¹ Braidwood Mgmt. v. Becerra, 627 F. Supp. 3d 624 (N.D. Tex. 2022). These remarks were delivered while the case was pending before the Court of Appeals for the Fifth Circuit, which heard oral arguments on March 4, 2024. The Fifth Circuit issued its opinion on June 21, 2024. See Braidwood Mgmt. v. Becerra, 104 F.4th 930 (5th Cir. 2024). Final appeals remain pending.

² 42 U.S.C. § 300gg-13.

³ Abbe R. Gluck & Erica Turret, Happy Tenth Birthday, Obamacare: This Crisis Would Be Much Worse Without You, Health Affs. (Mar. 23, 2020), https://www.healthaffairs.org/content/forefront/happy-tenth-birthday-obamacare-crisis-would-much-worse-without-you (“It is also the ACA that will allow the federal government to mandate that insurers must cover a future COVID-19 vaccine at no out-of-pocket costs to all individuals, as a required preventive service.”).

⁴ See Brief of 49 Bipartisan Economic and Other Social Science Scholars as Amici Curiae Supporting Defendants-Appellants, at 6-7, Braidwood Mgmt. v. Becerra, No. 23-10326 (5th Cir. June 27, 2023). For a famous study on the effects of expanding access to public insurance coverage on beneficiaries’ use of services, see Katherine Baicker et al., The Oregon Experiment — Effects of Medicaid on Clinical Outcomes, 368 N. Eng. J. Med. 1713, 1718 (2013) (finding, based on interviews and a survey, that “Medicaid coverage resulted in an increase in the number of prescription drugs received and office visits”). For a summary of the “most comprehensive study” on the effects of high-deductible plans on enrollees’ use of care, see Amelia Haviland et al., RAND, Skin In the Game: How Consumer-Directed Plans Affect the Cost and Use of Health Care (2012) (reporting a decrease in use of preventive care services, including childhood vaccinations, mammography, cervical cancer screening, and colorectal cancer screening among customers of health plans that include high deductibles); see also Zarek C. Brot-Goldberg et al., What Does a Deductible Do? The Impact of Cost-Sharing on Health Care Prices, Quantities, and Spending Dynamics, 132 Q.J. Econs. 1261, 1293-96 (2017) (finding, based on a natural experiment, that the transition from an insurance plan that provides free health care to a health plan that includes high deductibles led customers to reduce consumption of preventive care services); Sara R. Collins, Lauren A. Haynes & Relebohile Masitha, The State of U.S. Health Insurance in 2022, Commonwealth Fund (Sept. 29, 2022), https://www.commonwealthfund.org/publications/issue-briefs/2022/sep/state-us-health-insurance-2022-biennial-survey (finding, based on a survey of 8,022 adults, that “[s]ixty-one percent of working-age adults who were underinsured and 71 percent of those who lacked continuous coverage said they had avoided getting needed health care because of the cost of that care”).

⁵ 42 U.S.C. § 300gg-13.

⁶ Id. § 300gg-13(a)(1).

⁷ Id. § 300gg-13(a)(2)–(4).

⁸ Among other things, the Fifth Circuit disagreed that USPSTF was “supervised” by HHS. Braidwood Mgmt. v. Becerra, 104 F.4th 930, 944 (5th Cir. 2024).

⁹ 42 U.S.C. § 1396d(a)(13). Preventive services are also covered by Medicare, the program for individuals age 65 and older. See 42 U.S.C. § 1395x(s). For more on preventive services covered under Medicare, see Preventive & Screening Services, Medicare.Gov, https://www.medicare.gov/coverage/preventive-screening-services (last visited May 2, 2024).

¹⁰ 42 U.S.C. § 300gg-13(a)(4) (“[W]ith respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.”).

¹¹ Press Release, Nat’l Org. for Women, Senator Mikulski’s Women’s Health Amendment Is an Important Improvement to the Senate Health Care Reform Bill (Dec. 1, 2009), https://now.org/media-center/press-release/senator-mikulskis-womens-health-amendment-is-an-important-improvement-to-the-senate-health-care-reform-bill/ (urging “all senators to support Senator Mikulski’s amendment, which will guarantee women in their 40s access to mammograms and other screenings”); David M. Herszenhorn & Robert Peer, Senate Passes Women’s Health Amendment, N.Y. Times (Dec. 3, 2009), https://archive.nytimes.com/prescriptions.blogs.nytimes.com/2009/12/03/senate-passes-womens-health-amendment/ (“The debate over amendments related to women’s health care had focused heavily on the question of when it is appropriate to begin annual mammograms to screen for breast cancer.”).

