Judge Snot Boogie Steals Obamacare Preventive Medicine Rules, At Least For Now

It seems unlikely to hold up on appeal.

A federal judge in Texas yesterday blocked the part of the Affordable Care Act that requires insurers to provide free preventive services to policyholders. Stuff like cancer screenings and screenings for high blood pressure and depression, plus some pregnancy-related care, as well as "pre-exposure prophylaxis" against HIV (PrEP), medicines that prevent people from getting the AIDS virus. US District Judge Reed O'Connor is the same dipshit who back in 2018 ruled that the ACA itself was unconstitutional, which was generally considered one of the stupidest, flimsiest legal decisions ever. (The Supreme Court eventually knocked down that ruling, as you may have noticed since Obamacare is still very much a going thing.)

O'Connor may be an idiot, but he's a popular idiot with rightwing activists: He rules on flimsy grounds in favor of nutty ideas, his rulings get overturned on appeal, and then more wingnuts bring him more crap ideas to rule on. He's a bit like poor Snot Boogie, the dead guy in the foreground of the first scene of The Wire. Snot Boogie joined every craps game he could, and at some point during the game, he'd always try to steal the pot, leading to an inevitable beatdown. Everyone knew he was going to do it, and he knew he'd never get away with it. Baltimore PD Detective Jimmy McNulty asks one of the witnesses — who saw nothing, of course —why everyone put up with Snot doing that, and we get the answer that frames the entire series: "You got to. This America, man."

That's basically what's up with Judge O'Connor, too, only as gross political farce, not police drama.

O'Connor already ruled last fall that companies wouldn't have to cover PrEP treatments if they had "religious" objections, and that the federal task force that recommends preventive services to be covered by Obamacare was illegal because its members were supposedly appointed in violation of the Appointments Clause of the Constitution. Yesterday's ruling blocks the government from enforcing those parts of the ACA.

The lawsuit had challenged some other parts of the ACA involving other federal panels, but O'Connor let those stand, meaning that the ACA mandate for free contraception will remain in place — at least until someone in Texas comes up with a different creative challenge and shops the case to O'Connor.

 As Reuters explains, the lawsuit challenging preventive care was

brought by eight individuals and two businesses, all from Texas. They argued that the free PrEP requirement requires business owners and consumers to pay for services that "encourage homosexual behavior, prostitution, sexual promiscuity and intravenous drug use" despite their religious beliefs.

They also said that the advisory body that recommends what preventive care should be covered, the Preventive Services Task Force, is illegal because its members are not directly appointed by the president, which they argue is required by the U.S. Constitution. The task force's recommendations automatically become mandatory under the Affordable Care Act.

 As the Washington Post points out, the ruling "applies nationwide immediately," but there's a big but there, because the Department of Health and Human Services, which administers the ACA and is the defendant in the case, is nearly certain to "ask the court for a stay preventing the ruling from taking effect while the Biden administration appeals the ruling."

For the moment, the Post explains, insurers and employers will have to decide what to do about the popular coverage for free services. Some may continue it, assuming it'll be restored eventually on appeal, but some may decide to stick employees for some or all of the cost.

Ironing that out, and quickly, will be a priority for the Biden administration, because HHS estimates roughly 150 million Americans with private insurance, plus another 80 million on Medicare or Medicaid, have been helped by the ACA's preventive services.

 The Health Affairs blog explains that the lawsuit involves a cast of characters already familiar to those who follow rightwing legal fuckery (our word, not theirs):

In the Houston suburbs, a right-wing megadonor and conservative activist named Dr. Steven Hotze owns a wellness center that employs about 70 people. Dr. Hotze is a Christian and is unhappy that the Affordable Care Act requires the insurance that he offers to his employees to cover pre-exposure prophylaxis (PrEP) drugs that prevent transmission of HIV. In his view, the drugs “facilitate behaviors such as homosexual sodomy, prostitution, and intravenous drug use,” which conflicts with his religious beliefs.

Dr. Hotze has a checkered history. In addition to opposing equal rights for gay people, he called on the Texas governor to “shoot to kill” if Black Lives Matter protesters “start rioting” in the wake of George Floyd’s murder. And in 2021, Dr. Hotze was indicted for his role in a bizarre “citizen’s arrest” in which he allegedly paid a private investigator more than $250,000 to run an air conditioning repairman off the road. Dr. Hotze apparently believed that the repairman’s van held 750,000 fraudulent ballots for the 2020 presidential election. (It did not.)

Before he was indicted, Dr. Hotze filed suit before Judge O’Connor in the name of the management company, Braidwood, that employs his workers. (That’s why the case is captioned Braidwood v. U.S. Department of Health and Human Services. ) Hoetz’s lawyer is Jonathan Mitchell, the legal mastermind behind S.B. 8, the Texas law that effectively banned abortion in Texas even before the U.S. Supreme Court overruled Roe v. Wade .

If you ask us, Hotze and Mitchell and Judge Snot Boogie should all be remanded to a satire about health insurance where they can't do any harm in the real world.

But what comes next? If O'Connor's ruling isn't stayed, Health Affairs says many insurers and employers will continue not charging, since most preventive care is inexpensive, and, as the name suggests, prevents more costly illnesses later. But there's no guarantee of that. The appeals process could take as long as a year, and then likely another year to get to the Supremes.

We have to go through all this, because that's how the game works. Congress could simply clarify the law and fix the little glitches that rightwing law firms pick at, but that's easier said than done. Eventually, and no doubt after some people have died who didn't have to, maybe it'll get fixed. Or not. This America, man.

[ Reuters / Lawdork / WaPo / Health Affairs ]

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