A case that was just decided by one of the most partisan judges in the country has the potential to make it much harder for many Americans to get health insurance that covers basic preventive care, like cancer screenings or birth control.
Five years ago, Judge Reed O’Connor attempted to repeal the entire Affordable Care Act. His decision striking down Obamacare was widely mocked, even in conservative circles — in the words of one National Review article, O’Connor’s reasoning “doesn’t even merit being called silly. It’s ridiculous” — and the decision was eventually reversed by a 7-2 vote in the Supreme Court.
Nevertheless, on Thursday, O’Connor handed down a new decision that blocks a key provision of the Affordable Care Act that requires health insurers to cover a wide range of preventive health care services — ranging from cancer screenings to obesity counseling to drugs that prevent the spread of HIV.
This Thursday decision is not a surprise. Last September, O’Connor declared a key provision of the Affordable Care Act, which empowers a body known as the US Preventive Services Task Force (PSTF) to require health insurers to cover certain treatments, to be unconstitutional. His more recent decision imposes a nationwide injunction implementing his opinion from September.
So, as of Thursday morning, health insurers are no longer required to cover many forms of preventive care — including, once again, screenings for deadly diseases such as cancer and drugs that can prevent the spread of potentially deadly viruses such as HIV.
It is highly unlikely that O’Connor will have the final word in this case, known as Braidwood Management v. Becerra. And it is possible that this case will get even worse for patients as it advances to higher courts.
One reason why is that O’Connor rejected a broader attack on two other bodies within the federal government, one of which has the power to require health insurers to cover vaccinations, and another that has the power to issue “comprehensive guidelines” governing women’s health and preventive care for infants, children, and adolescents. O’Connor reasoned that binding precedents from higher courts prevented him from striking down these two other government bodies.
But, as this case works its way to higher courts, it will be heard by judges — and, most likely, justices — who have the power to overrule these precedents.
Worse, five members of the Supreme Court — all Republican appointees — strongly suggested in Little Sisters v. Pennsylvania (2020) that all three of these government bodies do not have the power to require health insurers to cover anything. And the Court has only grown more conservative since Little Sisters was decided, as liberal Justice Ruth Bader Ginsburg was replaced by conservative Justice Amy Coney Barrett.
The result is that health coverage in the United States could get worse — potentially much worse — in the near future, thanks to the Republican Party’s successful capture of the federal judiciary.
What are the stakes in Braidwood Management?
Braidwood Management concerns three federal entities with specialized expertise on vaccination or preventive medicine. The Affordable Care Act gave each of these entities some authority to decide which treatments must be fully covered by insurers — meaning that patients will pay no out-of-pocket expenses beyond their insurance premiums.
The PSTF has fairly broad authority to require insurers to cover preventive treatments for all patients. The Advisory Committee on Immunization Practices (ACIP) determines which vaccinations should be covered. And a third entity, the Health Resources and Services Administration (HRSA), issues guidelines regarding women’s health and pediatric care.
Together, these three government entities have placed about 80 items on the list of services insurers must cover. They include a wide range of preventive care, such as blood screening for newborns, vision screening for children, birth control, Pap tests, and screening for conditions like depression, hepatitis, HIV, and some forms of cancer.
The Braidwood plaintiffs effectively want to strip these three entities of their power over health insurers, and to eliminate the list of services that insurers must cover in the process. Those plaintiffs are a hodgepodge of individuals and business owners (along with some businesses owned by individual plaintiffs) who object to buying insurance that covers at least some of these treatments, on either religious or economic grounds.
Notably, the list of these treatments includes pre-exposure prophylaxis (PrEP), medication that can be taken by HIV-negative patients to dramatically reduce their risk of contracting this virus. O’Connor’s decisions conclude that, even if the three preventive health bodies are otherwise lawful, many employers may still refuse to cover PrEP in their health plans if those employers object to providing this coverage on religious grounds.
This religious liberty dispute about PrEP aside, however, most of the issues in Braidwood Management involve hypertechnical constitutional objections to Congress’s decision to delegate authority to the three government entities.
One reason Congress delegated this power to these three entities, instead of simply itemizing which treatments health insurers must cover, is that it recognized that new health conditions and treatments would emerge over time. The Congress that enacted the Affordable Care Act in 2010, for example, could not have known that Covid-19 would emerge nine years later.
O’Connor struck down the PSTF but left the other two government bodies in place
O’Connor’s September decision determined that the PSTF — the body with broad authority over preventive care for all patients — is unconstitutional. But it left the government’s authority over vaccinations, pediatric care, and women’s care largely intact. O’Connor did so based on a highly technical conclusion about how certain government employees must be chosen.
