NoHLA has been keeping a keen eye on the reproductive health cases in the federal courts, since so much is at stake after the Dobbs decision two years ago overturned the federal right to abortion. 

In the last session, the Supremes declined to issue substantive rulings in two important cases. In FDA v. Alliance for Hippocratic Medicine, the Court determined the plaintiffs lacked standing to challenge access to the abortion drug mifepristone. In the consolidated cases Idaho v. United States and Moyle v. United States, the Court returned the case to the lower courts on the question of whether a near-complete ban on abortion violates the Emergency Medical Treatment and Active Labor Act (EMTALA). These decisions mean, of course, that these issues have not been resolved and could reappear before the Court in the not-too-distant future. 

Another federal case that has been returned to the lower courts is Braidwood v. Becerra, which  could ultimately jeopardize the Affordable Care Act’s requirement for no cost-sharing preventive services for millions of people across the country. Fortunately, those benefits remain in place for now. The plaintiffs questioned the authority of the US Preventive Services Task Force (USPSTF) and other expert committees to make the preventive services recommendations, in particular, challenging medications such as PrEP for HIV treatment. 

The Fifth Circuit Court of Appeals recently issued a preliminary ruling in the case, calling it a “mixed bag.” The bad news is that the Court agreed that the USPSTF expert committee process violated the Appointments Clause of the Constitution. Fortunately, the Court narrowed the ruling so it only applies to the plaintiffs who sued – that’s the good news. But the door is open to future attacks against the preventive services recommendations, because the Court sent the case back down to the lower court for further deliberations. 

In Washington, there are some state protections in place because the Washington legislature passed ESHB 1957, protecting preventive care services for fully-insured plans. However, this state law protection does not extend to self-insured/ERISA plans, so the final outcome of this case will continue to matter to many Washingtonians. In the meantime, the Fifth Circuit’s ruling means that the Affordable Care Act’s preventive services law remains the law of the land.  For more on Braidwood and the current reproductive health legal landscape, check out this presentation and recording by NoHLA’s Emily Brice and Lee Che P. Leong in a recent webinar sponsored by NoHLA, ACLU-WA and Legal Voice.