Nicholas Bagley Speaks About Braidwood v Becerra Background, Implications

Nicholas Bagley, JD, professor at Michigan Law, University of Michigan, explains the background of the Braidwood v Becerra court case, what the decision means, and how it might affect those using preventive care across the country.

Transcript

What is the Braidwood v Becerra ruling and what does it mean for preventive care?

The lawsuit arose as part of a challenge to a really important feature of the Affordable Care Act. The Affordable Care Act was adopted because the US thought it was important to make preventive services available to people with $0 cost sharing, meaning they don't pay anything out of pocket. The idea was to make sure that people got high-quality preventive care, because we know that what matters to patients is how much they have to pay when they go to see the doctor and if they face a co-pay or they have to pay out of pocket to get care that we think they really need.

The way the Affordable Care Act structured it was it handed off to a series of independent bodies the authority to designate certain preventive services that insurers and employers would have to cover with $0 of cost sharing. The challengers in the case that is now known as Braidwood filed suit in Texas in federal court and said that the scheme that Congress established is unconstitutional. They have a couple of different arguments, including a religious liberty claim…and the one that I think poses the biggest threat to this feature of the Affordable Care Act relates to something called the Appointments Clause.

So the Appointments Clause is a pretty obscure provision of the US Constitution. Simplifying a bit, the Appointments Clause says that legally significant decisions have to be made by federal officers who are appointed by the president, or by the head of the department. And the reason for this is that you want a very clear chain of command when the executive branch is making important decisions for people's lives; you want to make sure that the people making those decisions are answerable in some way or form to the president. You don't want Congress to be able to delegate power to some random person on the street and have them make important decisions for the rest of us. So it's a way to maintain accountability. And the challengers said that several of these bodies that the people who stacked them weren't appointed in the right way.

So the judge in Texas, hearing this case, said that the appointment of the individual personnel to 2 of those bodies was constitutionally proper. And so provisions of the [Affordable Care Act] requiring coverage of certain vaccines and health care for adolescents and for women, those are going to be OK. But the decisions made by the Preventive Services Task Force [USPSTF], the judge said those are problematic because the USPSTF are not appointed in the right way. They can't make constitutional decisions, and thus the USPSTF recommendations that employers and insurers are supposed to follow in providing $0 coverage for preventive care, those USPSTF decisions are unconstitutional and invalid. And the judge extended that ruling across the entire country, and said that it doesn't just apply to the plaintiffs who filed a lawsuit, but it applies to everybody. And that, of course, set off an effort to pause his decision, while appeals could work their way to the US Supreme Court.