The Supreme Court will hear oral arguments on Monday in yet another dispute over the separation of powers. The case is a challenge to the constitutionality of the structure of a relatively obscure section of the Department of Health and Human Services. But although the issue may sound like a technical one, the court’s ruling could have real-world implications for U.S. patients – particularly those who use the highly effective HIV-prevention drugs at the center of the dispute.
Under the Affordable Care Act, health insurers and group health plans must cover “preventive health services” at no additional cost to the patient. The Affordable Care Act does not specify what those “preventive health services” are. Instead, the law gives the U.S. Preventive Services Task Force – an independent panel of experts – the power to determine which preventive services insurers must cover.
The task force is made up of 16 volunteers, each of whom serves a four-year term. Members of the task force and their recommendations are required by law to be “independent, and to the extent practicable, not subject to political pressure.”
The task force’s recommendations for required preventive-care services include contraception, cancer screenings, statin medications, and human-papilloma-virus vaccines. In June 2019, the task force recommended that pre-exposure prophylaxis, known as PrEP, medicine that is highly effective at preventing HIV, be included as a mandatory preventive-care service.
The plaintiffs in this case are four individuals and two small businesses that have religious objections to the requirement that insurers and group health plans provide coverage for PrEP. They believe the drug coverage “encourage[s] homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman.” The lead plaintiff, Braidwood Management, is a Christian-owned business that provides health insurance to its 70 employees.
In March 2020, the plaintiffs filed a lawsuit in federal court in Texas. They argued (among other things) that the structure of the task force violates the Constitution’s appointments clause, which requires “principal officers” of the United States to be appointed by the president and confirmed by the Senate.
U.S. District Judge Reed O’Connor agreed. He ruled that all preventive-care coverage requirements that the task force had imposed since March 23, 2010, when then-President Barack Obama signed the Affordable Care Act, were invalid. And going forward, O’Connor prohibited the government from implementing or enforcing the act’s preventive-services coverage requirements.
The U.S. Court of Appeals for the 5th Circuit upheld O’Connor’s ruling that the structure of the task force violates the appointments clause. But it disagreed with his decision to invalidate all of the task force’s past mandates, and to bar the task force from enforcing mandates going forward. Therefore, it concluded, the government should only be prohibited from enforcing the preventive-services coverage requirements against Braidwood and the other challengers.
The Biden administration came to the Supreme Court in September 2024, asking the justices to weigh in, which they agreed in January to do.
In its brief on the merits, the Trump administration defended the structure of the task force. The members of the task force, it told the justices, are not principal officers but instead “inferior” officers, who do not require presidential appointments or Senate confirmation: The HHS secretary has appointed all 16 members of the current task force, those task force members can be removed at any time by the HHS secretary, and the secretary can review the task force’s recommendations and block them from having “legal force under the ACA before those recommendations have binding effect.” “Taken together,” then-Acting Solicitor General Sarah Harris wrote, “those controls give the Secretary, not the Task Force, ultimate responsibility for whether Task Force recommendations become final, binding decisions” – and in doing so, “create a chain of supervisory accounting through the Secretary to the President”
But even if the members of the task force were “principal” officers who should have been nominated by the president and confirmed by the Senate, Harris continued, the remedy for that violation should be to invalidate only the provision that the court of appeals interpreted as barring review of the task force’s recommendations, leaving the rest of the statutory scheme in place. Going forward, Harris suggested, the task force would therefore be allowed to “make recommendations that will have legal effect only under appropriate supervision by the Secretary.”
Braidwood Management and the other plaintiffs are represented by Jonathan Mitchell, the conservative lawyer who (among other things) argued on behalf of then-candidate Donald Trump in his successful challenge to Colorado’s effort to remove him from the 2024 presidential ballot for his role in the Jan. 6, 2021, attacks on the U.S. Capitol.
Braidwood countered that members of the task force cannot be “inferior officers,” and are instead “principal officers,” who must be appointed by the president and confirmed by the Senate, precisely because federal law requires that both they and their recommendations remain independent and insulated from political pressure.
Even if members of the task force could be removed at will, Braidwood continued, they still are not inferior officers because their decisions about which preventive-care services must be covered under the ACA “are not subject to review or reversal by anyone.” The prospect that the HHS secretary can later prevent the task force’s recommendations from having binding effect does not undermine their status as principal officers, Braidwood added, because insurers are required to follow the recommendations “even if the Secretary purports to veto or override its decisions.”
And if the task force members are principal officers, Braidwood concluded, the Supreme Court cannot fix the constitutional violation by invalidating only part of the statutory scheme, as the government suggests. That proposed solution, Braidwood emphasized, would allow the HHS secretary to override the task force’s recommendations, but it would still give the task force unbridled discretion to decide not to require insurers to cover items or services. Moreover, Braidwood added, the government’s proposal would not do anything to address the recommendations that the task force issued between March 2010, when the ACA went into effect, and June 2023, when then-HHS Secretary Xavier Becerra reappointed the members of the current task force.
“Friend of the court” briefs supporting the government cautioned that the impact of a ruling for the plaintiffs on public health could be substantial or even “staggering.” One brief, by the American Hospital Association, suggested that if patients are required to pay for the preventive-care services that are currently available at no cost to them, they may respond by not seeking those services or medications at all.
Addressing PrEP, the medicine at the center of this dispute, specifically, a brief by public health groups focused on HIV and AIDS noted that the drug has “significantly decreased the rates of new HIV infections across the United States.” If patients no longer have no-cost access to PrEP, the groups said, it will both “thwart ongoing efforts to wipe out HIV in the United States” and “ultimately erase much of the progress that has been made to date.”
And a group led by the Susan G. Komen Breast Cancer Foundation similarly warned that if the justices uphold the 5th Circuit’s ruling and limit the availability of preventive-care services, it could increase “(1) the risk of breast cancer progressing to more advanced stages; (2) treatment costs; and (3) the risk of breast-cancer-related deaths.”
Briefs filed in support of Braidwood downplayed the concerns about the effects of a ruling in Braidwood’s favor as “overstated.” A group of states, led by Texas, first posited that because providing these kinds of preventive-care services will ultimately reduce an insurer’s costs, there is no need for a task force to require insurers to make them available. And in any event, the states add, the constitutional problem could be eliminated entirely going forward by having the president nominate members of the task force and the Senate confirm them. “And to the extent that the Task Force members’ nominations may be controversial and so prompt greater debate in the Senate, that point cuts in favor of requiring their confirmation, not against it,” the states concluded.
The Goldwater Institute, a policy and research group that describes its mission as “advancing the principles of limited government, individual freedom, and constitutional protections,” added that the arguments about the potential effects of a ruling for Braidwood are in essence “a policy judgment” that is best “properly addressed to Congress,” rather than the courts.
A decision is expected by late June or early July.
This post is also published on SCOTUSblog.
