The Next Major Challenge to the Affordable Care Act

The law’s opponents have a good chance of winning their next showdown, though it won’t threaten the law as a whole.

Artwork of a scale balancing a red cross and a green dollar sign
Adam Maida / The Atlantic

About the author: Nicholas Bagley is a law professor at the University of Michigan.

The Supreme Court’s rejection of the latest effort to dismantle the Affordable Care Act does not mark the end of lawsuits over the law’s constitutionality. The next big case has already been filed, and it involves a clash between an obscure constitutional provision and the law’s guarantee of zero-dollar coverage for preventive services.

The stakes will be lower this time around—the whole law isn’t threatened. But they’re significant nonetheless. If the plaintiffs win, insurers could force their customers to pay out of pocket for contraception, breastfeeding equipment and support, and drugs to prevent HIV infection. They could even start charging people for COVID-19 vaccines, including any boosters.

This time, the law’s opponents stand a good chance of succeeding.

The case is called Kelley v. Becerra, and it is currently pending in Texas before Judge Reed O’Connor—the same judge who would have struck down the entire Affordable Care Act on the theory that the Supreme Court just rejected. The plaintiffs are individuals and small companies wanting to buy insurance that excludes coverage for contraception and pre-exposure prophylaxis, which they object to on religious and moral grounds. That kind of insurance is impossible to find—and they say the Affordable Care Act is to blame.

Under Section 2713 of the law, insurers are required to offer coverage without cost-sharing for high-value preventive services, screenings, and vaccines. That means you don’t pay anything when your doctor tests you for cancer or helps you kick your cigarette habit. The costs of those services are instead folded into your premiums.

This approach is backed by study after study showing that even modest financial barriers can discourage people from getting needed care. The Affordable Care Act sweeps away those barriers to encourage people to seek preventive care before they develop hard-to-treat problems.

Section 2713’s protections have become especially important as health plans with high deductibles have proliferated—in 2020, the average deductible for an employer’s health plan was $1,644. You might think twice about getting that colonoscopy if you had to pay for much of it out of pocket.

What comes under Section 2713’s umbrella? Under the law, it’s those services, treatments, or vaccines that “have in effect a recommendation from,” or are “supported by,” one of three different entities. The first two—the Preventive Services Task Force (PSTF) and the Advisory Committee on Immunization Practices (ACIP)—are advisory bodies that the federal government established decades ago to evaluate preventive services and vaccines, respectively. The third is the Health Resources and Services Administration (HRSA), an agency within the Department of Health and Human Services (HHS), which was tasked with developing new guidelines about preventive services for women and children.

Before the Affordable Care Act’s adoption, in 2010, any recommendations from these entities didn’t have legal weight. They were just recommendations. Now their recommendations have binding force. They compel insurers to cover the identified services without imposing any cost-sharing.

Therein lies the potential constitutional problem—or, rather, problems. The plaintiffs are making two arguments that are worth watching. The first, which has received all the attention so far, is that Section 2713 violates the “nondelegation doctrine.” The doctrine says that Congress can delegate power to government agencies only if it supplies adequate instructions for how that power is to be exercised. Otherwise, the theory goes, Congress has abdicated its responsibility to make the tough decisions.

The doctrine is basically moribund, having been invoked to strike down a couple of laws during the New Deal but never since. But conservative justices on the Supreme Court have signaled an interest in reviving it in service of a broader campaign to curb the federal government’s regulatory power. At the same time, some language from an earlier opinion involving the contraception mandate suggests that at least some justices think Section 2713 is troublingly vague. Which preventive services ought to be covered? The statute doesn’t offer much guidance. Maybe Congress needed to say more.

But the nondelegation argument is the weaker of the two main claims in the case. In part, that’s because the nondelegation doctrine is controversial: The federal courts would be accused of waging a partisan campaign if they used it to dismantle a portion of Obamacare. It’s also because courts prefer not to strike down laws unless strictly necessary, so they strain to read them to avoid constitutional problems. PSTF and ACIP have a long history of recommending preventive services and vaccines when the evidence indicates that they improve health outcomes and that their benefits outweigh the harms. Reading Section 2713 to adopt that as a condition for all three bodies makes a lot of sense.

The second claim is more straightforward—and more worrisome. Though the appointments clause of the U.S. Constitution doesn’t get a lot of attention, it’s a key structural provision. It says that “officers of the United States” must at a minimum be appointed either by the president or by the head of a major department. (That’s an oversimplification, but it’ll do for our purposes.) If those “officers of the United States” haven’t been appointed in the right way, they’re not really officers and they can’t wield government power.

The clause prevents Congress from assigning government power to officers who don’t have to answer to the president or one of his principal subordinates. That gives the president some measure of control over the conduct of executive-branch officials and allows him to discharge his duty to “take care” that laws are faithfully executed. It also creates clear lines of accountability: If an officer of the United States screws up, it’s safe to blame the chief executive. Knowing whom to hold to account would be harder if Congress could assign government power to people who never had to answer to higher-ups within the executive branch.

