Behind the push to strike down free preventative health care in America

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The Affordable Care Act says you don't have to pay for preventative health care.

But a federal judge in Texas recently struck down the preventative care provision of the ACA.

It could change the way more than 150 million Americans get their care.

"It's a big deal. If we want to improve health in America, we really need to embrace a culture of prevention and that this is what this particular provision in the Affordable Care Act does."

The case is currently being appealed and is expected to end up at Supreme Court.

"One judge in a single courthouse in Texas shouldn't have the ability to drive national policy on a question as important as this one."

Today, On Point: The plaintiffs claimed they didn't want health care coverage that they individually didn't need. But what's the real story behind the push to strike down zero cost preventative health care in America?

Nicholas Bagley, professor of law at the University of Michigan. He’s an expert on administrative and health law. Author of an op-ed in The Atlantic The Next Major Challenge to the Affordable Care Act and Health Affairs: A Texas Judge Just Invalidated the Preventive Services Mandate. What Happens Next?

Dr. Mark Fendrick, professor of medicine and public health at the University of Michigan where he directs the Center for Value-Based Insurance Design. He helped draft the preventive care provision in the Affordable Care Act.

Dr. Anand Parekh, chief medical advisor at the Bipartisan Policy Center.

MEGHNA CHAKRABARTI: Patrick Sarback lives in North Carolina. In 2016, he was diagnosed with non-Hodgkins's lymphoma. He’s relied on the Affordable Care Act heavily since then, particularly the free preventive health care mandated by the law.

PATRICK SARBACK: The preventive screening has shown five other tumors and allowed us to get on them. It gives me a better chance at. Seeing my kids graduate and get married and stuff. I lost my wife to brain cancer two years ago. And again, the ACA not only saved her life for a good period of time. It also allowed us to stay in our house and maintain a family. So I really hope they don't pull that from the policy.

CHAKRABARTI: From 2010 until last month, Americans had the right to zero cost access to screenings for cancer, Hepatitis B and C, osteoporosis, STDs, diabetes and pre-diabetes, mental health screenings, genetic testing, antibody tests for pregnant women, prophylactic drugs for HIV, elderly counseling, information about substance abuse, and more. Which is why Dr. Mark Fendrick says, of this aspect of the ACA:

DR. MARK FENDRICK: I cannot think of another health policy that impacts more Americans than the preventive services provision.

CHAKRABARTI: But then, last month, a U.S. District Court judge in Texas ruled that no cost preventative health care in America is unconstitutional.

FENDRICK: The clinical implications of this ruling are real, and I think they're being underestimated just because of the tumult of the news cycle that we have. But as more and more people look at what we believe is the potential impact of a worst-case scenario of restoration of patient out-of-pocket costs for these preventive services, the health of Americans will clearly suffer. And I believe that the disparities in health care delivery that we're fighting so hard to ameliorate will actually get worse.

CHAKRABARTI: This is On Point. I’m Meghna Chakrabarti. And that’s Dr. Mark Fendrick, now at the University of Michigan. Should the Texas court’s ruling stand? At least 150 million Americans could lose access to free preventive health care. Something Fendrick knows a great deal about. Because he is one of the people who helped create those very provisions that are a signature part of the Affordable Care Act.

Fendrick’s belief in the importance of preventive care dates back before 2010, back to the beginning of his medical career.

FENDRICK: I’m a primary care physician, and very early on in my career, I realized that patients, even with good insurance, weren't able to afford those services that I begged them to do. And many of these were preventive care services.

CHAKRABARTI: Dr. Fendrick and his team wanted to figure out how to change that.

FENDRICK: So, we developed this idea of an insurance product, that actually didn't set patient out-of-pocket costs on what things priced, but in fact, the clinical value. So instead of cheap things being cheap, we said maybe good things in terms of your health should be inexpensive. You know, I'm not a super smart guy to come up with the fact that, you know, patients shouldn't have to have a bake sale to afford their mammogram.

CHAKRABARTI: This was in the early 2000s. The new healthcare policy started to catch on.

FENDRICK: The idea of removing cost sharing for high value services was not a far-left liberal idea. The early adoption of value-based insurance design were by big for-profit companies who felt it was worthwhile to invest more in evidence based medical services because it would produce a return in moderating health care cost growth, but more importantly, keeping their employees healthier.

