Federal Judge Rules ACA Preventive Care Mandate Unconstitutional
Workspan Daily
September 09, 2022
Key Takeaways

  • Mandate violates Religious Freedom Restoration Act. U.S. District Judge Reed O’Connor ruled in favor of Braidwood Management that HIV-preventative drugs covered under the Affordable Care Act violate the Religious Freedom Restoration Act and the Department of Health and Human Services failed to prove HIV-preventative drugs can critically reduce the spread of HIV when applied to employers like Braidwood.   
  • Preventive care mandate within ACA ruled unconstitutional. Judge O’Connor also ruled that the United States Preventative Services Task Force (USPSTF) was formed in an unconstitutional manner, which could invalidate preventive services recommended by the committee. This requires insurers and employers to cover free screenings for cancer and heart disease, as well as programs for smoking cessation, among many others. 
  • Unlikely to affect most employers. It’s expected that most employers will continue to cover most preventive services recommended by the USPSTF regardless of the final decision because they recognize that these services improve health, are popular with employees and some of them lower future costs. 

A federal court in Texas ruled on Wednesday that a mandate within the Affordable Care Act (ACA) that requires insurers and employers to offer healthcare plans that provide preventive care is unconstitutional.  

U.S. District Judge Reed O’Connor ruled in favor of the plaintiff, Braidwood Management, that its rights were violated by the mandate under the Religious Freedom Restoration Act.  

The ruling focused on the HIV-preventative drugs, or PrEP drugs, that are covered under the ACA mandate. Steven Hotze, owner of Braidwood Management, argued that offering coverage for PrEP drugs encouraged “homosexual behavior” and violated “his religious beliefs by making him complicit in encouraging those behaviors.”  

Judge O’Connor said the defendants, including Department of Health and Human Services Secretary Xavier Becerra, failed to prove that the PrEP mandate can critically reduce the spread of HIV when applied to employers like Braidwood.   

Judge O’Connor has not yet determined the practical implications of his ruling and who it will apply and it’s likely to be appealed by the Department of Health and Human Services, noted Jeff Levin-Scherz, MD, population health leader at Willis Towers Watson (WTW).  

“PrEP is 99% effective at preventing transmission of HIV,” Levin-Scherz said. “Brand name PrEP remains quite expensive, but the generic drug is currently available for under $17 a month. Therefore, I think many employers will not change their health plan benefits even if this ruling is upheld.” 

A key sticking point in the ongoing legal challenges against the ACA is the term “preventive care” is too broad and open-ended to hold up in court. As part of the decision, Judge O’Connor ruled that the United States Preventative Services Task Force (USPSTF) was formed in an unconstitutional manner, which could invalidate preventive services recommended by the committee. This requires insurers and employers to cover free screenings for cancer and heart disease, as well as programs for smoking cessation, among many others

“We expect most employers will continue to cover screening tests for cancer without cost sharing, because they recognize that these services improve health and some of them lower future costs,” Levin-Scherz said. “This coverage is also popular with employees, especially those who are in good health and choose insurance with high deductibles.”  

The ruling does not impact preventive services that are recommended by the Health Resources and Services Administration committee, which include certain free preventive services for children, such as autism and vision screenings and well-baby visits, and for women, such as mammograms, well-woman visits and breastfeeding support programs. 

Additionally, the ruling does not impact preventive services that are recommended by the Advisory Committee on Immunization Practices, which include immunizations at no charge for the flu, hepatitis, measles, shingles and chickenpox. 

As of now, it’s uncertain whether the ruling will apply broadly to all preventive services recommended by the USPSTF or whether the ruling will have applicability outside of the U.S. District Court’s jurisdiction. More information to address these questions is expected at a court hearing on Friday.  

More than 150 million people with private insurance can receive preventive services without cost-sharing under the ACA, according to a report published earlier this year by HHS. 

“The free preventive care guaranteed by the ACA for over 150 million Americans has become a bedrock of the American health care system, improving health outcomes, reducing disparities in care, and cutting consumer health care costs,” Leslie Dach, chair of Protect Our Care, an advocacy group, told CNN.  

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