Democrats are seizing on a federal judge’s ruling against ObamaCare’s prevention coverage as an opportunity to campaign on preserving health care just two months before the midterm elections.
The ruling on Wednesday by Judge Reed O’Connor in Texas escalates another battle over ObamaCare, and could jeopardize access to preventive care for millions of Americans, including screenings for colorectal and other cancer, depression and hypertension, among many other services.
Running on saving the Affordable Care Act (ACA) has proven effective for Democrats in the past: The party used the GOP’s attempt to repeal the law in 2017 to mount a successful campaign in 2018 to take control of the House. Earlier this year, the Supreme Court’s June decision to overturn Roe v. Wade gave Democrats another health issue with which to galvanize their base — and now it appears they’re looking to build on that strategy with O’Connor’s ruling.
“With the GOP’s utter disdain for our health, safety and freedom, it is only a matter of time that another drug, treatment, vaccine or health service becomes the next target of their extremism,” House Speaker Nancy Pelosi (D-Calif.) said in a statement shortly after the ruling.
Pelosi also indicated that Democrats will look to tie the ruling directly to the GOP’s “extreme MAGA” agenda and the Supreme Court’s decision to overturn Roe v. Wade.
“This extreme MAGA ruling comes just months after the Republican-controlled Supreme Court discarded precedent and privacy in overturning Roe v. Wade. Since then, House Republicans have plotted an unhinged, dangerous campaign to punish our most personal decisions, from abortion care to birth control and more,” Pelosi said.
Frederick Isasi, executive director of the liberal group Families USA, said it’s a “very straight line” between the Supreme Court’s abortion decision and O’Connor’s ruling.
“I think the big signal here is it’s another example … where a small group of folks who have a very ideological, or hardcore religious perspectives are now changing our laws to restrict the freedom of people and their ability to access health care services,” Isasi said.
While issues like inflation, gas prices and immigration have dominated campaign rhetoric on the GOP side, Democrats have been hammering Republicans on health issues like abortion and the cost of prescription drugs. The decision from O’Connor injects more fuel into the fight.
“As a thirty-five-year ovarian cancer survivor, I am outraged that this judge would take us back to the days before the ACA when individuals suffered pain and even death because coverage for routine cancer screenings were not guaranteed without cost-sharing,” Rep. Rosa DeLauro (D-Conn.) said.
The ruling shows “that conservatives on the bench are on the march to overturn a number of hard won freedoms earned by Americans,” DeLauro said.
O’Connor has a history of ruling against ObamaCare, as well as other Democratic policies. In 2018, O’Connor sided with a coalition of GOP state attorneys general and struck down the entire health law as unconstitutional, a decision that was eventually overturned at the Supreme Court in 2020.
The Biden administration said it was reviewing the ruling, and is expected to appeal. Additional briefings from both sides were due Friday, but O’Connor granted an extension until Sept. 16.
Under ObamaCare, any service or drug that gets an “A” or “B” level recommendation from the US Preventive Services Task Force (USPSTF), a volunteer panel of experts, must automatically be added to a list of free services covered by insurers.
There are more than 100 services on the list, and experts say the requirement has led to better health outcomes
But O’Connor ruled any services recommended by members of the USPSTF are invalid because they “are unconstitutionally appointed.”
The ruling also specifically targeted the HIV drug regimen known as preexposure prophylaxis, or PrEP. O’Connor said ObamaCare’s requirement that PrEP be fully covered violated the religious freedom of a company owned by Steven Hotze, a well-known Republican donor who has challenged ObamaCare on other occasions.
Hotze argued that being forced to cover PrEP “facilitates and encourages homosexual behavior, intravenous drug use and sexual activity outside of marriage between one man and one woman.”
Katie Keith, director of the Health Policy and the Law Initiative at Georgetown University’s law school, said O’Connor didn’t specify how broad the decision will be. It could apply only to the plaintiffs who filed this lawsuit, or he could strike down the whole ACA provision.
Keith said it was “disheartening” to see another legal challenge to the ACA.
“We know now that access to all of these incredibly important evidence-based preventive services are at risk,” Keith said. “If we lost these provisions, we would really return to a pre-Affordable Care Act era where each individual employer and insurance company can pick and choose what preventive services they want to cover and whether they can charge you cost sharing.”
Health care has not been a winning campaign topic for Republicans in recent cycles. Since failing to repeal the health law in 2017, the GOP has been largely silent on the topic of ObamaCare.
Vulnerable GOP candidates have also lately softened their language on abortion and even tried to scrub references to past comments on the issue from their campaign websites.
Isasi said if Republicans oppose O’Connor’s decision, they need to speak up.
“We know that this is a judge who’s very aligned with Republican politics. He’s very ideological. And it’s incumbent upon conservative members of the [Republican Party] to speak up and say that is too far,” Isasi said.