That support from corporate America that vaulted Dr. Fendrick and the concept of free preventive care all the way to Congress.

FENDRICK: And in 2006, we were very fortunate to be met by very rare bipartisan support of this idea of lowering out-of-pocket costs for high value services, particularly preventive care services, and those that treat chronic conditions. And then in 2008, the ACA discussions started to develop, and we were very fortunate to have this idea of no cost preventive care services be swept up in every conversation and was supported by both Republicans and Democrats.

CHAKRABARTI: President Obama’s most important legislative accomplishment, the Affordable Care Act, was signed into law on March 23, 2010. Not without considerable rancor of course. No Republican members of Congress voted for the ACA in 2010.

And in the next six years, the GOP would have the House vote more than 70 times to repeal, replace, or modify the ACA. The Republican party came close in 2017, with its so-called “Skinny Repeal,” which would have ended insurance coverage for 16 million Americans.

The effort was defeated by a 49-51 vote. But it’s important to note that in the years’ long repeal efforts, no legislator ever vocally attacked the free preventive care access made possible by the ACA. They had other targets.

FENDRICK: Before the ACA and afterwards, the preventive care provisions have always polled among the top three aspects of the Affordable Care Act. And even among Republicans who didn't like the ACA for whatever reason. Preventive care services at no cost has always polled at a very high favorability level. And I often ask myself who would be against free shots for kids and screening for conditions like cancer, diabetes, depression and illicit drug use.

CHAKRABARTI: As of last month, we have an answer. An interesting group of plaintiffs and a Texas federal judge who agreed with their argument that they should not have to purchase preventive health care that they “do not want or need."

And in so doing, this case – currently in appeal – could put those same preventive services at risk for half of the country. Why? And how did this happen?

Nicholas Bagley, a professor of law also at the University of Michigan. ... He's an expert on administrative and health law and has been closely watching this case. He joins us from Ann Arbor. Welcome to On Point.

NICHOLAS BAGLEY: Thanks for having me.

CHAKRABARTI: So, first of all, at this moment, what is the status of zero cost preventive care for 150 million Americans? Can they access it post this ruling?

BAGLEY: It's a little complicated. The short answer is yes. The longer answer is we're not sure for how long. The judge's ruling has taken effect, which means that across the entire country, insurers and employers are free to reconsider whether they're going to ask Americans to pay out of pocket for needed preventive care. And right now, we haven't seen a whole lot of movement from employers and insurers. I think there's at least a sentiment that maybe they want to wait and see how the case turns out.

So most people will not see an immediate change in their insurance coverage. But over time, as employers kind of look hard at the dollars and cents question of how much they want to pay for their employees' health care or how much they're spending to cover their insureds, they're going to start making different choices and people are going to start being asked to chip in to cover these needed preventive services.

CHAKRABARTI: And it's this district court ruling in Texas that is allowing employers to make that choice, whereas they didn't have the choice before because of what was in the ACA.

BAGLEY: That's exactly right. The Affordable Care Act says in no uncertain terms that all employers and insurers have to cover preventive services at $0 cost sharing. Those preventive services that have to be covered are in turn selected by three different professional bodies that identify the services that are high quality that people need that can save lives and potentially even save us money.

CHAKRABARTI: So this is why we have things like vaccinations and diabetes screening and prophylactic care for HIV aids in this list of zero cost preventive care. Now, we're going to spend the rest of the hour diving deep into how and why this happened and who's behind it. But the case is currently in appeal. Do you expect it to work its way through the higher courts and possibly even get to the Supreme Court?

BAGLEY: Yeah. So right now, the fight that's going on is whether the district court's opinion is going to be paused while those appeals run their course. And the government has asked for what they call a stay pending appeal. And the district court judge is considering that request as we speak. If a stay is entered, then nothing will change for Americans for some time because the appeals will take at least a year in front of the Fifth Circuit. And then I expect the case to go to the U.S. Supreme Court, and that'll take another year after that.

CHAKRABARTI: But let me just jump in here for a second. Just to be clear, it's the same judge who ruled, too, that this the preventive care required preventive care was unconstitutional. He is now being asked to stay his own ruling.

