Bloomberg Law
March 31, 2023, 9:25 AM

Obamacare Court Decision Hits Hardest for Low-Income Americans

Ian Lopez
Ian Lopez
Senior Reporter
Sara Hansard
Sara Hansard
Senior Reporter

Certain cancer screenings and HIV prevention drugs are among the preventive services attorneys say will be harder for lower income Americans to access after a federal judge’s decision to strike down requirements in the Affordable Care Act.

Breast and cervical cancer screenings, diabetes screenings and children’s vision tests could fall out of reach for the millions of Americans relying on zero-cost preventive services guaranteed through the ACA.

Access to such services largely won’t grind to a sudden halt, because annual insurance plan benefits are already set for the year. But health experts warn that Americans who struggle with co-pays and deductibles might forgo life-saving preventive treatments should insurers eventually stop covering them.

“Insurance companies, some of them will continue to cover these services, but many of them will charge significant co-pays. It’ll affect predominately lower- and working-class people who the evidence shows don’t go to the doctor” for primary care services unless “they don’t have to pay,” said Lawrence Gostin, director of the O’Neill Institute for National and Global Health Law at Georgetown University.

Issued Thursday by Judge Reed O’Connor of the US District Court for the Northern District of Texas, the decision marks the latest challenge to Obamacare. O’Connor found the ACA unconstitutional in a separate 2018 case.

“This could be the opening salvo in the judicial attacks that could be reinvigorated against the Affordable Care Act,” Gostin said.

The outcome is “not surprising given the judge and his earlier decisions, though deeply troubling and certainly may have some very significant adverse public health ramifications,” said Wendy Parmet, director of the Center for Health Policy and Law at Northeastern University.

“It’s another example of courts not caring about the impact of their decisions on the health of Americans,” Parmet said.

HHS spokesperson Kamara Jones said, “Preventive care is an essential part of health care: it saves lives, saves families money, and improves our nation’s health. Because of the Affordable Care Act’s preventive services requirement, 150 million Americans have access to crucial, free preventive care like cancer and heart disease screenings. Actions that strip away this decade-old protection are backwards and wrong.

“HHS is currently reviewing the decision and consulting with the Department of Justice on next steps in the litigation. We will do everything we can to protect and defend Americans’ rights to the health care they need and deserve.”

On appeal, the case would land with the US Court of Appeals for the Fifth Circuit. Widely considered one of the country’s most conservative courts, 12 of its 16 judges were appointed by a Republican president. The circuit court could also decide, in a separate case, whether Americans can access medication abortion.

The Supreme Court has grappled with the ACA on a number of occasions though refused to strike it down. But now, the court’s makeup is “a lot different than prior ACA challenges,” said Michael Ulrich, assistant professor of health law, ethics and human rights at Boston University.

“I would not bet on having a similar result to the prior ACA cases,” Ulrich said.

‘Vulnerable and Marginalized’

In Thursday’s decision, O’Connor invalidated Obamacare’s HIV treatment mandate, determining it violated the rights of Christian employers under the Religious Freedom Restoration Act.

Not requiring insurers to cover preventive HIV medication—or PrEP—could have an impact on “people who are the most vulnerable and marginalized,” given “socioencomic disparities and racial disparities in terms of HIV,” Ulrich said.

“The whole point of generally these provisions in the ACA was to make it free and easy to access, and thereby having the biggest impact” on the poor, or people without the resources to purchase PrEP, Ulrich said.

Insurers aren’t necessarily likely to drop PrEP coverage entirely, with some even using it as a means to convince people and companies to purchase their plans, policy experts say.

The same could be said for other treatments impacted by O’Connor’s decision, which vacated HHS actions to implement or enforce certain ACA preventive services coverage requirements.

“There are about 100 different services, and everything and all of the services have a high certainty of benefit to the patient,” Gostin said, though he noted that “people just don’t show up for their primary care exams and screenings unless they’re free.”

The preventive service coverage requirements had been recommended by a task force that O’Connor determined wasn’t constitutionally appointed.

Future of Coverage

As for the case, there’s a “good chance this will get to the Supreme Court,” University of Houston Law Center professor Seth Chandler said in an interview.

“This has a combination of being practically quite important, and secondly there are unresolved big-picture legal issues that the Supreme Court has been interested in over the past couple of years,” he said.

But for many employers, the decision likely won’t make a difference, said Mark Wilson, vice president of health and employment policy and chief economist of the HR Policy Association, in an interview. That’s because they’ll continue providing “first dollar coverage” for “preventive services that they think are useful for their employees in terms of managing chronic conditions and other health issues.”

But over time employers will “re-evaluate” which preventive services “may not have actually helped in terms of their employees, or had really any impact on overall costs,” Wilson said.

The Smarter Health Care Coalition, which includes the HR Policy Association, sent a letter to Treasury Secretary Janet Yellen and IRS Commissioner Danny Werfel on March 30 asking for guidance to confirm that a health plan won’t fail to be a high-deductible health plan eligible for health savings accounts “solely because it covers, pre-deductible, items and services” that have been recommended as preventive care.

Out of Reach?

Still, “low-income communities and communities of color will suffer the most as health care costs rise, putting life-saving preventive care out of reach for millions,” Kristin Rowe-Finkbeiner, executive director of MomsRising, said in a statement.

Because of the lawsuit, “fewer people will get prenatal care and preventive screenings, fewer cancers will be detected early when they are more treatable, fewer mental health problems will be identified and treated, fewer people will get immunizations and treatment for sexually transmitted diseases, and many more people in the United States will suffer and die,” Rowe-Finkbeiner said.

Sara Collins, senior scholar and vice president for health-care coverage and access and tracking health system performance at The Commonwealth Fund, said the decision “jeopardizes access to cancer screenings and other critical preventive care services for more than 150 million people covered by private insurance” as well as “and more than 20 million people with Medicaid.”

“The provision has increased cancer screenings, blood pressure and cholesterol tests, and led to earlier diagnoses of chronic health conditions across the US population. The judge’s decision will fragment insurance coverage of preventive care, leaving some people with cost-free preventive care and others paying thousands of dollars a year,” Collins said.

To contact the reporters on this story: Ian Lopez in Washington at; Sara Hansard in Washington at

To contact the editors responsible for this story: Cheryl Saenz at; Karl Hardy at

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