About 150 million Americans, including 37 million children, may be cut off from potentially life-saving health care depending on the outcome of an Obamacare case set for oral arguments in a federal appeals court March 4.
The New Orleans-based US Court of Appeals for the Fifth Circuit is reviewing a decision that struck down aspects of an Affordable Care Act mandate that requires private insurers to pay in full for certain preventive care services.
The mandate is one of “most important aspects of the Affordable Care Act,” according to Stacey Lee, an attorney and associate professor at the Johns Hopkins Bloomberg School of Public Health in Baltimore. And the case presents a vehicle for undermining the 2010 law that was intended to expand access to health care and lower costs for all Americans, she said.
It’s “a really big deal,” Lee said.
Cost Barrier
At issue is a decision by one federal judge in Texas, who in March 2023 limited the types of cost-free services that must be covered by employer-provided health plans. Judge Reed O’Connor, of the US District Court for the Northern District of Texas, vacated no-cost coverage requirements for services ranging from cancer and mental health screenings to drugs that prevent new HIV infections.
These services are “key” to keeping people healthy, Leslie Dach, chair of Protect Our Care in Washington, told Bloomberg Law. The nonprofit is one of many patient advocacy groups that have urged the Fifth Circuit to overturn the ruling, saying it endangers people’s health nationwide.
The court’s decision “will dramatically affect people’s behavior” with respect to seeking out preventive care, Dach said.
Judges Don R. Willett, Cory T. Wilson, and Irma Carrillo Ramirez will hear the arguments at the Fifth Circuit.
Requiring people to pay even minimal cost-sharing amounts leads them to skip screenings for conditions like cancer and diabetes, said Eric Waskowicz, senior policy manager for United States of Care, another group that supports the government in the appeal.
A decision having that effect “will reverse the progress that’s been made so far” in terms of increasing access to health-care services, lowering costs, and increasing health equity, Waskowicz said.
No Accident
The plaintiffs’ choice of a federal forum in which O’Connor is the only judge “wasn’t an accident,” Dach said. The judge struck down the ACA in its entirety in 2018, though the US Supreme Court overturned that decision.
This time, the plaintiffs took a different approach, Lee said. Rather than attacking the law as a whole, they challenged the authority of three committees that Congress charged with recommending which preventive services must be covered in full, she said.
O’Connor upheld recommendations made by the Health Resources and Services Administration and the Advisory Committee on Immunization Practices. But he struck down the US Preventive Services Task Force’s post-March 23, 2010, recommendations, saying the group’s members were government officials who hadn’t been properly appointed under the US Constitution’s appointments clause.
The PSTF’s recommendations included pre-exposure prophylaxis drugs taken to prevent human immunodeficiency virus infections, like Truvada.
O’Connor held earlier in the case that requiring Christian employers like plaintiff Braidwood Management Inc. to pay for medications chiefly used by gay men violated their rights under the Religious Freedom Restoration Act.
Secretary of Health and Human Services Xavier Becerra didn’t appeal the RFRA issue but challenged O’Connor’s decision regarding the PSTF. The plaintiffs cross-appealed the ruling on the other boards.
‘Fourth Branch’
The question comes down to one of government accountability, according to Jay Carson, senior litigation counsel for the Buckeye Institute, a Columbus, Ohio, think tank that works to advance free-market policies.
The group filed a friend of the court brief supporting the law’s challengers, arguing that the PSTF was designed to be an advisory-only body but was transformed by the ACA into a board capable of issuing edicts to employers and insurers.
This raises the specter of a “fourth branch of the government” made up of unelected, unconfirmed individuals, who aren’t accountable to voters, Carson said. “No one disputes that early detection” of preventable medical conditions is important, but the PSTF exceeded the scope of its authority, he said.
The government disputed the point, saying that the PSTF’s members were subject to agency supervision and that HHS had ratified their recommendations.
As explained by Allison Hoffman, a professor at the University of Pennsylvania Carey Law School in Philadelphia, the government is arguing that the secretary can remove task force members and accept or reject their views.
One of Congress’ goals in giving the task force the job of proposing services eligible for cost-free coverage was to give HHS access to outside medical experts who were free from political pressure, Lee said.
Nondelegation Doctrine
While the decision’s practical impact shouldn’t be underestimated, the Fifth Circuit may pick up on a broader issue that could attract the US Supreme Court’s attention and affect a wide variety of cases—whether Congress improperly delegated its lawmaking authority to an advisory committee, Hoffman said.
The nondelegation doctrine holds that Congress can’t transfer its law-making authority to other entities, such as federal agencies or private parties, unless it gives them an “intelligible principle” on which to base their regulations.
O’Connor rejected Braidwood’s nondelegation doctrine claim, but these arguments were revived on appeal and could be reviewed by the Fifth Circuit, Lee said.
The appeals court isn’t likely to overturn O’Connor on this question, but the Supreme Court may be open to addressing administrative law issues, Hoffman said.
The last time the nation’s top court struck down regulations for not meeting the intelligible principle test was in 1935, Lee said. At least three justices have indicated in other cases that they’re open to considering nondelegation doctrine questions
Jonathan Mitchell of Austin, Fillmore Law Firm LLP, and America First Legal Foundation represent the plaintiffs. The US Department of Justice represents the government.
The Johns Hopkins Bloomberg School of Public Health is supported by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.
The case is Braidwood Mgmt v. Becerra, 5th Cir., No. 23-10326, oral arguments 3/4/24.