US Seeks Restoration of Access to Key Health-Care Services

The US government is pushing a federal court in Texas to allow it to enforce Obamacare’s preventive services mandate nationwide while it’s awaiting the Fifth Circuit’s decision on appeal.

Health and Human Services Secretary Xavier Becerra asked the US District Court for the Northern District of Texas to permit the agency to require most health plans to offer the no-cost coverage for certain health-care services. The requested order wouldn’t apply to the plaintiffs, as a separate part of the judgment specifically precludes the government from enforcing the mandate against them, the government said.

If Becerra’s request is denied, people throughout the US wouldn’t have access to free health services that detect preventable or treatable conditions, like cancer screenings and drugs that prevent HIV and AIDS, at least until the US Court of Appeals for the Fifth Circuit resolves the appeal. This will lead to an uptick in preventable deaths, especially among people who otherwise couldn’t afford health care, several groups critical of the decision have said.

Mandate Partially Struck Down

Braidwood Management Inc., Kelley Orthodontics, and several individual plaintiffs won an injunction against the mandate March 30 after Judge Reed O’Connor found that the Preventive Services Task Force didn’t have the authority to make its recommendations. O’Connor also invalidated the PSTF’s recommendations on a nationwide basis.

The decision didn’t affect recommendations made by two other HHS-affiliated bodies, the Health Resources and Services Administration and the Advisory Committee on Immunization Practices, related to contraceptive care and vaccines.

HHS appealed March 31, noting that the “Affordable Care Act has ensured that millions of Americans have access to critical preventative health care” for over a decade.

That part of the ruling must be stayed pending appeal “to prevent irreparable harm to Americans across the country who would be needlessly deprived of life-saving coverage,” the government said April 12. “The requirement for health plans to cover preventive services without cost sharing has been demonstrated to save lives,” it said. “Its elimination would do the opposite.”

Eliminating the requirement also would cause confusion, as health-care providers and patients would struggle to determine which services are still covered, the government said.

Limiting the injunction to the plaintiffs, in contrast, wouldn’t cause them any harm because they would still benefit from the portion of the judgment that applies to them, the US said. The “balance of equities overwhelmingly favors a limited stay” as does the fact that the government is likely to win on appeal, it said.

O’Connor ordered the plaintiffs to respond to the government’s motion no later than April 17.

The plaintiffs cross-appealed April 6, objecting to O’Connor’s refusal to strike down the HRSA and ACIP recommendations.

The case is now in the Fifth Circuit, which is made up of mostly conservative judges, many of whom were appointed by former president Donald Trump. It’ ha generally been critical of Obama and Biden administration policies.

Some court watchers, however, have predicted that the case will end up in the US Supreme Court, where the justices might use it as a vehicle to review the nondelegation doctrine—an administrative law principle that limits Congress’ delegation of its power to other entities.

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

The case is Braidwood Mgmt., Inc. v. Becerra, N.D. Tex., No. 20-cv-283, motion to stay filed 4/12/23.