ACA’s Preventative Care Coverage and Religious Freedom


Braidwood Management v. Becerra

Brief Summary: A Federal District Court in Texas struck down the Patient Protection and Affordable Care Act’s (ACA) preventative services coverage requirement relying on both religious and constitutional grounds to permit employers to limit coverage for these services

Background: The ACA requires health plans to cover a variety of preventive services without cost sharing, such as copays, coinsurances, or deductibles. The preventive services mandate applies to all private plans, including individual, small and large group, and self-insured plans.

The list of preventative services covered under this mandate are created by three entities: (1) the Preventative Services Task Force which scores evidence-based services and requires all services receiving an “A” or “B” score to be covered with no cost-sharing; (2) the Advisory Committee on Immunization Practices (“ACIP”) which recommends vaccines for children and adults; and (3) the Health Resources and Services Administration (HRSA) which develops preventative care guidelines for women and children.

The claims alleged by Braidwood Management are brought under three clauses of the constitution: the Appointments Clause, the Vesting Clause, and the non-delegation doctrine. The Appointments Clause empowers the President to appoint “principal officers” with the advice and consent of the Senate. The Vesting Clause vests executive power to the President, who must “take care that the laws be faithfully executed.” The non-delegation doctrine is a principle dictating that Congress cannot delegate its legislative powers to other entities. Claims were also brought under the Religious Freedom of Restoration Act (RFRA), which prohibits the government from substantially burdening a person’s exercise of religion.

Overview: The plaintiffs are individuals and business sued the Department of Health and Human Service, the Department of the Treasury, and the Department of Labor because they wanted to exclude services currently required by the preventative care mandate from the health plan coverage they offered. The plaintiffs, made three claims regarding the preventive services mandate. First, the plaintiffs argued that the preventative services mandate violates the Appointments Clause because members of the Preventative Service Task Force were unconstitutionally elected without presidential appointment and Senate confirmation.

Second, they argued that the preventative services mandate violated the Vesting Clause, because members of the Preventative Services Task Force were unconstitutionally exercising Executive Presidential power to determine which services are included in the preventative services mandate.

Third, plaintiff’s argued that the preventative services mandate violated the nondelegation doctrine, because the Preventative Services Task Force, ACIP, and HRSA, were all unconstitutionally exercising decision-making authority delegated to Congress when they determined which services should be included under the preventative services mandate.

Lastly ,plaintiffs alleged that being required to cover an HIV prevention medication known as preexposure prophylaxis (PrEP), violated the Religious Freedom Restoration Act because it substantially burdened the exercise of their religious beliefs because it “facilitate[d]and encourage[d]homosexual behavior, prostitution, sexual promiscuity, and intravenous drug use.”

Court Updates: On September 7, 2022, Judge Reed O’Connor, a Federal District Court Judge in the Northern District of Texas, held that the ACA’s PrEP preventive care coverage mandate was unconstitutional because it violated the Religious Freedom Restoration Act. The court reasoned that providing this coverage would substantially burdened the employer’s freedom of religion, which, as plaintiffs argued, “would make [them]complicit in behaviors that violate [their]religious beliefs.”

Additionally, the court held that the delegation to the Preventative Services Task Force violated the Appointments Clause because members are “principal officers” who were appointed by the director of the Agency for Healthcare Research and Quality, rather than being appointed by the President and confirmed by the Senate.

Lastly, the court rejected the arguments regarding the Vesting Clause and the nondelegation doctrine. The decision can be read here.

Current Status: While the court did hold that the preventative services mandate violated the Religious Freedom and Restoration Act and the Appointments Clause of the U.S. Constitution, the court has not yet decided how this violation will be fixed by the parties.

Therefore, the parties are currently supplying the Court with additional information regarding the scope of the appropriate remedy. After the court determines the plaintiff’s appropriate relief, this ruling is likely to be appealed to the Fifth Circuit Court of Appeals.

Impact: The preventative services coverage requirement ensures over 167 million Americans receive preventive services without cost-sharing through their private health plans. If this decision is upheld plans will no longer be required to cover preventative care services at no cost sharing to the patient, including screenings for breast, lung, cervical, and colorectal cancers; heart disease; hepatitis B and C, and hypertension, among many others. Without the mandate, coverage of these preventive services would vary from plan-to-plan, resulting in consumers forging screening because of cost and experiencing worse long-term health outcomes.


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