Obamacare is under attack by Republican judges again. Here’s what’s at stake.

Judge Reed O’Connor’s latest decision is more nuanced than his previous work, but it is still a disaster for public health.

Judge Reed O’Connor, a former Republican Capitol Hill staffer who now sits on a federal district court in Texas, is one of the most notorious names in US health policy circles. He’s best known for a 2018 decision that attempted to repeal the Affordable Care Act in its entirety — before O’Connor was smacked down 7-2 by the Supreme Court.

So when a new attack on Obamacare arrived in O’Connor’s courtroom, this time on the part of the law requiring health insurers to fully cover certain preventive medical treatments, it appeared inevitable that O’Connor would deal yet another blow to the 2010 law. On Wednesday, that blow came. O’Connor’s order in Braidwood Management v. Becerra, effectively neutralizes part — but not all — of this requirement on insurers.

Yet O’Connor’s Braidwood decision is also more nuanced than his previous work suggested it would be. Though O’Connor makes a significant cut at the law, he does not go nearly as far as the conservative plaintiffs in this case urged him to go, conceding that a binding appeals court precedent prevents him from doing so.

The ACA empowers three different entities to determine which forms of preventive medical care must be covered by insurers at no additional cost to patients. O’Connor ruled that the members of one of those entities are not constitutionally permitted to wield such authority, but his opinion leaves the other two groups’ authority intact.

So, for the time being, some preventive care, like vaccines and free contraceptive care, will remain covered by insurers.

At the same time, O’Connor’s decision is likely to lead to needless health complications and preventable deaths. For one, O’Connor explicitly says that employers with religious objections may offer health plans that do not cover pre-exposure prophylaxis (PrEP), drugs that are very effective in preventing the transmission of HIV.

And if O’Connor’s decision stands, it is likely to force at least some health care consumers to pay out of pocket for cancer screenings that otherwise would have been covered by their insurer, potentially causing patients to delay those screenings until it is too late. (Though it should be noted that O’Connor has not yet issued an injunction against the law, so Obamacare remains in full effect, for the moment.)

Moreover, it is likely that higher courts will make more expansive attacks on the Affordable Care Act as this case is appealed. O’Connor may have stayed his hand somewhat because he was bound by an appeals court’s precedent. But neither the conservative US Court of Appeals for the Fifth Circuit nor the Supreme Court — where Republican appointees have a 6-3 supermajority — are necessarily going to heed that precedent.

And the plaintiffs raise just the kind of argument that could entice the Supreme Court to upend the preventive care requirements altogether.

So what, exactly, is at stake in Braidwood?

When Congress enacted the Affordable Care Act, it delegated the power to determine which preventive treatments should be covered by insurers to three federal entities with specialized experience on vaccines and preventive medicine.

The US Preventive Services Task Force (PSTF) has fairly broad authority over preventive care for all patients. The Advisory Committee on Immunization Practices (ACIP) determines which vaccinations should be covered. And the Health Resources and Services Administration (HRSA) issues “comprehensive guidelines” governing women’s health and preventive care for infants, children, and adolescents.

This delegation of authority allowed these entities to make sure that, as new health challenges emerge and new treatments are developed, those treatments would remain broadly available to patients. If Congress had simply itemized a list of vaccines that insurers must cover when it enacted Obamacare in 2010, for example, that list could not have included the Covid-19 vaccine — because Covid-19 did not exist in 2010.

The three federal entities have placed about 80 items on the list of preventive services that health insurers must cover. These items include things like blood screening for newborns, vision screening for children, birth control, Pap smears, and screening for conditions like depression, hepatitis, HIV, and some forms of cancer.

The Braidwood plaintiffs took issue with that. Those plaintiffs are a hodgepodge of individuals and business owners (along with some businesses owned by individual plaintiffs) who object to buying insurance that covers at least some of these treatments, either on religious or economic grounds.

Their most potent legal argument is that delegating this power to federal agencies violates something known as the “nondelegation doctrine,” a judicially created doctrine that the Supreme Court briefly flirted with in the 1930s, and then abandoned for nearly a century.

This ill-defined doctrine places vague limits on Congress’s power to delegate policymaking authority to federal agencies. In a 2019 dissenting opinion that a majority of the Court has since signaled that they find persuasive, Justice Neil Gorsuch claimed that the Court should strike down any congressional delegation of regulatory power that does not set “forth standards ‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain’ whether Congress’s guidance has been followed.”

In any event, the nondelegation doctrine is not currently the law — Gorsuch’s dissenting opinion is, for now, just a dissent. And O’Connor’s decision in Braidwood concedes that existing law does not permit him to strike down Obamacare’s entire preventive care regime as a violation of the nondelegation doctrine.