¹² See Opening Brief for Federal Defendants at 1, Braidwood Mgmt. v. Becerra, No. 23-10326 (June 20, 2023) (“This statutory requirement gives 150 million Americans access (at no extra cost) to more than 50 services—many life-saving”); see also Off. of the Assistant Sec’y for Plan. & Evaluation, U.S. Dep’t of Health & Hum. Servs., HP-2022-01, Access to Preventive Services Without Cost-Sharing: Evidence from the Affordable Care Act at 3, 4, 6 (2022), https://aspe.hhs.gov/sites/default/files/documents/786fa55a84e7e3833961933124d70dd2/preventive-services-ib-2022.pdf (referring to “more than 150 million people with private health coverage” who “benefit[] from the ACA’s coverage of preventive services without cost-sharing”). A study based on 2018 data concluded that, that year, 100 million people actually utilized the benefit. See Krutika Amin et al., Preventive Services Use Among People with Private Insurance Coverage, Peterson-KFF Health Sys. Tracker (Mar. 20, 2023), https://www.healthsystemtracker.org/brief/preventive-services-use-among-people-with-private-insurance-coverage/.

¹³ Cf. id. (“[P]reventive services utilization changed during the pandemic, as many people delayed or went without routine screenings in 2020 and most adults received COVID-19 vaccines in 2021.”).

¹⁴ The lawsuit included a larger number of plaintiffs, identified by the district court as both “religious objector” and “non-religious objector” plaintiffs. Braidwood Mgmt. v. Becerra, 666 F. Supp. 3d 613, 619 n.6 (N.D. Tex. 2023). In a March 2023 decision, the district court held that only the “religious objector Plaintiffs” had standing. Id. at 625. The Fifth Circuit did not disturb that judgment. Braidwood Mgmt. v. Becerra, 104 F.4th 930, 938 n.18 (5th Cir. 2024).

¹⁵ Braidwood Mgmt. v. Becerra, 627 F. Supp. 3d 624, 634 (N.D. Tex. 2022).

¹⁶ The district court rejected the plaintiffs’ nondelegation claim, holding that “the authority granted to the agencies falls within the constitutional parameters outlined by the Supreme Court and the Fifth Circuit.” Braidwood Mgmt., 627 F. Supp. 3d at 652 (relying on a recent Fifth Circuit decision, Big Time Vapes, Inc. v. Food & Drug Admin., 963 F.3d 436 (5th Cir. 2020)). In their brief on appeal, the plaintiffs acknowledged that their nondelegation claim is “foreclosed” by Big Time Vapes, Inc., but they stated that they were “preserving this claim for the Supreme Court.” Brief of Appellees/Cross-Appellants Braidwood Management Inc., et al., at 60, Braidwood Mgmt. v. Becerra, No. 23-10326 (Aug. 7, 2023). It therefore remains relevant to our discussion.

¹⁷ Braidwood Mgmt., 627 F. Supp. 3d at 652.

¹⁸ Id.

¹⁹ Braidwood Mgmt. v. Becerra, 104 F.4th 930 (5th Cir. 2024).

²⁰ Id. at 950-55. On the Appointments Clause challenge to ACIP and HRSA, the Fifth Circuit remanded the case to the district court for further consideration as to whether the HHS Secretary did in fact effectively ratify their recommendations. Id. at 956-57.

²¹ Braidwood Mgmt. v. Becerra, 104 F.4^th 930 (5^th Cir. 2024), petition for cert. filed, No. 23-10326 (U.S. Sep. 19, 2024).

²² See Abbe R. Gluck, Mark Regan & Erica Turret, The Affordable Care Act’s Litigation Decade, 108 Geo. L.J. 1471, 1472–73 (2020) (providing data on ACA litigation).

²³ Abbe R. Gluck & Thomas Scott-Railton, Affordable Care Act Entrenchment, 108 Geo. L.J. 495, 502 (2020) (documenting and analyzing the ways in which the ACA “adapted and endured” various challenges).

²⁴ William N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 Duke L.J. 1215, 1216 (2001) (defining a “super statute” as “a law or series of laws that (1) seeks to establish a new normative or institutional framework for state policy and (2) over time does ‘stick’ in the public culture such that (3) the super-statute and its institutional or normative principles have a broad effect on the law — including an effect beyond the four corners of the statute”).

²⁵ Gluck et al., supra note 17, at 1477–91 (describing “three significant ‘existential’ challenges to the ACA”).

²⁶ Denise Grady, Overhaul Will Lower the Costs of Being a Woman, N.Y. Times (Mar. 30, 2010), https://www.nytimes.com/2010/03/30/health/30women.html?ref=health.

²⁷ Leslie King & Madonna Harrington Meyer, The Politics of Reproductive Benefits: U.S. Insurance Coverage of Contraceptive and Infertility Treatments, 11 Gender & Soc’y 8, 9, 14, 22, 24 (1997).

²⁸ See Gluck et al., supra note 17, at 1510 (noting that, in enacting the ACA, “Congress took a large step toward ‘universalizing’ Medicaid”).

