In addition to expanding Medicare, mandating that all Americans have health insurance, and establishing subsidized marketplaces where it can be purchased, the 2010 Affordable Care Act—the ACA , but perhaps better known as Obamacare—established minimum standards for health insurance, including no-cost access to preventative care. Within just a few years of the taking effect in 2010, more than 75 million Americans gained access to things like check-ups and mammograms. 

Like Obamacare itself, that provision has since been under legal assault from conservatives since the law was passed. In 2014, the Supreme Court decision in Burwell v. Hobby Lobby held that privately owned companies could opt out of providing contraceptive healthcare. And now another court case, Braidwood Management v. Becerra, which is meandering through the US District Court for the Northern District of Texas, further threatens those protections. In early 2020, Braidwood Management filed a legal complaint against a cluster of state agencies, arguing that ACA preventative care requirements were both unconstitutional and violated religious liberties. 

The case is now being heard by Judge Reed O'Connor, who was appointed by George W. Bush in 2007 and has a reputation as a conservative—and is a favorite of activists in search of a sympathetic venue. And the judge has already handed conservative culture warriors a victory back. In September, he ruled that Braidwood Management could avoid providing preventative health services—specifically pre-exposure prophylaxis (PrEP), which can prevent HIV infection—to its employees. 

A five-second examination of Braidwood Management suggests that the entire case is a more legal trial balloon than protection against PrEP-using employees. It’s owner is Steven Hotze, a Texas doctor and culture war crusader whose position on social issues can be triangulated by the fact that he once said the best way to fight AIDS was to “shoot the queers.” 

Judge O’Connor’s ruling, which relied on Burwell v. Hobby Lobby, applies strictly to Braidwood Management, so ACA requirements around preventative healthcare remain in place. Other religious businesses reluctant to fund PrEP access remain obligated.  

But legal experts are concerned that the ruling could incentivize them to litigate, too, following the path Hobby Lobby paved. “It is likely that employers will continue to bring cases asserting that they don't have to provide coverage for various forms of health care on account of their religious beliefs,” wrote Christy Mallory, legal director at the UCLA School of Law’s Williams Institute, in an email. “Extending beyond contraceptive care that was at issue in Hobby Lobby.”

The plaintiffs, which include Braidwood Management, argue that the ACA preventive health requirements also violate the Appointments Clause US Constitution, which permits the president—and the president only—to select representatives to fulfill the government’s interests. The ACA tasks the U.S. Preventive Services Task Force, the Advisory Committee on Immunization Practices, and the Health Resources and Services Administration to collectively determine what preventative services employers must provide in the healthcare plans they offer employees. “The plaintiffs say these folks have a lot of power with unbridled discretion,” says Andrew J. Twinamatsiko, an associate director of the Health Policy and the Law Initiative at the Georgetown Law’s O’Neill Institute. 

Because the heads of these agencies weren’t selected by the President, Braidwood Management argued that their powers violate the Appointments Clause. In September, Judge O’Connor agreed, but offered both sides the chance to submit supplemental arguments to determine what should replace the system in place.

Without requirements outlined in the ACA, Twinamatsiko says, “insurers will have no incentive to cover these services other than their bottom line,” he wrote to me in an email. “If it is not in their business interest to provide these much-needed services (services that have improved access to preventive health service and minimized racial and ethnic disparities in coverage), insurers can decide not to cover them or impose various costs on them, making them very expensive and inaccessible for millions of Americans.”

If Judge O’Connor rules with Braidwood Management and its collaborators, the federal government can appeal the ruling to the Fifth Circuit. At that point, the case is only one step away from the Supreme Court, now even more conservative than when it ruled in Hobby Lobby. 

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