Braidwood Management v. Becerraenacted last Wednesday, is the latest in a series of attacks on the Affordable Care Act (ACA).
Federal District Court Judge Reed O’Connor in Texas ruled that members of the US Preventive Services Task Force (USPSTF) were appointed in violation of the Constitution’s Appointments Clause. This has major implications for the ACA, which requires most health plans to cover USPSTF recommendations “A” or “B” without cost-sharing — clinical preventive services with a high certainty of substantial or moderate net benefit .
The decision puts key primary care services at risk, ranging from screenings for cervical, lung and colorectal cancer, heart disease and hepatitis, to smoking cessation services and counseling for sexually transmitted infections. The ACA’s preventive care protections benefit more than 150 million privately insured Americans, including many who get coverage through the health care exchanges — a huge step for public health and equity. Access to these services is now in balance.
Judge O’Connor also found that the ACA’s requirement to cover pre-exposure prophylaxis (PrEP)—a highly effective and life-saving HIV prevention drug—violated the Religious Freedom Restoration Act (RFRA). Justice O’Connor’s opinion is even more troubling for the door it opens to discrimination in health care under the guise of religious belief, and for its broader implications for the government’s ability to protect public health.
MCA Preventive Services Mandate and Appointments Clause
Justice O’Connor found that the members of the USPSTF were appointed in violation of the Constitution’s Appointments Clause, which requires that “officers” of the U.S. be duly appointed — for “principal officers,” by appointment of the President and confirmation by the Senate, and for “inferior officers,” by appointment of the President, the courts, or cabinet secretaries. Judge O’Connor held that the USPSTF members were officers of the US because their recommendations have significant implications for health coverage. He ruled that they are principal officers, but have not been nominated by the President nor confirmed by the Senate. Consequently, their selection was unconstitutional, as they were appointed by the Director of the Agency for Healthcare Research and Quality.
Judge O’Connor’s determination is legally erroneous because USPSTF members are unpaid national experts in prevention and evidence-based medicine. Compensation is a necessary component of any formalized employment relationship. Moreover, it was Congress itself that determined the legal impact of the USPSTF’s “A” and “B” recommendations.
Justice O’Connor is infringing on Congress’s authority to insulate decision-making from politics. The USPSTF takes the form it does precisely because it is so important to insulate independent experts from political interference.
Justice O’Connor — who previously struck down the entire ACA only to be overturned by the Supreme Court — appears determined to reverse the ACA’s coverage mandate. He has already rejected an HHS compromise to allow the Secretary to ratify USPSTF recommendations. The impact can be pervasive.
If USPSTF-recommended services (more than 50) were eliminated, insurers could stop covering or charging patients for key preventive services, affecting population health and burdening lower-income people who , in addition to greater exposure to health risks and poorer health outcomes, will also have to spend a greater percentage of their wages on preventive health care. Many will forgo preventive services altogether, failing to identify the disease in its early stages and generating much more serious and costly health problems down the road.
Ironically, this can increase the cost of insurance regardless of the fact that claimants come forward Braidwood Management were motivated by economic considerations.
Religious Freedom and PrEP
Judge O’Connor held that mandated coverage of PrEP “significantly burdened” the religious liberty of a for-profit Christian corporation in violation of RFRA. RFRA protects the free exercise of religion unless the restriction is narrowly tailored to advance a compelling interest.
The Supreme Court in 1997 ruled that RFRA was unconstitutional as applied to the states, but it still applies to the federal government. IN Hobby Lobby (2014), the Court struck down HHS’ contraception coverage mandate under the ACA as it applied to closely held corporations. Judge O’Connor held that PrEP coverage violated the plaintiffs’ sincerely held religious beliefs against homosexuality.
Far from advancing religious liberty, however, Justice O’Connor turned RFRA into a sword that anyone can wield to advance discriminatory religious beliefs. He has the law wrong, and his harmful conflation of religion with health care is a dangerous precedent as a matter of health policy and of everyone’s right to health without discrimination.
There is no evidence that PrEP encourages homosexual behavior, as the plaintiffs in the case allege. Justice O’Connor confuses sincerely held religious beliefs with acting on those beliefs. There is no factual evidence for the sincerity of a religious belief. But it’s quite another to accept at face value the link between homosexual behavior and the provision of PrEP—a factual assertion that is patently false and hateful.
Support in Hobby Lobbymoreover, it is wrong. Hobby Lobby found that contraception coverage would “enable or facilitate the commission of an immoral act by another.”
We believe Hobby Lobby was wrongly decided and allowed discrimination against women of childbearing age. But in Braidwood Managementinstead of facilitating homosexual behavior, all PrEP facilitates is disease prevention.
More troubling still is the judge’s finding that the government lacked a compelling interest. The life-saving potential of PrEP is indisputable, supported by a wealth of empirical evidence. In this regard, the decision is callous, elevating the religious beliefs of Braidwood’s owner over the lives of Braidwood’s employees.
until Hobby Lobby it was a somewhat close decision, Braidwood Management would open the door to RFRA exemptions based not on certain health care procedures, but on the right of certain people to receive equal health care services. Freedom of religion does not replace universal principles of non-discrimination, including people of different sexual orientations or gender identities. Attacks on gender-affirming care are already happening. Citing RFRA, the Fifth Circuit (on appeal from O’Connor) enjoined enforcement against certain religious entities under the ACA’s nondiscrimination requirement.
The most outrageous discrimination in health care — devaluing people’s lives based on religious objections to their basic dignity — may be possible if this ruling becomes widely applicable. Can a healthcare worker deny care to LGBTQ patients under the guise of encouraging unsavory behavior? Alas, this perverse view might just find an ally in a conservative Supreme Court supermajority. This would lend confidence from the highest levels that one’s religious beliefs can be used to prevent already marginalized populations from accessing health care in violation of the most fundamental principle of equality before the law.
Braidwood Management demonstrates the absurdity of “forum shopping” for judges sympathetic to reactionary interpretations of the law. And forum shopping for conservative judges has gotten a lot easier with former President Trump appointing 226 judges — more than a third of all federal judges, including 54 federal appeals judges (grabbing several Courts of Appeals ) and three very conservative justices (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett), all 55 or younger.
The sad truth is that even the most flawed and discriminatory rulings by lower federal court judges can find a friendly reception in the nation’s highest court, and for decades to come.
Lawrence O. Gostin, JD, is a university professor, Georgetown University’s highest academic rank, where he directs the O’Neill Institute for National and Global Health Law. He is also director of the World Health Organization Collaborating Center for National and Global Health Law and author of Global health security: A blueprint for the future. Eric A. Friedman, JD, is a global health law scholar at the O’Neill Institute for National and Global Health Law at Georgetown University Law Center. Alexandra Finch, LLM, is a fellow at the O’Neill Institute for National and Global Health Law.