If you’ve gotten a free flu shot, mammogram or diabetes screening lately, there’s a good chance you can thank the Affordable Care Act (ACA), aka Obamacare. Unfortunately, a recent court decision may take that coverage away from millions of Americans.

Some 20–40 percent of U.S. deaths from cancer, heart disease and other leading causes of mortality are preventable. Preventive health services can ward off disease entirely, or detect a condition early when interventions are most effective. Before the ACA passed in 2010, insurance companies didn’t always cover preventive services, and, if they did, they could make enrollees pay deductibles, co-payments or other out-of-pocket cost sharing. So Congress required most private health insurance plans to cover a set recommended by the U.S. Preventive Services Task Force (USPSTF) and several other expert bodies. Most Americans with private health insurance—estimated at over 150 million people—are enrolled in plans that have had to meet these coverage requirements. And as the ACA’s drafters had hoped, expanding no-cost coverage led millions more people to use many of these important services.

Unfortunately, two ongoing crusades—one to weaken the ACA and the other to impose certain religious views on other people’s health care—might roll back this health care success. In late March, federal judge Reed O’Connor, whose courtroom is a popular venue for anti-Obamacare plaintiffs, issued a ruling in Braidwood v. Becerra that blocked a portion of the act’s prevention services provision nationwide.

O’Connor’s order, if upheld, will have antiscientific and deeply discriminatory effects on Americans’ access to health care.

First, the plaintiffs had argued that because the USPSTF makes independent decisions that become binding, their members are “federal officials” who should have been appointed in a process consistent with the Constitution’s Appointments Clause. O’Connor agreed, and invalidated all coverage requirements based on task force recommendations made since the passage of the ACA.   

The absurd result is that preventive care coverage requirements issued or updated since 2010—all but two of USPSTF’s 53 recommended services—will be rolled back as though all evidence created in the past 13 years did not exist. For example, in 2008, the task force recommended colorectal cancer screening for people aged 50 and up. In 2021, the group revised its recommendation to include people aged 45 to 49, based on rising case and death rates in that age group. But under O’Connor’s ruling, people will have to wait until age 50 to be entitled to free coverage, because that was the recommendation as of 2010. Meanwhile, entirely new recommendations for services issued since 2010—including for lung cancer screening, statins to prevent cardiovascular disease, and programs to reduce falls for seniors—will no longer have to be covered at all. By threatening access to early screening and interventions, this ruling could shorten lives and cause needless suffering.

The second key element of O’Connor’s ruling is dangerous in a very different way: instead of erasing evidence from policy, it lets discrimination and stigma control access. This part of the case concerns PrEP (pre-exposure prophylaxis), medication that allows an HIV-negative person to reduce their risk of getting HIV by as much as 99 percent through sexual exposure and 74 percent for exposure via shared injection drug equipment, like needles. PrEP is for anyone at risk of acquiring HIV, regardless of sexual orientation or gender identity, including someone in a monogamous relationship with a person who is HIV-positive. So USPSTF’s recommendation of PrEP in 2019, triggering ACA coverage requirements, was an important step in creating access and addressing disparities in uptake.

But to the Braidwood plaintiffs, PrEP drugs “facilitate and encourage homosexual behavior”— not to mention “prostitution, sexual promiscuity and intravenous drug use”—and therefore violate their rights under the Religious Freedom Restoration Act (RFRA). The fact that HIV continues to disproportionately impact gay men (and people who use drugs) offends the plaintiffs so much that they do not want to be associated with an intervention that prevents infection and saves lives. (The over 6,600 Americans diagnosed with HIV resulting from heterosexual contact each year, including the Black and Hispanic women who experience a highly disproportionate share of cases, are apparently just collateral damage here).

Unfortunately, this position isn’t too surprising, given the lead plaintiff’s history of anti-LGBT activism; most recently, he’s been in court to defend his right to fire gay and transgender employees.

But O’Connor didn’t have to endorse these views. Even if the plaintiffs were right about the constitutional status of task force members, he could have crafted a much narrower solution to address the constitutional concerns, as the executive branch suggested, granting the Department of Health and Human Services’ secretary the authority to override task force recommendations while leaving the coverage requirements in place.

As for the PrEP argument, though RFRA does prohibit government from “substantially burden[ing] a person’s exercise of religion,” the law includes an exception when the burden is the “least restrictive means” of furthering  “a compelling governmental interest.”  It’s difficult to think of a public health goal more “compelling” than reducing barriers to PrEP. In fact, it is one of four pillars of the federal government’s plan to end the HIV epidemic in America. Yet to the plaintiffs, and O’Connor, this interest is apparently not quite compelling or narrowly targeted enough.

O’Connor applied the PrEP portion of his decision only to the plaintiffs, even though the ruling against the task force recommendations overall applies nationwide. But at the appeals court level, the Braidwood plaintiffs could push for expanding the PrEP reasoning nationwide. And because the task force recommended PrEP in 2012—after the magic 2010 deadline—access to this vital prevention tool is threatened everywhere.  

Don’t hesitate to seek preventive care now; plans are unlikely to change their coverage policies quite yet, as the case moves forward. But there is reason to be deeply concerned, because this isn’t the first time in recent years that access to health care has been damaged by decision-makers prioritizing ideological or outright discriminatory sentiment over the scientific evidence of the value of that care. In 2014, “religious corporations” persuaded the Supreme Court they shouldn’t have to cover contraception; last year’s reversal of Roe v. Wade has disrupted access not only to abortion but also to safe maternal health care; and many states are rushing to enact laws to block access to gender-affirming services, despite their importance for youth’s health and well-being. Now in Braidwood, what’s at stake is lifesaving preventive care for over 150 million Americans. It’s past time for more of us to wake up to these assaults, and for Congress, higher courts and state legislatures to step up and protect our health and lives.

This is an opinion and analysis article, and the views expressed by the author or authors are not necessarily those of Scientific American.