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Appeals Court Upholds ACA's Preventive Services Mandate, But Opens ...

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A federal appeals court on Friday preserved the Affordable Care Act's popular mandate that private insurance cover preventive services at no cost to patients.

However, the U.S. Court of Appeals for the 5th Circuit ruled that the plaintiffs, a group of Christian companies, did not have to comply with the mandate, leaving the door open for a broader ruling in the future that could undermine the mandate nationwide.

The appellate panel also ruled the task force that determines which preventive services are free must be confirmed by Congress, and asked a lower court to review the authority of the groups that make those decisions for contraception and vaccines.

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Two Christian-owned companies in Texas, Braidwood Management and Kelley Orthodontics, sued the federal government in 2020 over the ACA's requirement that their health plans cover contraception, HPV vaccines and medicines to prevent HIV for free, arguing the services violated their religious beliefs.

The plaintiffs contended the law's mandates were invalid because they're issued by the U.S. Preventive Services Task Force (USPSTF), a group of expert volunteers that aren't confirmed by the Senate and therefore lack constitutional authority to issue legally binding recommendations on preventive care.

Last year, Judge Reed O'Connor of the U.S. District Court for Northern Texas agreed with the employers, ruling that the government could not force insurers to cover services recommended by the USPSTF for free.

The judge's decision nullifying the preventive services mandate nationwide never went into effect, as it was put on hold while the Biden administration appealed the case.

On Friday, the 5th Circuit overturned O'Connor's ruling, finding he had overreached in banning the preventive services mandate nationwide. However, the three-judge panel agreed that the USPSTF didn't have constitutional authority to issue recommendations.

"Our decision today is something of a mixed bag," the court wrote.

Moving forward, members of the USPSTF must be nominated by the president and confirmed by the Senate, the 5th Circuit ruled.

The panel did not decide, however, whether the groups that recommend which vaccines and contraceptives should be free for consumers have the authority to do so. Those groups are the Advisory Committee on Immunization Practices (a committee within the Centers for Disease Control and Prevention) and HHS subagency the Health Resources and Services Administration.

Instead, the 5th Circuit sent that question back to O'Connor, who has a history of targeting the ACA: In 2018, O'Connor ruled the entire ACA was unconstitutional, though the Supreme Court upheld the law in a 7-2 decision in 2021.

The current case has been closely followed, as it threatens access to preventive services for the majority of Americans that receive health insurance through their employer: some 164 million people as of last year, according to government estimates.

Polling shows these mandates are some of the most popular provisions of the ACA passed more than a decade ago. Free preventive care staves off worse health outcomes — and higher costs — for patients down the line. Research shows even small levels of cost-sharing can cause patients to use less medical care.

As such, the 5th Circuit's decision is a relief for U.S. Citizens that get insurance through their job, according to patient advocacy and health policy groups.

"Thankfully for now, today's ruling preserved access to life-saving preventive health care services," said Yael Lehmann, the interim executive director of Families USA, a consumer advocacy group, in a statement.

However, it "paves the way for future lawsuits that jeopardize access," Lehmann added.

The Harvard Law School's Center for Health Law and Policy Innovation also said in a statement it was "very concerned" about the long-term impacts of the court's decision.

SCOTUS Upholds Key ACA Measure On Preventive Care For Millions : NPR

The U.S. Supreme Court Chip Somodevilla/Getty Images hide caption

toggle caption Chip Somodevilla/Getty Images

The Supreme Court on Friday upheld a key provision of the Affordable Care Act, ensuring, at least for now, that some 150 million people will continue getting many free, preventive services under the act.

The vote was 6-3, with Chief Justice John Roberts, and Justices Amy Coney Barrett and Brett Kavanaugh joining the court's three liberal justices in the majority.

Siding with the government on Friday, the court upheld the Affordable Care Act, allowing the U.S. Preventive Services Task Force to continue determining which services will be available free of cost to Americans covered by the Affordable Care Act.

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At issue in the case was a lawsuit that sought to undo the preventive care provision by challenging the appointment process for members of a 16-person task force that determines which preventive services are to be provided for free under insurance policies. Two lower courts found that the appointments were unconstitutional, but on Friday, the Supreme Court disagreed.

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Writing for the court majority, Justice Kavanaugh said the Department of Health and Human Services has the power to appoint members of the task force.

Law Supreme Court limits nationwide injunctions in birthright citizenship order

"Task Force members are supervised and directed by the Secretary, who in turn answers to the President, preserving the chain of command in Article II," Kavanaugh wrote.

