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A lawsuit winding its way through the courts could undermine the power of federal agencies to mandate the services health insurance providers must cover. And that could threaten access to free birth control for millions of Americans.
The case is called Braidwood Management Inc. v. Becerra, and it was brought by plaintiffs looking to strike down Obamacare’s requirements that private insurers cover certain kinds of preventive care without cost sharing. (Think everything from no-cost cancer screenings to free IUDs.)
Studies have shown the requirements to cover preventive care have increased consumers’ use of short- and long-term birth control methods.
Without those nationwide standards, the United States would return to a “wild West” dynamic “in which insurers and employers pick and choose which services they want to cover or which services they want to charge for,” said Zachary Baron, a health policy researcher at Georgetown Law.
The plaintiffs, a group of individuals and Christian-owned businesses, argue the three groups that set coverage standards — including an independent advisory panel to the Health Resources and Services Administration — haven’t been properly appointed by Congress.
In June, the U.S. Court of Appeals for the 5th Circuit issued a self-described “mixed bag” of an opinion. It agreed that one body hadn’t been properly appointed, making its recommendations since the Affordable Care Act became law unconstitutional. But the court said only the plaintiffs get to ignore its standards.
The appeals court sent questions about the other two groups — including the advisory panel to HRSA that makes recommendations on contraception — back to a lower court to consider.
The case is likely headed back to U.S. District Judge Reed O’Connor. O’Connor’s previous ruling that one body hadn’t been properly appointed was supported by the appeals court. His remedy — blocking its mandates nationwide — wasn’t.
O’Connor is notoriously hostile to the ACA — he struck down the law in 2018. The Supreme Court later overturned that ruling.
And that makes reproductive rights advocates nervous.
O’Connor “is someone who is willing to impose remedies where he takes access to care away from everybody in the country,” said Gretchen Borchelt, vice president of reproductive rights and health at the National Women’s Law Center.
A lack of federal requirements for birth control coverage would leave it up to the states to mandate what insurers have to provide. Fourteen states and D.C. currently protect the right to contraception.
But states can go only so far with those rules, because of a federal law that prevents them from regulating employer-funded health plans, which cover about 65 percent of workers.
“If the plaintiffs win here, it would leave significant gaps in coverage that states would be unable to fill,” Baron said.
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