BAGLEY: That's right. And that's the typical approach as you go to the trial court first. But as your question suggests, sometimes the trial court is not the most hospitable forum for that kind of request.

CHAKRABARTI: Today we're talking about what happened in a Texas court on March 30th. So just last month when a Texas district court judge ruled that mandatory free preventive health care in this country, as mandated by the Affordable Care Act, is unconstitutional, and what that might mean for the future of preventive care in this country. Nicholas Bagley joins us.

He's a professor of law at the University of Michigan. He's been following this case closely. So, okay, Professor Bagley, let's wade into the weeds here. The case is called Braidwood Management versus Javier Becerra, who is of course, the HHS secretary. Let's talk about who the plaintiffs are first. Who and what is Braidwood Management?

BAGLEY: Braidwood Management is the management company for wellness center run by a doctor named Steven Hotze outside of Houston, Texas. And it objects to the preventive services mandate because it does not want to offer certain preventive services to its employees. And in particular, Doctor Hotze objects to the requirement that he cover pre-exposure prophylaxis for people who are at risk of contracting HIV, and that PREP drug, pre-exposure prophylaxis drug, prevents them from getting HIV. He thinks it spurs, you know, contributes to lifestyles that he disagrees with, especially for gay men.

CHAKRABARTI: Okay. So Dr. Hotze, though, has a history of attacking the Affordable Care Act, right? I mean, he sued in 2013 or thereabouts ... to undermine the ACA. Can you tell us about that?

BAGLEY: Right. He's a pretty familiar player here. He brought one of the kind of first wave challenges trying to get the whole law knocked out. And his lawsuit was dismissed on the grounds that he didn't have standing to bring it. But he clearly is not done. And so Dr. Hotze is kind of a widely known figure in Texas politics. He's a conservative, mega-donor. He came to prominence in 2020 because of a very strange escapade in which he hired a private investigator to run an air conditioner repair men's truck off the road and then search it for allegedly blank ballots that they were then filling out on behalf of people who shouldn't have been voting. He's been indicted for that since. So he definitely comes with some baggage here.

CHAKRABARTI: There were no ballots to be clear.

BAGLEY: There was just air conditioning equipment.

CHAKRABARTI: Okay. So that's Dr. Hotze, who, again, has this history of antagonism towards the Affordable Care Act. And then there's several other players here I want to discuss. Jonathan Mitchell. Tell us about him and his involvement in this case.

BAGLEY: Sure. So Jonathan Mitchell is the lawyer who brought this lawsuit. And Jonathan Mitchell's claim to fame is that he is the author of SB 8 and SB 8 is the Bounty hunter law, so-called in Texas that effectively banned abortion prior to the Supreme Court overruling Roe v Wade. And the law was very controversial and it was designed to evade federal court review and successfully did so. And so abortion was effectively unlawful in Texas even before Roe was overturned.

CHAKRABARTI: Okay. Now, we also have in the original complaint, we have some other names which then disappeared in the actual ruling itself, John Kelley and Joel Starnes and I guess John Kelly's business, Kelley Orthodontics. I mean, are they also familiar names in conservative circles, you know, in opposition to the ACA?

BAGLEY: Not to my knowledge. And they're still very much involved in the litigation. The caption on the case has shifted, but they're still plaintiffs. And each of these plaintiffs has slightly different claims, some object on religious grounds to covering some of the preventive services. Some just don't want to buy insurance that covers things that they would prefer not to purchase. And so each of them has a slightly different cut at the problem. But the headliner attraction here really is Braidwood.

Okay. So speaking of Braidwood, the business, we did reach out to Dr. Steve Hotze and also to attorney Jonathan Mitchell for comment or requested, invited them to appear on the show. We received no response from them or any of the other people associated with the plaintiffs in this case. So, Professor Bagley, though, take us into a little more detail. ... So regarding the argument in which requiring preventive care is unconstitutional, what part of the constitution were they looking at?

BAGLEY: Yeah, the chief fighting in the case is over something called the appointments clause, which is a pretty obscure part of the Constitution. And basically, what it says is that when you have government officials making important decisions for Americans, they've got to be appointed in the right way.

