ISSUE 142, Special Section: Cancer Care

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Preventive Care Mandates

They’re a core part of the ACA – but are they unconstitutional?

Emily B. Pence is a healthcare and insurance law attorney with Sturgill, Turner, Barker & Moloney, PLLC.

On September 7, 2022, the U.S. District Court for the Northern District of Texas invalidated portions of the Affordable Care Act’s (ACA) preventive services benefit mandate. In Braidwood Management v. Becerra, (formerly Kelley v. Becerra), six individuals and two businesses sued to eliminate the preventive services requirements, challenging the legality of the preventative care mandates under the Constitution and Religious Freedom Restoration Act (RFRA). The plaintiffs argued the benefits mandate violated their religious beliefs. The ACA’s preventive health benefits mandate requires health insurers to cover contraceptives and HIV pre-exposure prophylaxis (PrEP).

Of the six plaintiffs, the Court only addressed Braidwood Management’s RFRA claim. The Court reserved ruling on the remaining plaintiffs’ RFRA claims. Braidwood Management is a “Christian for-profit corporation” that provides health insurance for its approximately seventy employees through a self-insured plan. Braidwood’s owner, Steven Hotze, wished to provide health insurance for employees that excluded coverage of preventive care like contraceptives and PrEP drugs. In Braidwood Management’s self-insured plan, Hotze wants the option to impose copays or deductibles for preventive care.

To claim protection under RFRA, Braidwood Management had to show (1) the relevant religious exercise is grounded in a sincerely held religious belief and (2) the government’s action or policy substantially burdens that exercise. The government may substantially burden a person’s exercise of religion if it demonstrates the burden (1) is in the furtherance of a compelling governmental interest and (2) is the least restrictive means of furthering that interest.

The Court held the PrEP mandate substantially burdens Braidwood Management’s owner’s religious exercise. It further held the government did not have a “compelling interest in forcing private, religious corporations to cover PrEP drugs with no cost-sharing and no religious exemptions.” Finally, the Court held the PrEP mandate was not the least restrictive means for furthering the governmental interest. In making this decision, the Court suggested the government could assume the cost of providing PrEP drugs to employees unable to get the drug due to an employer’s religious objection. This suggestion is not novel, having first appeared in the Burwell v. Hobby Lobby Stores holding.

What happens next?

How this ruling will be applied has yet to be seen. The Court’s specific holding is that the PrEP mandate violated Braidwood Management’s rights under RFRA. The Court reserved ruling on whether the PrEP mandate violated the other plaintiffs’ rights under RFRA. The Court also reserved ruling on the appropriate remedy in light of its PrEP mandate decision. The Court has asked both sides to submit supplemental briefing on the scope of the relief and the claims relating to the contraceptive mandate. Until those issues are briefed and the Court renders its decision on those issues, the application of this ruling is unknown. To whom, and to what extent, the Braidwood Management case will be applied is currently uncertain. It will be important for healthcare providers and employers alike to keep an eye out for developments following this decision to ensure compliance.


Emily B. Pence is a healthcare and insurance law attorney with Sturgill, Turner, Barker & Moloney, PLLC. She can be reached at epence@sturgillturner.com or 859.255.8581. This article is intended to be a summary of state or federal law and does not constitute legal advice.