Since 1984, the U.S. Preventive Services Task Force (USPSTF) has issued recommendations to the public regarding preventive health services. The recommendations have substantially benefited public health. With the passage of the Affordable Care Act in 2010, recommendations assigned the highest ratings (A and B) must be covered by most private health insurers without consumer cost-sharing. This statutory requirement has been challenged in Braidwood Management Inc. v. Becerra, a case centered on the plaintiffs’ argument that USPSTF members are officers of the United States but were not appointed in accordance with the Appointments Clause of the Constitution. The Appointments Clause requires that principal officers of the United States must be appointed by the President and confirmed by the Senate. This article contends that members of the USPSTF are not principal officers of the United States, but instead serve as advisors to Congress in making preventive health recommendations. Congress established the coverage policy, not the USPSTF members. On this basis, the defendants should prevail in the case, but if they do not, the court should apply severability to permit the Secretary of Health and Human Services to directly oversee the USPSTF in the assignment of ratings for preventive health recommendations. The important work of the USPSTF should not be abridged.

For almost a century, the Supreme Court has not invalidated a law using the nondelegation doctrine. Recognizing that Congress seldom has expertise to address the ever-increasing complexities of society, the Court has long held that Congress can legislate broadly and seek help from federal agencies to fill up the details. Accordingly, courts defer to Congress’s delegation choices, as long as it lays down an intelligible principle to guide the agencies entrusted with implementing legislation. Under that approach, the Court has upheld broad delegations of authority to federal agencies. This approach has been the bedrock of meaningful agency action, especially in health policy in which agencies must leverage their expertise to respond to highly technical issues, emergencies, advances in technology, and the need to address health disparities. While this deferential approach has guided the courts and Congress for decades, delegation is increasingly under attack. Braidwood Management, Inc. v. Becerra, which challenges the Affordable Care Act’s preventive services requirement, exemplifies nondelegation-based attacks on agency authority. With several members of the Supreme Court signaling interest in revisiting the current deferential delegation standard, Braidwood likely provides an opportunity for the Supreme Court to do so. Reinvigorating the nondelegation doctrine — coupled with the major questions doctrine and rolling back of Chevron deference — will hurt U.S. health policy. It will not only constrain how agencies work, but also aggrandize the courts and limit how Congress may achieve legislative goals.

The Affordable Care Act’s preventive services mandate requires private insurance plans to serve public health goals. But the employers that facilitate access to insurance for more than half the population hold political views and economic interests that may run counter to public interests. And now, in the name of for-profit employers’ religious rights, the courts are eroding the legal foundations of privately financed public health. Religious objections to the preventive services mandate — of which Braidwood Management, Inc. v. Becerra is just the most recent high-profile example — have become a site of opposition to public health. Courts have radically revised standards for religious exemption, adopting an individualistic frame that discounts population-level effects. Recent decisions could invite free exercise claims that go to the heart of securing population health through the workplace.

The 2023 Texas federal district court decision Braidwood Management, Inc. vs. Becerra enjoined the enforcement of the Affordable Care Act’s preventive care mandate, which requires “first-dollar” insurance coverage for a range of preventive measures, including pre-exposure prophylaxis (PrEP), an HIV prophylactic drug. Most scholars have analyzed the case with respect to the conflict between public health goals and the Religious Freedom Restoration Act (RFRA). This Article suggests another reading of the Braidwood decision in light of a broader socio-legal phenomenon I call preventive health stigma. Stereotypes attach to the underlying medical condition that a given measure is aimed at preventing, or to the actual preventive measure resulting in stigmatization. Preventive health stigma penetrated the Braidwood decision through the case’s focus on PrEP users’ signaled prurient behavior instead of the drug’s proven health benefits. After offering a novel reading of the Braidwood decision, this Article also shows how preventive health stigma surfaces in the legal treatment of other preventive measures, such as abortion pills, masking, and vaccines. Understanding how stigma attaches to preventive medicine constitutes an important step in understanding how law and prejudice can undermine health reform.

The burgeoning wellness industry attracts a lot of practitioners who are largely unregulated. This “wild west” of wellness creates uncertainty for insurers, employers, consumers, and practitioners as to: (1) what services and items wellness practitioners can offer; (2) whether those practitioners are qualified; and (3) whether they behave in an ethical manner. Some guideposts for these wellness stakeholders would be welcome and may reduce consumer harm. Guideposts for wellness is especially crucial in a time when the Braidwood Management, Inc. v. Becerra case threatens the delivery of preventive care services in the health care sector. As we have learned from the health care sector, the state licensure scheme is confining and not conducive to national practice, particularly in the wake of virtual platform technologies. Thus, instead of state licensure, this article proposes a private Standard Development Organization (SDO) scheme that can create and enforce standards within the wellness industry.