And what that means is they've got to be appointed generally either by the president or by the head of a major department. And the reason that the appointments clause matters here is that the Affordable Care Act delegated to three professional bodies the authority to determine which specific preventive services had to be covered. And so what the plaintiffs are saying is, hey, you know, the people who sit on those three bodies, they're making important decisions about which preventive services have to be covered. But they weren't appointed in the right way.

They weren't appointed by the president or by the head of a department that, depending on the body, they were appointed by lower level officials. Now, this might all seem highly technical, but the point of the appointments clause is to make sure that there's a direct line of accountability in the executive branch. All the way up to the president. So that you don't have people who aren't accountable to a politically elected leader for the decisions that they make. It's an important way to assure that there's someone taking responsibility for important decisions that affect Americans.

CHAKRABARTI: Okay. Well, then, given what you just described, Professor Bagley, it would seem on the face of it then, that the plaintiffs, obviously they have a persuasive argument. I mean, it was persuasive enough for Judge Reed O'Connor.

BAGLEY: Well, I'll say that the appointments clause litigation, it is always complicated, and it is always a place, given that there's a kind of a dearth of hard and fast case law in this. This is always a space in which lawyers are going to disagree with each other. So the government has good arguments for why it thinks that this arrangement is, in fact, constitutional. And actually, Judge O'Connor didn't declare the decisions of all three of these bodies to be invalid.

He said two of them are okay, and two of them are okay. The ones made by the Advisory Committee on Immunization Practices and the ones made by the Health Resources and Services Administration. He says those two bodies, they can make decisions about immunizations, about women's health care, about adolescent health care. And that's okay because the HHS secretary took responsibility for them. But there's another body. This is the Preventive Services Task Force. And Judge O'Connor said that body ... the decisions haven't been ratified in the same way by the HHS secretary. They are supposed to be politically insulated. And so they're not responsible in the way that the Constitution requires.

CHAKRABARTI: Okay. So again, for clarity sake, I'm just going to repeat this and I want you to correct me if I'm wrong. The ruling said that preventive screenings for everything related to maternal health and, you know, immunizations and vaccinations, those are okay because there's that direct line of accountability, as you said, from HHS. So those things are not on the chopping block, so to say for now.

BAGLEY: For now. So that includes, and I think it's important to flag it for people, the decisions about preventive health care for women are fine for now, and that includes the contraception mandate that has attracted so much controversy over the past 13 years. But the plaintiffs did bring a challenge to those other the decisions of those other bodies.

And they object in many cases to providing contraception coverage. And they're going to raise those issues on appeal. And so although Judge O'Connor's ruling only applies to some of the preventive services that are required under the ACA, his decision could be expanded by a very conservative Fifth Circuit Court of Appeals. So, you know, I'm watching this very closely because I think it has implications that extend even further than it may appear on first blush.

Okay. So about the portion which is ruling did say it's unconstitutional about the Preventive Services Task Force. Again, that's the task force that has said that things like prophylactic care for HIV-AIDS should come at zero cost, correct?

BAGLEY: That's exactly right.

CHAKRABARTI: Now, about Judge O'Connor, though, if memory serves, he has made previous rulings when it comes to access to care for HIV-AIDS. Is that right?

BAGLEY: He has. This is not Judge O'Connor's first rodeo, and it is certainly not his first encounter with the Affordable Care Act. He's been a pretty reliable conservative, stalwart judge ruling in favor of challengers who are seeking to take down aspects of the law. And that includes a decision that he issued invalidating the entire Affordable Care Act on a theory that was later rejected by a vote of 7 to 2 at the U.S. Supreme Court. So, you know, he is definitely throwing hard balls here.

CHAKRABARTI: Okay. So what are some of the other things, again, just so that people can really understand what might happen here that the Preventive Care Services Task Force has said needs to come at zero cost?

BAGLEY: Yeah. So one key feature of the ruling is that it applies only to guidelines that the Preventive Services Task Force adopted after 2010. There were a lot of guidelines in place before 2010 when the Affordable Care Act was adopted and Congress was the one that said, Hey, all of those have to be covered. A $0 cost sharing. So the 2010 guidelines are going to be okay. It's the stuff that came after that's vulnerable. And that's important for two reasons.

First, there's new stuff. So not only coverage of PREP drugs, but screening for unhealthy drug use for adults, screening for anxiety in children and adolescents, and counseling interventions for healthy weight gain in pregnancy. Those are all new guidelines. And insurers aren't going to be recover required to cover those at $0 cost sharing.

