Co-authored with Kate Rohde*
On March 30, 2023, Judge Reed O’Connor at the U.S. District Court in the Northern District of Texas issued a final judgment in Braidwood v. Becerra, upending key preventive services protections in the Affordable Care Act (ACA). The provision at issue in the opinion requires most private health plans to cover, without cost-sharing, services that receive an A or B rating from the U.S. Preventive Services Task Force (PSTF). (Plans are also still required to cover the preventive services recommended by the Health Resources and Services Administration (HRSA) for women and children, as well as vaccines recommended by the CDC).
Having found the PSTF requirement unconstitutional last September, Judge O’Connor announced his chosen remedy: blocking the federal government from enforcing the preventive services requirement for PSTF recommendations issued on or after March 23, 2010, the day President Obama signed the ACA into law.
The ruling is effective immediately nationwide. The Biden-Harris Administration is seekingt a stay of the ruling—citing the harm nationwide if people lose access to life-saving preventive services coverage—but Judge O’Connor deferred ruling on the request. The government is also appealing the decision to the Fifth Circuit.
The Braidwood decision does not affect all of the PSTF preventive services protections under the ACA. Instead, the court has effectively turned back the clock and then turned it off, requiring plans to cover preventive services already in place when the ACA became law. Braidwood threatens to constrain patient access to many vital services that have been added or updated since March 2010.
Unsurprisingly, medicine has advanced in the thirteen years since the enactment of the ACA, and PSTF recommendations have evolved with it. The PSTF is charged with reviewing the scientific evidence of preventive services and issuing objective recommendations for the health care community. Each recommendation is issued after careful and systematic review of the best available evidence; the recommendations are reviewed and updated periodically to reflect new evidence.
Recommendations added since March 2010 represent advances on many fronts, including cancer, infectious disease, and maternal mortality. For example, in 2013, the PSTF issued a new recommendation for clinicians to screen high-risk patients for lung cancer. Lung cancer is the leading cause of cancer death in the United States, with four out of five patients dying from the disease within five years of diagnosis. More than half die within the first year of diagnosis; but when caught early, survival rates increase dramatically. A mounting body of evidence prompted the PSTF in 2013 to recommend screening for persons aged 55 to 80 with a history of smoking, and in 2021, the PSTF expanded eligibility to age 50.
Screening for colorectal cancer is similarly affected. The Braidwood opinion leaves intact the coverage requirements for colorectal cancer screening for people over 50 years old because that recommendation, issued in 2008, predates the ACA. But the PSTF recommendation to expand eligibility to people aged 45 to 49 years—issued in 2021—has now fallen away. This is at the same time that colorectal cancer rates for people younger than 50 are on the rise and physicians are calling for earlier screening.
The Braidwood opinion also threatens measures to diagnose and prevent infectious diseases. Just a few years after the enactment of the ACA, PSTF issued new recommendations for hepatitis B and hepatitis C screenings, citing the prevalence of both diseases and the robust effectiveness of antiviral treatments. While the Braidwood opinion preserves hepatitis B and C screenings for adolescents—which are recommended separately under HRSA screening guidelines—adults are no longer guaranteed no-cost coverage. People in the U.S. are similarly no longer guaranteed coverage for preexposure prophylaxis (PrEP), which reduces the risk of contracting HIV by ninety-nine percent, because the USPSTF recommendation was issued in 2019.
Other public health priorities, such as addressing the maternal health crisis, will also be affected. For three decades, the maternal mortality rate in the U.S. has steadily increased, with Black women and birthing people facing a disproportionate share of poor health outcomes. The crisis has prompted new research into maternal health interventions, reflected in updated PSTF recommendations. Over the past thirteen years, the PSTF has issued new recommendations related to preventing preeclampsia, managing healthy weight gain in pregnancy, and screening for depression among pregnant and postpartum people. All three conditions directly contribute to maternal mortality and other adverse health outcomes. None of these recommendations are duplicated in HRSA’s Women’s Preventive Services Guidelines, meaning health insurance companies are now free to ignore them.
As shown by this chart prepared by the American Lung Association, these examples are just a small snapshot of the PSTF recommendations lost as a result of the Braidwood decision.
The ACA’s preventive services coverage requirements were meant to protect access to life-saving care. They were also meant to respond to new evidence and evolve with medical advancements. By rolling back the clock, the Braidwood decision has rejected these legislative goals. In doing so, it has disregarded widely accepted medical interventions, medical standards of care, and undermined key public health priorities. With access to vital preventive services now under threat, it will be patients—going undiagnosed and untreated—paying the cost.
* Kate Rohde is a JD Candidate 2023, University of Pennsylvania Law School, and interned at NHeLP in Spring 2023.