On Thursday, U.S. District Judge Reed O’Connor struck down a major provision of the Affordable Care Act requiring insurers to provide cost-free coverage for cancer screenings, HIV prevention, maternal care, and a host of other conditions. O’Connor applied his decision nationwide, single-handedly blowing up a cornerstone of the ACA for the second time in his career. If upheld, the ruling will deprive millions of Americans of lifesaving health care, imposing a disproportionate burden on those who are pregnant, gay, or transgender.
There is good reason to think the Supreme Court will ultimately reverse O’Connor’s latest assault on the ACA (even though the radical-right U.S. Court of Appeals for the 5th Circuit will probably uphold it first). But it’s impossible to say with certainty SCOTUS’ 6–3 conservative supermajority will do the right thing. And so, once again, the fate of millions of Americans’ health care rests in the hands of nine justices.
O’Connor’s decision in Braidwood Management v. Becerra revolves around the U.S. Preventive Services Task Force, the most important commission you’ve probably never heard of. It is an independent body made up of volunteer medical experts who convene periodically to decide what kinds of health care all insurers must provide without any cost to patients. Technically, the PSTF “recommends” only mandatory coverage. But the ACA compelled insurers to follow its recommendations, effectively giving them the force of law since 2010. The result has been a huge success, saving countless lives and reducing racial disparities in health care.
In 2020 Jonathan Mitchell—the conservative lawyer who devised Texas’ vigilante abortion ban—crafted a challenge to the PSTF. His first argument was that it violates the Religious Freedom Restoration Act by forcing religious companies to provide insurance that covers preexposure prophylaxis, which prevents HIV infection. His second argument was that the entire commission is unconstitutional because its work is not supervised by a president-nominated, Senate-confirmed official, an alleged violation of the appointments clause. Mitchell argued that because of this infirmity, the judiciary must invalidate every single recommendation made by the PSTF since 2010—more than 50 mandates in total.
It is worth highlighting some of the mandates to lay out the stakes of the case. They include screening for breast cancer, cervical cancer, colorectal cancer, lung cancer, hepatitis B and C, HIV, STIs, intimate partner violence, elder abuse, tuberculosis, and osteoporosis; prevention of cardiovascular disease; and coverage of PrEP. The PSTF mandates also encompass a broad array of maternity care, including preeclampsia screening and prevention, breastfeeding assistance, depression care, gestational diabetes screening, and bacteriuria screening for pregnant and postpartum patients.
In order to eradicate all these mandates, Mitchell filed his case in a court where he was guaranteed to draw Judge O’Connor—the George W. Bush appointee who tried to abolish the entire ACA in 2018 only to get shot down at the Supreme Court. In September 2022, O’Connor ruled for Mitchell on the religious liberty claims, granting Christian individuals and employers the right to exclude PrEP from their insurance. (O’Connor accepted Mitchell’s claim that HIV prevention would “facilitate and encourage homosexual behavior,” which he ruled violated religious liberty.) The judge also agreed that PSTF members are appointed unconstitutionally. But he didn’t decide the remedy for this alleged flaw, instead ordering further briefing.
Then, on Thursday, O’Connor came out with his decision, which took the most destructive, maximalist approach possible: He voided every single PSTF mandate issued since 2010, more than 50 in all. And he did so on a “universal” basis, applying his decision not just to the parties but to every person, every insurer, every official in the country. In a remarkably cursory analysis, O’Connor declared that he had to block the PSTF from “enforcing the disputed coverage mandates against anyone” because no other remedy would fully “cure plaintiffs’ injuries.”
There is so much wrong with O’Connor’s reasoning (as usual) that it’s hard to know where to start. The judge held that PSTF members are, for constitutional purposes, to be treated as “principal officers,” a category that includes judges, ambassadors, and cabinet members. Principal officers must be nominated by the president and confirmed by the Senate. PSTF members are not: They are appointed by the director of the Agency for Healthcare Research and Quality, an agency within the Department of Health and Human Services. Because the president and Senate have no say in their appointment, O’Connor concluded, the PSTF is staffed unconstitutionally.
This reasoning is, to put it lightly, nuts. PSTF members serve the commission part time, meeting three times a year for two days, and receive no compensation for their work. They write no regulations and provide no guidance on the interpretation of federal laws. They simply review the data and recommend treatments that prevent serious illness and death. The notion that PSTF members are transformed into principal officers akin to cabinet members because Congress decided to make their recommendations mandatory has no basis in precedent.
But say O’Connor is right, and PSTF members were appointed unconstitutionally. His “remedy” for this ostensible problem defies binding Supreme Court precedent. SCOTUS has said, over and over again, that when an officer’s appointment violates the Constitution, the solution is not to nullify everything they’ve ever done. The solution is, rather, to subject the officer’s work to supervision by a properly appointed agency head. Most recently, in U.S. v. Arthrex, the Supreme Court held that members of a patent and trademark board were appointed unlawfully. Its solution was not to invalidate the board’s work but to subject its work to oversight by the director of the Patent and Trademark office—a presidentially appointed, Senate-confirmed position.
O’Connor should have imposed an identical remedy here, striking down the law that gives the PSTF full independence. That fix would’ve given the HHS secretary oversight of the PSTF’s work, with the ability to ratify or overrule its work, indisputably bringing it in line with the appointments clause. And it still would’ve given Republicans something of a victory, allowing a future GOP HHS secretary to repeal critical preventive care coverage. (Of course, the secretary and his administration would face political consequences, a problem O’Connor needn’t worry about.)
But O’Connor didn’t take this approach, because … well, frankly, his analysis is hard to comprehend. It runs about two pages and seemingly rests on the assertion that the PSTF isn’t part of HHS, so the HHS secretary can’t review its work. This reasoning just does not track. By law, the HHS secretary supervises the Agency for Healthcare Research and Quality. And this agency “convenes” and supports the PSTF. So the secretary would supervise the PSTF as well if the ACA had not granted it independence. And the solution here is merely to sever the provision of law that creates that independence—not to obliterate the PSTF and wipe its mandates off the books.
The Supreme Court has been very firm about the minimalist remedy in cases involving unlawfully appointed officers in recent years; even Justice Clarence Thomas has disclaimed the blow-it-all-up approach. Yet O’Connor deployed it anyway, evidently unchastened by his total repudiation at SCOTUS two years ago. Again, there are many reasons to think that the court will take a similar approach here and let the PSTF’s mandates survive unscathed, with only a symbolic blow to the commission’s independence. But the 5th Circuit, the most lawless appellate court in the country, will still weigh in first, and will likely be eager to affirm O’Connor. It may be two years before the Supreme Court finally resolves this case for good. And in the meantime, millions of Americans’ ability to access basic health care will be in jeopardy. A judiciary that so recklessly imperils people’s lives certainly does not deserve their trust.