The second reason that's important is that these guidelines change all the time, because our scientific understanding of which preventive services are effective is evolving. And so it's a problem already to be stuck with, you know, guidelines that are now 13 years outdated. But it's going to become a bigger problem over time as those guidelines can't keep pace with our evolving science.

CHAKRABARTI: I see. Okay. So once again, just because this is quite complicated, but it could potentially have an impact on half the country. So I want to be sure that we're clear in what we're analyzing here. So the things that sort of fall in that post 2000th March 2010 group of things include, as you said, screening for anxiety in children, interventions for fall prevention in elder Americans, the behavioral counseling interventions that you said, I'm seeing preventative interventions for perinatal depression and of course, prophylaxis for prevention of HIV infection. Are there any other big ones that you can think of?

BAGLEY: Not off the top of my head. There are some concerns about hepatitis screening in particular that have clinicians worried. But, you know, I think your question just underscores how much uncertainty there is going to be, because in order to figure out what preventive services are covered, you got to go back, compare the 2010 guidelines with what the guidelines are today and figure out which services specific services covered under those specific guidelines weren't covered in 2010. And then kind of roll the tape back. It's really complicated.

Yeah. And as I heard you say a little earlier, depending on what ends up happening with this case, as you said, it could provide the legal groundwork for employers to perhaps no longer offer zero cost preventive care for other screening or other services.

BAGLEY: That's right. That's right. So the ones that I think worry me the most are the contraception mandate, in part because, you know, some of the most effective kinds of long-acting contraception, like IUDs, for example, are pretty expensive to install and get going. And so you are going to be asking people, if you ask them to pony up out of pocket to pay for that, they might decide to forgo that very effective long-acting contraception. And we know that's going to have an impact on teen pregnancy, on pregnancy for everybody. So that's a real problem.

The other one that worries me is in the 2020 CARES Act, Congress said that any preventive services and treatment for COVID and any immunizations for COVID have to be covered at $0 cost sharing. And they structured it just like this provision of the Affordable Care Act.

They actually amended this part of the Affordable Care Act and said, hey, anything that that relates to COVID that's identified by the Advisory Committee on Immunization Practices and by the Preventive Services Task Force, that has to be covered a $0 cost sharing. And if insurers could start asking you to pay out of pocket for your COVID vaccine, we know for sure that fewer people are going to get vaccinated. And that could lead directly to an increase in what's already a horrific mortality.

CHAKRABARTI: Professor Bagley. A little earlier, we heard from Dr. Mark Fendrick, who helped craft the preventive care portion of the ACA. And, you know, he sort of asked this rhetorical question who would be against screening for things like things like cancer? What do you think the real goal, the real effort is here? What's backing this? Because it's interesting to me that in the ruling, Judge O'Connor quotes that, you know, the plaintiffs say they neither want nor need this kind of preventive care, but it seems like there's more to it than that.

BAGLEY: Yeah. You know, I don't want to speculate about the internal motivations of everyone who's involved here. You know, they're going to have their own story to tell. But I do think you can safely say that this lawsuit feels like another effort to attack the Affordable Care Act in the courts. And this has been a 13 year hard-fought campaign for conservative stalwarts who may not have the pulse of the country to try to use their relative control of the judiciary to effectuate their policy goals.

And, you know, if the question is, you know, gosh, that doesn't seem to make a whole lot of sense when it comes to what actual people want on the ground. I think there's a lot of truth to that. I think the campaign against the Affordable Care Act has been ideological, that for a lot of people it just smacks of socialism or it is, you know, thought to be un-American.

It's kind of become part of our culture wars and our big ideological battles. And I think some of the policy stakes have gotten lost. So I think the challengers here really are attacking a part of the law that is wildly popular and that people of good faith on both sides of the aisle support because it makes good sense. And I'm a little bit dismayed to see these kinds of lawsuits persist in the face of that consensus.

Yeah, and that may be one of the reasons why it was impossible, nearly impossible for us to find even tape of the parties in this lawsuit. The plaintiffs speaking about it even after this ruling. They have been very quiet about it, perhaps because of, as you said, that bipartisan popularity of the idea of preventive care, because not only does it keep people healthier, but I mean, the entire idea of it to begin with was to hold down costs of health care in America.