The ACA's preventive treatments have benefited millions of people since the health care law went into effect 11 years ago — a sufficiently long time for most people to take the free coverage for granted. Activists argued that if the court ruled for the groups challenging the law, the benefits could disappear.

Friday's case arose when the preventive care task force classified pre-exposure prophylaxis (PrEP) drugs as essential to preventing HIV. Preventive PrEP coverage under the ACA includes not only HIV testing and medication, but also clinic visits and lab testing without added cost-sharing. Without ACA coverage, PrEP care would be astronomically expensive for most Americans.

The suit was brought by individuals and businesses with religious objections to the PrEP mandate—they claimed that providing PrEP coverage encourages "sexual behaviors and drug use" antithetical to their Christian beliefs.

Braidwood Management, the case's named plaintiff, is led by Republican mega donor Steven Hotze who has referred to members of the LGBTQ+ community at different times as "morally degenerate," "satanic," and "termites." Hotze, has challenged the ACA in at least two other federal lawsuits.

The court's decision on preventive care likely will protect other existing preventive services under ACA, including treatment for blood pressure screenings, as well as birth control, breast and lung cancer screenings, immunizations, and more.

Prior to the court's decision on Friday, proponents of the ACA's existing preventive coverage had worried that without it, the financial burden of out-of-pocket expenses for these services would have discouraged people from getting care to prevent or detect disease at an early and treatable stage.

"I cannot think of another health policy that impacts more Americans than the preventive services provision," said Dr. Mark Fendrick, a professor of medicine and public health at the University of Michigan.

Two lower courts in Texas found that the government violated the Appointments Clause of the Constitution because its task force members were appointed not by the president, but by the secretary of Health & Human Services.

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The Supreme Court, however, disagreed, declaring that the task force was not composed of principal officers who must be appointed by the president and confirmed by the Senate. Rather, the court said, the advisory panel is composed of "inferior officers," who may be appointed by a department head if that power is designated by Congress. Moreover, as the government pointed out in its briefs, the task force members are directly supervised by the HHS secretary, and members can be terminated at will.

Court To Hear Challenge To ACA Preventative-care Coverage

The Supreme Court will hear oral arguments on Monday in yet another dispute over the separation of powers. The case is a challenge to the constitutionality of the structure of a relatively obscure section of the Department of Health and Human Services. But although the issue may sound like a technical one, the court's ruling could have real-world implications for U.S. Patients – particularly those who use the highly effective HIV-prevention drugs at the center of the dispute.

Under the Affordable Care Act, health insurers and group health plans must cover "preventive health services" at no additional cost to the patient. The Affordable Care Act does not specify what those "preventive health services" are. Instead, the law gives the U.S. Preventive Services Task Force – an independent panel of experts – the power to determine which preventive services insurers must cover.

The task force is made up of 16 volunteers, each of whom serves a four-year term. Members of the task force and their recommendations are required by law to be "independent, and to the extent practicable, not subject to political pressure."

