On March 4, Fifth Circuit Court of Appeals to Hear Oral Arguments in Braidwood Case
Extremists aiming to strike down a key portion of the Affordable Care Act (ACA) are scheduled to give oral arguments before a panel of judges at the Fifth Circuit Court of Appeals on March 4. The plaintiffs are challenging a provision of the ACA that requires insurers to cover lifesaving preventive services for free, and they are dissatisfied with a lower court’s ruling last year that overturned a narrow set of services recommended by the U.S. Preventive Services Task Force (USPSTF) after the passage of the ACA, blocked required coverage of USPSTF’s future recommendations, and allowed employers to refuse to cover certain preventive services on religious grounds. The plaintiffs now want the appeals court to go further and eliminate guaranteed free coverage of vaccines and women’s preventive services like cancer screenings, prenatal care, and contraception.
“Lifesaving preventive care under the ACA is at risk,” said Protect Our Care Chair Leslie Dach. “More than 150 million Americans rely on these benefits to get no-cost access to routine screenings for cancer, diabetes, mental health, and heart disease, recommended vaccinations, contraception and pregnancy-related care, and more. If the MAGA-backed plaintiffs get their way, it will put Americans at the mercy of insurance companies and employers once again, empowering them to charge high out-of-pocket costs and refuse to cover certain preventive benefits entirely. As a result, more Americans will suffer because their cancers will be detected too late or they won’t receive the mental health or prenatal care they need.”
Background
Last March, District Judge Reed O’Connor – the same Federal District Court judge whose decision invalidating the entire ACA was reversed by the Supreme Court in 2021 – struck down a portion of the ACA’s preventive health services mandate, invalidating key, no-cost services recommended by the USPSTF after the ACA’s enactment. The government immediately appealed the decision, and the Fifth Circuit paused the ruling and temporarily reinstated the requirement that insurers cover those preventive services, but the Fifth Circuit could choose to revoke the stay at any time.
The ACA’s elimination of out-of-pocket costs for these lifesaving screenings and services has transformed how preventive care is delivered, saved countless lives, improved health outcomes, reduced disparities in care, and cut consumer health care costs. Guaranteed no-cost coverage of preventive services, including screenings for chronic disease, is a key factor in expanding access to these services – which together with actions to address other social and structural determinants of health – are advancing health equity.
The Braidwood case is driven by extremist, longtime foes of the ACA, abortion rights and reproductive freedom, marriage equality, vaccination mandates, and diversity policies – but the stakes are even higher than before. The case, which was originally decided by the same judge whose decision invalidating the entire ACA was reversed by the Supreme Court in 2021, will now be decided by two extreme Trump appointees. These radical judges could strike down coverage for these essential preventive services at any time, removing the current stay on the lower court’s ruling and putting free preventive services on the chopping block for more than 150 million Americans covered through private health insurance.
Here are just some of the lifesaving, no-cost benefits that could be invalidated by MAGA judges on the Fifth Circuit if the panel lifts the stay and allows the district court ruling to stand:
- GONE – Free, Guaranteed Cancer & Health Screenings. O’Connor’s ruling struck down ACA provisions requiring insurers to cover screenings for serious health issues including breast cancer, colorectal cancer, lung cancer, Hepatitis C, and HIV.
- GONE – Free, Guaranteed Preventive Medication For Cardiovascular Disease. O’Connor’s ruling struck down ACA provisions requiring insurers to cover drugs that can lower cholesterol for certain adults at risk of developing cardiovascular disease.
- GONE – Free, Guaranteed Substance Use Screenings. O’Connor’s ruling struck down the ACA requirements that insurers cover screenings for unhealthy drug use.
- GONE – Free, Guaranteed Preventive Treatment for Pregnancy Complications. O’Connor’s ruling struck down the ACA requirements that insurers cover medications used to prevent life-threatening complications in pregnancy like preeclampsia as well as mental health interventions for pregnancy-related depression.