CHAKRABARTI: We asked our listeners, we asked you what you thought about this ruling and about the fact that no cost preventive services through the Affordable Care Act could potentially go away. And we got many, many responses. Here's some of what you said via voicemail and VoxPop.

LISTENER MONTAGE: What are those pressing this lawsuit thinking? This will simply increase the costs of health care. Because diseases won't be diagnosed early and they will be more expensive to treat. It's as simple as that.

I think changing that will drastically change the affordability of the Affordable Care Act. It is really not that affordable, but one of the reasons that it is affordable is because it covers preventative care.

I know of many people who have been going in who hadn't gone in before just because they don't have to worry about paying to go see them.

Evidently, what it is is that there's a lot of people that think that nobody should have free medical care of any kind, no matter what.

These tests don't actually prevent illness. They detect illness, hopefully early enough to do something about it. But if you can't afford to do anything about it, why do you need to know?

As a gay man living in Los Angeles, I find it really terrifying that they would take away things like PREP. You know, they like to say that it promotes promiscuity or it's immoral. Religious objections should have no bearing on my health care.

I would not be surprised at all if that was part of the point in this being struck down in the first place. Specifically to deal with those groups and make it so that more LGBTQ people get and then have to pay the medical costs of or perhaps die of HIV-AIDS.

If ACA, the preventative care option is taken out, then we're right back to what we used to be. So it's a vicious circle.

CHAKRABARTI: Just some of the listeners we heard from. ... That's just a few Americans of 150 million who are facing this uncertain future now with free preventive care. The Biden administration, as you may mentioned earlier, is appealing. Are they making a vigorous argument? I mean, what is their argument against this ruling?

BAGLEY: Yeah, well, they're making a vigorous argument and they're going to push very hard to keep these rules in place. Right now, the government is asking, as I said earlier, for a pause on the decision while the appeals proceed, and in particular in asking for that stay, the government is saying, it's really quite distressing that this single judge in a single courthouse in Texas has extended a ruling across the entire country. Does a single judge really have that power?

And the government says, no, the right thing for Judge O'Connor to have done here would have been for him to enter a ruling that applied only to the plaintiffs that allowed them to provide a different kind of coverage for their employees or allowed them to purchase noncompliant coverage. But when it comes to extending the relief nationwide, they're saying that's a big step too far. That's not his job. That's a job for the U.S. Supreme Court.

CHAKRABARTI: But I mean, we are well into the era of plaintiffs asking lower court judges for that injunctive relief. And it happens across the political spectrum. I mean, again, correct me if I'm wrong, but wasn't it during the early days of the Trump administration that lawyers went to court to stop the Trump administration's, you know, quote unquote, Muslim ban and that would have been relief across the country?

BAGLEY: That's right. This is an equal opportunity sort of approach to using the courts to achieve your policy goals. And we've really seen nationwide injunctions accelerate since over the past decade or so. So the Obama administration faced nationwide injunctions from judges who were appointed by Republican presidents. And then when Trump was in office, he faced nationwide injunctions from judges who were appointed by Democratic presidents. And now that Biden is in office, we're seeing exactly the same dynamic take hold. The practice of district courts entering nationwide relief is a seriously problematic practice and one that that I hope the U.S. Supreme Court is able to address soon and may, in fact, use this case to trim the sails a little bit of what the district courts are up to.

CHAKRABARTI: Okay. So that would be quite a remarkable thing if it happened. But in addition, though, the last time the ACA ended up before the Supreme Court, right, there was that five-four decision to preserve the individual mandate in the in the ACA. And I believe Chief Justice John Roberts was the deciding factor there. The court's makeup has changed since then, though. I mean, do you think it tilts more in favor of what Judge O'Connor has ruled in Texas?

BAGLEY: Yeah, I mean, I think I have I'm going to keep two thoughts, which is a conservative jurist is more likely to be sympathetic to the arguments that Judge O'Connor made in his opinion and more sympathetic to the plaintiffs. And I think that means that the government is going to have to work really hard here to prevent an adverse ruling. The second thing I'll say, though, is sometimes it's not just about ideology. The content of the arguments that the parties are making will influence the judge, the justices.

