27 Jun Ruling in Braidwood a Call to Action
Although No-Cost PrEP is Safe for Now, Ruling Still Leaves Free Preventive Care at Risk
On Friday, June 21, the Fifth Circuit Court of Appeals handed down its much-anticipated decision in Braidwood Management v. Becerra. The court’s ruling was mixed. It agreed with the lower court’s decision that the U.S. Preventive Services Task Force (USPSTF) created by the Affordable Care Act (ACA) was unconstitutional, but this finding only applies to the plaintiffs in this case. Therefore, the nationwide injunction on the USPSTF imposed by the lower court was overturned, keeping the provision of no-cost preventive services, as determined by the Task Force’s grading system, intact for the time being for the majority of Americans. Although this ruling does not create a worst-case scenario for HIV advocates and health care providers, it does create the environment necessary for the possible elimination of the USPSTF.
“Medical providers and others in the HIV community are relieved that ACA provisions for no-cost PrEP services are still in place. Meeting our goals of ending the HIV epidemic would be impossible without the widespread use of and equitable access to PrEP,” said Bruce J. Packett II, Executive Director of the American Academy of HIV Medicine. “However, because of this ruling, the existence and authority of the USPSTF are decidedly at risk. We should all recognize this as a collective call to action to mitigate the possible effects of the court’s opinion.”
In its reasoning, the Fifth Circuit Court laid the groundwork for a potentially successful suit that could upend the free preventive services that are decided upon by the USPSTF. The court claims that the unreviewable power the USPSTF has means that its members are principal officers of the United States. Thus, these members should have been nominated by the President and confirmed by the Senate, according to the Appointments clause. Since they have not gone through that process, the court found the USPSTF in violation of the Appointments clause and therefore unconstitutional. The ruling only applies to the plaintiffs in this case, though, because Braidwood Management improperly brought arguments about a nationwide remedy too late in their briefing. This leaves the door open to other suits to argue for a nationwide injunction.
Additionally, the court remanded to the lower court an unanswered question that affects two additional preventive care agencies. This question, specifically, is whether Health and Human Services Secretary Xavier Becerra followed proper procedures in his ratification of recommendations by two federal entities, the Advisory Committee on Immunization Practices and the Health Resources and Services Administration. Although the court raised concerns about Becerra’s ratification as contemplated by the ACA, legal experts believe the final decision will be eventually appealed to the Supreme Court.
“The Academy stands with the HIV community and with all health care providers in advocating for accessible and equitable preventive care,” said Packett. “These services are the backbone of a healthy, thriving society and we must all stand ready to defend health care rights for everyone.”
The Academy plans to work with its constituency to address looming threats to PrEP and preventive care overall. For more information and to join in our advocacy efforts, please contact our Public Policy Director at advocacy@aahivm.org.