November 28, 2022 1:12PM # On Preventive Care Coverage, Let the People Choose By [Michael F. Cannon](https://www.cato.org/people/michael-f-cannon) --- SHARE A federal judge in Texas is weighing whether to free consumers nationwide from an unconstitutional ObamaCare requirement that they purchase coverage they do not want, the *Wall Street Journal* [reports](https://www.wsj.com/articles/texas-lawsuit-challenges-key-plank-of-affordable-care-act-11669636802?st=7v76gvpojqvlvoy&reflink=desktopwebshare_permalink). He should do so. In September, Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas ruled that ObamaCare violates the Constitution by giving the U.S. Preventive Services Task Force (USPSTF) the power to dictate particular types of coverage consumers must purchase. O’Connor ruled that provision unconstitutional because USPSTF members would have to receive Senate confirmation to wield such power. (They do not.) Maybe you don’t care if those mandates violate the rights of individuals to make their own health care decisions and violate the Constitution. But what if they are also counter-productive? When ObamaCare’s preventive care coverage mandate tried to make contraceptives “free,” prices for hormones and oral contraceptives [skyrocketed](https://www.cato.org/white-paper/drug-reformation-end-governments-power-require-prescriptions#excessive-coverage-prescription-contraceptives). (See nearby [figure](https://infogram.com/figure-4-real-prices-for-hormones-and-oral-contraceptives-1hdw2jn0qqne4l0).) How does that promote preventive care or reproductive rights? [![When ObamaCare Mandated Contraceptives Coverage, Prices for Contraceptives Skyrocketed](/sites/cato.org/files/styles/pubs_2x/public/2022-11/Prices%20for%20hormontes%20%26%20OC%20vs%20Rx%20vs%20OTC.JPG?itok=wr2H18w0)](https://www.cato.org/white-paper/drug-reformation-end-governments-power-require-prescriptions#excessive-coverage-prescription-contraceptives) When the ACA made oral contraceptives “free” for most purchasers, prices for hormones and oral contraceptives began to rise rapidly. From May 2013 through May 2019, while real prices for nonprescription and prescription drugs overall rose just 12 percent and 37 percent, respectively, prices for hormones and oral contraceptives rose 108 percent — nearly three times the rate of growth for other prescription drugs. The individual consumers and employers who challenged this ObamaCare provision “are asking Judge O’Connor to strike down all preventive-coverage requirements since 2010 that have been recommended by the task force…O’Connor could limit any relief to just the plaintiffs in the case, or he could issue a nationwide injunction that would strike down the requirement that insurers cover preventive services recommended by the task force.” O’Connor should strike down all such requirements nationwide. The primary purpose of the judicial branch is to ensure the other two branches do not exceed the powers the people granted them through the Constitution. If a statutory provision is unconstitutional, it injures *all* the people. Not least by eroding trust in institutions. Failing to strike down this provision nationwide would erode trust in the Constitution and the judiciary. Supporters of broader access to preventive care should demand an end to such mandates — not least because prices for oral contraceptives and other preventive care would likely fall — and demand that Congress and states remove regulatory barriers to preventive care. A good place to start would be to end the Food and Drug Administration’s power to require prescriptions. In “[Drug Reformation](https://www.cato.org/white-paper/drug-reformation-end-governments-power-require-prescriptions),” [Jeff Singer](https://www.cato.org/people/jeffrey-singer) and I show that giving the FDA that power blocks access to preventive care and has *harmed* rather than promoted health. At a minimum, Congress should remove federal prescription requirements for [oral contraceptives](https://www.thedailybeast.com/hey-fda-free-the-birth-control-pill), [PrEP](https://www.cato.org/commentary/fda-should-make-anti-hiv-drug-over-counter), and other preventive goods and services. ##### Related Tags [Constitutional Law](https://www.cato.org/constitutional-law), [Economics](https://www.cato.org/economics), [Health Care](https://www.cato.org/health-care) [![Creative Commons License](/build/cato_2020/images/creative-commons.svg)](http://creativecommons.org/licenses/by-nc-sa/4.0/) This work is licensed under a [Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License](https://creativecommons.org/licenses/by-nc-sa/4.0/).