And, you know, I think experience shows that they really would prefer very little to do with these highly charged ideological attacks on the Affordable Care Act. They turned away three separate challenges, really to the entire law. And the last time they did that, they did it by a vote of 7 to 2 with a court that looks very similar to the court that we have today. So, you know, if I'm Chief Justice Roberts, I'm looking at this case and thinking, oh, not again. And maybe that kind of instinct will help the government push its case, because this would not be a popular opinion for the Supreme Court to eliminate preventive services for 150 million Americans.

CHAKRABARTI: Okay. Point well taken. And I appreciate you keeping us dwelling in the gray area here, because, yes, the Supreme Court has rebuffed efforts to repeal the entire law, but that is not what this is. I mean, the rest of the ACA would stand even if free preventive care were eliminated. Now, I want to just talk for a second about a set of facts regarding kind of like on how much on thin ice Americans and their relationship with preventive care had been already.

So we reached out to Dr. Anand Parekh, and he's the chief medical advisor at the Bipartisan Policy Center and also author of Prevention First Policy Making for a Healthier America. And he told us he's worried that if no cost preventive services goes, it will go away. That's an even bigger problem because the U.S. already has a poor record of prevention.

ANAND PAREKH: For example, cardiovascular or heart disease screenings. We do well upwards of 80 and 90% of individuals who should receive these services do cancer screenings, colon cancer screenings, breast cancer screenings, cervical cancer screenings. We don't do as well, but still 60 to 70%. But there are other screenings like alcohol screening and counseling, depression and screening. The uptake rates, there are only about 30 to 40% of Americans who need to receive these services. Some vaccinations are in the 20 to 30% range. If you look at zoster vaccinations, HPV vaccinations, even flu vaccination. So we are not doing well as a country when it comes to prevention.

CHAKRABARTI: Professor Bagley, I believe, have seen evidence that shows that even if Americans have to pay, some Americans are asked to pay a $1 co-pay. That's enough of a barrier between them and seeking preventative screening services. Your thoughts on that?

BAGLEY: Yeah, I mean, I think the evidence does show that people are discouraged by even modest cost sharing. I think there are a lot of people who are financially precarious situations. There are a lot of people who are told they're going to pay back and worry that they're going to be asked to pay a lot more once they show up at the doctor's office. You have to think, too, that, you know, just accessing medical care here in the United States can be such a challenge with the bureaucracy and the scheduling and the burdens and, you know, the confusion and complications around payment that really, you know, when we say we're eliminating all barriers to preventive care, we're just eliminating one of the barriers. But here you put another one on top of what Americans already have to face. And yeah, they're going to stay home.

CHAKRABARTI: Now, I should note that major insurance companies are watching what's happening with this case as it works its way to the Fifth Circuit and possibly the Supreme Court. And for now, they say they won't make any changes to zero cost access to preventive care until they know the final determination of this case. Are you seeing the same thing, Professor Bagley?

BAGLEY: I am. You know, I have two thoughts about that. The first is it's a consortium of insurers that, you know, can't speak for all insurers in the country, but their sense of their membership is that few of them are going to move immediately, which is encouraging. But of course, there are employers that make choices about what they cover for their employees, and those employers are not part of that same group. They could make a different set of choices.

And, you know, the insurance companies themselves may over time, decide to take a hard look at some of these cost questions. I think it's true that many, many preventive services will continue to be covered because many of them are pretty cheap. And that's not a big blow to the bottom line of an insurance company. But for the more expensive services are the ones that really they would benefit from asking Americans to chip in something. You know, competitive pressures are going to start to bite and they're going to start looking around and thinking, how can I stay competitive in a tough, tight market?

CHAKRABARTI: So interestingly, I'm actually thinking back to those immigration executive orders that President Trump signed in the early days of the earliest days of his presidency. Because they underwent legal challenge after legal challenge after legal challenge and the executive orders were rewritten, rewritten, rewritten until the Trump administration found a version that could withstand legal challenge.

I'm wondering if something similar could happen, could or should happen here with the Biden administration. I mean, if the plaintiffs' argument that was persuasive to Judge O'Connor is that there was a lack of accountability in one of the task forces that decided what should be covered with preventive care, are there not just sort of administrative changes that HHS could make or perhaps even, you know, could Congress pass some sort of amended law? I mean, it sounds like things could be done outside the court.

