Bloomberg Law
March 30, 2023, 2:36 PMUpdated: March 30, 2023, 7:05 PM

Obamacare Preventive Care Mandate Limited by Federal Judge (3)

Mary Anne Pazanowski
Mary Anne Pazanowski
Legal Reporter

A federal judge blocked on Thursday an Obamacare requirement for health plans to pay in full for certain preventive health-care services, including PrEP drugs for HIV.

Judge Reed O’Connor of the US District Court for the Northern District of Texas vacated actions taken by the US Health and Human Services Department to implement or enforce certain Affordable Care Act preventive services coverage requirements. The requirements were recommended by a task force that the judge determined wasn’t constitutionally appointed.

O’Connor is the same judge who threw out anti-discrimination provisions under the ACA in late 2019 and who, the previous year, struck down the law in its entirety.

O’Connor’s latest decision granted Braidwood Management Inc.'s request for a “universal” remedy entirely blocking enforcement of recommendations made by the US Preventive Services Task Force—requiring no-cost coverage for pre-exposure prophylactic drugs, which prevent HIV and are taken by many gay people, and sexually transmitted disease screenings.

Other services affected include breast and cervical cancer screenings, diabetes screening, and vision tests for preschool-aged children.

The Justice Department and HHS are reviewing the decision, White House spokeswoman Karine Jean-Pierre said.

“This case is yet another attack on the Affordable Care Act, which has been the law of the land for 13 years,” she said at a White House news conference. “Preventive care saves lives, saves families money, and protects and improves our health. This case gets between patients and their doctors.”

Task Force Decisions

O’Connor’s decision doesn’t affect coverage recommendations made by the Health Resources and Services Administration and the Advisory Committee on Immunization Practices. These include contraceptive care and vaccine recommendations. Both those groups are subject to HHS oversight.

The full list of preventive services for which PSTF has recommended no-cost coverage can be found here.

In September, O’Connor held that the PSTF, which determines some of what qualifies as covered preventive measures under the ACA, can’t validly do so because its members aren’t subject to Senate confirmation and their recommendations aren’t reviewed by constitutionally appointed government officials.

But O’Connor left the remedy open at the time, asking the parties for supplemental briefing on whether the government should be entirely blocked from requiring health plans that cover services identified by the task force, or if his decision should apply solely to Braidwood.

O’Connor agreed with the plaintiffs that the Administrative Procedure Act authorized the court to vacate every action taken by the government pursuant to the PSTF’s recommendations.

Major medical and patient groups had argued that a nationwide order would jeopardize health care for millions of Americans, leading to preventable deaths and higher costs for treating diseases that could have been detected earlier by free screenings.

O’Connor also invalidated Obamacare’s HIV treatment mandate in the same case, saying it violated Christian employers’ rights under the Religious Freedom Restoration Act. On Thursday, he blocked the government from taking any action against Braidwood and the other religious objectors that would require them to provide insurance that would pay for PReP.

Jonathan Mitchell of Austin, Fillmore Law Firm LLP, and America First Legal Foundation represent Braidwood. The US Department of Justice represents the government.

The case is Braidwood Mgmt., Inc. v. Becerra, N.D. Tex., No. 20-cv-283, 3/30/23.

(Adds White House comment beginning in sixth paragraph.)

—With assistance from Courtney Rozen.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at

To contact the editors responsible for this story: Rob Tricchinelli at; Patrick L. Gregory at; Nicholas Datlowe at

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