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  6.  » Federal Court Finds Key Part of ACA’s Preventive Service Mandate Unconstitutional

Federal Court Finds Key Part of ACA’s Preventive Service Mandate Unconstitutional

by | Sep 21, 2022 |

A Texas federal district court, in Braidwood Management, Inc. v. Becerra, has held that the Affordable Care Act’s (“ACA’s”) requirement that most group health plans and health insurers cover certain recommended preventive services without cost-sharing violates the Appointments Clause of the U.S. Constitution. The district court also found that the ACA’s coverage mandate for an HIV prevention medication violated an employer’s rights under the Religious Freedom Rights Act of 1993 (the “RFRA”).

Law.  Under the U.S. Constitution’s Appointments Clause:

  • Principal public officers of the United States must be nominated by the President and confirmed by the Senate.
  • Congress may authorize the President, courts, or department heads to appoint “inferior” (e., lower) officers.

The RFRA generally prohibits any agency, department, or official of the United States or any State (the “government”) from substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability.  The government may burden a person’s exercise of religion only if it demonstrates that application of the burden to the person: (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

The ACA requires group health plans and health insurers to cover preventive care and screenings without cost-sharing. Among various other requirements, group health plans and insurers must provide coverage for:

  • Evidence-based items or services with a rating of “A” or “B” under current recommendations from the recommended by the U.S. Preventive Services Task Force (“USPTF”), including preexposure prophylaxis (“PrEP”) drugs to prevent HIV infections.
  • Certain immunizations recommended by the Advisory Committee on Immunization Practices (“ACIP”) of the Centers for Disease Control and Prevention (“CDC”), including the human papillomavirus (“HPV”) vaccine.
  • Preventive care and screenings for children (through age 21) under guidelines supported by the Health Resources and Services Administration (“HRSA”), including screenings for sexually transmitted infections (“STIs’).
  • Preventive care and screenings for women under HRSA guidelines, including contraceptives.

Background. The plaintiffs in Braidwood (six individuals and two employers) objected on religious grounds to obtaining or providing health insurance coverage that included HPV vaccines, STI screenings, PrEP, and contraceptives. Accordingly, they sued the DOL, HHS and Treasury (the “Departments”) claiming that:

  • The ACA’s preventive services requirements violated the U.S. Constitution’s Appointments Clause because USPTF’s members were “principal officers” who should have been (but were not) appointed by the President and confirmed by the Senate.
  • The ACA’s PrEP coverage mandate violated the RFRA because it substantially burdened the employer’s religious exercise because “providing this coverage…would make [them] complicit in behaviors that violate [their] religious beliefs.

The District Court’s Decision on the Plaintiffs’ Appointments Clause Claim. The district court started its review with the plaintiff’s claim that the appointment process for members of the USPTF does not satisfy the constitutional requirements for appointing officers of the United States.

The court evaluated whether the USPTF’s members are officers of the United States subject to the constitutional appointment requirements.  The court concluded that the USPTF’s members are officers of the United States because they: (i) “occupy a continuing position established by law”; and (ii) “exercise significant authority pursuant to the laws of the United States”, i.e., to determine which preventive services that plans or insurers must cover under the ACA’s mandate. The court noted that USPTF members’ authority: (i) resembled that of a legislative body; and (ii) was on par with agency actions that normally require notice and comment rulemaking. Based on the foregoing, the court concluded that the USPTF members were officers of the United States whose appointments needed to comply with the constitutional requirements.

The court found that USPTF members were principal officers who must be nominated by the President and confirmed by the Senate. The court noted that USPTF was not part of HHS or another agency and its members are not directed or supervised by someone appointed by the President and confirmed by the Senate. Therefore, because the USPTF members were not properly appointed, the court held that their appointments violated the Appointments Clause.

The District Court’s Decision on the Plaintiffs’ RFRA Claim. The district court agreed with the plaintiffs that the requirement to cover PrEP to prevent the transmission of HIV violates the RFRA because it substantially burdened their religious exercise. The court explained that the plaintiffs had asserted that PrEP “facilitates and encourages homosexual behavior, intravenous drug use, and sexual activity outside of marriage,” violating their religious beliefs.

In reaching this result, the district court observed that the plaintiffs did not dispute that generally preventing the spread of HIV is a compelling government interest. However, the court clarified that the determinative question before it was whether the Departments had a compelling government interest in enforcing the PrEP coverage mandate against religious employers. Ultimately, the court concluded that the Departments had failed to meet this standard because: (i) the Departments failed to show what effect providing an exemption to religious employers would have on PrEP coverage or HIV rates in the relevant communities; and (ii) the ACA’s exemption to preventive health services requirements for certain health plans (i.e., grandfathered plans and employers with fewer than 50 employees) undercut the Departments’ assertions concerning the “critical importance of reducing barriers to PrEP access.”

Finally, the court noted that the Departments had failed to show that the PrEP coverage mandate was the least restrictive means of satisfying that interest. The court reasoned that the Departments had not shown that the government would be unable to assume the cost of providing PrEP drugs to those who are unable to obtain them due to their employers’ religious objections.

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