How Two Supreme Court Rulings Affect the ACA, Planned Parenthood and the Future of Preventive Care

Dan Gorenstein (DG):  The Supreme Court closed out its term last week with two big health care cases.

News montage:  Today, the Supreme Court delivered a backdoor body blow to Planned Parenthood. // The challenge to the Affordable Care Act in this regard fails, but the HHS secretary does have a lot of power…

DG: One decision opened the door for states to limit where millions of women can get reproductive health care.

The other upheld a popular provision of the Affordable Care Act that guarantees most people with private insurance get preventive care for free.

Today, what the final, frenzied days of the Supreme Court’s term mean for Americans’ access to basic medical care and what these cases tell us about where we’re headed next. 

From the studio at the Leonard Davis Institute at the University of Pennsylvania, I’m Dan Gorenstein. This is Tradeoffs.

Katie Keith (KK): Hey. Good morning. How are you?

DG: Good. Katie, thanks so much for joining us. Really appreciate it.

KK: Back again. Can’t stay away.

Katie Keith is director of the Health Policy and the Law Initiative at the O’Neill Institute for National and Global Health Law at Georgetown University.

DG: Alright, Katie, real quick I’m gooing to recap our first case,  Medina v. Planned Parenthood South Atlantic. 

Back in 2018, South Carolina basically tried to kick Planned Parenthood out of their state Medicaid program, said we will no longer pay you to provide birth control, cancer screening, HIV testing — all sorts of care having nothing to do with abortions.

The state’s argument was that even though federal law already bans Medicaid from funding abortions in most cases, South Carolina wanted to stop funding any kind of care in places that also perform abortions.

So then one of Planned Parenthood’s patients, Julie Edwards, pushed back, said hey now, folks like me on Medicaid have the right to get this care from any ‘qualified provider.’

And if a state tries to stop us — us, the patients — then we have the right to sue. 

The Court, by a vote of 6 to 3, effectively said actually, no, you do not have that right.

Katie, why is this case a big deal?

KK: Yeah, the case is a really big deal largely because of what it means for low-income women and families’ ability to access, not abortion care, but all the other care that Planned Parenthood and other providers offer all across the country. So, Dan, you said this, but we’re really talking about contraception and family planning services. We’re talking about cancer screening, Pap smears, really sort of basic primary care.

And so if states are able to exclude Planned Parenthood and other abortion providers from the Medicaid program, it really has two effects. One, it cuts off access for those low income women who rely on that health care — that means I’m either paying out of pocket for that care, or I have to find a new provider. 

And then this sort of second big impact is what it means for abortion providers across the country. It could mean they have to cut back services. It could mean they have to close clinics altogether. So I think you have the sort of potential double whammy of what it means for patients themselves and and then what it means for the providers.

DG: Thanks for laying out that potential ‘double whammy’ as you say, Katie. Just to be clear here, though, this ruling is only about South Carolina. But it sounds like you’re saying you think we’ll see other states copy South Carolina. 

KK: Yeah, what the court really ruled on is whether patients have the right to go to federal court and sue over, you know, South Carolina in this case’s decision to exclude Planned Parenthood from the Medicaid program. And here the court said, ‘You can’t.’ 

And so it really cuts off this way to ensure access. And I think what people, including myself, are anticipating that means is more states are going to start trying this. And a lot of, I think, the states where this impact would be most felt are states that already have contraceptive deserts [and] maternity care deserts. There’s already provider shortages and it’s not like providers are necessarily lining up to see Medicaid patients.

DG: This sounds pretty similar to a push that Congressional Republicans are making right now to defund abortion providers as part of their so-called Big Beautiful Bill.

The legislation is in flux, but as of this taping on Monday, June 30th, it would basically take what South Carolina did and apply it to all 50 states, banning state Medicaid programs from using any federal dollars to pay Planned Parenthood or other similar providers for any services. 

Can you help us connect the dots, Katie, between this Medina ruling and what Republicans are cooking up in the Capitol?

KK: So you are right, the language is still very much in flux, but the bill would ban federal Medicaid funding in every state, including the states where abortion remains lawful, that actually, you know, want Planned Parenthood to participate in their Medicaid program. And it’s why you’re seeing, you know, certainly, Democrats on the Hill talk about this as a sort of a partial, you know, backdoor nationwide abortion ban. From Planned Parenthood’s own estimates, you know, it could knock out a third of their clinics all over the country. 

