One of the most important parts of the Affordable Care Act is its requirement that insurance companies cover preventive care. As we approach a full generation of people who have come of age under the protections provided by the ACA, it’s easy to forget that in the before times, it was incredibly difficult for poor people to get preventive care, and prohibitively expensive for middle-class people to do the same. That meant that a lot of times, people just had to wait to get sick before their insurance plans even kicked in. It meant that a lot of people wouldn’t get mammograms or colonoscopies. It meant a lot more “negative health care outcomes” and human suffering.
That critical and life-saving aspect of the ACA has, for now, been gutted by one man: US District Judge of the Northern District of Texas Reed O’Connor. O’Connor, who was appointed to the bench by George W. Bush, is a far-right extremophile who has made it his life’s mission to destroy the ACA. He has tried to take down the act multiple times, including once when he declared the individual mandate at the heart of the law unconstitutional. And on Thursday, he fired his latest salvo against the ACA by overturning the part of the law that requires insurance companies to cover several kinds of preventive care, from cancer screenings to PrEP, the drug that prevents the transmission of HIV.
O’Connor is regularly overturned by his conservative brethren on the Supreme Court, which should give you an indication of just how far afield he is from even the standard right-wing fanatic’s interpretation of the law. But his decisions cause a lot of pain and suffering as people wait years for the Supreme Court to get around to the business of telling him that he’s wrong. O’Connor is like a guy who steals your car to take it out for a joy ride: Even if you get it back, by the time you do it’s dented and abused and it smells funny. The problem is that the “car” in this analogy is “the United States government.”
His latest decision will lead, directly, to death. O’Connor attacked the preventive care provisions of the ACA by going after the Preventive Services Task Force (PSTF). The PSTF is one of three agencies—along with the Health Resources and Services Administration (HRSA) and the Advisory Committee on Immunization Practices (ACIP)—that determine what preventive care falls under the mandatory coverage requirements of the ACA.
Congress created the PSTF as an independent body to provide expert guidance on what should be covered under preventive care. O’Connor decided that this violated the Appointments Clause of the Constitution, and declared the agency null and void.
O’Connor’s opinion doesn’t really explain why the PSTF violates the Appointments Clause, other than some hand-waving about how members of the PSTF are not directly appointed by the Secretary of Health and Human Services (as Vox’s Ian Millhiser points out, one frustrating thing about O’Connor’s opinions is that he is a terrible legal writer who never feels the need to justify his decisions by showing his full analysis). It’s specious legal logic at best, but what makes the decision truly ridiculous is that O’Connor rejects the most obvious fix to the problem he himself invented. If O’Connor’s problem is that HHS didn’t appoint members of the task force, he could simply let the HHS secretary confirm those appointments. That would be the “conservative” (small “c”) approach to the issue: don’t throw out the law, just let the government fix it.
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Of course, letting the government function is not O’Connor’s goal. The upshot of his opinion is that all of the PSTF’s recommendations are now invalidated. O’Connor left in place (for now) preventive care mandates issued by the other two agencies, and that’s important. The HRSA mandates cover contraception, while ACIP covers vaccinations. Insurance coverage for those medicines remains in place.
But the PSTF did a lot of other things (here is a full list). I’ve already mentioned the cancer screenings, but the real target of O’Connor’s legal hack job was the PSTF mandate that insurance companies cover PrEP. (It also provides coverage for screening for other sexually transmitted diseases, including hepatitis and syphilis.) O’Connor found that requiring companies to cover PrEP medication violates the religious freedom of those companies.
Now, I’ve read the Bible (not as many times as I’ve read Lord of the Rings, but still). Jesus does not say “giving gay people medicine makes me cry.” Lot does not say “since God was fresh out of salt, he gave my wife an STD.” The idea that HIV medication impacts anybody’s religion anywhere is one of the more insane so-called legal principles I’ve ever even heard of. Outlawing a rule that helps people get preventive HIV medication is the kind of evil that makes one hope Hell is real just so O’Connor can have a place to live.
And somehow that’s not even the most hypocritical part of this ruling. PSTF also mandates insurance coverage for various kinds of prenatal care. Those coverage mandates are now gone. Thanks to O’Connor and other conservative judges and justices, we now live in a world where a person can get pregnant, be forced by the state to bring that pregnancy to term against their will, but not have their prenatal care covered by their insurance company. The allegedly “pro-life” concern about the welfare of the unborn does not even extend to making sure people have access to health care during the gestational period. Republicans seek to turn pregnant people into mere incubators, but they won’t even make sure those incubators are working properly.
Since O’Connor made up a constitutional violation and then didn’t allow the government to fix it, his dystopian ruling applies nationwide. It could take years for this decision to work its way up to the Supreme Court. Unless a higher court prevents O’Connor’s ruling from taking effect until the appeals process plays out, countless people will die from preventable STDs, complications in childbirth, and cancers that could have been caught earlier but for him.
This seems like a good time to mention that Reed O’Connor holds a lifetime appointment and is only 57 years old. When people let Republicans pick judges, those judges metastasize and infect the entire system. O’Connor is like herpes: He probably won’t kill us, but we’ll be suffering from his outbreaks for the rest of our lives.
