The Supreme Court will hear oral arguments in a lawsuit consequential for the fate of preventive services April 21.
If the Supreme Court rules in favor of the plaintiff, Texas-based employer Braidwood Management, private insurers will no longer be required to cover certain cost-free preventive services through the Affordable Care Act (ACA) marketplace plans or in employer-based coverage.
These services have benefited more than 150 million Americans, said Andrew Pincus, a partner at law firm Mayer Brown who has argued 30 cases in front of the Supreme Court. Should the government lose the case, it would effectively end coverage for many services including cancer and HIV screenings.
“I think at the end of the day, we need to make sure we understand this is going to mean more deaths at even a higher cost to Americans, and there’s no question that there’s savings down the line when we do this,” said Georges Benjamin, M.D., executive director at the American Public Health Association. If the provision is overturned, it will lead to more deaths from cancer, strokes and drug use, he added.
The lawsuit has climbed through the lower and appeals courts, initially because the plaintiffs did not want to cover pre-exposure prophylaxis drugs for HIV due to religious objections.
Both the Biden and Trump administrations have argued in favor of keeping in place the U.S. Preventive Services Task Force (USPSTF), a body the plaintiffs find to be unconstitutional. The task force is an independent panel that looks at new scientific developments to make evidence-based recommendations about preventive services.
Many groups have filed amicus briefs in support of the government, including a collection of state attorneys general.
“It was an easy choice,” said Minnesota Attorney General Keith Ellison in a press briefing April 16. “First, the plaintiff's argument doesn't hold up and relies on bad faith reading of the appointments clause, and the court could also take steps to repair the provision in question without destroying these essential programs.
Plaintiffs have claimed members of the USPSTF are not properly appointed and are therefore in their roles unconstitutionally.
Indeed, the Supreme Court may decide to modify, but not eliminate, the role the of the USPSTF, legal experts say. Pincus gives this outcome a “strong likelihood.”
In previous briefs, the Trump administration claimed the task force is constitutional, partly because the executive branch has clear power to assert its authority by overturning the USPSTF’s recommendations. And, if the Department of Health and Human Services (HHS) secretary, in this case Robert F. Kennedy Jr., wants to replace all committee members until the task force is comprised of members that agree with him, he’s able to do that as well, the administration said.
An amicus brief filed by the HIV+Hepatitis Policy Institute, the National Coalition of STD Directors and other groups made a similar argument. Richard Hughes IV, a healthcare attorney for Epstein Becker Green, who is named in the brief, said the USPSTF merely recommends policy but is not responsible for effectuating policy, unlike federal agencies like the HHS.
“I think as a matter of public policy, is there concern as to what the administration might do with the task force recommendations? Sure,” Hughes said. "But the reality is, if we want the task force to survive, it’s important to highlight for the court that there is oversight. There’s political accountability.”
Task force members serve four-year terms.
With the overturning of the Chevron deference last summer as just one example, the Supreme Court has shown a willingness, even eagerness, to curtail the powers of the “administrative state” and to ensure the bulk of governing power is held within the three branches of government. Leaning away from independent agencies and task forces falls neatly within the unitary executive theory, which Trump’s allies have used as the basis for gaining more control over agencies like the Federal Trade Commission.
Republican attorneys general, the Christian Employers Alliance and right-leaning think tanks all filed amicus briefs in support of Braidwood Management, notes the O’Neill Institute for National and Global Health Law at Georgetown University.
But even if the court rules favorably for the government, the issue does not end there, said Pincus.
“So the question will then be, will HHS follow the science and uphold the USPSTF recommendations, or will it take a different course?” he posed.
Further, a district court is still considering the constitutionality of three other categories of services covered by the ACA: vaccine immunizations recommended by the Center for Disease Control and Prevention’s Advisory Committee on Immunization Practices along with women’s and children’s preventive services recommended by the Health Resources and Services Administration. Choosing to ignore expert recommendations from these committees could lead to more court spats and judicial review.
“We know we may be facing an administration that is skeptical about vaccines, science and experts,” said Leslie Dach, chair of advocacy organization Protect Our Care. “This lawsuit is a gateway to allowing the American people to get what they deserve and what the laws Congress meant for them to have. But we’re going to have to remain very, very vigilant in seeing how the administration … behaves when the power is in their hands.
“The minute this provision, God forbid, is struck down by the Supreme Court, we’ll be back at the mercy of the insurance companies,” he added. “They’ll still get the same premium from you, but they’ll offer less services. And I think we’ve seen how that plays out for the American people.”