The current Affordable Care Act (ACA) challenge in the Braidwood v. Becerra (formerly Kelly v. Becerra) case in the Northern District of Texas poses a threat to one of the law s most popular features: its preventive services coverage requirement, Section 2713 of the Public Health Service Act (2713 or Section 2713). Section 2713, one of the law s most substantive coverage guarantees, has strengthened the content of health insurance coverage to ensure that 167 million Americans have access to vaccines and cancer screenings, and other recommended preventive services, without out-of-pocket costs. According to the Urban Institute, Section 2713 provides 35.3 million children with well-child visits and recommended immunizations, 67.7 million adult women with well-woman visits and pre-natal screenings, PrEP and birth control services, and 64.5 million adult men with cancer screenings.
Section 2713 incorporates the preventive guidelines and recommendations (see exhibit 1) from federal advisory committees and agencies into federal insurance law, requiring private health plans and Medicaid expansion programs to provide for the coverage of recommended preventive interventions without patient cost sharing. In passing 2713, Congress deferred to these entities recommendations for purposes of determining coverage requirements. These committees and agencies include the US Preventive Services Task Force (USPSTF or Task Force), the Advisory Committee on Immunization Practices (ACIP), and the Health Resources and Services Administration (HRSA) (collectively, bodies).
Exhibit 1: Recommending bodies for preventive services
Source: Authors analysis.
Braidwood v. Becerra
The Braidwood plaintiffs, a group of religious employers, are unwilling to purchase health insurance products that include some of the bodies recommended products and services, including abortifacient contraception; PrEP (pre-exposure prophylaxis) to prevent infection with the human immunodeficiency virus (HIV) that causes AIDS; the human papillomavirus (HPV) vaccine; and screenings and behavioral counseling for sexually transmitted disease and drug use. The plaintiffs believe these interventions encourage homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman. They claim that no viable market exists for health insurance products that exclude this coverage.
The Braidwood plaintiffs are represented by Johnathan Mitchell, an architect of the Texas S.B. 8 abortion bill that banned most abortions in the state and amici contributor in Dobbs v. Jackson Women s Health Organization, in which the US Supreme Court overturned Roe v. Wade and Casey v. Planned Parenthood.
Previous ACA challenges focused on the act as a whole, or religious exemptions to the contraceptive mandate (a component of Section 2713) specifically. The Braidwood plaintiffs raise constitutional and administrative law arguments attempting to nullify Section 2713 only and in its entirety. Specifically, they take aim at the validity of the recommending bodies themselves and their processes for making recommendations, alleging violations of the Appointments and Vesting Clauses of the US Constitution and the Non-Delegation Doctrine. Moreover, they allege that the recommendations violate the Religious Freedom and Restoration Act (RFRA) by mandating coverage of PrEP for HIV.
On September 7, US District Court Judge Reed O Connor, who previously ruled the ACA as a whole unconstitutional in Texas v. United States, ruled partially in favor of the plaintiffs after hearing their motion for summary judgment in July. The ruling holds that the Appointments Clause of the US Constitution is violated by Section 2713 s reliance on the USPSTF in setting preventive services coverage requirements and that the requirement to cover PrEP for HIV impermissibly burdens religious exercise under the RFRA. Judge O Connor has ordered additional briefing before deciding a remedy. Should Braidwood reach the Fifth Circuit and ultimately the US Supreme Court, the decisions could have major implications for preventive health care access for hundreds of millions of Americans.
Appointments And Vesting Clause
The Appointments and Vesting Clauses of the US Constitution are two sides of the same coin, requiring Senate confirmation of some federal officeholders while allowing Congress to vest the appointment of inferior officers with the president or federal agency heads. In essence, Congress may not create independent agencies wielding substantial executive power that are insulated from all presidential control. The Braidwood plaintiffs argue that the requirement for employers to provide insurance coverage for preventive services violates the Constitution s Appointments Clause because members of each of the bodies are not inferior officers and, as such, require Senate confirmation.
Even if members of recommending bodies were inferior officers, the Braidwood plaintiffs take special aim at the USPSTF, which is statutorily insulated from political pressure and unilaterally determines the preventive care that health insurance must cover without cost sharing—evidence of its significant authority. Moreover, the plaintiffs object that USPSTF members are appointed solely by the non-confirmed director of the Agency for Healthcare Research and Quality (AHRQ), who is not a department head to whom such power can be vested under the Constitution s Vesting Clause. In summary judgment pleadings, the Biden administration acquiesced to the unconstitutionality of the Task Force s statutory independence in the sense that the secretary of Health and Human Services, acting through the AHRQ director, could not direct it to issue a certain rating; however, the administration maintained that the AHRQ director s authority to remove a task force member provided adequate political accountability.
Judge O Connor sided with the plaintiffs in holding that 2713 s delegation to the Task Force violates the Appointments Clause, distinguishing a body making mere recommendations from one making determinations with the force and effect of law. The decision does not provide a remedy, instead allowing additional briefing by the parties before doing so, but it is foreseeable that a future decision could strike down 2713 s requirement that health insurers cover services recommended by the Task Force.
