Health Law’s Preventive Care Mandate Curbed by Appeals Court (1)

Broad access to cost-free health insurance coverage for a range of medical services remains available but still threatened for many Americans following a federal appeals court’s Friday decision partially halting the US’s enforcement of Obamacare’s preventive services mandates.

The US Court of Appeals for the Fifth Circuit stopped the US Department of Health and Human Services from enforcing one government board’s coverage recommendations against employers found to have standing to challenge them, but said that Judge Reed O’Connor’s solution—vacating all actions taken to enforce the mandates and universally halting them—was too broad. The court allowed nationwide coverage mandates to continue for now, but sent the case back to O’Connor to decide whether recommendations made by two other boards are valid.

The case is yet another aimed at doing away with the Affordable Care Act, this time attacking one of the law’s key features—a provision intended to ensure that Americans can access and afford preventive health-care measures that lead to early detection and treatment of medical conditions, like cancer screenings or drugs to prevent new cases of HIV.

“Thankfully this decision today by the Fifth Circuit didn’t take access to preventive care away from the more than 150 million Americans who rely on it,” Protect Our Care Chair Leslie Dach said in a press release. But “unfortunately this lifesaving care is still under threat” he said. “The MAGA Republican ‘Project 2025’ blueprint calls for repealing the ACA completely,” he said.

The US Supreme Court is very likely to be asked to review the decision, which appears to offer both good and bad news for groups fighting to preserve the mandates.

Appointments Clause

The court’s decision turned on the complex legal question of whether members of three boards that recommend the services to be covered in full were “principal officers” who must be nominated by the president and confirmed by the Senate. The government argued that US Health and Human Services Secretary Xavier Becerra’s authority to remove the members at will made them “inferior officers” who weren’t required to be appointed under the US Constitution’s appointments clause.

Fifth Circuit Judge Don R. Willett’s opinion rejected the government’s contention with regard to the the Preventive Services Task Force. It didn’t appear that Becerra exercised any meaningful supervision over the board, and the statute under which members were appointed “contemplates complete autonomy,” he said.

Private insurers were legally required to cover the PSTF’s preventive-care recommendations, and neither the secretary nor anyone else could review, revise, or reject them, Willett said. The members thus were principal officers, the court said. It went on to say that, because the secretary didn’t have authority to review, revise, or issue the preventive care recommendations, he couldn’t have ratified them.

Appropriate Relief

The circuit court struck down O’Connor’s decision to the extent that it vacated the task force’s recommendations and issued a universal injunction against their enforcement.

There was “sound logic” in the plaintiffs’ argument that their successful constitutional challenge to the PSTF’s coverage mandates necessarily implicated the lawfulness of agency actions taken under them, but there could be no Administrative Procedure Act remedy absent an claim under that law, which the plaintiffs didn’t bring, it said.

There also was no support for the universal injunction, the court said. This case didn’t fall within any of the narrow categories that merit universal injunctive relief, it said.

Other Boards

The court allowed recommendations by two other boards—the Advisory Committee on Immunization Practices and the Health Resources and Services Administration—to stand for now, saying it appears that superior officers had authority to approve or deny them.

The Fifth Circuit declined, however, to accept the secretary’s ratification of them at this time. It sent the case back to O’Connor to determine if Becerra properly ratified the guidelines.

Judges Irma Carrillo Ramirez and Cory T. Wilson joined.

Attorneys for the plaintiffs didn’t immediately respond to a request for comment.

US Department of Justice represented Becerra. Jonathan Mitchell, of Austin, Texas; Fillmore Law Firm LLP; and America First Legal Foundation represent the plaintiffs.

The case Braidwood Mgmt., Inc. v. Becerra, 5th Cir., No. 23-10326, 6/21/24.