ACA Suit Threatens Overhaul of Preventive Care in Employer Plans

A US Supreme Court case challenging preventive care mandates would upend the health insurance landscape if the justices strike them down, raising the potential for many employers to reinstate cost-sharing for some services at employees’ expense.

The high court agreed Jan. 10 to consider the constitutionality of an advisory panel on preventive care, whose recommendations require plans to provide first-dollar coverage for related services under the Affordable Care Act.

Becerra v. Braidwood Management jeopardizes uniform access to everything from heart disease medication to cancer screenings, and health care and employment lawyers say the lawsuit opens the door to future legal fights around the Religious Freedom Restoration Act and the US Constitution’s Article II appointments clause.

“Most preventive services are low-cost, relatively speaking,” said Jamille Fields Allsbrook, an assistant professor with St. Louis University’s School of Law. “But, I mean, there is a reason the ACA thought it was worth making this a requirement, and that is because we know there were a number of employers who were not covering these services.”

Coverage could vary widely if the court sides with Texas-based employer Braidwood Management, Inc., said Richard H. Hughes IV, a member of Epstein Becker & Green PC and a former executive with vaccine manufacturer Moderna, Inc. Even if employers do choose to continue covering a particular service, they could narrow the scope by age or risk factors, or impose more prior authorization requirements on doctors to limit their own costs.

“You’re opening the door to inconsistency,” Hughes said. “That’s what the ACA created, was consistency.”

The Affordable Care Act has enjoyed majority support from the public since 2018, according to health think tank KFF. The law’s approval rating stood at 61% in May 2024.

State insurance commissioners also lean on federal requirements to oversee self-insured plans operating in their jurisdictions, a group of Democratic attorneys general argued in a Supreme Court amicus brief. Federal guidance around coverage requirements also helps reduce strain and expenses that states face in developing corresponding material for state-regulated plans.

“When a federal mandate is in effect, the States can minimize these costs by adapting federal regulatory and statutory language, guidance, forms, instructions, and educational materials, rather than starting from scratch,” the states wrote.

But plaintiffs Braidwood, Kelley Orthodontics, and six individuals argue the coverage mandate for the preventive HIV treatment known as PrEP violates their religious beliefs because it encourages extramarital sex, homosexual relationships, and drug use. US District Court for the Northern District of Texas Judge Reed O’Connor agreed in his 2023 opinion.

“It is undisputed that putting individuals to this choice imposes a substantial burden on religious exercise,” he said.

Employers already frequently ask about coverage mandates around PrEP, which is relatively expensive, said Lisa Campbell, co-chair of health services at Groom Law Group. Federal law requires plans to cover all formulations of PrEP as well as core related services, which includes frequent HIV testing.

“Sometimes those, one, can be confusing about what is considered to be integral to a particular preventive service,” she said. “And then I think the second part of it is just the cost can add up.”

Future Lawsuits

It remains to be seen if President-elect Donald Trump will continue defending the preventive services task force during this Supreme Court term, since he has sought to weaken the ACA in the past.

The alleged RFRA violation in O’Connor’s decision is not part of the petition the high court granted, but regardless, the case could encourage more innovative lawsuits concerning religious objections, said Marcia McCormick, co-director of the employment law center at St. Louis University. Procedural or structural challenges can broaden a lawsuit’s impact beyond the typically narrow path afforded for plaintiffs under RFRA.

The Braidwood case is part of a recent trend of religious objectors targeting what some see as the “boring” parts of the law to overturn alleged government overreach, McCormick said, pointing to a separate challenge Braidwood brought against the Equal Employment Opportunity Commission over the inclusion of sexual orientation and gender identity in the definition of “sex discrimination” under Title VII of the 1964 Civil Rights Act.

“Those structural challenges are going to have a really widespread impact, because they’re not going to protect just religious employers, but anybody who doesn’t want to be bound by the decisions of the particular entities here,” she said.

The Braidwood plaintiffs lost their challenges to similar preventive service mandates from the Advisory Committee on Immunization Practices on vaccines and the Health Resources and Services Administration on contraceptives, but that doesn’t mean those panels or others wouldn’t come under fire again in the future.

If the Supreme Court sides with Braidwood, it will encourage more religious employers to “exercise whatever options are available to accomplish the goal that they’re trying to accomplish,” McCormick said.

The case is Becerra v. Braidwood Mgmt., Inc., U.S., No. 24-316.