening for depression? Gone. The health news outlet KFF found that in 2018, roughly 100 million Americans with private insurance received some form of ACA preventive care, and that in 2019, around 10 million people received preventive care that could be affected by O’Connor’s ruling.
The 5th U.S. Circuit Court of Appeals—as reliable a friend to religious conservatives as O’Connor—upheld O’Connor’s ruling but overturned the nationwide injunction, meaning that the preventive-care mandates were invalidated for only the plaintiffs. At first, that might seem like a victory, or at least a loss that did minimal damage. However, both the government and the plaintiffs agreed O’Connor’s lower-court decision could enable future litigants to pursue another nationwide injunction blocking all preventive care, so both parties asked the Supreme Court to take the case.
The problem, of course, is that the current Supreme Court is extremely not great on any of the issues here. The conservative majority is very amenable to complaints from evangelical Christians who are unhappy about things like LGBTQ+ rights and birth control. In 2014’s Burwell v. Hobby Lobby case, they threw out the ACA’s contraception mandate, saying it violated the religious freedom of corporations owned by people who think birth control is abortion. It’s hard to fathom that today’s even more conservative Supreme Court would step up to protect access to PrEP or understand why STD screening is essential.
The conservatives on the Court also just eliminated the Chevron doctrine, which required federal courts to defer to agency interpretations of laws. Now, judges can ignore the judgment of career civil-servant scientists and substitute their own random feels. To see what this looks like in practice, peep Justice Neil Gorsuch’s majority opinion in Loper Bright v. Raimondo, the case overturning Chevron v. Natural Resources Defense Council. There, while smugly explaining that judges, not EPA scientists, are best suited to interpret environmental laws, Gorsuch repeatedly referred to nitrous oxide—the stuff you get at the dentist—when discussing the EPA’s Good Neighbor Plan, which regulates nitrogen oxides, an entirely different thing. These are not people inclined to defer to the scientific expertise of members of the Preventive Services Task Force.
Finally, and perhaps worst of all, the conservatives on the Supreme Court lack compassion. Justice Samuel Alito will not be swayed by the fact that preventive-care requirements help increase health equity, ensuring better outcomes for women of color. Justice Clarence Thomas will not be bothered by the fact that upholding O’Connor’s decision could eliminate nearly three-quarters of the ACA’s preventive care for women, infants, and children. Justice Amy Coney Barrett will not care if getting rid of PrEP coverage causes HIV rates to skyrocket. This case gives the conservative justices a chance to make life harder for people they hate while also making the work of government much more difficult. It’s hard to imagine they’ll pass up the opportunity to do just that.
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