By Shirin Ali

In Kelley v. Becerra, two Texas plaintiffs argue the Affordable Care Act (ACA) mandates health insurance providers cover certain preventative care services they do not need and conflict with their religious beliefs — specifically, contraceptive coverage, STD testing and HIV medications.

A Texas lawsuit that hopes to eliminate mandated health insurance coverage of birth control, HIV medication, sexually transmitted disease (STD) testing and more has quietly been pushing forward through the court system and could eventually end up in front of the U.S. Supreme Court.

In the case of Kelley v. Becerra, two plaintiffs from Texas argue that the current structure of the Affordable Care Act (ACA) mandates health insurance providers to cover certain preventative care they argue they do not need and that conflict with their religious beliefs — specifically, contraceptive coverage, STD testing and HIV medications Truvada or PrEP.

One of the lawsuit’s arguments leans on the Religious Freedom Restoration Act, which states governments should not substantially burden religious exercise without a compelling justification. Plaintiffs argue this right has been violated as both are Christian and unwilling to buy health insurance that subsidizes, “abortifacient contraception or PrEP drugs that encourage homosexual behavior and intravenous drug use.”

The lawsuit also takes issue with how the ACA defines preventative care, a decision-making process that has been assigned to various groups, including the Advisory Committee on Immunization Practices, the Preventative Services Task Force and the Health Resources and Services Administration.

These groups have allowed for blood pressure screening, HIV screening, cancer screening, birth control, childhood vaccinations and more to be covered under most health insurance plans with no copays — meaning the services are free for enrolled members.

America is changing faster than ever! Add Changing America to your Facebook or Twitter feed to stay on top of the news.

Plaintiffs take issue with this approach, arguing these groups have far-reaching powers that unilaterally decide what is defined as preventative care that health insurance plans must cover without any cost-sharing arrangements — such as copays.

Though religious exemptions have been allowed, most health insurance plans include coverage of preventative care like birth control and HIV medicines so the options for plans without those elements are few and far between.

The case reached Judge Reed O’Connor of the U.S. District Court, Northern District of Texas a few weeks ago in late July — the same judge who issued a ruling declaring the ACA was unconstitutional back in 2018.

O’Connor is expected to rule in favor of the plaintiffs and if that happens, the ACA’s preventative services requirement would become voluntary — meaning health insurers could opt out of offering those services or begin charging for them.

However, there are other outcomes possible, including handing the case over to the Supreme Court.

That could also have grave consequences for the ACA, as the court’s conservative justices ruled on a separate case in 2020 that also centered on the ACA’s preventative care rules, Little Sisters v. Pennsylvania.

In the case, Justice Clarence Thomas specifically addressed one of the groups charged with defining preventative care for the ACA, the Health Resources and Services Administration (HRSA), writing it had, “virtually unbridled discretion to decide what counts as preventative care and screenings.”

Health care providers have raised alarm bells over Kelley v. Becerra, like the American Medical Association (AMA), alongside 20 other medical trade groups, which stressed how popular the preventative care measure of the ACA has been — with an estimated 151.6 million people receiving free preventative care in 2020 alone.

An adverse ruling would mean millions of Americans would lose access to “vital preventive health care services, such as screening for breast cancer, colorectal cancer, cervical cancer, heart disease, obesity, diabetes, preeclampsia, and hearing, as well as well child visits and access to immunizations critical to maintaining a healthy population,” wrote the AMA.

A coalition of 20 attorneys general also filed an amicus brief in the Kelley v. Becerra case that defended key provisions of the ACA. It argued that not only have public health outcomes more broadly improved since the ACA’s preventative services provision was implemented, but states have also come to rely on those provisions to build and strengthen their own public health systems.