October 4, 2023


The Justice Department said Tuesday it plans to seek a court order to put on hold a federal judge’s ruling from last month that put in jeopardy some of the Affordable Care Act’s mandates for insurers to provide no-cost coverage of preventive care treatments, including certain cancer and STD screenings.

“As we’ve said before, for over a decade, the Affordable Care Act has ensured that millions of Americans have access to critical preventative health care,” a DOJ spokesperson said in a statement. “In order to protect Americans who have come to rely on the preventative health care measures at issue, the Department of Justice will request a stay in this case.”

US District Judge Reed O’Connor, in his ruling late last month, said that the federal government could not enforce the health care law’s preventive care mandates that were put in place under the recommendations of the US Preventive Services Task Force. O’Connor concluded that the task force’s recommendations issued after the ACA was enacted in 2010 violated the Constitution’s Appointments Clause.

Among the mandates that were affected by his order were requirements that HIV-prevention treatments known as PrEP and certain preventive care for heart conditions and screenings for some cancers be covered at no cost to the patient, as well as some anti-tobacco programs.

The Justice Department has not yet filed in court its motion for a “stay,” which would pause the ruling while an appeal plays out. The new statement did not indicate whether the Justice Department would first request the stay from O’Connor, which would be the typical route, or turn immediately to an appeals court.

While the case does not pose the existential threat to the Affordable Care Act that previous legal challenges did, legal experts say that O’Connor’s ruling nonetheless puts in jeopardy the access many Americans have to a whole host of preventive services.

Some of the task force’s recommendations – including lung and skin cancer screenings, the use of statins to prevent cardiovascular disease and the offer of PrEP for those at high risk of HIV – were issued after the ACA’s enactment.

Certain older recommendations have been updated with new provisions, such as screening adults ages 45 to 49 for colorectal cancer.

In an earlier ruling, the judge upheld certain free preventive services for children, such as autism and vision screenings and well-baby visits, and for women, such as mammograms, well-woman visits and breastfeeding support programs.

O’Connor also upheld the mandate that provides immunizations at no charge for the flu, hepatitis, measles, shingles and chickenpox.

These services are recommended by the Health Resources and Services Administration and the Advisory Committee on Immunization Practices.

Insurers will have to continue to cover preventive and wellness services since they are one of the Affordable Care Act’s required essential health benefits. But under O’Connor’s ruling, they could require patients to pick up part of the tab.

Insurers’ trade associations stressed last month that there would be no immediate disruption to coverage.

CORRECTION: This story has been updated to correct the day of the Justice Department’s announcement.


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