BAGLEY: Yeah, I think the prospects for executive action here are, you know, to my mind, I think a little dim. The challenge is the way that Congress structured the decision-making bodies. And that's not something the executive branch can easily fix, although they should do what they can on the margins. But Congress could easily fix this problem with the stroke of a pen. So all you need to do is pass a law saying that when the Preventive Services Task Force makes a decision that has to be approved by Secretary Becerra before it takes effect, and it's an easy one sentence fix, it shouldn't be a big ideological lift.

It shouldn't be, you know, an object of a bipartisan food fight, should be a really quick thing. Now, I don't want to be naive about the prospects for some kind of bipartisan deal in a split Congress. It seems like the House Republicans are going to be pretty resistant to making changes that would help the Affordable Care Act. But there may be an opportunity, especially an opportunity now before the lawsuit drags on and people get, you know, dug into their corners to strike a deal, to take this off the political agenda. Nobody wants to be talking about this. Let's just make sure that Americans are covered with $0 cost sharing for the preventive services.

CHAKRABARTI: Okay. And again, I come back to the fact that even though there has been some coverage of this case, not as much as one would expect because of I mean, I don't know why it seems to have been pretty quiet thus far. Do you have any thoughts about that?

BAGLEY: Yeah, I mean, there are a few. I mean, first of all, it's just complicated stuff. I mean, our health care system is complicated to begin with, and this lawsuit is even more complicated. But I think it's partly, too it's just a district court at this point. And so people are wondering if this is just another crazy decision from another crazy district judge in Texas and that the court of Appeals and the U.S. Supreme Court are going to be going to fix the mess and it won't be a big deal. I am concerned and I think we should be taking this litigation seriously. And if, you know, Republicans in Congress don't want to be talking about preventive services and don't want to be accused of taking preventive services from Americans, I would hope that get them to the negotiating table and that we can get some kind of deal on hopefully short order.

CHAKRABARTI: Well, I want to just play another bit of tape from Dr. Anand Parekh, because it's important to have the perspective of someone in health care who's working with patients every day. And he also told us that this provision, kind of zero cost preventive care provision, addresses issues around cost, obviously. But given what American health care is, he says cost is not the only barrier to preventive care.

PAREKH: We don't always make it convenient for the public or patients who receive these services. So thinking about how do you bring these services to individuals is important, whether that's through mobile screening units or other ways providing transportation. So it makes it easier for patients to receive them. Oftentimes, we haven't educated the public or patients enough about the importance of these services. So health literacy comes into play.

That's another important area where we need to work on in terms of health care professionals, the actual ones who have to recommend these services and provide these services. Oftentimes they are not incentivized either from a financial perspective or from an accountability perspective in terms of quality metrics. So we have to make sure that these services are in fact, prioritized.

CHAKRABARTI: So once again, that's Dr. Anand Parekh. Professor Bagley, we've got one minute left with you here, and I just wonder what your final thought is for listeners. Like what should they be looking out for over the next days, weeks or months? And what do you think sort of the existence of this lawsuit even tells us about continued efforts to go after the ACA?

BAGLEY: You know, I think it's important to, you know, make your views about preventive services known to your legislators. This, again, is a problem that Congress can solve and, in the meantime, not to panic. I think that for now, insurance plans are unlikely to change. But to also recognize that there is a deliberate, orchestrated campaign to take health care from Americans. And, you know, that's something we should vote on and that should be a big part of how we choose our elected officials and choose what direction we want to go as a country.

KFF Health News: "No-Cost Preventive Services Are Now in Jeopardy. Here’s What You Need to Know." — "When a federal judge in Texas declared unconstitutional a popular part of the Affordable Care Act that ensures no-cost preventive care for certain services, such as screening exams for conditions such as diabetes, hepatitis, and certain cancers, it left a lot of people with a lot of questions."

Wall Street Journal: "Most Major Insurers to Continue Preventive Care Services" — "The majority of insurers in the U.S. don’t expect to drop no-cost preventive healthcare services as a lawsuit challenging the Affordable Care Act requirement works its way through the courts, according to a letter to lawmakers from the six trade groups representing the insurance industry."