The Affordable Care Act (ACA) requires most individual and group health plans to cover preventive services, screenings, and vaccines without copayments coinsurance, or deductibles. This requirement benefitted almost 152 million people in 2020 and has led to increases in cancer screening and vaccinations, improved access to contraceptives, and earlier detection and treatment of chronic health conditions, like hypertension and diabetes.
On September 7, Texas federal court judge Reed O’Connor held part of this requirement unconstitutional. (Judge O’Connor famously held the entire ACA invalid in 2018, only to be reversed by the Supreme Court.) He further held that that one of the plaintiffs, Braidwood Management, a for-profit company, could not be required to cover PrEP, a highly effective preventive treatment for HIV and AIDS, through its employer health plan because of Braidwood’s religious objections.
Prevention in the ACA
Prevention is a central focus of the ACA. In enacting the ACA, Congress maintained that eliminating cost sharing for preventive screenings, vaccinations, immunizations, and counseling encourages the use of those services, which in turn can improve health outcomes. Eliminating cost sharing also has reduced racial and ethnic disparities in access to these services.
Rather than identifying and listing high-value preventive services, Congress turned to three already functioning expert bodies to do the job: the Advisory Committee on Immunization Practices (ACIP) for vaccines and immunizations, the Preventive Services Task Force (PSTF) for general adult preventive services and screening, and the Health Resources and Services Administration (HRSA) for children’s and women’s preventive services and screenings. The PSTF currently gives A or B ratings (which must be covered under the ACA) to about 50 screenings and services, including screening for breast, colorectal, and cervical cancer, hypertension, and hepatitis B and C. ACIP requires coverage of routine immunizations, including COVID-19 vaccines. HRSA requires coverage of childhood screenings and FDA-approved contraceptives for women.
The Braidwood Management Lawsuit
In the case, Braidwood Management v. Becerra (formerly Kelley v. Becerra), several individual and employer plaintiffs sued to eliminate the preventive services requirements. Some plaintiffs further claimed that covering PrEP would make them complicit in encouraging behavior they believed immoral. Some plaintiffs also claimed that the preventive services requirements made them pay for services that they or their employees do not personally want or need.
The plaintiffs asserted that the ACA’s preventive services requirements are unconstitutional in several respects. First, they claimed that the members of the PSTF, ACIP, and HRSA are “officers of the United States.” “Officers” are people with continuing positions and significant authority under U.S. law, Judge O’Connor agreed. The Constitution requires officers to be appointed by the President, a court, or a department head. Members of the PSTF are appointed by the Agency for Health Care Research and Quality rather than the President or HHS Secretary, which Judge O’Connor held was a violation of the requirement. He said, however, that because the recommendations of ACIP and of HRSA are subject to approval by the HHS secretary, who is properly appointed, that ACIP and HRSA do not violate the Appointments Clause.
Second, the plaintiffs claimed that the PSTF was unconstitutional because its members could not be dismissed by the President, and thus violates the “Vesting Clause” of the Constitution, which vests all executive power in the President. The court rejected this claim, finding that the plaintiffs had not shown that it is true.
Third, the plaintiffs argued that all three entities violated the Constitution’s nondelegation doctrine, which prohibits Congress from delegating responsibilities to administrative agencies without giving them sufficient direction. Judge O’Connor held that under the previous decisions of the Fifth Circuit Court of Appeals, which governs Texas, the ACA’s requirements do not violate the nondelegation doctrine. He encouraged the Fifth Circuit and the Supreme Court, however, to reconsider its law on delegation and possibly hold all three entities to be unconstitutional.
Finally, the Court held that the requirement that self-funded plans and insurers cover PrEP violated plaintiff Braidwood’s rights under the Religious Freedom Restoration Act, which requires that the government use the least restrictive means of promoting a compelling governmental interest when it burdens religious freedom. The Court said that the PrEP coverage requirement was not the least restrictive means to promoting a compelling governmental interest with respect to Braidwood.
Judge O’Connor did not immediately issue an order blocking enforcement of the coverage requirements. He also did not specify whether such an order would be nationwide, for his district only, for all the named plaintiffs, or only for Braidwood. These issues are held for further argument before Judge O’Connor. He also may broaden the case to consider the requirement that insurers and health plans must cover contraceptives without cost sharing, an issue the plaintiffs had raised earlier but was not covered by this decision. It is likely that any order from Judge O’Connor will be appealed, but the Fifth Circuit may uphold the judgment, sending the ACA once again to the Supreme Court. If Judge O’Connor does issue a final order blocking the preventive services requirement, it may be stayed pending an appeal.
In the meantime, it is unlikely that insurers or group health plans will drop coverage without cost sharing for 2023. If a nationwide injunction is entered, however, it may well lead to various insurers and health plans offering different cost-sharing levels for services, which could make comparing plans more difficult. It also might make it easier for insurers to try to avoid covering people with health needs by covering or avoiding coverage for particular services. This would undermine another key goal of the ACA: making sure people are covered regardless of preexisting conditions.