Braidwood Management v. Becerra is the latest in a long chain of attacks on the rights of the LGBTQ+ community. The case puts into question insurance coverage for pre-exposure prophylaxis (PrEP), as well as many other preventive services.
The heart of the legal challenge is the preventive services mandate in the Affordable Care Act (ACA), which requires employer health plans and other private insurance to cover preventive care. Beyond PrEP, preventive care includes testing for sexually transmitted infections, contraception, and some vaccinations. The preventive services mandate was a revolutionary step for the American health care system and a giant leap forward for public health. District Court Judge Reed O’Connor, the judge in the Braidwood opinion, is well known in the health policy world as a frequent opponent of the ACA’s health care expansions, and his opinion throws access to lifesaving care into deep uncertainty.
Nothing changes for now, as the government filed an emergency appeal to stay O’Connor’s decision and the Fifth Circuit Court of Appeals granted that stay. This means the government can continue to mandate that insurers cover preventive care until the Fifth Circuit decides the case or, perhaps, we see another health law case rise to the Supreme Court.
The Decision
The case from the District Court, Braidwood Management v. Xavier Becerra, arose primarily from religious objections by employers to mandates that they cover services like contraception and PrEP. The employers claimed that the exercise of their religion was in jeopardy and that the sexual practices enabled by these health care services violate their Christian beliefs.
The employers relied on the Religious Freedom Restoration Act, a law passed by Congress in the 1990s. That law prevents government intrusion into deeply held religious beliefs unless the government has a compelling interest and limits religion in the “least restrictive means” possible. The law was intended to solidify constitutional protections of religious freedom, but it has come to be used and abused by courts to make sweeping decisions impacting historically marginalized people.
In Braidwood, Judge O’Connor ruled that the government’s interest in insurance coverage for a PrEP mandate did not reflect a compelling enough interest to justify restricting the religious exercise of employers. O’Connor acknowledged that sometimes the government can restrict freedoms to protect public health but insisted that the government must prove to a certainty that this is necessary, against all other options. In his opinion, the government was not able to prove this adequately. O’Connor thus struck down the preventive services mandate as unconstitutional.
If O’Connor’s judgment prevails in the long run, businesses and private insurers will be free to choose whether they will cover PrEP, almost certainly resulting in the loss of coverage for many people who desperately need it. Employers and insurers will have to argue that they have a religious objection to coverage, but the bar for proving that is extremely low, and certainly many organizations may be motivated by cost.
The Aftermath
On March 30, 2023, Judge O’Connor issued a final ruling on the case. In this opinion, he went even further and attacked the constitutionality of the United States Preventive Services Task Force (USPSTF), the task force assigned to determine what services must be covered under the ACA’s preventive services mandate. Put simply, Judge O’Connor held that the task force violates the Appointments Clause, opining that the officials on the task force are not properly appointed by the president and supervised by appointed secretaries or officials.
This represents an even larger attack on preventive health. While O’Connor’s earlier opinion would allow a religious escape hatch for unwilling insurers and employers, this opinion would mean that the very process of mandating coverage (and identifying which services to mandate) no longer exists. If Judge O’Connor’s opinion on the Appointments Clause prevails, to restore the work of the USPSTF, members of the USPSTF would need to be approved by the president with advice and consent by the Senate. If this proved politically infeasible, as it very likely would, then the committee could not be re-banded. Preventive benefits mandates would likely need to come from Congress, if anywhere.
What Happens Next?
The federal government appealed O’Connor’s decision and, as mentioned earlier, the Fifth Circuit has issued a stay until it can render a judgment on the case, meaning that the PrEP mandate is safe until a further decision is made.
If the ruling from Judge O’Connor is upheld, there will be devastating effects on the health of many, but especially vulnerable communities. If employers refuse coverage of PrEP, many will be uninsured for essential care. Considering the market price of PrEP, it is safe to assume that it would be out of reach for the average person, if we are to assume that the number of employers refusing to cover PrEP grows―especially in the absence of a fully implemented national PrEP program.
What happens next depends on how much, if any, of O’Connor’s opinion gets adopted. The outcome could range from all preventive mandates remaining in place to employers and insurers being free to religiously object to coverage or, in the most extreme case, public health bodies being dismantled and all mandates to cover preventive care dying a painful death.
Minimally, given Burwell v. Hobby Lobby Stores, a prior Supreme Court case upholding closely held corporations’ religious freedoms to deny contraception coverage, there is precedent for a rejection of ACA provisions on similar objections from religious employers. In this case, the ACA’s contraceptive mandate was struck down for privately owned businesses that religiously object to such a mandate.
The legal battle ahead will prove to be rough for those who need the protection of the ACA. Still, it is important to note that this protection is still in place right now, and the future is not completely certain. And, even if the courts decide not to preserve these ACA protections, many will not immediately lose their benefits, as insurers have contractual commitments to offer what they promised in a given plan year.
Even so, Braidwood is worrisome, and the stakes could not be higher for the health and well-being of LGBTQ+ communities and many other Americans.