DG: According to new polling data from KFF, four in 10 folks on Medicaid and one third of all women have received care at a Planned Parenthood. 

I want to ask one more question about access because it is quite clear Planned Parenthood has a target on its back.

At the same time, though, Katie, like when we’re talking about birth control, pap smears, STD testing, there are other providers who offer those services. 

If Planned Parenthood were to go away, is that a business opportunity for others to step in and begin to provide this? Or do we have a real reason to think people would just go without? 

KK: I think it is an exceedingly fair and important question. And history leads me to believe people would just be left out and would not get the care that they need.

DG: Katie pointed to evidence out of Texas, which back in 2013, decided to ditch its federally funded family planning program in favor of a state-run option that excluded Planned Parenthood.

The result: a rise in Medicaid-funded births and a big drop in people getting long-acting contraception like IUDs paid for by Medicaid.

One in three women with public insurance also reported trouble finding a provider.  

DG: Last question on this, Katie. This Medina ruling is, as you know, just one of many, many things that have happened around reproductive health care since the Supreme Court became more conservative, and since Trump and the Republicans took back power in Washington.

I’d like you to zoom out. What is, in your view, the trajectory of reproductive health care in America right now? And if that continues, what might this landscape look like by the end of Trump’s term in office? 

Like, what’s that painting look like?

KK: So if we don’t already have a nationwide abortion ban by the end of Trump’s term in office, I would at least expect to see access to reproductive health care go through almost like a death by a thousand cuts. So, you know, we still have three and a half years of this administration to go. We’ve already seen the Trump administration roll back guidance on emergency abortion care. They’ve committed to reviewing the safety record of medication abortion, which is the method that most women in this country choose to terminate an early pregnancy.

You have a president who said he wants to leave it to the states, and yet you see a bunch of these decisions being made both by Congress and the administration that have nationwide implications for access to care. So it continues to be an incredibly important issue to watch.

DG: And the courts

KK: And the courts. Always the courts. You know that’s my jam.

DG: When we come back, we talk with Katie about the court’s latest ruling on the Affordable Care Act and what that means for more than 150 million Americans.

MIDROLL

DG: Welcome back. We’ve seen a number of big, consequential health care decisions out of the Supreme Court these last few days. 

Before the break, we were talking with Katie Keith from the O’Neill Institute for National and Global Health Law at Georgetown about the Supreme Court’s ruling that opens the door for states to kick Planned Parenthood out of Medicaid. 

Now, Katie, the second big case from last week — this one focuses on health insurance coverage of preventive medical care, mammograms, colonoscopies, heart disease medications. 

Under the Affordable Care Act — the ACA, Obamacare — most private health insurance plans must cover some preventive care for free. 

Some Christian businesses and others sued saying they shouldn’t have to buy insurance for care that they don’t want or need.

Ultimately, they lost. This is a victory for patients, Katie. What are the implications?

KK: This is an extremely important win for consumers. So the the decision here preserves one of the ACA’s most popular and I would say most visible protections that has been in place for, you know, nearly 15 years at this point. In 2020 alone, more than 150 million people with private health insurance got preventive services that they needed without any out-of-pocket cost to them.

And I would really emphasize, you know, studies show that this has worked. So since this requirement went into effect, there’s been a documented increase in cancer screenings and vaccinations. We’ve seen improved contraception access. And so it is a quiet, but very important success story of the Affordable Care Act that, you know, this court decision preserves in terms of the status quo. But it could have been devastating if the decision ended up a different way.

DG: A little more recap here. These preventive services are recommended, in part, by the U.S. Preventive Services Task Force. 

And the plaintiffs in this case, right, argued that the members of the task force should have been appointed by the President and confirmed by the Senate to make national health coverage decisions. The Court disagreed with that.

So Katie, let’s talk about the task force — who they are and what they do.  

KK: So the task force has been around in some form or fashion since the 1980s. And it’s really a group of experts — think scientists and academics, medical professionals — who have a lot of experience sort of looking at the evidence base. And then they go through what seems to me to be a painstaking, multi-year process of having meetings, of discussing, of looking at all the different studies. And then at the other end of it, there’s a, you know, one sentence recommendation that either gets an A or B rating or you can or they can conclude that things are not evidence based and you get a C or D rating, that kind of thing.

