For those most at risk, Braidwood suit threatens early cancer detection

By Elizabeth Kaplan and Christopher Lathan. Originally published in the Houston Chronicle on March 2, 2024

The preventive care mandate, a provision of the Affordable Care Act (ACA), has guaranteed that most people with private insurance have access to certain preventive care for free — including lifesaving services that can help prevent cancer or detect it early. For nearly 14 years, this has been one of the ACA’s most popular provisions. 

But Braidwood Management, Inc. v. Becerra, a lawsuit being argued this week in the U.S. Fifth Circuit Court of Appeals, threatens to end it.

The suit is brought by Braidwood Management, Inc., which is owned by Houston-based conservative activist Steven Hotze, and a handful of other businesses and individuals. The plaintiffs  argue that the preventive care mandate is unconstitutional, saying that it violates the Appointments and Vesting clauses of the U.S. Constitution, the nondelegation doctrine and the Religious Freedom Restoration Act.

If this suit succeeds, it could lead to reduced coverage of critical services such as screenings for lung and colorectal cancer, and medications that reduce the risk of breast cancer for people with genetic predisposition. That could discourage people from accessing these services, especially among lower-income households, rural communities and other marginalized groups who already face barriers to care. Reduced uptake of these services will lead to later and more frequent diagnoses, with more difficult treatment regimens, worse prognoses and more cancer deaths.

When cancer is caught early — before the onset of symptoms — there is a better chance to cure it, and a smaller amount of disease allows for more opportunities to avoid the damage that advanced cancer can cause to patients and their families. Consider lung cancer, the cancer responsible for the most deaths: Access to screening meaningfully improves a patient’s odds of survival, and any barrier to screening will lead to more deaths from lung cancer. Not surprisingly, the Texas Cancer Plan, which aims to reduce the cancer burden across the state, focuses significant attention on increasing access to timely screening for cancer.

Lung cancer mortality rates are worse for people of lower income, communities of color, and people who live in rural areas, and the rates of screening are lower in these communities, where often the burden of lung cancer is highest. The impact is similar for colon cancer and breast cancer screening: Barriers to access result in fewer screenings, which leads to more late-stage cancer and increased death rates.

A key step to connecting more individuals with screenings and care is ensuring that the screenings are free for those who need them. Thus, since 2010, the ACA has required most private insurers to entirely cover all preventive services recommended by three federal bodies, including the U.S. Preventive Services Task Force (USPSTF). The USPSTF is an independent group of experts in prevention, evidence-based medicine, and primary care, and many of its recommendations relate to cancer screenings and other forms of cancer prevention. This includes screening for lung cancer, which is recommended for people with significant smoking history.

But last spring, a federal district court in Texas ruled in Braidwood that any recommendations issued by the USPSTF since 2010 cannot be subject to the ACA’s preventive care mandate. The court also ruled that the plaintiff employers could object on religious grounds to covering Pre-Exposure Prophylaxis (PrEP), a preventive medicine that is extremely effective at preventing HIV transmission.

The district court’s ruling was appealed to the Fifth Circuit, and oral argument will take place on March 4. If this ruling is affirmed, that could undermine the work of cancer providers to reach more people — especially members of groups who experience health care disparities — with screenings that can catch cancer earlier and save lives.

After the lower court’s ruling, insurers were quick to say that there would be no immediate disruption in coverage of preventive services, and the ruling has been stayed while the case is on appeal. But if the Supreme Court eventually guts the ACA’s preventive services mandate, insurers could chip away at coverage of preventive services.

This is especially worrisome for lung cancer screenings, which use a low-dose CT scan, and can cost as much as $400. When passed onto patients, even smaller costs can cause lower-income people to delay screenings, leading to worse cancer outcomes. And those new costs would be in addition to barriers many people at elevated risk for lung and other cancers already face, such as distance to a health care center, lack of childcare or time off work, and adverse experiences with the health care system.

By eliminating costs for recommended preventive services, the ACA took one step toward improving access to care that can catch cancer early or prevent its development. It has helped save lives. We cannot afford to reverse course. 

Elizabeth Kaplan is director of Health Care Access at the Center for Health Law and Policy Innovation at Harvard Law School. Christopher Lathan is director of the Cancer Care Equity Program at Dana-Farber Cancer Institute.