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The fate of the Affordable Care Act once again rests in the hands of a Texas judge.

More than four years after Judge Reed O’Connor ruled that the entire ACA was unconstitutional — a decision the Supreme Court ultimately overturned — the Fort Worth-based federal judge could now strike down a list of dozens of preventive services that are required to be free for patients, disrupting the health coverage of millions of people.

In September, O’Connor ruled that it is unconstitutional to require insurers to cover preventive services, with no cost-sharing for patients, that are recommended by an independent adviser. The judge did not issue a remedy at the time of the ruling, however, and still has yet to release one.

Requiring people to pay out of pocket for preventive services — even if the cost is relatively low — can stop them from seeking care altogether, experts said, possibly leading to more complex and costly health conditions. Morning Consult data appears to back experts’ concerns, with a large portion of the public indicating it would forgo these services if they come at a cost.

At least 2 in 5 U.S. adults said they are not willing to pay for 11 of the 12 preventive services currently covered by the ACA, according to a new Morning Consult survey. Furthermore, at least half said they would not pay out of pocket for preventive services such as tobacco cessation or screenings for HIV, depression and unhealthy drug use.

Among all U.S adults, 46% said they would pay for cancer screenings out of pocket, the most of any of the services, while 38% said they would not pay and 15% weren’t sure what they would do when it comes to what can be life-saving care.

“It really is the uncertainty about what the cost could be that might make a person postpone or altogether not seek preventive care,” said Kristin Wikelius, chief program officer for the United States of Care and a former Centers for Medicare and Medicaid Services official. “It’s important for us all to remember that even a small cost could be enough to keep somebody from going to get a service.”

Wikelius added that it’s “concerning” but “not at all surprising” that people said they would not pay for care if they are now required to assume a portion of the cost.

Americans say emergency care, prescription drugs are the most important preventive services plans should cover

The ACA requires most insurance plans to offer certain preventive services at no cost. Three groups recommend services: the Health Resources and Services Administration, the Advisory Committee on Immunization Practices and the U.S. Preventive Services Task Force.

Braidwood Management Inc. and six individual plaintiffs brought a lawsuit against the U.S. federal government, challenging the requirement for plans to cover preventive services. O’Connor partially sided with the plaintiffs in his September opinion, ruling that the no-cost preventive services recommended by the USPSTF are unconstitutional, but did not extend that ruling to services recommended by HRSA or ACIP.

The judge wrote that the task force is unconstitutional because its members, which he considers “principal officers,” are not selected by the president and appointed by the Senate, a requirement of the Constitution’s Appointments Clause. He also noted that while the Health and Human Services secretary can ratify the recommendations of HRSA and ACIP, the secretary cannot ratify recommendations from USPSTF. The decision, which counters the government’s suggested remedy, leaves the future of the services in question.

Andrew Twinamatsiko, an associate director of the Health Policy and the Law Initiative at Georgetown University’s O’Neill Institute, said that the plaintiffs asked the court for a “universal remedy” that would stop enforcement of USPSTF’s recommendations across the country, which could “prevent millions of Americans” from accessing preventive care.

With the decision still looming, Americans said preventive care is one of the top essential health benefits mandated by the ACA, with nearly 1 in 4 ranking it as one of the most important services for commercial insurance plans to cover.

Respondents ranked emergency services as the most important benefit, followed by prescription drugs and hospital care.

The plaintiffs also argued that requiring the coverage of the HIV treatment PrEP violates their religious freedom. O’Connor sided with the plaintiffs, limiting his ruling to Braidwood, but the decision opens the door for other groups to make similar challenges.

The scope of O’Connor’s ruling on preventive care is crucial, as the judge could limit his decision or block the task force’s list of no-cost services across the United States. Twinamatsiko said it will take some “creativity” for the court to institute a nationwide block but would not speculate on which way O’Connor may rule, adding that the issuing of his remedy could come at any time.

Both sides are expected to appeal the judge’s decision when the remedy is released, according to the Kaiser Family Foundation.

Half of Americans have delayed or skipped care due to cost concerns

While O’Connor’s decision may have a significant impact on people’s coverage, few have heard about the Texas case. Among all U.S. adults, just 5% said they have seen, read or heard “a lot” about the September ruling, while another 19% said they had heard “some.” Similar shares said the same about the potential block in preventive services.

Sara Collins, a health policy expert with The Commonwealth Fund who directs the organization’s program on insurance coverage and access, said there is “absolutely” a concern that O’Connor could issue a broad ruling given his history of taking down the ACA. Collins added that any amount of cost sharing “disincentivizes a large number of people from getting access, particularly people with low incomes.”

In Morning Consult’s survey, half of U.S. adults said they delayed or skipped care due to cost, with 3 in 10 saying they did so in the past year. Among those who live in households that make under $50,000 a year, 32% said they delayed care in the past year, compared with 22% of those who make $100,000 or more.

Even if O’Connor decides to block the USPSTF’s list of services, insurers could still offer them at no cost to patients — though, it remains to be seen how the industry would respond to such a decision.

AHIP, the top health insurance industry trade group, did not return requests for comment by the time of publication.

Georgetown’s Twinamatsiko said it’s unlikely insurers will cover the services at no cost, a move that would disproportionately impact people who have a harder time accessing care, such as racial minorities and people with low incomes. He added that this is why the government put the requirement in place.

“Once you remove the legal obligation to cover it,” Twinamatsiko said, “insurance companies are going to do what they’re in the business of doing, making money and minimizing their cost.”

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