The Constitution deems some, but not all, federal employees to be “officers of the United States.” Certain high-ranking officers, such as Cabinet secretaries and federal judges, must be nominated by the president and confirmed by the Senate. But other, lower-ranking officers may be appointed by the president acting alone, by a court, or by “the heads of departments” — a term that ordinarily refers to Cabinet secretaries and other very high-ranking officials who answer directly to the president.
O’Connor concluded in his September decision that these rules do not impact the ACIP’s determinations that certain vaccines should be covered by insurers, or the HRSA’s determinations about women’s and pediatric care. That’s because both of these entities are under the supervision of the secretary of health and human services, and the HHS secretary ratified the ACIP and HRSA’s decisions to place certain items on the list of treatments that insurers must cover.
Thus, even if the leaders of the ACIP and the HRSA were not properly appointed as officers of the United States, it doesn’t matter because a Cabinet secretary — that is, an official who was nominated by the president and confirmed by the Senate — exercised their own authority to sign off on the ACIP and the HRSA’s decisions.
The rules governing the PSTF, however, are much murkier. PSTF members are not directly supervised by the HHS secretary in the way that the leaders of the other two entities are. And its members are selected by the director of the federal Agency for Healthcare Research and Quality, who is not one of the high-ranking officials empowered to appoint officers of the United States. Accordingly, if PSTF members qualify as officers, they were not properly appointed.
That said, under Lucia v. SEC (2018), even someone who exercises “significant authority pursuant to the laws of the United States” qualifies as an officer only if they perform “continuing and permanent” duties rather than “occasional or temporary” ones. And it is far from clear that members of the PSTF, who are health experts who serve on a part-time, volunteer basis, are engaged in anything more than “occasional or temporary” service.
As O’Connor admits in his September opinion, members of the PSTF only meet “three times a year for two days in Washington, D.C.” And, in between meetings, they only “devote approximately 200 hours a year” to PSTF work. So that looks a lot like occasional or temporary work, and not “continuing and permanent” duties.
Nevertheless, the Supreme Court has not defined clearly where the line is between “occasional or temporary” work and “continuing and permanent” work on the government’s behalf, so there is at least some ambiguity about whether 200 hours of work every year (plus a few meetings) qualifies as continuing and permanent. And O’Connor is a staunchly anti-Obamacare judge who attempted to repeal the entire law in 2018.
So it is unsurprising that he latched onto this ambiguity to reach the outcome that would do the most harm to the Affordable Care Act. Accordingly, he deemed PSTF members to be officers who were not properly appointed, and thus their work is invalid.
This case is likely to get worse for patients as it moves up the appellate chain
The Braidwood Management plaintiffs also make a separate attack on the government entities with power over preventive care, claiming that Congress’s decision to delegate power to these three entities violates something known as the “nondelegation doctrine,” a judicially created doctrine that the Supreme Court briefly flirted with in the 1930s and then abandoned for nearly a century.
But this nondelegation doctrine, which claims that there are strict constitutional limits on Congress’s power to delegate policymaking authority to federal agencies, appears to be on the verge of a renaissance. In 2019, five members of the Court seemed to endorse a proposal by Justice Neil Gorsuch to revive nondelegation. Notably, however, these five justices have never joined together in the same case to endorse Gorsuch’s approach, so the nondelegation doctrine technically still is not good law.
Five of the Court’s Republican appointees did join Justice Clarence Thomas’s majority opinion in Little Sisters, however, which criticized the Affordable Care Act for supposedly giving the HRSA “virtually unbridled discretion” to determine which preventive treatments should be added to the list of treatments insurers must cover. That’s a strong indication that there are five votes who are open to the Braidwood Management plaintiffs’ nondelegation argument.
That said, Little Sisters also explicitly reserved the question of how the nondelegation doctrine should apply to Obamacare for a future case. As Thomas wrote, “no party has pressed a constitutional challenge to the breadth of the delegation involved here.”
But Braidwood Management raises the very nondelegation issue that Thomas alluded to in his Little Sisters opinion. And, as noted above, the Court has only grown more conservative since Little Sisters, because Justice Ginsburg was replaced by Justice Barrett.
All of which is a long way of saying that, while O’Connor’s decision only struck down part of the federal government’s ability to ensure that health insurers cover treatments like cancer screenings or birth control, the Supreme Court could strike down all of the government’s authority to do so.