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September 9th, 2022:

It’s the year 2022 and we’re still litigating the Affordable Care Act

Isn’t this horse dead yet?

A federal judge in Fort Worth agreed Wednesday with a group of Christian conservatives that Affordable Care Act requirements to cover HIV prevention drugs violate their religious freedom.

U.S. District Judge Reed O’Connor also agreed that aspects of the federal government’s system for deciding what preventive care is covered by the ACA violates the Constitution.

O’Connor’s ruling could threaten access to sexual and reproductive health care for more than 150 million working Americans who are on employer-sponsored health care plans. It is likely to be appealed by the federal government.

This lawsuit is the latest in a decade of legal challenges to the Affordable Care Act, many of which have run through O’Connor’s courtroom. In 2018, O’Connor ruled that the entirety of the ACA was unconstitutional, a decision that was struck down by the U.S. Supreme Court.

At issue in the class-action lawsuit is a 2020 mandate requiring health care plans to cover HIV prevention medication, known as PrEP, free of charge as preventive care.

In the suit, a group of self-described Christian business owners and employees in Texas argue that the preventive care mandates violate their constitutional right to religious freedom by requiring companies and policyholders to pay for coverage that conflicts with their faith and personal values.

The lawsuit was filed in 2020 by Austin attorney Jonathan Mitchell, the legal mind behind Texas’ civilly enforced six-week abortion ban. In the suit, Mitchell also challenges the entire framework through which the federal government decides what preventive services get covered.

O’Connor threw out several of Mitchell’s arguments but agreed that the U.S. Preventive Services Task Force’s system for deciding what health care services are required to be fully covered under the ACA violates the Appointments Clause of the U.S. Constitution.

“At a high level, this lawsuit is part of a larger pushback against the government’s ability to regulate,” said Allison Hoffman, a law professor at Penn Carey Law at the University of Pennsylvania. “And then also asking what happens when regulations and religion clash.”

[…]

The lawsuit specifically addresses PrEP, but O’Connor’s ruling, which addresses how the federal government can decide what preventive care is covered in employer health care plans, may end up having much more wide-reaching consequences, Hoffman said.

“We’re talking about vaccines, we’re talking about mammograms, we’re talking about basic preventative health care that was being fully covered,” she said. “This is opening the doors to things that the ACA tried to eliminate, in terms of health plans that got to pick and choose what of these services they fully covered.”

The American Medical Association, along with 60 leading medical organizations, issued a statement condemning the lawsuit.

“With an adverse ruling, patients would lose access to vital preventive health care services, such as screening for breast cancer, colorectal cancer, cervical cancer, heart disease, diabetes, preeclampsia, and hearing, as well as access to immunizations critical to maintaining a healthy population,” the organizations wrote.

While implementation has not been as universal as hoped, fully funded preventive care through the ACA has been shown to be largely effective at improving health outcomes, reducing health care spending and increasing uptake of these services.

It’s a familiar set of villains, including the hand-picked judge, making the same kind of tired arguments about how “Christians” deserve to be exempt from laws they don’t like, even at the expense of literally everyone else’s health. And while SCOTUS has regularly batted aside these malicious lawsuits, I don’t have any faith they’ll do the same this time. TPM, Reform Austin, and The 19th have more.

Five DPS agents being investigated for their Uvalde actions

It’s a start. It just can’t be the end.

Five Texas Department of Public Safety officers who responded to the Uvalde school shooting in May will face an investigation into their actions at Robb Elementary, the agency said.

The officers were referred to the inspector general’s office, which will determine if they violated any policies in their response to the deadliest school shooting in Texas history, said DPS spokesperson Travis Considine. The inspector general’s office will also determine if the five officers will face disciplinary actions.

The investigation was first reported by the Austin American-Statesman and KVUE.

[…]

The announcement of an investigation into five DPS officers coincided with the first day of classes for Uvalde students, which marks 15 weeks since the shooting. Following Arredondo’s firing, residents called for further accountability from public officials, including the firing of school district employees.

Arnulfo Reyes, a Robb Elementary teacher who was shot and injured in Room 111, said the investigation into DPS officers “will give the families a sense of accountability” that they’ve demanded.

Reyes didn’t go back to teach his fourth-grade class Tuesday because he is still mentally and physically recovering from injuries to his left arm and lower back. Before the gunman was confronted, Reyes could hear officers outside of his classroom trying to negotiate with the 18-year-old. When officers stopped talking, Reyes thought the officers had “abandoned” him and his students.

He added that he hopes other agencies’ officers are also investigated.

“It’s a glimmer of hope that there will be justice served,” Reyes said.

The story goes into the House committee investigation and report, and the responses from DPS director Steve McCraw, among other things with which we are familiar. I say this is a good start because there needs to be a transparent investigation into everyone’s actions on that horrible day. It’s not just Pete Arredondo and the local cops, and it’s also not just DPS. We need a full accounting of what happened, with consequences as needed for those who should face them. Until then, this is all unfinished business.

