A federal appeals court recently preserved the Affordable Care Act’s popular mandate that private insurance cover preventive services at no cost to patients. However, the U.S. Court of Appeals for the 5th Circuit ruled that the plaintiffs, a group of Christian companies, did not have to comply with the mandate, leaving the door open for a broader ruling in the future that could undermine the mandate nationwide. The appellate panel also ruled the task force that determines which preventive services are free must be confirmed by Congress, and asked a lower court to review the authority of the groups that make those decisions for contraception and vaccines.
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The U.S. Court of Appeals for the Fifth Circuit stopped the U.S. 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.
“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 circuit 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 U.S. Health and Human Services Secretary Xavier Becerra’s authority to remove the members at will made them “inferior officers” who were not required to be appointed under the Constitution’s appointments clause.
Fifth Circuit Judge Don R. Willett’s opinion rejected the government’s contention with regard to the Preventive Services Task Force. It did not 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 did not have authority to review, revise, or issue the preventive care recommendations, he could not have ratified them.
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 a claim under that law, which the plaintiffs did not bring, it said.