- GONE – Free, Guaranteed PrEP. O’Connor’s ruling struck down the ACA requirements that guarantee access to pre-exposure prophylaxis (PrEP), a drug proven to substantially reduce the risk of contracting HIV. PrEP has been associated with a significant decrease in the number of new HIV diagnoses.
If the Fifth Circuit agrees with the plaintiffs, they will eliminate the following additional services:
- GONE – Free, Guaranteed Vaccinations. The ACA requires that over a dozen vaccinations, ranging from meningitis and pneumonia to flu shots, be covered free of charge for adults and children.
- GONE – Free, Guaranteed Contraception & STI Counseling. The ACA guarantees women access to contraception without cost sharing, screenings for HIV, and counseling for sexually transmitted infections (STIs). Over 58 million women have benefited from free access to contraceptives, saving billions of dollars in out-of-pocket spending.
- GONE – Free, Guaranteed Pregnancy Screenings & Treatments. The ACA requires free access to a variety of preventive services related to pregnancy, including preeclampsia screenings, breastfeeding equipment like pumps and bottles, folic acid, and screenings for perinatal diabetes, in order, to support healthy pregnancies and fight the maternal mortality crisis.
- GONE – Free, Guaranteed Routine Infant & Child Health Care. Under the ACA, all newborns have access to free, universal newborn screening and young children. As they grow, children are required to have free access to essential health screenings, behavioral assessments, growth measurements, behavioral assessments, routine childhood vaccinations, vision and dental screenings, and other essential preventive services.
- GONE – More Free, Guaranteed Health Screenings. The ACA requires plans to cover screenings and counseling for a wide array of health issues, including risk factors for heart disease – the leading cause of death in the U.S. – like high blood pressure, high cholesterol, diabetes, and obesity.
- GONE – Free, Guaranteed Mental Health & Substance Use Screenings. Under the ACA, insurers are required to cover a wide range of preventive assessments and treatments related to mental health and substance use, including depression, anxiety in adolescent and adult women, alcohol misuse, tobacco use, and adolescent drug use.
What Happens Next
The appeal is being made before the Fifth Circuit Court of Appeals, a circuit “where law goes to die” packed with MAGA appointees and ultra-conservative judges that have relentlessly chased an extreme agenda threatening health care access. If the Fifth Circuit approves a full reversal of the preventive services requirement, it would set off a massive disruption in the American health care system putting more than 150 million Americans at risk of losing access to no-cost preventive care when their insurance renews.
Two of the three judges deciding the case, Don Willett and Cory Wilson, are extreme Trump appointees with long records of opposition to affordable health care, green-lighting abortion bans, medical misinformation campaigns, and anti-vaccine cases. Read more about these extreme MAGA judges here. Regardless of the outcome, the case will almost certainly end up at the Supreme Court.
Who Is Behind It?
The Braidwood v. Becerra Plaintiffs Have Repeatedly Sued To Overturn Parts Of The ACA. Plaintiff John Kelley filed an earlier and similar class action lawsuit against the ACA’s contraceptive mandate in DeOtte v. Azar. Kelley, his company Kelley Orthodontics, and Joel Starnes – all plaintiffs in Braidwood v. Becerra – brought a similar suit again in 2020 in Kelley v. Azar. Another plaintiff, Braidwood Management, owned by Dr. Steven Hotze, was also a plaintiff in DeOtte and has previously brought and lost challenges to other parts of the ACA. In addition to being a plaintiff in previous efforts to overturn the ACA, Hotze is a vocal advocate for multiple far-right conspiracy theories, claiming COVID-19 was an invention of the “deep state,” suggesting equal rights for LGBTQ+ individuals would lead to child molestation, and bankrolling election fraud vigilantism after making false claims regarding voter fraud in the 2020 election.
