As states ban abortion, contraceptive coverage put at risk in anti-Obamacare lawsuit

By Tami Luhby and Tierney Sneed, CNN

A lawsuit putting at risk Americans’ access to free contraceptives took on new significance with last month’s Supreme Court opinion that drastically altered the legal landscape around abortion. A federal judge in Texas with a history of ruling against the Affordable Care Act — the target of this latest case — is hearing arguments on the lawsuit’s merits on Tuesday.

The case does not pose the existential threat to Obamacare that past legal gambits aimed at the law posed, but nonetheless it could undermine one of the most popular provisions of the 2010 health care overhaul.

In asking that the court strike down the law’s requirements that health insurers cover a wide array of preventive services, including contraception, at no cost, the challengers make several arguments that might ultimately be attractive to a Supreme Court majority that has shown hostility to administrative agency authority.

But first it is before US District Judge Reed O’Connor, a George W. Bush appointee on the federal bench in Texas who will issue a ruling in the coming months about the constitutionality of the mandate for preventive care coverage.

The stakes around contraceptive access have already been raised by the Supreme Court’s ruling last month that cleared the way for several states to ban abortions.

That decision has heightened the focus many women are putting on their contraception so they can avoid unplanned pregnancies.

“There’s also a lot of people who immediately thought, ‘Okay, what do I need to do for my birth control? If abortion is more difficult to access, I need to be really thinking seriously about what my birth control options are,'” said Mara Gandal-Powers, director of birth control access at the National Women’s Law Center. “They’re having to put politics into those thoughts, into their balance of what birth control do I want to be using?”

The contraceptive coverage requirement is part of a suite of preventive services that many Americans can access at no cost, thanks to Obamacare. They include free mammograms and colonoscopies, blood pressure and cholesterol screenings, breastfeeding support and immunizations for the flu, measles, chickenpox and other diseases.

Nearly 152 million people — including 58 million women — were in private health insurance plans that cover preventive services with no cost sharing in 2020, according to a Department of Health and Human Services report from January. Millions more adults covered by Medicare and Medicaid expansion also have access to some or all of the services at no charge because of the health reform law.

Contraception and preventive services at no charge

The Affordable Care Act’s contraceptive mandate broadened access to birth control for millions of people in employer-sponsored and Obamacare plans after it took effect in 2012. It covers a full range of contraceptives approved by the Food and Drug Administration, including birth control pills, intrauterine devices, known as IUDs, and emergency contraception, such as Plan B.

Nearly two-thirds of obstetrician-gynecologists reported an increase in contraceptive uptake from their patients since the implementation of the coverage requirement, according to a Kaiser Family Foundation study from 2020.

The provision has also allowed more women to access the type of birth control that’s right for their health and needs, said Gandal-Powers. For instance, more can now obtain long-acting reversible contraceptive methods, such as IUDs, which came with high out-of-pocket costs before the law went into effect.

The coverage requirements were shaped by a component of the US Department of Health and Human Services known as the Health Resources and Services Administration. That and the other entities charged with setting guidelines for no-cost preventative care coverage for insurers are what the lawsuit targets.

Legal attacks on how the government determines what insurers must cover

The challengers are putting forward constitutional separation-of-powers arguments against the preventive care provisions, while also making religious freedom claims against coverage requirements like those for PrEP drugs that the challengers claim facilitate “homosexual behavior, drug use, or sexual activity outside of marriage between one man and one woman.”

Similar religious freedom arguments against the Obamacare contraceptive mandate have been set aside in the case.

However, contraceptive care is implicated in the more sweeping arguments about the task forces that determine the preventive care requirements imposed on insurers. If those arguments are adopted, insurers would be free to drop that preventive coverage from their plans.

“The Court should declare that any and all preventive-care mandates based on a rating, recommendation, or guideline issued by the U.S. Preventive Services Task Force, the Advisory Committee on Immunization Practices, or the Health Resources and Services Administration after March 23, 2010 — the date on which the Affordable Care Act was signed into law — are unconstitutional and unenforceable, and it should enjoin the defendants from enforcing them,” the challengers said in a court filing last year.

Spearheading the lawsuit is Jonathan Mitchell, a former solicitor general of Texas who also helped draft the novel Texas six-week abortion ban that is enforced with civil lawsuits. A legal group led by former Trump White House aide Stephen Miller and other allies of the former President is also supporting the challengers in the anti-Obamacare lawsuit.

They argue that HRSA and the other entities that decide which preventive services are covered under the law lack the authority to do so.

“The Constitution makes no provision for governance by politically unaccountable bureaucrats,” the challengers said in a court filing. They allege those officials’ determinations violate the Appointments Clause because the officials were not appointed by the president and confirmed by the Senate.

The lawsuit also claims that the Constitution has also been violated under the so-called nondelegation doctrine, as the challengers allege Congress did not provide adequately specific instructions in how it delegated those coverage requirement decisions to the entities charged with making the decisions.

The Biden administration has argued in the case that the challengers have failed to clear procedural thresholds required to bring lawsuit, and the administration has defended the constitutionality of the law’s design. To bolster its case, the administration also submitted a filing from HHS Secretary Xavier Becerra ratifying the preventive care guidelines. The Justice Department told the court that while Becerra’s approval of the guidelines wasn’t legally necessary, the move would cure the supposed constitutional defects alleged by the challengers.

The department’s filings described the case as “an effort that would have the effect of depriving absent parties of potentially life-saving healthcare services.”

The administration argued that Congress met its constitutional obligations in how it tasked HRSA with setting guidelines for women’s care not covered by the recommendations of the US Preventive Services Task Force, another entity the ACA relies on for determining the preventive care mandates.

That instruction from Congress was “more cabined” that the laws creating agency authority to regulate broadcast licensing or setting commodities prices, the administration argued, while citing court cases upholding those agency powers.

Maintaining access to contraception

Days after the Supreme Court issued its ruling overturning Roe v. Wade, a trio of federal agencies wrote a letter to employers and health insurers to remind them of the Obamacare requirement that they provide coverage for contraceptive services at no cost.

“It is more important than ever to ensure access to contraceptive coverage without cost sharing, as afforded by the ACA,” said the letter from the secretaries of Health and Human Services, Labor and Treasury, responding to complaints that some plans are not complying with the provisions.

Democrats in Congress are also trying to codify access to contraception in the law, in an attempt to prevent the Supreme Court from chipping away at it in the future.

Last week, the House passed the Right to Contraception Act by a vote of 228-195, with eight Republicans crossing the aisle to vote with Democrats. The bill would protect Americans’ ability to obtain and use birth control and health care providers’ ability to prescribe contraception and offer information related to birth control.

Democrats pointed to a concurrence by Justice Clarence Thomas in the recent abortion case calling on the court to revisit a 1965 ruling, known as Griswold v. Connecticut, striking down state bans on contraceptive use.

They also noted efforts by several states to ban or limit access to certain types of contraceptives, particularly IUDs and Plan B.

“It’s outrageous that — nearly 60 years after Griswold was decided — women must once again fight for fundamental freedom to determine the size and timing of their families,” House Speaker Nancy Pelosi said last week.

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