On March 30, 2023, in Braidwood Management Inc. v. Becerra, the U.S. District Court for the Northern District of Texas blocked all agency actions to implement or enforce preventive care coverage requirements resulting from recommendations made by the U.S. Preventive Services Task Force (“USPSTF”) on or after March 23, 2010, and enjoined future agency action to implement or enforce USPSTF recommendations. However, the District Court’s nationwide injunction has been stayed pending appeal by the U.S. Court of Appeals for the Fifth Circuit. Additionally, prior to the Fifth Circuit staying the District Court’s nationwide injunction, the Departments of Labor, Health and Human Services (“HHS”) and Treasury (collectively, the “Departments”) published guidance to address open questions resulting from the Braidwood decision.
The Braidwood case was brought by individuals and businesses who challenged preventive care mandates implemented by the Affordable Care Act (“ACA”) as violating the U.S. Constitution and the Religious Freedom Restoration Act (“RFRA”). The plaintiffs argued that the recommendations issued by the USPSTF, as well as recommendations by the Health Resource and Services Administration (“HRSA”) and the Advisory Committee on Immunization Practices (“ACIP”), violated the Constitution’s Appointments Clause because their members were not appointed by the President with the advice and consent of the Senate. Certain plaintiffs also sued on religious grounds, objecting to being required to provide or pay for certain preventive coverage, including certain preexposure prophylaxis (“PrEP”) drugs that help reduce the risk of HIV infection. Other plaintiffs objected on non-religious grounds to being required to purchase health insurance for preventive care they claim to neither want nor need.
In September 2022, the District Court previously ruled that because USPSTF’s recommendations had the force and effect of law under the ACA but its members are appointed by the Director for the Agency for Healthcare Research and Quality, its appointment procedures violated the Constitution’s Appointments Clause. However, the District Court rejected challenges against HRSA and ACIP recommendations because, unlike USPSTF, the recommendations made by HRSA and ACIP were subject to ratification by the HHS Secretary, whose appointment complies with the Appointments Clause.
In its March 30, 2023, decision, the District Court concluded that, rather than severing the ACA’s provisions that were found to violate the Appointments Clause, the appropriate remedy was to vacate all agency actions implementing USPSTF’s recommendations issued on or after March 23, 2010 and enjoining agencies from implementing USPSTF recommendations in the future. In addition to PrEP drugs, USPSTF recommendations include a wide variety of preventive care treatment, including cancer, diabetes and heart disease screening.
In both its September 2022 and March 2023 rulings, the District Court also ruled that requiring religious objectors to pay for PrEP drugs violated the RFRA, concluding the government had not demonstrated a compelling interest in requiring religious objectors to pay for such coverage or that a mandate was the least restrictive means that the government could further a compelling interest.