Fact Sheet: Braidwood v. Becerra Case on Preventive Services

The Affordable Care Act (ACA) has transformed the American health care system by expanding coverage, lowering costs, and improving access to care. Despite its positive impacts, the ACA is the most challenged law in American history, and its provisions have been argued before the U.S. Supreme Court three times in 13 years.

Braidwood Management Inc. v. Becerra, the ACA’s latest legal challenge, contests the zero-cost-sharing guarantee for preventive services, a provision that 62 percent of Americans think is very important to keep in place. Plaintiffs contend that the requirement violates the Appointments and Vesting clauses, nondelegation doctrine, and Religious Freedom Restoration Act. Presiding over the case is U.S. District Court Judge Reed O’Connor, whose previous invalidation of the ACA was overturned by the Supreme Court in 2018.

Judge O’Connor’s March 2023 Braidwood ruling blocks enforcement of the zero-cost preventive service provision, undermining access to lifesaving care for millions of Americans. With the ruling currently being appealed, the future of free preventive care will likely be decided by the Supreme Court.

The ACA eliminated cost sharing for crucial preventive services, improving utilization and helping reduce health disparities

• The ACA requires private health plans to cover, without cost sharing (copayment, coinsurance, or deductible), grade A or B services recommended by the U.S. Preventive Services Task Force (USPSTF), an independent volunteer advisory board of medical experts. These recommended preventive services include annual wellness visits as well as screenings for cancer, sexually transmitted infections, and depression.
• In 2020, more than 150 million people with private insurance—including 58 million women and 37 million children—had access to zero-cost preventive services under the ACA.
• The elimination of cost sharing has been associated with increases in the utilization of cancer screenings and tobacco cessation, as well as reduced racial disparities in use of some preventive services, such as colorectal cancer screenings.
• The USPSTF-recommended preventive services include a range of services important for pregnancy care—to which accessibility is critical given America’s maternal mortality and morbidity crisis, which falls heaviest on Black and Indigenous women.

The March 2023 Braidwood ruling immediately overturned the ACA’s no-cost guarantee for certain preventive services and casted uncertainty on longer-term access to free preventive care

• In September 2022, Judge O’Connor ruled that the preventive service requirement was a violation of the Appointments Clause because USPSTF members were neither confirmed by the Senate nor answerable to the secretary of the U.S. Department of Health and Human Services. Judge O’Connor also found that the requirement to cover pre-exposure prophylaxis (PrEP), a medication used to reduce HIV transmission, violated the employer-plaintiff’s rights under the Religious Freedom Restoration Act.
• Judge O’Connor’s subsequent March 2023 ruling blocks enforcement for zero-cost preventive services recommended by the USPSTF since 2010, which include tobacco cessation, PrEP, and screenings for anxiety, hypertension, and hepatitis B and C. Notably, the ruling does not apply to preventive services, such as vaccines or contraceptive services and counseling, that are recommended by entities whose authority was not challenged by the case.

The scope of the Braidwood ruling is still being determined as insurers and government officials take stock

• While the ruling took effect immediately, its consequences on cost sharing will unfold gradually because insurance contracts are approved annually and coverage terms for plans currently in effect are unlikely to change. However, as insurers negotiate new contracts, they may make a business decision to institute out-of-pocket costs for preventive care.
• In April 2023, the U.S. departments of Labor, Health and Human Services, and the Treasury issued clarifying guidance responding to the ruling, reiterating coverage requirements for remaining preventive services, and encouraging health plans to continue “to cover the full scope of recommended preventive services.”
• In the wake of Judge O’Connor’s ruling, states have begun exploring policy and administrative options to help preserve access to cost-free preventive services for their residents. Currently, 14 states and the District of Columbia have enacted into law preventive service protection provisions for plans that offer coverage in the individual market.
• Days after the Braidwood ruling, Gov. Gretchen Whitmer (D-MI) secured public commitment from 17 health insurance plans participating in the state’s individual, large, and small group markets to continue coverage of no-cost preventive services for 2.1 million Michiganders.

This ruling is not the last word as the case heads to the 5th Circuit on appeal

• The U.S. Department of Justice (DOJ) has already filed a notice of appeal of Judge O’Connor’s ruling, requesting the 5th U.S. Circuit Court of Appeals to limit the injunction to just the plaintiffs in this case. The 5th Circuit will set a briefing schedule and schedule arguments on the case on its own docket.
• DOJ has also asked Judge O’Connor to stay his own ruling on the universal injunction until the appeal has been heard; he has not yet ruled on this stay. DOJ has also moved for the 5th Circuit to issue the stay itself while it considers the appeal.

Conclusion

By removing financial barriers, the Affordable Care Act’s preventive service requirement improved access to preventive health services for millions of Americans. Uncertainty around the future of zero-cost coverage for preventive care remains as Braidwood works its way through the legal process; a final decision in the case has the potential to reshape the coverage landscape.