Which brings us back to the three entities that decide which preventive services and vaccines ought to be covered without cost-sharing. None of their members appears to have been appointed in a manner that accords with the finicky particulars of the appointments clause. So a lot turns on whether the members of PSTF, ACIP, and HRSA count as “officers of the United States.” If they do, they were never properly appointed and they can’t tell anyone to do anything.

The appointments clause is unfortunately silent on who counts as an officer. Over the past two centuries, the courts have settled on the rule that someone is an officer if two conditions are satisfied. First, the individual must wield “significant authority pursuant to the laws of the United States.” That condition seems to be met in this case. Even though PSTF and ACIP were once purely advisory bodies, their decisions, as well as HRSA’s, now bind private parties (specifically, insurers). That’s at the core of what it means to wield authority pursuant to the laws of the United States.

Second, a federal officer must occupy a “continuing position,” not a temporary or transient one. For the administrator of HRSA, that condition is also satisfied: The position is a continuing, permanent one in the service of the United States. The rules governing preventive services for women and children—including the rule requiring contraception coverage—are thus in serious jeopardy. (The Biden administration’s fallback argument that the guidelines should remain in place because higher-level officials ratified them is not very persuasive.)

The members of PSTF and ACIP present a more complicated situation. Colloquially, at least, referring to them as federal officers would be odd: They’re expert volunteers with full-time jobs elsewhere. Their federal responsibilities are so occasional and intermittent that they’re more akin to independent experts. Indeed, some case law, including from the circuit court with jurisdiction over Texas, suggests that an officer must have, “at a minimum, a continuing and formalized relationship of employment with the United States Government.” The Clinton-era Justice Department also concluded that an officer isn’t an officer without that employment relationship. By this logic, because PSTF and ACIP members aren’t employees, they’re also not officers.

But there’s a solid argument on the other side. PSTF and ACIP are both permanent, federally established bodies whose members sit for fixed terms and offer regular advice to the federal government. That sounds like a “continuing” office, not a temporary or transient responsibility. If so, it might not matter that the members are not regular employees and serve without pay. In 2007, the Justice Department decided that it no longer believed an employment relationship was essential. That more expansive, Bush-era understanding of the appointments clause seems to align with a similarly expansive understanding of other structural constitutional safeguards we have seen from the Roberts Court.

The upshot is that any recommendations that PSTF and ACIP have issued since 2010 might also be in jeopardy. Previous recommendations would still bind insurers: Congress adopted them when it adopted Obamacare. But some post-2010 recommendations are significant. They include one requiring insurers to cover medications without cost-sharing for people who are at high risk of HIV. Known as pre-exposure prophylaxis, or PrEP, the medications have been shown to offer “substantial benefit in decreasing the risk of HIV infection in persons at high risk of HIV acquisition.” If insurers drop coverage or start to impose cost-sharing, fewer people will take PrEP, and the number of people who get infected with HIV will likely increase.

Scrapping HRSA guidelines would have similarly bad consequences. Compelling research shows that access to no-cost long-acting reversible contraception (such as IUDs or Nexplanon) sharply reduces pregnancy rates among young women and teenage girls. Yet insurers will no longer be required to cover contraception without charge, potentially driving women away from these highly effective birth-control measures. Guidelines requiring coverage of breastfeeding support—including access to lactation consultants and no-cost rentals of expensive breast pumps—would also go by the wayside.

Most startling, coverage for COVID-19 vaccines would be threatened. In the 2020 CARES Act, Congress required insurers to cover any pandemic-related preventive services or immunizations recommended by PSTF or ACIP. Because ACIP has recommended the Pfizer, Moderna, and J&J vaccines, private insurers must cover them without cost-sharing. The same goes for any boosters that ACIP recommends. If the current lawsuit succeeds, however, private insurers could start billing for future vaccinations.

In short, Kelley v. Becerra could create a mess. It’s not guaranteed to do so: The Biden administration has raised procedural objections that could derail the lawsuit. And these are still early days. Although Judge O’Connor has signaled his support for the plaintiffs in an interim decision, he won’t issue a final decision on the case until next year. Even then, any injunction might be paused to allow for the inevitable appeals, which could take another two or three years.

In the meantime, one of the most popular and effective parts of the Affordable Care Act will remain vulnerable. A functional Congress could fix the problem tomorrow by offering more guidance about which preventive services and vaccines ought to be covered and by clarifying that the secretary of HHS must approve any recommendations before they take effect. But Republicans would probably threaten to filibuster any Democratic effort to bolster Obamacare, especially when contraception is involved.

Which means we could be in for another Supreme Court nail-biter in a few years. The fate of the Affordable Care Act won’t hang in the balance. But the case could still do a lot to undermine public health.