In an era of judicial conservatism, a recent ruling that invalidates the Affordable Care Act’s preventive services mandate is likely to be upheld by higher courts, including the Supreme Court, legal experts say.
The March 30 ruling by Judge Reed O’Connor, of the District Court, Northern District of Texas, guts the U.S. Preventive Services Task Force, jeopardizing access to screening for cancer and other diseases
“This reading of [the Religious Freedom Restoration Act] is consistent with some of the more recent Supreme Court cases, such as Burwell v. Hobby Lobby, but very much opens the door to plaintiffs claiming any sorts of medical interventions violate their sincerely held religious beliefs,” said Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.
A story about the potential impact of the ruling—which determined that the USPSTF lacks the constitutional authority required to influence coverage decisions, and that its mandates on HIV prevention violate the RFRA of 1993—appears here.
“Religious liberty is an important value of our community, but one person’s religious liberty should not be allowed to cause harm to others in our society,” Shachar said.
Shachar spoke with Matthew Ong, associate editor of The Cancer Letter.
Matthew Ong: What are your initial reactions to the ruling and the soundness of District Judge Reed O’Connor’s arguments?
Carmel Shachar: Judge Reed O’Connor’s decisions are unsurprising, considering his track record of siding against innovative health policies and transgender rights.
We are in an era of judicial conservatism; for example, the Supreme Court’s Dobbs v. Jackson ruling this summer.
So, while Judge Reed’s conclusions on the Appointments Clause issue and the application of RFRA to preventative care coverage mandates are somewhat out there—and concerning from a public health perspective—they may ultimately survive appeal.
What do you know about Judge Reed O’Connor?
CS: Judge Reed O’Connor is known for reliably ruling against Democratic policies.
Republican attorney generals in Texas often file in his district knowing his skeptical at best approach to regulation, especially health care regulation.
For example, [Attorney General of Texas] Ken Paxton filed his ACA challenges in the Northern District of Texas in hopes that Judge O’Connor would hear them.
What are the chances that this decision would reach the Supreme Court, and be upheld by a higher court, including the Supreme Court—in particular, the Appointments Clause and the Religious Freedom Restoration Act judgments?
CS: This case will likely make it up to the Supreme Court.
The application of the Appointments Clause to bar reliance on the recommendations of USPSTF is novel. If this application was allowed to stand, then a significant amount of federal activity—not just in the health sphere—would be vulnerable.
If this application was allowed to stand, then a significant amount of federal activity—not just in the health sphere—would be vulnerable.
Private standard-setting organizations’ recommendations are incorporated into federal regulations and actions all the time; for example, the recommendations of the American Society of Mechanical Engineers.
The RFRA judgment is less novel, but it is a very broad application of RFRA in that Judge O’Connor only required the plaintiffs to demonstrate a sincerely felt religious belief to avoid being substantially burdened by a government policy.
This reading of RFRA is consistent with some of the more recent Supreme Court cases, such as Burwell v. Hobby Lobby, but very much opens the door to plaintiffs claiming any sorts of medical interventions violate their sincerely held religious beliefs.
You could easily see claims that the COVID-19 vaccines violate a person’s religious beliefs, for example.
Considering the court’s arguments about constitutionality and appointment of the task force and its members, how would the task force be able to remain politically independent and issue legally binding recommendations—1) without ratification by the HHS secretary, and 2) without appointment by the president and the Senate?
CS: I am not sure that under Judge O’Connor’s decision there is a path forward for USPSTF to remain politically independent, yet issue legally binding recommendations without complying with the requirements of the Appointments Clause.
Part of today’s decision was seeing if the parties could come up with a compromise that O’Connor would find acceptable.
They did not, which is why O’Connor is granting the plaintiffs’ request for declaratory and injunctive relief with respect to the mandatory coverage requirements.
The ruling did not challenge the religious plaintiffs’ claims that preventive care mandates made them “complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman as a condition of purchasing health insurance.” What is your response to the sentiments that are reflected by the religious plaintiffs as well as in the ruling?
CS: It is disappointing that RFRA is being read in a way to justify limiting access to medical care on the basis of homophobic perceptions.
Contraceptives and family planning are a cornerstone of good public health and modern society—that people are not forced into childbirth, especially considering the dismal maternal outcomes in America today.
PrEP is a wonderful medical tool that allows us to effectively address the AIDS/HIV epidemic. Limiting access to both contraceptives and to PrEP, among other sexual health services, means that people will suffer.
Religious liberty is an important value of our community, but one person’s religious liberty should not be allowed to cause harm to others in our society.
What are your thoughts about stigma or bias in legal proceedings, public health considerations, and the generation of scientific evidence and recommendations? Also, is there a point to make here about how diseases—including cancer, HIV, and STDs, that preventive care measures are designed to address—are agnostic to race, gender, and sexual orientation?
CS: It is extremely important to stress that pharmaceuticals, medical services, tests, and devices are tools. Tools by themselves are not morally good or bad, they’re simply tools.
By that same point, diseases are not agents of moral judgment. People of all types and who make all sorts of choices get cancer, STIs, COVID-19, etc.
What is morally problematic is when we have the tools to address disease and suffering and choose to make them inaccessible, because of stigma or perceptions that “people deserve” their bad health.
