Last September, Judge Reed O’Connor, a U.S. district judge from Texas, ruled in Braidwood Management Inc. v. Becerra that a key component of the Affordable Care Act’s (ACA) preventive services requirement was unconstitutional. 

The ACA requires nearly all commercial health plans to cover preventive services recommended by the U.S. Preventive Services Task Force (USPSTF), the Advisory Committee on Immunization Practices (ACIP), and the Health and Services Administration (HRSA). These recommendations include more than 100 preventive services, such as screenings for various types of cancer, immunizations for several diseases, FDA-approved contraception, and HIV pre-exposure prophylaxis (PrEP).

The plaintiffs, two businesses and six individuals, challenged the preventive services requirement, arguing that USPSTF, ACIP, and HRSA recommendations violate the Appointments and Vesting Clauses and nondelegation doctrine.  The plaintiffs also argued that providing coverage of certain preventive services, like PrEP, makes them complicit in activities that go against their religious beliefs, violating the Religious Freedom Restoration Act (RFRA).

The Court’s Ruling

In his September ruling, Judge O’Connor partly agreed with the plaintiffs and concluded that the USPSTF violated the Appointments Clause. He also ruled that the PrEP coverage requirement violated Braidwood Management Inc.’s (one of the business plaintiffs) rights under RFRA. Judge O’Connor, however, reserved his ruling on the appropriate remedy. He asked the parties to file supplemental briefs addressing the scope of the remedy, standing of the remaining parties, and the contraceptive mandate. 

What the Parties Are Asking the Court to Do

Scope of the Remedy

The plaintiffs are asking the court for a universal remedy based on the Administrative Procedure Act (APA) that sets aside all USPSTF recommendations and a nationwide injunction that prohibits the enforcement of preventive services based on those recommendations. The APA empowers the courts to set aside unlawful administrative agency actions; because the court ruled that USPSTF violates the Appointments Clause, plaintiffs now argue that this broad remedy is justified. 

The government is pushing back against the plaintiffs’ request for a universal remedy. First, they note that the plaintiffs’ proposed remedy is sweeping and would heavily disrupt the U.S. public health system. The government also argues that it would be improper for the court to issue an APA-based remedy, yet the plaintiffs previously abandoned their APA-related claims. Earlier in the litigation, the plaintiffs argued that the implementation of the preventive services requirement violates the APA’s notice-and-comment requirement. But they later disclaimed this APA argument. The government thus argues that the plaintiffs are not entitled to a remedy based on a claim that they abandoned.

The government also argues that a universal remedy would not significantly roll back preventive services, but also paralyze other health systems that rely on USPSTF’s recommendations.  The USPSTF’s recommendations are central to the entire U.S. healthcare system, and both public and private health systems rely on these recommendations to run different programs in the healthcare system.  For example, CMS relies on the recommendations to make certain coverage decisions under Medicare. Health care providers also rely on the recommendations in deciding the appropriate care for their patients. Thus, granting the plaintiffs’ sweeping claim would frustrate a wide range of services that rely on the recommendations.  

The government is urging the court to provide targeted relief tailored to the plaintiffs’ claims. Rather than setting aside all of USPSTF’s recommendations, they ask that the court sever the provision that arguably shields USPSTF from the secretary of the U.S. Department of Health and Human Services’ control. This approach would cure the Appointments Clause issue and allow the Secretary to review USPSTF’s recommendations going forward. Though the government previously asked Judge O’Connor to take this approach, he rejected it. 

Standing of the Remaining Parties 

In his September decision, Judge O’Connor limited his ruling on standing to only one of the plaintiffs, Braidwood Management, Inc. “Standing” refers to a person’s right to bring a lawsuit if they are harmed by a law or policy. He asked the parties to provide supplemental arguments on the standing of the remaining parties. The plaintiffs argue that the remaining plaintiffs do not need to independently demonstrate standing if the court grants Braidwood’s universal remedy. 

Should the court refuse to grant the universal remedy, however, the plaintiffs have made two arguments for standing. First, they argue that the plaintiffs who challenge the preventive services requirement on religious grounds have been harmed because they cannot purchase coverage that does not include services that do not violate their religious beliefs. Second, they claim that they have standing based on the so-called “purchaser standing doctrine,” which allows people to sue whenever a statute or agency action deprives them of the opportunity to purchase a desired product. The plaintiffs thus claim that the preventive services requirement denies them the choice to purchase insurance that does not include services they do not want or need. They also argue that the requirement deprives them of the option of having copays or deductibles in exchange for lower premiums.  

In response, the government argues that the remaining plaintiffs cannot demonstrate that they have been harmed because they do not participate in the health insurance market, and are unlikely to do so even if the court were to set aside USPSTF’s recommendations. Indeed, plaintiffs informed the court that even if the court sets aside the preventive services requirement, they may ultimately decide that they do not want to participate in the health insurance market after all and choose other options, such as  “Christian bill-sharing.”  

Contraceptive Mandate

Because the court’s September ruling rejected the plaintiffs’ claims related to HRSA-related recommendations — which includes contraceptive coverage — both parties agree that there are no other outstanding claims on this requirement and the court should rule for the government.

Potential Devastating Consequences of the Universal Remedy

Judge O’Connor will decide these issues soon, and his decision will affect millions of Americans. The universal remedy vacating all of USPSTF’s recommendations and prohibiting the enforcement of the preventive services requirement as enacted by Congress would make cost-free coverage of those vital services optional. Coverage of these services — including screening anxiety and depression/suicide risk in children and adolescents, preventive care for pregnant people, screenings for various cancers, and screenings for cardiovascular health complications — has tremendously improved health care for millions of Americans and closed racial and ethnic gaps in health care access. 

The consequences of the plaintiffs’ universal remedy would severely disrupt our healthcare system. Both private and public health systems have relied on the USPSTF’s recommendations to implement programs helping patients to better navigate the healthcare system. Consequences on the consumer end would be even more catastrophic — with millions of Americans losing access to the hundreds of no-cost preventive services required under the ACA. 

This loss will only exacerbate the racial and class disparities in health care. As the government stated in its supplemental brief to the court, only one out of the many plaintiffs here has been able to establish harm from the challenged coverage requirements, yet millions stand to lose access to preventive services that have improved health outcomes across the country.