With respect to the ACIP and HRSA, the federal government has contended that the HRSA s notice and comment promulgation of the contraceptive mandate and the Centers for Disease Control and Prevention director s approval of the ACIP s immunization recommendations amount to ratification of the bodies recommendations, providing sufficient political accountability. Judge O Connor sided with the defendants, agreeing that any violation of the Appointments Clause is cured by ratification of these bodies recommendations and guidelines.
Non-Delegation And Major Questions Doctrines
The Braidwood plaintiffs further alleged that Section 2713 impermissibly delegates legislative authority under the Non-Delegation Doctrine because the ACA lacks instructions or limitations on the committees in determining what preventive health services are included in their recommendations and guidelines. The government argued that, to the contrary, the law sufficiently delineate[s] the criteria that govern what recommendations and guidelines are incorporated into the statute.
Although it is a rarity for the US Supreme Court to invalidate federal statutes under the Non-Delegation Doctrine (it has only occurred twice more than 80 years ago), there are signals that the Court may be more willing to strike down statutes it interprets as an impermissible delegation of authority. Justice Neil Gorsuch has suggested the Court revisit the doctrine and apply a test that prioritizes political accountability. Application of such a test could clearly fit the Braidwood v. Becerra arguments. Moreover, the plaintiffs have cited US Supreme Court dicta from an earlier case pertaining to the contraceptive mandate (Little Sisters of the Poor v. Pennsylvania), which describes the HRSA s authority under 2713 as sweeping, without adequate criteria or standards, and conferring virtually unbridled discretion.
Because the US Supreme Court did not address the Non-Delegation Doctrine as part of its holding in Little Sisters, Judge O Connor instead applied a Fifth Circuit test (see Big Time Vapes v. the Food and Drug Administration), finding that Congress "delineated its general policy with respect to the preventive-care mandates, the public agencies applying the preventive-care mandates, and the boundaries of the delegated authority. Thus, he denied the plaintiffs summary judgment claim while noting that the US Supreme Court might well decide—perhaps soon—to reexamine or revive the nondelegation doctrine.
While not argued by the plaintiffs, Katie Keith previously raised the prospect that the Court would scrutinize Braidwood v. Becerra under the Major Questions Doctrine. Applying the doctrine in a recent case, a majority of the Court held in West Virginia v. Environmental Protection Agency that Congress had not granted the Environmental Protection Agency the authority to cap emissions under the Clean Air Act. The Major Questions standard lies first in whether the authority asserted is of vast economic and political impact and, if so, whether Congress has delegated the authority with clear and unambiguous language. It is conceivable that a Court would find a provision expanding preventive care access to approximately half the American people and affecting the premiums of employers to be of vast economic and political impact.
Religious Freedom Restoration Act
Lastly, in their Complaint, the Braidwood plaintiffs alleged that Section 2713 violates the Religious Freedom Restoration Act (RFRA) because it requires coverage of PrEP for HIV prevention. In moving for summary judgment, the plaintiffs additionally claimed religious opposition to the HPV vaccine and screenings and behavioral counseling for sexually transmitted diseases and drug use, although these claims were dropped at the most recent hearing.
The RFRA prohibits the federal government from substantially burdening an individual s exercise of religion unless there is a compelling governmental interest, and the burden is the least restrictive means of furthering that interest. The RFRA claims in Burwell v. Hobby Lobby Stores led to the extension of exemptions to the contraceptive mandate to closely held private employers. The Trump administration further expanded the exemption to corporations more broadly, including those with moral in addition to religious objections. Concurring in a decision upholding that expansion, Little Sisters of the Poor, Justice Samuel Alito asserted that the RFRA indeed requires the federal government to permit such an exemption.
Judge O Connor extends this reasoning to PrEP for HIV in his decision, holding that the coverage requirement substantially burdens the plaintiffs religious exercise. The decision calls the PrEP coverage requirement a generalized policy to combat the spread of HIV and finds that the government has shown no compelling government interest to permit that burden.
Should a majority of the US Supreme Court agree upon future appeal of Braidwood v. Becerra, it stands to reason that Justice Alito s reasoning will be applied by a majority to the Braidwood plaintiffs RFRA claims. Therefore, a judicial extension of the contraceptive mandate exemption to PrEP for HIV is entirely conceivable under a future ruling.
Sizing Up The Legal Threat To Section 2713
The awaited choice of remedy by Judge O Connor could attempt to cure the Appointments Clause violation he has found with respect to the Task Force. Alternatively, he may find that aspect of 2713 entirely unenforceable. Should he opt for the former, a holding that the plaintiffs are entitled to an exemption under the RFRA specifically pertaining to PrEP for HIV is plausible.
While Judge O Connor s ruling does not disturb the roles of the ACIP and HRSA under 2713, it is possible that a future appeal would lead to revisiting the constitutionality of these roles. Should the decision be affirmed on appeal to the Fifth Circuit and reach the US Supreme Court, a majority of the justices could conceivably decide that, at a minimum, Section 2713 impermissibly delegates authority to the USPSTF and that religiously objectionable recommendations are entitled to exemptions equivalent to the contraceptive mandate exemption under the RFRA. The current Court is apt to restrain Congress s ability to farm out work that a majority of the justices view as the province of legislatures to the federal agencies or advisory committees. Therefore, the ACA s preventive services coverage requirement faces a near certain path to some degree of judicial curtailment.
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