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Baldwin Bulletin

ACA’s Free Preventive Services Mandate Stands, U.S. 5th Circuit Appeals Court Rules

The Baldwin Group
Updated: July 8, 2024
2 minute read

The lawsuit, Braidwood Management Inc. v. Xavier Becerra, 4:20-cv-00283, (N.D. Tex.), was brought by two Christian-owned Texas businesses opposed to covering the HIV-prevention drug, PrEP. That portion of the case — specifically the scope of a panel’s authority — has been sent back to a lower court for review.

Employer Action Items

Health insurers and employers nationwide must continue to provide coverage of certain preventive services like cancer screenings and behavioral counseling at no cost, a federal appeals court ruled June 21, 2024.

PrEP was widely covered by insurance. So, should the task force lose its insurance mandate, insurers would not be expected to drop coverage. But public health experts do anticipate many would return to imposing associated out-of-pocket costs.


A federal appeals court on June 21, 2024, found unconstitutional a key component of the Affordable Care Act (“ACA”) that grants a health task force the effective authority of the United States Preventive Services Task Force (USPSTF) to require that insurers both cover an array of preventive health interventions and screenings and refrain from imposing out-of-pocket costs for them.

The lawsuit centered on the objections of a coalition of small businesses in Texas to the requirement that they cover a drug for HIV prevention, known as PrEP, in their employee health plans on the grounds that the USPSTF lacked authority under the “Appointments Clause” of the U.S. Constitution. The appeals court did not, however, overturn the related ACA pillar.  The practical, immediate impacts of its ruling apply narrowly to the plaintiffs in this case.

Legal experts expect that the case, Braidwood v. Becerra, will ultimately advance to the Supreme Court, given that it poses crucial questions about the constitutionality of the health task force’s effective authority and that of other federal health bodies. Additionally, the current court has demonstrated interest in cases concerning the delegation of congressional authority to agencies and experts.

In response to Friday’s ruling from the 5th U.S. Circuit Court of Appeals in New Orleans, public health advocates expressed concern that, should the Supreme Court ultimately void the task force’s authority, this could compromise the nation’s already sluggish HIV fight.

Insurers will still have to cover preventive services, including PrEP, except for the original plaintiffs on the Texas Federal District Court case.  If the USPTPF’s authority is ultimately voided, insurers will likely impose cost-sharing for PrEP or not cover any newer drugs in the same classification. 

A federal judge in the Northern District of Texas overturned the task force’s mandate in 2022, but in 2023, the 5th Circuit stayed that decision and on Friday ruled that it was overly broad. The Circuit Court remanded to a Texas Federal District Court, the job of reviewing the constitutionality of the USPTPF’s and the U.S. Department of Health and Human Services’ (HHS) powers and authority to mandate insurance coverage for vaccines, contraception, and other women’s preventive services.

It is uncertain if the parties will appeal directly to the Supreme Court in the interim or wait for the suit to wind its way through the lower courts.

More Information

U.S. 5th Circuit Appeals Court Decision –

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