Attorney General Ford Joins Coalition Defending Preventative Care Provisions of the Affordable Care Act

Jan. 28, 2022

Carson City, NV – Today, Attorney General Aaron D. Ford announced he has joined a coalition of 19 attorneys general led by Illinois Attorney General Kwame Raoul in filing an amicus brief in Kelley v. Becerra, defending key provisions of the Affordable Care Act (ACA) that guarantees access to preventive care for millions of Americans. 

The brief, filed in the U.S. District Court for the Northern District of Texas, defends the ACA’s preventive services provisions, which require private health insurers to cover certain preventive care services, including contraceptive care and prophylactic anti-HIV care, free of charge. In the brief, the coalition argues that the preventive services provisions have improved health outcomes for residents and urge the court to reject the plaintiffs’ challenges.

 “The challenge to the ACA’s preventative services provisions, if upheld, would have a negative impact on both Americans and their states’ public-health systems,” said AG Ford. “We must ensure that this important preventative health care is available, and I’m proud to stand with this coalition in working to safeguard these provisions.  

The plaintiffs in the case are employers who wish to offer their employees health insurance that does not cover certain preventive services, most notably contraceptive care and prophylactic anti-HIV care, and employees who wish to purchase health insurance that does not cover such services. The plaintiffs argue that the provisions should be eliminated because they violate individuals’ rights under the Religious Freedom Restoration Act (RFRA) and violate the U.S. Constitution’s Appointments Clause.

The ACA’s preventive services provisions incorporate recommendations made by three expert bodies — the U.S. Preventive Services Task Force (PSTF), the CDC’s Advisory Committee on Immunization Practices (ACIP) and the Health Resources and Services Administration (HRSA) — in defining the services that must be covered. The plaintiffs argue that the provisions violate the appointments clause because those expert bodies have not been appointed by the president and confirmed by the Senate. In today’s brief, the coalition argues that the federal government may rely on recommendations made by experts of this kind without violating the appointments clause. The attorneys general also argue that the plaintiffs have failed to establish that providing these preventive services substantially burdens private insurers’ religious beliefs.

The coalition further argues that the ACA’s preventive services provisions have had a positive impact on both residents’ individual health and states’ health care systems. The attorneys general explain that states have come to rely on these provisions in building and strengthening their own public health systems. The coalition argues that if the court were to invalidate the preventive services provisions, it could destabilize and overburden state public-health systems — including interfering with their abilities to effectively respond to the COVID-19 pandemic — which would have significant consequences for all Americans.

In filing the brief, Attorney General Ford joins the attorneys general of California, Colorado, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont and Washington.

The brief is attached.