The task force's recommendations for required preventive-care services include contraception, cancer screenings, statin medications, and human-papilloma-virus vaccines. In June 2019, the task force recommended that pre-exposure prophylaxis, known as PrEP, medicine that is highly effective at preventing HIV, be included as a mandatory preventive-care service. The plaintiffs in this case are four individuals and two small businesses that have religious objections to the requirement that insurers and group health plans provide coverage for PrEP. They believe the drug coverage "encourage[s] homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman." The lead plaintiff, Braidwood Management, is a Christian-owned business that provides health insurance to its 70 employees. In March 2020, the plaintiffs filed a lawsuit in federal court in Texas. They argued (among other things) that the structure of the task force violates the Constitution's appointments clause, which requires "principal officers" of the United States to be appointed by the president and confirmed by the Senate. U.S. District Judge Reed O'Connor agreed. He ruled that all preventive-care coverage requirements that the task force had imposed since March 23, 2010, when then-President Barack Obama signed the Affordable Care Act, were invalid. And going forward, O'Connor prohibited the government from implementing or enforcing the act's preventive-services coverage requirements. The U.S. Court of Appeals for the 5th Circuit upheld O'Connor's ruling that the structure of the task force violates the appointments clause. But it disagreed with his decision to invalidate all of the task force's past mandates, and to bar the task force from enforcing mandates going forward. Therefore, it concluded, the government should only be prohibited from enforcing the preventive-services coverage requirements against Braidwood and the other challengers. The Biden administration came to the Supreme Court in September 2024, asking the justices to weigh in, which they agreed in January to do. In its brief on the merits, the Trump administration defended the structure of the task force. The members of the task force, it told the justices, are not principal officers but instead "inferior" officers, who do not require presidential appointments or Senate confirmation: The HHS secretary has appointed all 16 members of the current task force, those task force members can be removed at any time by the HHS secretary, and the secretary can review the task force's recommendations and block them from having "legal force under the ACA before those recommendations have binding effect." "Taken together," then-Acting Solicitor General Sarah Harris wrote, "those controls give the Secretary, not the Task Force, ultimate responsibility for whether Task Force recommendations become final, binding decisions" – and in doing so, "create a chain of supervisory accounting through the Secretary to the President" But even if the members of the task force were "principal" officers who should have been nominated by the president and confirmed by the Senate, Harris continued, the remedy for that violation should be to invalidate only the provision that the court of appeals interpreted as barring review of the task force's recommendations, leaving the rest of the statutory scheme in place. Going forward, Harris suggested, the task force would therefore be allowed to "make recommendations that will have legal effect only under appropriate supervision by the Secretary." Braidwood Management and the other plaintiffs are represented by Jonathan Mitchell, the conservative lawyer who (among other things) argued on behalf of then-candidate Donald Trump in his successful challenge to Colorado's effort to remove him from the 2024 presidential ballot for his role in the Jan. 6, 2021, attacks on the U.S. Capitol. Braidwood countered that members of the task force cannot be "inferior officers," and are instead "principal officers," who must be appointed by the president and confirmed by the Senate, precisely because federal law requires that both they and their recommendations remain independent and insulated from political pressure. Even if members of the task force could be removed at will, Braidwood continued, they still are not inferior officers because their decisions about which preventive-care services must be covered under the ACA "are not subject to review or reversal by anyone." The prospect that the HHS secretary can later prevent the task force's recommendations from having binding effect does not undermine their status as principal officers, Braidwood added, because insurers are required to follow the recommendations "even if the Secretary purports to veto or override its decisions." And if the task force members are principal officers, Braidwood concluded, the Supreme Court cannot fix the constitutional violation by invalidating only part of the statutory scheme, as the government suggests. That proposed solution, Braidwood emphasized, would allow the HHS secretary to override the task force's recommendations, but it would still give the task force unbridled discretion to decide not to require insurers to cover items or services. Moreover, Braidwood added, the government's proposal would not do anything to address the recommendations that the task force issued between March 2010, when the ACA went into effect, and June 2023, when then-HHS Secretary Xavier Becerra reappointed the members of the current task force. "Friend of the court" briefs supporting the government cautioned that the impact of a ruling for the plaintiffs on public health could be substantial or even "staggering." One brief, by the American Hospital Association, suggested that if patients are required to pay for the preventive-care services that are currently available at no cost to them, they may respond by not seeking those services or medications at all. Addressing PrEP, the medicine at the center of this dispute, specifically, a brief by public health groups focused on HIV and AIDS noted that the drug has "significantly decreased the rates of new HIV infections across the United States." If patients no longer have no-cost access to PrEP, the groups said, it will both "thwart ongoing efforts to wipe out HIV in the United States" and "ultimately erase much of the progress that has been made to date." And a group led by the Susan G. Komen Breast Cancer Foundation similarly warned that if the justices uphold the 5th Circuit's ruling and limit the availability of preventive-care services, it could increase "(1) the risk of breast cancer progressing to more advanced stages; (2) treatment costs; and (3) the risk of breast-cancer-related deaths." Briefs filed in support of Braidwood downplayed the concerns about the effects of a ruling in Braidwood's favor as "overstated." A group of states, led by Texas, first posited that because providing these kinds of preventive-care services will ultimately reduce an insurer's costs, there is no need for a task force to require insurers to make them available. And in any event, the states add, the constitutional problem could be eliminated entirely going forward by having the president nominate members of the task force and the Senate confirm them. "And to the extent that the Task Force members' nominations may be controversial and so prompt greater debate in the Senate, that point cuts in favor of requiring their confirmation, not against it," the states concluded.  The Goldwater Institute, a policy and research group that describes its mission as "advancing the principles of limited government, individual freedom, and constitutional protections," added that the arguments about the potential effects of a ruling for Braidwood are in essence "a policy judgment" that is best "properly addressed to Congress," rather than the courts. A decision is expected by late June or early July. This article was originally published at Howe on the Court.  Cases: Kennedy v. Braidwood Management, Inc. Recommended Citation: Amy Howe, Court to hear challenge to ACA preventative-care coverage, SCOTUSblog (Apr. 18, 2025, 10:59 PM), https://www.Scotusblog.Com/2025/04/court-to-hear-challenge-to-aca-preventative-care-coverage/

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