The Lead Attorney For The Plaintiffs In Braidwood v. Becerra Is One of the Key Authors of SB8, Texas’ Vigilante Anti-Abortion Law. The lead attorney for the plaintiffs is Jonathan Mitchell, “who helped craft the Texas abortion law that was designed to evade judicial review by leaving enforcement to private citizens instead of government officials.”
- Mitchell Filed Briefs Arguing the Supreme Court Should Overrule its Decisions Protecting Marriage Equality and Invalidating Anti-Sodomy Laws. Mitchell filed a brief in the Dobbs case urging the Supreme Court to overturn Roe v. Wade–and criticized Mississippi for suggesting that the Court could leave in place its 2015 ruling in Obergefell v. Hodges, holding that same-sex couples have the right to marry in all states. He said that Obergefell and Lawrence v. Texas, the 2003 ruling that invalidated all remaining state anti-sodomy laws, “are judicial concoctions, and there is no other source of law that can be invoked to salvage their existence.” Mitchell has also referred to PrEP, a life-saving medication that prevents HIV infection as a drug that would “facilitate and encourage homosexual behavior, prostitution, sexual promiscuity, and intravenous drug use.”
The Plaintiffs In Braidwood v. Becerra Are Also Represented By The Trump-Aligned America First Legal Foundation. The plaintiffs are “represented by America First Legal Foundation, a nonprofit led by senior members of President Donald Trump’s administration, including Trump senior adviser Stephen Miller.”
- America First Legal Has Supported Suits To Overturn Vaccine Mandates And Block “Critical Race Theory.” America First Legal is involved in numerous hot-button conservative legal actions. AFL has supported suits seeking to overturn vaccine mandates and sued companies that have policies to increase diversity in their workforces. The group has also filed suits alleging that pandemic aid for minority farmers is “racist” and trying to force the Biden administration to stop allowing immigrant children into the country.
- America First Legal Was Established By Former Trump Aide Stephen Miller “To Make Joe Biden’s Life Miserable.” America First Legal was founded by former Trump aide and white nationalist Stephen Miller who was “looking to use it to make Joe Biden’s life miserable.” He was also the architect of the Trump administration’s harshest immigration policies and a supporter of the forced sterilizations committed by ICE in Georgia.
Why The Plaintiffs’ Legal Arguments Are Wrong
The plaintiffs make three primary legal arguments – all are wrong. The plaintiffs will likely raise these arguments as the case is appealed.
The Plaintiffs’ First Argument: Plaintiffs argue that the law violates the Appointments and Vesting Clauses of the Constitution because members of the United States Preventive Services Task Force (USPSTF), Advisory Committee on Immunization Practices (ACIP), and Health Resources and Services Administration (HRSA) have not been nominated by the President or confirmed by the Senate and, according to the plaintiffs, can “unilaterally determine” the preventive care that must be covered by insurers and plans.
Why The Plaintiffs Are Wrong: Congress made a conscious decision to require coverage of preventive services — specifying bodies that utilized well-established standards to guide their decisions — and ensured each entity in question (USPSTF, ACIP, and HRSA) is overseen by federal agencies whose heads have been appointed by the President and who all report to a senior official appointed by the President and confirmed by the Senate (the Secretary of Health and Human Services [HHS]). USPSTF members are appointed by the head of the Agency for Healthcare Research and Quality, who reports to the Secretary of HHS. The HRSA Administrator reports to the Secretary of HHS. The members of ACIP are appointed by the CDC Director who reports to the Secretary of HHS. HRSA is a component of HHS.
The Plaintiffs’ Second Argument: The preventive services provision violates the nondelegation doctrine because it delegates legislative power to the USPSTF, ACIP, and HRSA without providing an “intelligible principle” to guide their exercise of discretion.
Why The Plaintiffs Are Wrong: Congress required the coverage of evidence-based and preventive services, and it specified bodies that applied well-established standards to guide their decisions. By specifying those bodies, Congress plainly endorsed and incorporated the standards that they utilized, and those standards provide a sufficient “intelligible principle” to limit discretion and govern the recommendations and guidelines that must be covered under the ACA.
