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Texas Judges Takes an Axe to The ACA

U.S. District Court Judge Reed O'Connor really, really doesn't like the Affordable Care Act, and has shown it in mutliple rulings in the past. Yesterday, he took another shot at it. His new ruling says that insurance companies do not have to provide free coverage for mammograms, colonoscopies, and over 100 other preventive services. They can if they want to, but they are not required to, according to the judge. Many may institute deductibles and copays to save money and deter people from getting preventive services. The ruling also covers employer-sponsored health care plans. It is estimated that about 168 million people nationwide will be affected. Of course it will be appealed, first to the conservative Fifth Circuit Court of Appeals and then to the Supreme Court. Everything ultimately ends up in the Supreme Court.

O'Connor, who was appointed to the bench in the Northern District of Texas by George W. Bush, also ruled that the requirement to cover the drug PrEP, which is 99% effective in preventing HIV infections, is unconstitutional. He ruled that making it free violated the religious rights of employers that didn't want to pay for coverage. His ruling states that PrEP facilitates homosexual behavior, even though HIV can obviously be contracted by heterosexuals as well. It is a good thing that the case didn't come before a judge in Minnesota, because he might have closed all the public restrooms at the Minneapolis-St. Paul Airport as it is thought that homosexual behavior sometimes occurs there.

The plaintiffs argued that recommendations from the U.S. Preventive Services Task Force (many of which are found in the ACA) can't be enforced because although its members are medical experts, they are not formally government employees. According to the plaintiffs and the judge, the Constitution's Appointments Clause, prohibits this. In effect, the Judge is saying that the president and Congress cannot listen to the advice of outside experts on anything since they are not Senate-confirmed presidential appointees.

O'Connor is definitely capable of learning from his mistakes. Four years ago he ruled that the entire ACA was unconstitutional, but he was overruled by the Supreme Court. So now he is just trying to chip away at it bit by bit. When the Biden administration's attorneys asked the plaintiffs' attorneys how much higher their clients' premiums were as a result of mandatory preventive coverage, they said they didn't know, but it was too much.

The effect will not be felt immediately because most health-insurance plans are already locked in for the year. But next year's plans might not include some services that are now covered and free. Congress could solve the problem with a one-sentence law that said: "Whatever the USPTF recommends has to be covered subject to the approval of the Secretary of HHS." But don't count on Congress passing any such law since Republicans oppose giving poor people any free medical care (see below for more on this).

The concept that a single federal judge can impose a nationwide order is controversial and is hotly disputed. Conservatives like the idea and often go judge shopping to find one who is likely to rule as they wish (liberals do it too, though usually not as often or aggressively). This might stop if an originalist judge in, say, Massachusetts, were to rule that the Second Amendment applies only to the muzzle-loading, smooth-bore muskets available at the time the Second Amendment was ratified (1791) and does not apply to any arms (such as AR-15s) not yet invented at the time the Amendment was ratified. Then he ruled that Congress and the states were free to outlaw any firearm not in existence in 1791. (V)

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