Preserving Access to Preventive Services

June 26, 2024

A lawsuit in Texas challenges the provisions of the Affordable Care Act (ACA) that require private insurers to cover preventive services recommended by the US Preventive Services Task Force (USPSTF), Advisory Committee on Immunization Practices (ACIP) and Health Services and Resources Administration (HRSA) without copay as constitutionally flawed in the case of Braidwood Management v. Becerra.

The lawsuit also claims plaintiffs should not have to provide insurance that covers PrEP, a drug that helps prevent HIV-1, because they believe it encourages immoral behavior and violates their rights under the Religious Freedom Restoration Act (RFRA). In September of 2022, US District Court Judge Reed O’Connor struck down the ACA provision with respect to the USPSF, and sided with plaintiffs on the RFRA claim as well.  He considered potential remedies to correct the flaw, putting treatments such as proven screenings for colorectal, cervical, and lung cancers at risk.  ACS CAN led 16 patient groups representing millions of people with serious health conditions in this amicus brief providing scientific data on how preventive services save lives and are cost-effective.  Read our statement

Unfortunately, in March of 2023, the judge ruled that the Department of Health and Human Services could no longer enforce the USPSTF provision of the ACA against insurers, finding all mandates based on recommendations since March of 2010 were invalid.  Patient groups urged the US Court of Appeals for the Fifth Circuit to issue a stay. Read our amicus brief and our statement. The Fifth Circuit granted an administrative stay in mid-May, which later evolved into a full stay when the circuit court approved a settlement in which the parties agreed the remedies should only apply to plaintiffs during the litigation.  This stay should guarantee patients barrier-free access to the services while the litigation continues.  ACS CAN applauded the stay when it was issued

The case is being cross-appealed, meaning plaintiffs and government defendants are all appealing the issues they lost to the Fifth Circuit.  ACS CAN led patient groups in filing an amicus brief at the end of June to provide the court with scientific evidence demonstrating that access to ACIP-, HRSA- and USPSTF-recommended services increase access to care, improve treatment options, save lives, and are cost-effective.  Read our statement.

The Fifth Circuit issued its decision in June of 2024. The court affirmed the district court’s opinion that the USPSTF structure was unconstitutional, but it drastically changed the remedy from being “universal” and affecting over 150 million people to only applying to the plaintiffs in the case. ACS CAN and its amici partners issued this statement applauding the decision. However, the circuit court left open the possibility of a different outcome for ACIP and HRSA recommendations if the plaintiffs were to sue using a different law, the Administrative Procedures Act (APA). The Fifth Circuit remanded these issues back down to the district court to determine whether the ACIP and HRSA recommendations actually had been properly ratified by the Secretary, or were not ratified and must be thrown out.  Unfortunately, the Fifth Circuit left open the possibility that a universal remedy could apply for ACIP and HRSA recommendations if the district court finds an APA violation.

ACS CAN will continue to monitor and engage in Braidwood to preserve access to life-saving preventive care.