But there is enormous risk that this Supreme Court will change existing law and doom the regime in fairly short order. Two years ago, in Little Sisters v. Pennsylvania (2020), all of the Court’s Republican appointees joined an opinion by Justice Clarence Thomas, which strongly implied that HRSA’s decision to require health insurers to cover birth control violates nondelegation — although Thomas ultimately declined to strike down the birth control rule because “no party has pressed a constitutional challenge to the breadth of the delegation involved here.”

The Court, moreover, has only grown more conservative since Little Sisters was decided, because liberal Justice Ruth Bader Ginsburg died and was replaced by Trump appointee Justice Amy Coney Barrett. And Braidwood presents the very constitutional question that Thomas avoided in Little Sisters.

So when this case reaches the Supreme Court, Obamacare’s entire preventive health regime is probably in deep trouble.

O’Connor’s opinion rests on an arcane constitutional distinction

Although O’Connor turns aside the Braidwood plaintiffs’ nondelegation argument, he accepts a separate attack on the PSTF (the organization, remember, that has fairly broad authority over preventive care for all patients) while leaving intact the other two entities’ authority. This attack rests on a constitutional distinction that is so arcane it reads like a parody of a legal argument. And yet, at least under existing Supreme Court precedent, this portion of O’Connor’s opinion makes a plausible argument.

Certain federal employees are deemed “officers of the United States,” and the Constitution places fairly strict limits on who can appoint such an officer. The highest-ranking officers of the United States — Cabinet secretaries and the like — must be nominated by the president and confirmed by the Senate. Meanwhile, lower ranking officers of the United States, which the Constitution labels “inferior officers,” may be appointed by the president acting alone, by a court, or by “the heads of departments.”

In any event, the government does not claim that PSTF members were properly appointed as officers of the United States (members of this task force are selected by the director of the federal Agency for Healthcare Research and Quality). Rather, it claims that they are not officers at all. Indeed, the government argues in its brief that “the PSTF is not a federal agency,” merely a “volunteer body” of medical experts that the government relies on in making certain health policy judgments.

Under Lucia v. SEC (2018), even someone who exercises “significant authority pursuant to the laws of the United States” qualifies as an officer only if they perform “continuing and permanent” duties rather than “occasional or temporary” ones. And so, the government argues, the part-time, entirely volunteer PSTF cannot be made up of officers. In its view, “any role staffed by part-time volunteers is, by definition, not a ‘continuing and formalized relationship of employment with the United States Government.’”

To this, O’Connor responds that PSTF members serve four-year terms and do have to complete some official duties during those terms, such as submitting “yearly reports to Congress and other agencies identifying gaps in research and recommending areas for further examination.” He also notes that they “‘devote approximately 200 hours a year outside of in-person meetings’ to carrying out their duties,” and deems these duties to qualify as “continuing and permanent” and not “occasional or temporary.”

Therefore, O’Connor opines that PSTF members must be properly appointed as “officers” before they can effectively set policy for health insurers.

The honest answer to this dilemma is that the Supreme Court hasn’t really provided much detail on how much work someone needs to do for the government — or whether that work has to be paid, for that matter — before their labor crosses the line from “occasional or temporary” to “continuing and permanent.” Are 200 hours a year enough? The case law doesn’t say. And so O’Connor, being a conservative Republican, can resolve this ambiguity by choosing the outcome more favorable to conservative Republicans.

That’s terrible news for people who need cancer screenings. But it’s not a wholly implausible legal argument. O’Connor’s opinion resolves a genuine legal ambiguity in favor of less health coverage.

A quick note about PrEP

One other aspect of O’Connor’s opinion is worth noting. In a brief section at the end of his opinion, O’Connor sides with an anti-LGBTQ employer who objects to the fact that the federal government currently requires health insurers to cover pre-exposure prophylaxis (PrEP) HIV prevention medication.

These are drugs which people who are HIV-negative can take to dramatically reduce their risk of contracting the virus. One of the Braidwood plaintiffs objects to PrEP because he claims that it “facilitates and encourages homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman,” and he claims that his religion prevents him from offering insurance to his employees that includes coverage of PrEP.

About a decade ago, this legal argument would have gone nowhere. But then the Supreme Court held in Burwell v. Hobby Lobby (2014) that employers with religious objections to birth control may refuse to cover contraception in their employee health plans. Given Hobby Lobby, and given the current Supreme Court’s extraordinary sympathy for religious conservatives, it’s hard to imagine that this anti-PrEP plaintiff would not prevail before the justices.

The bottom line is that, despite O’Connor’s well-earned reputation as a judicial partisan with a vendetta against Obamacare, his opinion in Braidwood is not especially outlandish — at least if you accept the legitimacy of decisions like Hobby Lobby. O’Connor even takes the uncharacteristic step of rejecting the plaintiffs’ nondelegation arguments simply because they are precluded by binding precedents that he is legally obligated to follow.

But it is likely that, as this case proceeds, it will get worse for Obamacare — and for the health of the American people.