SCOTx maintains judicial bypass rules for abortion

Good news.

The Texas Supreme Court has opted to keep in place a legal process that allows minors to seek a judge’s approval to have an abortion without parental consent, though state law now bans the procedure in most circumstances.

Chief Justice Nathan Hecht had asked an advisory committee to the high court to make a recommendation on the matter last month, citing the U.S. Supreme Court ruling in June that overturned federal protections for abortion as the reason for the reconsideration.

The committee unanimously voted to keep in place the process, known as judicial bypass, and add new language spelling out that it will only be available to minors in the extremely limited circumstances allowed by Texas law: when their life or major bodily functions are at risk.

See here and here for the background, and here for the actual rules. I’m glad to see that my initial fear that this would be a disaster was off base. That said, while this is good news it’s not great news, and that’s because the judicial bypass process is even rarer than it was before the Lege passed that vigilante bounty hunter law. As the story notes, in the last month before that law was passed, 20 minors were able to obtain a bypass. In the first month after it passed, that number was two. I guarantee you, the need for this didn’t drop by ninety percent. Just the ability to get the care these girls need. The fact that it didn’t fall all the way to zero counts as a win these days.

Still wondering about the existential future of Texas Central

I really hoped this would be a thing. If it isn’t, it’s a great wasted opportunity.

Ten years ago, a company calling itself Texas Central High-Speed Railway announced plans for a trailblazing bullet train that would whisk passengers between Dallas and Houston in 90 minutes. Company leaders exuded confidence that the trains would be running up to 205 miles per hour by 2020.

The potential for an American high-speed rail line captured the imagination of Texans and national train enthusiasts alike. At one point during an event celebrating the unbuilt high-speed rail line, then-Vice President Joe Biden told a Dallas crowd, “You’re going to lead this country into an entirely new era of transportation.”

But a decade on, there are still no new tracks between Dallas and Houston.

Through multiple business entities who often use some version of the Texas Central moniker, developers of the project spent years raising hundreds of millions of dollars for construction, fighting conservative lawmakers’ attempts to dampen their plans and buying land needed to lay the tracks. Perhaps the biggest battle, though, came from legal challenges to the company’s claims that state law allows it to forcibly purchase property when owners aren’t willing to voluntarily sell.

In June, the Texas Supreme Court settled the matter and handed the company what could be a watershed victory, ruling that Texas Central can use eminent domain for its high-profile project. By the time the court ruled, though, Texas Central’s board had reportedly disbanded and its CEO and president had resigned. The project’s original timeline had already gone off the rails (at one point the construction was slated to begin in 2017). And land acquisition seems to have all but stopped in the last two years, according to land records reviewed by The Texas Tribune.

A spokesperson for the company, who is employed by a consulting firm that handles Texas Central’s media requests, says the project is still in the works.

But the company and Becker have declined to answer specific questions about the leadership exodus, apparent slump in land acquisition, funding prospects and status of permits Texas Central would need to move forward. A federal transportation agency says it hasn’t had contact with the company in two years. The portion of Texas Central’s website that once listed executive leaders is now blank — as is the list of current job openings.

Texas Central’s relative silence on the recent developments has left supporters of the project, who would like to see two of the state’s largest economic engines more easily connected, in limbo. Opponents, who have long railed against the idea of a private company using eminent domain to seize Texans’ land, are cautiously hoping Texas Central won’t rebound.

Even if the company resurges, there remain major obstacles ahead to acquire land and finance an increasingly expensive project described as “shovel ready” as recently as 2020. The stakes of the high-speed rail project extend beyond the company and Texas. The 240 miles of relatively flat land between Dallas and Houston has long been heralded as the ideal location for what Texas Central and its supporters say could be the first leg of a national high-speed rail system that transforms the country.

There are few infrastructure projects in the country that can compare in size to the Texas rail line. A California high-speed rail project between Los Angeles and San Francisco also faces significant political, financial and legal hurdles. But Michael Bennon, the program manager at Stanford University’s ​​Global Infrastructure Policy Research Initiative, hangs a lot of hope on the Texas project given the relatively short distance, estimated frequency of travel and the landscape between the two cities.

“If you can’t do high-speed rail in that corridor, it’s hard to imagine it working anywhere else,” Bennon said.

There’s a lot more, so read the rest. This is not the first possible elegy to what might have been with TCR. I’m of the belief that nothing is truly dead until you see the body, but I’m not feeling very optimistic right now. The damn shame of it all is that this was a great idea, and it should have worked. Lots of factors combined to make it not work – again, if this is indeed the end, which I still hope it isn’t – and I have no idea what could make something else work in its place. Honestly, at this point I’m not sure I’d live to see whatever that might be, given the ponderously long times these things take, whether or not they ultimately go anywhere. All I can say is that I hope the reports of TCR’s death are exaggerated. But I don’t have much faith that they are.