Braidwood Management, Inc. v. Becerra threatens the nationwide enforceability of the preventive care mandate of the Affordable Care Act (ACA) with respect to a variety of preventive health care services. The success of this lawsuit could have devastating repercussions. Not only would many current guidelines of the U.S. Preventive Services Task Force (USPSTF) be affected, but future preventive care recommendations would be as well, to the detriment of achieving health equity goals. This Article posits that the loss of guaranteed free preventive care could threaten current and future health equity gains. If preventive care is no longer offered without cost-sharing, research shows that many people, especially those with lower socioeconomic status, will not access the care. This decrease in access to recommended screenings and other preventive services would likely decrease uptake, over time impacting the stage at which diseases such as cancer are diagnosed, making late-stage diagnoses with poorer prognoses more common, and increasing transmission of other conditions such as HIV. At the population level, decreased access to free preventive care could hinder efforts to reduce entrenched inequalities associated with these conditions.

Moreover, these effects will be amplified as insured people lose access to preventive care recommendations that evolve in response to new research findings. In the years since the ACA’s passage, the USPSTF has brought a health equity lens to each step of its recommendation process, including how it chooses preventive services to study, how it designs and conducts its research plan, and its approach to issuing recommendations along with calls for more research. Although some have argued that the resulting shift in the USPSTF’s recommendations has not happened fast enough, the way in which the USPSTF structures its evidentiary reviews — with a focus on high-level literature reviews of medical studies — suggests that over time, as individual studies continue to examine the effectiveness of interventions in different populations and publish their results, the shift will become more dramatic and the resulting recommendations will be more effective at combating health care disparities. If Braidwood is successful, no-cost insurance coverage for these more responsive recommended services could be undermined.

This Article explores the potential impact Braidwood could have on existing and anticipated advances in preventive care through a focus on two life-threatening conditions: cancer and HIV. Both cancer and HIV preventive care recommendations have undergone significant changes since the implementation of the preventive care mandate. While the resulting recommendations remain imperfect, the Article shows the important and evolving relationship between these recommendations and efforts to overcome pervasive and entrenched disparities in health outcomes related to these conditions. If Braidwood is upheld, ongoing efforts to reduce disparities in cancer and HIV will be stymied.

The preventive services at the center of Braidwood Management, Inc. v. Becerra contribute to reducing inequities in life expectancy in the United States. Critical preventive are currently fully covered by insurance as preventive care under the Affordable Care Act. Reducing affordable access to such screenings and medicines is most likely to impact those with lower incomes and less education, and contribute to widening existing inequities in health outcomes.

Recent research has identified a large and growing mortality gap between those with and without college degrees. On average, individuals without college degrees are likely to die about 8.5 years earlier than those with such degrees. In recent decades, cancer death rates fell nearly two times faster among the college educated. Mortality from heart disease fell by nearly two-thirds among those with college degrees but by less than one-third for all others.

Disparities in life expectancy in the United States reflect the uneven progress against the leading causes of death among different populations. The Braidwood decision, if upheld, will raise the costs to patients for interventions that have contributed to recent gains in life expectancy. This Article analyzes the impact of Braidwood on preventive health interventions in the context of growing life expectancy gaps within the United States.

Braidwood Management, Inc. v. Becerra challenges the Affordable Care Act free preventive coverage guarantee. Community health centers serve over 30 million residents of medically underserved urban and rural communities. Their limited federal grant funding makes them reliant on insurance revenue for their operations, Medicaid and subsidized marketplace coverage in particular, both of which are implicated by the case. To understand these implications, we developed an analytic model that crosswalks the preventive services potentially affected by Braidwood and the preventive care that all health centers must furnish. Of the 193 preventive services now covered under the guarantee, only forty-eight would survive were the Braidwood plaintiffs to prevail. In underserved communities, health centers are a principal source of the nearly 150 affected services, as evidenced by the care they are required to furnish under federal law, the quality metrics they are expected to meet, and the health diagnoses and treatments identified in federal performance reporting requirements. Thus, the impact on access, quality, patient health, and health center finances and care capability will likely be substantial.

Currently, the Affordable Care Act helps to provide inexpensive preventive care services to adolescents (10–19 years old) by preventing insurance companies from implementing cost-sharing measures. Some of these services can fall under the realm of mental health preventive care such as anxiety and depression testing. The lack of cost to a patient and their family encourages doctors to offer these services to their young patients. Furthermore, this Affordable Care Act provision - fosters doctor-patient communication because it normalizes mental health services as part of well-being. However, Braidwood Management Inc. v. Becerra threatens to have far reaching implications for preventive care policy and to disrupt health communication efforts to promote positive mental health. This Article uses structuration theory and a conceptual framework of adolescent development to examine the potential ramifications of cost-sharing on adolescent health. The implications of this change in cost-sharing include constraining doctors’ communication behavior in primary care settings and stunting healthy adolescent development. Ultimately, if the Braidwood decision is upheld, it may pose a challenge to a doctor’s ability to communicate with their young patient about mental health.