The Plaintiffs’ Third Argument: The plaintiffs claim they have religious objections to paying for one of the preventive services mandated by the ACA — PrEP, a drug essential to HIV prevention – and that requiring coverage of this medication is a violation of the Religious Freedom Restoration Act (RFRA).
Why The Plaintiffs Are Wrong: As the Department of Justice explains in its court filings, the plaintiffs have not shown that their religious beliefs are burdened because they failed to prove that the availability of PrEP medications encourages behavior inconsistent with their beliefs or that the PrEP requirement causes an increase in their cost for health insurance. In addition, preventing the spread of HIV, a potentially fatal, infectious disease, is a compelling government interest–which is a separate basis for rejecting the RFRA claim.
Here’s What Health Experts Have Said About The Case
- Over 100 Public Health Experts: If Successful, Plaintiffs’ Appeal “Would Result in Serious Illness and Deaths That Otherwise Would Have Been Prevented.” A coalition of 107 public health deans and professors—led by the American Public Health Association—urged the court not to end guaranteed preventive coverage because it “would result in serious illnesses and deaths that otherwise would have been prevented,” and, “would eliminate guaranteed cost-free access to preventive services in the other three statutory categories—immunizations; preventive treatments for infants, children, and adolescents; and preventive services for women.”
- American Medical Association et al.: Invalidating the Preventive Health Services Mandate “Will Result In Worse Health Outcomes And Impose Higher Costs On The Health System.” A coalition of 20 leading medical organizations—led by the American Medical Association—warned that striking no-cost coverage of preventive services would threaten public health: “[A]pproximately 233 million people are currently enrolled in health plans that must cover preventive services without cost-sharing. That means that, in addition to the preventive services for adults covered by the USPSTF recommendations…millions of people now have access to no-copay vaccinations. And women and children have access to the specific preventive care recommended for their populations, allowing these individuals to avoid acute illness, identify and obtain treatment for chronic conditions, and improve their health. These recommendations have been critical to improving public health. […] Deterring patients from receiving these vital services will result in worse health outcomes and impose higher costs on the health system.”
- The National Women’s Law Center: Millions of Women Who Rely on the ACA’s No-Cost-Sharing Coverage To Access Preventive Care Will Be Harmed. The National Women’s Law Center submitted an amicus brief in support of the government, writing, “[P]roviding these services without cost-sharing has helped to remedy discrimination in women’s health care and coverage and increased overall uptake of these services, improving women’s health and economic security and reducing racial disparities in both the use of these services and in health outcomes for populations facing multiple and intersecting forms of discrimination […] Further, the health and well-being of the millions of women who rely on the ACA’s no-cost- sharing coverage to access preventive care and who benefit from the resulting improvements to their health and economic security will be harmed.”
- American Cancer Society et al.: Reducing Insurance Coverage For Preventable Services Will Lead To Worsening Patient Outcomes, Preventable Deaths, and Higher Medical Costs. A coalition of 16 patient advocacy organizations—led by the American Cancer Society—urged the court not to end guaranteed preventive coverage because, “Detecting severe diseases early allows for less invasive, more effective, and lower-cost treatment options, and substantially improves patient outcomes. Reducing insurance coverage for preventive services will lead to the opposite result—worsening patient outcomes, leading to preventable deaths, and creating higher long-term medical costs.”
- American Lung Association et al.: Patients Could Discontinue Life-Saving Medications Despite Health Risks if Insurers Resume Cost-Sharing on Preventive Services. A coalition of 12 patient advocacy organizations–led by the American Lung Association–warned the court of “the demonstrated, severe public health effects of cost barriers” that invalidating guaranteed preventive coverage would “ameliorate,” writing: “If insurers impose cost-sharing requirements for patients to receive these life-saving medications, research suggests that patients could discontinue use despite the health risks.”