It really is the gold standard of reviewing the scientific literature and then coming up with a recommendation, which I think is why Congress wanted to refer to these experts when it was laying out requirements for what all these private health insurance companies have to cover. 

DG: So the ruling has now clarified what many of us already suspected: The HHS secretary has broad power over this influential task force. 

Given the recommendations that we have seen from this task force historically, plus the public comments that Robert F. Kennedy Jr. — the current secretary — has made, any sense where might he use these powers to make changes? 

We saw him use similar authority to replace members of a vaccine panel just last month.  

KK: Yeah, there are several pending recommendations that the task force is currently looking into — things like recommendations for cervical cancer screening, for autism spectrum disorder screening you know, the task force is looking at that again, that I think could be one of significant interest to Secretary Kennedy. Again, I have no idea where some of that leads to in his own personal philosophy and MAHA agenda. But, I think there will be opportunities for him to weigh in, to review and we’ll see. You know, I think he dismissed all 17 members of the Advisory Committee on Immunization Practices. Will he do the same thing with the U.S. Preventive Services Task Force and sort of push them to take a look at things he wants to prioritize or not?

DG: Katie, we’ve both been watching these legal fights for over a decade around the ACA. The Affordable Care Act put a floor in place for what insurance must look like. It tried to bring some standardization of health insurance in the United States. In many ways that was just central to what this was all about, standardizing health insurance.

What we have seen is employers, various employers, poke at pieces that they do not want to spend money on, either for financial reasons or ideological reasons. 

As you point out, you know, the Affordable Care Act became law in 2010. Fifteen years later, are we going to continue to see these employers pursue a sort of similar tactic? Are we nearing the end of that line of argument?

KK: I would like to think so. And yet I think, you know, litigation over the Affordable Care Act is, seems to be a certainty 15 years later. And I think what is so important, and it shouldn’t be lost, I mean, the two cases we’re talking about today, reproductive health care and Affordable Care Act access, have really been a bastion of litigation over time. 

But one thing that I’m studying at Georgetown is how this litigation playbook is being applied to all kinds of health policy issues. We’re seeing legal challenges to Medicare drug negotiation from the Inflation Reduction Act. We’re seeing it over the No Surprises Act, which bans surprise medical bills. The courts are just incredibly, I think, empowered at this point to be really determining the access to health care that people have, as well as issues like equity and transparency and affordability.

DG: You were reading my mind. You anticipated my final question to you. Who’s making health policy? Is it Congress or is it the courts? 

KK: I think it’s all of the above. I think the courts get the last word these days. 

If you had a functional Congress, they could come in and legislate in response to court decisions. And I think the level of dysfunction we have now, you don’t see that. I don’t think courts have to be the last word. But… 

DG: And so, then is it your thought that if health policy is passed, then whoever feels like they’re a loser, they can take advantage of that dysfunction in Congress and go to court to try to seek relief, and that is the playbook that you refer to? 

KK: I don’t even think you have to take it from me. I think it’s what we’re seeing. Look at Medicare drug negotiation as an example. You know, there’s 10 active lawsuits by drug companies, the Chamber of Commerce and some health care providers trying to, you know, take down that program. I mentioned the No Surprises Act on surprise medical bills, and you’re seeing an incredible amount of litigation against the law itself to try to argue that it’s unconstitutional. It’s become, I think, a bit of a litigation arms race.

DG: You said it doesn’t have to be this way. The courts don’t have to be the final word. If that’s the case, Katie, what needs to change? If we’re uncomfortable with the courts having as loud of a voice on health policy as they currently are, what needs to change?

KK: I think it would be a Congress that’s willing to step in and make clarifications, make tweaks to laws. I think there’s some world where you wouldn’t have had necessarily needed to have the brinkmanship of this Preventive Services Task Force question going all the way up to the Supreme Court and potentially putting the coverage for 150 million Americans at risk. If you could come up with bipartisan tweaks to these types of laws that I think historically over time Congress was able to make. 

DG: Katie, thanks so much for taking the time to talk to us on Tradeoffs.  

KK: Oh, always happy to be here. Thanks for having me, Dan.

DG: Earlier in June the Supreme Court ruled on a third major health care case upholding Tennessee’s right to ban gender-affirming care for transgender minors. 

We’ll be talking about that case later this month. 

I’m Dan Gorenstein. This is Tradeoffs.