²⁹ Mark Scherzer, Insurance, in Aids and the Law: A Guide for the Public 185, 197 (Harlon L. Dalton, Scott Burris & the Yale AIDS Law Project eds., 1987).

³⁰ Id.

³¹ Id.

³² Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 588 (2012) (“As for the Medicaid expansion, that portion of the Affordable Care Act violates the Constitution by threatening existing Medicaid funding.”).

³³ Gluck et al., supra note 17, at 1510.

³⁴ For the classic treatment, see Paul Starr, The Social Transformation of American Medicine 180–97 (1982), which details how the public health system was siloed from medicine from the beginning, largely due to turf-protective doctors who wanted to keep a government-based approach out.

³⁵ Hon. Rosa L. DeLauro & Abbe R. Gluck, Cancer and Congress, in A New Deal for Cancer: Lessons from A 50 Year War, 336, 351 (Abbe R. Gluck & Charles S. Fuchs eds., 2021).

³⁶ Id.

³⁷ Lindsay F. Wiley, Extreme Religious Liberty Is Undermining Public Health, N.Y. Times (Sept. 15, 2022),h ttps://www.nytimes.com/2022/09/15/opinion/religious-liberty-public-health.html. See also Elizabeth Sepper & Lindsay F. Wiley, Religious Resistance and the Public’s Health, 50 Am. J.L. & Med. (forthcoming 2024);(2024).https://www.nytimes.com/2022/09/15/opinion/religious-liberty-public-health.html.

³⁸ Brief of 49 Bipartisan Economic and Other Social Science Scholars, supra note 4, at 13–17.

³⁹ Gluck et al., supra note 17, at 1473–74.

⁴⁰ See Anne Alstott, Law and the Hundred-Year Life, 26 Elder L.J. 131, 131 (2018).

⁴¹ Yaron Covo, Abbe Gluck & Linda Fried, The 100 Year-Old-American and Our Health System, in Law and the 100-Year-Old American (Anne Alstott, Abbe Gluck & Eugene Rusyn eds., forthcoming 2024).

⁴² A. David Paltiel et al., Increased HIV Transmissions with Reduced Insurance Coverage for HIV Preexposure Prophylaxis: Potential Consequences of Braidwood Management v. Becerra, Open F. Infectious Diseases, Mar. 16, 2023, at 3.

⁴³ Fangjun Zhou et al., Economic Evaluation of the Routine Childhood Immunization Program in the United States, 2009, 133 Pediatrics 577, 577 (2014).

⁴⁴ J. Nadine Gracia & Amy Pisani, Vaccine Infrastructure and Education Is the Best Medical Investment Our Country Can Make, Health Affs. (Jan. 21, 2020), https://www.healthaffairs.org/content/forefront/vaccine-infrastructure-and-education-best-medical-investment-our-country-can-make.

⁴⁵ See Abbe R. Gluck & Jacob Hutt, Epilogue: COVID-19 in the Courts, in COVID-19 and the Law: Disruption, Impact, and Legacy 391, 397 (I. Glenn Cohen, Abbe R. Gluck, Katherine L. Kraschel & Carmel Shachar eds., 2023) (“[T]he most successful refutations of Jacobson came from those raising free exercise of religion claims in the face of generally applicable pandemic mitigation efforts.”); see also Stephen I. Vladeck, The Most-Favored Right: Covid, the Supreme Court, and the (New) Free Exercise Clause, 15 N.Y.U. J.L. & Liberty 699, 746 (2022) (noting that the Supreme Court showed “favoritism for the Free Exercise Clause, at the expense of every other constitutional right, in the specific and unique context of COVID-related emergency orders”); Lee Epstein & Eric A. Posner, The Roberts Court and the Transformation of Constitutional Protections for Religion: A Statistical Portrait, Sup. Ct. Rev. 315, 338 (2021) (“In practice, the Court’s rulings have mostly but not exclusively protected the conservative values of mainstream Christian organizations against secular laws, including public health orders to counter the Covid-19 pandemic ….”).

⁴⁶ Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational Safety & Health Admin., 595 U.S. 109, 122 (2022) (Gorsuch, J., concurring); West Virginia v. Env’t Prot. Agency, 597 U.S. 697, 723–32 (2022); see also Gluck & Hutt, supra note 40, at 393 (“The ascendance of the major questions doctrine may be one of COVID-19’s most important legal legacies and the one with the biggest implications for the future of the modern administrative state.”).

⁴⁷ FDA v. All. for Hippocratic Med., 602 U.S. 367 (2024).

⁴⁸ See Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024).

⁴⁹ See generally Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).

⁵⁰ Loper Bright, 144 S. Ct. at 2263-73.

⁵¹ 144 S. Ct. 2244 (2024).

⁵² Id. at 2311.