On September 8, 2022, a district court in Texas ruled in Braidwood Management v. Becerra that a key component of the Affordable Care Act’s (ACA) preventive health services requirement was unconstitutional. As we wait for more guidance from the court on what comes next, the decision puts the coverage of many important preventive services — such as cancer screening and tobacco cessation — without cost-sharing at risk. Without this ACA requirement, employers and insurers may roll back the coverage of preventive care altogether or impose higher out-of-pocket costs on their employees or enrollees.
The ACA’s Preventive Services Requirement
The ACA requires nearly all commercial health plans to cover key preventive health services without cost sharing (e.g., copays or deductibles). To ensure that employers and insurers cover preventive services that are evidence-based, Congress looked to three expert entities. Specifically, Congress required health plans to cover: 1) services with an A or B rating in the current recommendations of the U.S. Preventive Services Task Force (USPSTF); 2) immunizations recommended by the Advisory Committee on Immunization Practices (ACIP); 3) preventive care and screenings for infants, children, and adolescents supported by Health Resources and Services Administration (HRSA); and 4) preventive care and screenings for women’s health specified by HRSA.
Under this ACA requirement, millions of people have access to more than 100 evidence-based preventive services, such as screening for breast cancer, lung cancer, cervical cancer; preeclampsia screening for pregnant women; tobacco cessation; an HIV prevention medication known as preexposure prophylaxis (PrEP); and immunizations for children. More than 150 million people benefited from the ACA’s preventive services requirement in 2020 alone, and this provision has had a proven impact in expanding access to preventive care and reducing racial and ethnic disparities in health care access.
The Court’s Decision
The plaintiffs in Braidwood — two employers and six individuals, many of whom are repeat players in ACA litigation — argued that the ACA’s preventive health services requirement is unconstitutional. The plaintiffs are represented Jonathan Mitchell, former solicitor general of Texas who is recognized as chief architect of the “bounty hunter” abortion law in Texas. The decision was issued by Judge Reed O’Connor, a federal district court judge in Texas who regularly presides over disputes that involve the ACA. Judge O’Connor sided with the plaintiffs on two key issues.
Judge O’Connor first concluded that the ACA’s requirement to cover USPSTF-recommended services violated the Appointments Clause under Article II of the Constitution. Noting that the USPSTF is required to be free from political interference under its authorizing statute, Judge O’Connor found that USPSTF members are not subject to the control or direction of the Secretary of the Department of Health and Human Services (HHS). Thus, Secretary Xavier Becerra could not ratify USPSTF’s recommendations. Judge O’Connor then found that USPSTF members were “principal” officers of the United States who must thus be appointed by the president and confirmed by the Senate. Because USPSTF members are not appointed in this manner — and are instead named by the director of the Agency for Healthcare Research and Quality (a division within HHS) or supervised or directed by a principal officer — their appointment was unconstitutional.
The plaintiffs also challenged the ACA’s requirements to cover ACIP- and HRSA-related recommendations. But Judge O’Connor held that those recommendations and guidelines were still valid because Secretary Becerra ratified them in January 2022. Secretary Becerra’s ratification of those standards was sufficient to cure any defects under the Appointments Clause, because Secretary Becerra is a properly appointed officer who has the legal authority to guide and reject recommendations made by ACIP and HRSA.
PrEP and the Religious Freedom Restoration Act
Judge O’Connor also ruled that the requirement to cover PrEP violated one of the plaintiff’s rights under the Religious Freedom Restoration Act (RFRA). The owner of Braidwood Management, a for-profit corporation, argued that this requirement makes him complicit in homosexuality, sex outside marriage, and intravenous drugs use — activities that go against his religious beliefs. Judge O’Connor agreed that Braidwood’s religious beliefs were burdened by the coverage requirement and that this burden could not be justified by the government’s interest in reducing the spread of HIV.
The plaintiffs had also argued that the ACA’s preventive services requirement violated the nondelegation doctrine by failing to provide enough direction to the USPSTF, ACIP, and HRSA in identifying evidence-based services. This argument echoed a point made by Supreme Court Justice Clarence Thomas in his majority opinion in Little Sisters of the Poor v. Pennsylvania, which addressed HRSA’s broad authority when upholding Trump-era exemptions to the contraceptive mandate.
Judge O’Connor rejected this argument, noting that Congress provided sufficient parameters to guide the entities. Congress set out its general policy — to identify evidence-based preventive health services — and named specific entities to achieve this policy alongside discrete roles. Congress also limited the entities’ discretion by requiring recommendations to be evidence-based and limited certain types of care (e.g., immunizations).
Despite concluding that parts of the ACA are unconstitutional, Judge O’Connor has not ruled on the appropriate remedy. We therefore do not yet know the scope or impact of this decision. Instead, he asked the parties to file a report outlining their views of this issue (and others, such as outstanding claims related to the contraceptive mandate) on September 16, 2022. He also asked for a proposed timeline for briefing. Once this process is completed, the Biden administration will presumably appeal to the Fifth Circuit Court of Appeals — and potentially the Supreme Court — in what could be a multi-year process.
In the meantime, coverage is not affected: individuals can still access preventive care without cost-sharing. And the court’s ruling on PrEP applies only to Braidwood Management. However, if Judge O’Connor’s ruling stands, employers and insurers would no longer be required to cover these preventive services — let alone without cost-sharing. Voluntary coverage would roll back the significant progress that has been made under the ACA and disproportionately affect marginalized populations.