In 2020, several individuals and businesses filed a lawsuit, Braidwood Management v. Becerra, challenging the preventive services protection. The plaintiffs allege they were harmed by the ACA provision because they object to purchasing coverage that includes services they “do not want or need.” Most also oppose, on religious grounds, coverage of contraception and HIV prevention medicine (PrEP).
The legal challenge consists primarily of two constitutional arguments.1 First, plaintiffs claim that the members of USPSTF, ACIP, and HRSA count as “officers” under the Constitution. This means that they hold a continuous federal position through which they exercise significant authority, and so must be appointed by the president or a department head. Because they are not so appointed, coverage requirements based on their recommendations violate the Appointments Clause. Second, plaintiffs assert that the ACA gave broad discretion to these expert bodies but insufficient guidance about how to use it, in violation of a constitutional limitation on Congress’ power to delegate. While, historically, satisfying the “nondelegation doctrine” has been easy and the Supreme Court has not invoked it to invalidate a law since the 1930s, there are indications that the current Court is interested in strengthening the doctrine as a means of constraining federal agencies’ authority.
In September 2022, the judge ruled on the merits of these arguments, while reserving judgment about what relief plaintiffs might be entitled to. In the September decision, the judge agreed that members of the three expert bodies were not properly appointed and therefore, coverage mandates based on USPSTF recommendations violate the Appointments Clause. (Because ACIP and HRSA recommendations are subject to the approval of a properly appointed official — the HHS secretary — coverage requirements based on their recommendations pass muster.) The nondelegation claim was rebuffed, but perhaps only temporarily; the judge rejected it based on case law binding on his court, but pointed out that the Supreme Court appears receptive to the plaintiffs’ position.
A fundamental question left open in the September ruling was how plaintiffs’ harms should be remedied. One way to resolve the case would have been to craft a targeted remedy relieving plaintiffs from their alleged burdens. Last week, the court chose instead to go big, striking down on a nationwide basis the requirement to cover any service the USPSTF has recommended since the ACA’s enactment in 2010.
The Biden administration promptly filed a notice of appeal, and it is expected to ask for a stay of the judge’s order while the higher courts weigh the case.
Reduced Access to Care
If the decision is ultimately upheld, it will reduce access to care for tens of millions of people with commercial insurance, including employer-based coverage. Indeed, the recent ruling was based in part on the expectation that insurers would restrict access to preventive services if allowed to do so. High-value preventive services aren’t necessarily cost saving in the near term to the insurer or employer health plan that offers the benefit. In the absence of a federal requirement to cover such care without cost sharing, payers could and would reimpose financial barriers. They also would have greater flexibility to design plans that attract healthy consumers while discouraging enrollment by those with greater care needs.
Notably, the Texas decision doesn’t apply to USPSTF’s pre-ACA recommendations. This means care recommended prior to March 2010 would have to be covered — but not in a manner consistent with current evidence. All but two of USPSTF’s current (2023) “A” or “B” recommendations have been issued since 2010. Many of these recommendations update old ones, to reflect new evidence; others are brand new. The effect of the ruling is to tether the coverage requirement to an increasingly out-of-date list of services that reflects pre-2010 thinking. For example, insurers can decide to impose cost sharing on or exclude coverage of PrEP or certain pregnancy-related care because they were first recommended after 2010. Instead of being required to provide no-cost coverage of statins for populations at risk of cardiovascular disease (i.e., a current recommendation), insurers need only cover screenings for lipid disorders, an intervention USPSTF has since dubbed insufficient. Services that no longer have an “A” or “B” rating, such as screening teenagers for cervical cancer (USPSTF now recommends delaying screenings to age 21 and gives earlier interventions a “D” grade), would have to be covered free of charge to consumers. This misalignment — in stark contrast to the ACA’s requirement to cover “evidence-based items or services” — leaves consumers at risk of a bill when providers furnish services based on current best practices, likely dissuading many people from seeking care.
The preventive services requirement is one of the most popular provisions of the Affordable Care Act. It increased uptake of preventive care, improving consumers’ health and financial well-being. The Texas decision would reverse that progress, leaving consumers at the mercy of insurers’ predominantly profit-driven coverage decisions. Yet as significant as this decision is, its ultimate impact could be far broader. While the latest ruling only affects USPSTF-recommended services, a much longer list remains at risk as the case works its way toward the Supreme Court.