Following oral arguments Monday, legal onlookers are giving the edge to the federal government in a lawsuit against employer Braidwood Management as the company tries to overturn a provision requiring private insurers to cover certain cost-free preventive services through the Affordable Care Act (ACA) marketplace or in employer-based coverage.
Oral arguments give insight into how Supreme Court justices are viewing a case, sometimes previewing the lawsuit’s eventual outcome. A decision for this case is expected in June.
“We’re optimistic the government’s side will win on this,” said William Walters, an associate healthcare attorney with Epstein Becker & Green. Walters served as pro bono counsel for the HIV+Hepatitis Institute, an organization siding with the government in an amicus brief.
“With oral argument wrapping up, it looks like the government is likely to win in Braidwood, saving the constitutionality of the preventive services mandate,” agreed Nicholas Bagley, professor of law and former attorney in the Civil Division at the Department of Justice, in a post on X.
That’s likely welcome news for hundreds of millions of Americans who rely on free preventive services. Research shows covering preventive services at no cost increases the likelihood individuals pursue care and improve health outcomes, with advocates warning the provision’s demise will spell disastrous consequences.
Braidwood Management, Christian groups and right-leaning think tanks challenged the law about five years ago. They argue companies should not be forced to cover pre-exposure prophylaxis drugs for HIV due to religious objections.
Plaintiffs argued in front of the Supreme Court that the U.S. Preventive Services Task Force (USPSTF), the body recommending which services should be covered cost-free, is unconstitutional because it violates the appointments clause dictating how a president can appoint federal officials.
Walters anticipated the Supreme Court would be sympathetic to this view but possibly be in support of “severing” the task force’s independence to allow it to remain functional.
“If you think about the constitutionality of how the task force’s members are appointed as step one and then severability as step two, we never actually made it to step two,” he explained. “It seemed like if we had to guess a majority of the justices would actually vote to hold the constitutionality of the task force members at their appointment.”
Structurally, if the Supreme Court rules this way, there is no change with how the USPSTF operates. However, the authority of the Department of Health and Human Services (HHS) secretary would be more official and transparent.
The defendants argue the authority to disregard recommendations or remove members has always existed, and, now, the court can settle the issue. Taking this approach means the task force is not an independent entity.
“Stepping back and looking at the bigger picture, the challengers’ claim is supposedly about political accountability,” said Andrew Pincus, a partner at law firm Mayer Brown. “But if that is what they really were after, it’s been achieved: the government agrees that the Secretary can control whether recommendations become binding on private parties through his power to appoint and remove USPSTF members and his power to issue regulations determining when and whether recommendations become effective.”
Alexandra Lucas, a healthcare compliance and regulatory partner at Reed Smith, also viewed the Supreme Court as “critical” toward the plaintiff’s arguments.
In addition to the three liberal justices appointed by Democratic presidents, Justices Brett Kavanaugh and Amy Coney Barrett hinted they may side with the government through their lines of questioning.
“Your theory, I think, depends on us treating the task force as this massively important agency that operates with unreviewable authority to make really critical decisions that are going to affect the economy,” said Kavanaugh, skeptical the task force is more powerful than HHS leadership or the president.
Chief Justice John Roberts, who has ruled in favor of upholding the ACA in prior cases, did not ask a question.
Nearly 40 advocacy groups and healthcare organizations—including the American Cancer Society, the Raymond Foundation and the GI Cancers Alliance—warned Monday that the Supreme Court rolling back preventive service protections would have “devastating consequences” for individuals seeking colorectal cancer screenings. Colorectal cancer is the second-largest cause of cancer-related deaths.
“This potential rollback of guaranteed, no-cost access to preventive services threatens to undermine the progress we have made in increasing colorectal cancer screening rates and reducing colorectal cancer incidence and mortality, representing a serious setback for public health,” the groups said.
United States of Care CEO Natalie Davis agreed the provision should be upheld because of its widespread support.
“Everyday people, their employers, their insurers, their providers, the Trump administration and the Biden administration, organizations across the country, and countless other stakeholders all agree that the preventive services mandate should remain in place,” she said.
Indeed, the Biden administration supported the ACA provision, but the Trump administration has also deployed similar arguments to save the task force, despite President Donald Trump’s history of contempt for the landmark law under President Barack Obama.
“I am hopeful that the fact that the Trump administration's decision to defend this policy … will sway some of the conservative Supreme Court justices to maintain the status quo and keep these essential services widely accessible,” said Mark Fendrick, M.D., professor of medicine and public health at the University of Michigan.
“We hope and anticipate that the court will uphold the preventive care provisions,” added Robert Andrews, CEO of the Health Transformation Alliance. “Effective preventive care makes people healthier, and every payer, whether public or private sector, benefits in some way from better outcomes. My concern is that if the provisions are struck down, vulnerable Americans will suffer preventable illnesses—but all payers will bear higher costs.”