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Judge orders end to many ACA preventative care coverage requirements, including PrEP and cancer screenings
Judge Reed O'Connor, a conservative Texas federal judge, earlier suggested this ruling was coming. Contraceptive care requirements remain. Update: DOJ is appealing.
A federal judge in Texas barred the federal government from enforcing the preventative care coverage requirements under the Affordable Care Act as to a wide variety of services, including the HIV-prevention drug regimen known as PrEP and various cancer screenings.
U.S. District Judge Reed O’Connor issued the ruling on Thursday morning in an employer-based challenge that included several religious-based objections to the preventative care requirements, Braidwood Management v. Becerra.
There is no word yet from the Justice Department on whether it will appeal the ruling, but it would be shocking if it does not (unless the administration has come up with an alternative strategy for maintaining the coverage requirements).
“For over a decade, the Affordable Care Act has ensured that millions of Americans have access to critical preventative health care. We’re currently reviewing the Court’s decision and will be assessing our options,” a Justice Department spokesperson told Law Dork early Thursday evening.
[Update, 1:45 p.m. March 31: The Justice Department filed notice that it will be appealing O’Connor’s decision.]
O’Connor, among other decisions supporting conservative challenges, has previously issued multiple rulings striking down aspects of the ACA — including a ruling, since overturned, that struck down the whole law.
In the current case, O’Connor had previously ruled that the group that makes many preventative care recommendations, the U.S. Preventative Services Task Force (PSTF), is appointed in violation of the Appointments Clause of the U.S. Constitution.
For more discussion of the Appointments Clause decision, go read that section in the September 2022 Law Dork post on the earlier opinion in this case.
Because of that, O’Connor ruled Thursday, its recommendations regarding preventative care cannot be used to create preventative care coverage requirements under the ACA and the government is barred from enforcing its recommendations are requirements going forward.
In an opinion accompanying the final judgment in the case, O’Connor wrote that “a universal remedy is appropriate” in the case — a complete wiping out of any government actions taken under the ACA “to implement or enforce the preventive care coverage requirements” based on the PSTF’s recommendations.
The task force, which existed for about 25 years before the ACA, was one of three entities assigned by the ACA whose work provided the basis for the extensive preventative care coverage requirements that are a key part of the ACA. As to the PSTF, coverage is required for services the PSTF gives an “A” or “B” recommendation. Two other groups, the Advisory Committee on Immunization Practices (ACIP) of the Centers for Disease Control and Prevention and the Health Resources and Services Administration (HRSA), also were assigned by the ACA as providing other bases for coverage requirements.
O’Connor rejected Appointments Clause challenges — on the evidence in front of him — to ACIP and HRSA. As such, the challenges to the contraception coverage requirements that came out of the HRSA guidelines failed — meaning the contraception coverage requirements stand.
O’Connor also had previously ruled that the PrEP coverage requirement, specifically, violates the Religious Freedom Restoration Act (RFRA) as well, and thus cannot be enforced against plaintiffs challenging the requirement.
For more discussion of the PrEP RFRA decision, go read that section in the September 2022 Law Dork post on the earlier opinion in this case.
Echoing that earlier ruling in the case, O’Connor held in the opinion on Thursday that the government defendants “have not carried their burden to show that the PrEP mandate merits the substantial burden on Plaintiffs’ religious exercise.” As such, his final judgment in the case included a ruling barring the government from enforcing the PrEP coverage requirement “as against these plaintiffs.”
O’CONNOR’S REMEDY: In Thursday’s opinion, O’Connor spent a significant part of the ruling considering the arguments surrounding how to address the Appointments Clause violation that he found existed for the PSTF. As noted above, he decided to implement the most expansive possible remedy: vacating all agency actions that resulted from the PSTF recommendations and barring the agency from “implementing or enforcing” PSTF’s “A” or “B” recommendations as coverage requirements in the future.
The government had argued that O’Connor could address the Appointments Clause violation by severing a portion of the law stating that PSTF “shall be independent and, to the extent practicable, not subject to political pressure.” The Justice Department argued, in O’Connor’s words, that doing so “would permit the Secretary of HHS to review and approve the Task Force’s recommendations,” thus curing the Appointments Clause violation.
O’Connor, however, rejected this argument because, he wrote, the PSTF “is not part of HHS or any federal agency and is not, therefore, automatically subject to the Secretary’s ‘supervision and direction.’” Even if it were, he continued, he would not find DOJ’s argument convincing because it “might permit the Secretary to authorize or reject PSTF’s recommendations post hoc but it would not compel him to take such action.”
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