Update: On June 13, 2023, the 5th Circuit issued a stay order which freezes the ruling issued by a Texas federal district court that voided the ACA requirement for health plans to cover preventive items and services (without cost-sharing) recommended by the U.S Preventive Services Task Force (USPSTF). For more information, see our blog post on the stay order here.

Seyfarth Synopsis: Following over a decade of protracted litigation over the Affordable Care Act, and several failed attempts by Congress to get rid of the ACA entirely, a Texas federal district court ruled on March 30, 2023 that the preventive care mandate under the Affordable Care Act is unconstitutional.

In a closely watched case challenging the constitutionality of the ACA’s requirement for health plans to cover certain preventive care on a first dollar basis, a Texas district court held that the requirement violates the Constitution. While the order is only two pages, Judge O’Connor stated that the “U.S. Preventive Services Task Force’s (PSTF) recommendations … violate Article II’s Appointments Clause and are therefore unlawful”. The judge found the members of the PSTF were unlawfully appointed, which voided any of their recommendations. This determination is effective immediately and retroactive to March 23, 2010.

Further, the court stated that the PrEP mandate (which covers treatment for the prevention of HIV) violates individual plaintiffs’ “rights under the Religious Freedom Restoration Act and is therefore DECLARED unlawful.” The plaintiffs had argued that coverage for PrEP drugs encouraged behavior that was against his religion, and that as a result, he could not be forced to pay for such coverage. This ruling is also effective immediately retroactive to March 23, 2010.

Preventive care that is not covered due to the PSTF recommendations, and that is not PrEP, will presumably still have to be covered. For example, preventive services recommended by the Health Resources and Services Administration including vision screening, well-baby visits, and mammograms, and those recommended by the Advisory Committee on Immunization Practices including several common vaccinations, will still be subject to the first dollar coverage requirement.

It is likely that HHS will appeal this ruling, so stay tuned for further updates.