For 15 years, the Supreme Court has repeatedly rejected attempts to dismantle the Affordable Care Act, and today is no different. This morning, the court once again batted away a challenge to the landmark health insurance reform law, protecting the part of the ACA that required insurers to cover certain types of preventive care—like cancer screenings, cholesterol medications, and HIV prevention drugs—at zero cost to patients.
The case, known as Kennedy v. Braidwood Management, focused not on this coverage requirement but instead on a bureaucratic detail: the structure of the US Preventive Services Task Force, a committee of independent experts who decide which types of care fall under this provision and are appointed by the Secretary of Health and Human Services for 4-year terms. Under the Affordable Care Act, insurers must fully cover services the task force rated “A” or “B.”
In a 6-3 ruling, authored by Justice Brett Kavanaugh, the Supreme Court ruled that task force members are properly appointed and are not required to be confirmed by the Senate. The decision protects dozens of ratings given by the task force since the ACA was passed in 2010, meaning that insurers must continue to make those services free for patients.
As I explained in April:
The case being heard by the Supreme Court argues that the Constitution requires officials who wield that level of power to be nominated by the president and confirmed by the Senate…[Wayne] Turner, the health policy attorney [at the National Health Law Program], says the case comes down to a line in the law that created the task force, declaring it “independent and, to the extent practicable, not subject to political pressure.” Braidwood Management argues that that line makes the task force too unaccountable.
The lawsuit was brought by longtime opponents of the ACA, including Steven Hotze, a Republican megadonor and anti-gay activist currently facing felony charges in Texas. Hotze, who owns Braidwood Management, originally argued that the preventive services mandate violated his religious freedom because it required his company to offer insurance that covered pre-exposure prophylaxis, or PrEP, the “miracle drug” that prevents HIV infection.
Hotze argued that PrEP “facilitate[s] behaviors such as homosexual sodomy, prostitution, and intravenous drug use, which are contrary to Dr. Hotze’s sincere religious beliefs.” Federal Judge Reed O’Connor—a conservative in the Northern District of Texas, sided with Hotze on that claim, exempting him from that part of the ACA. Yet O’Connor also agreed with Hotze on the far-reaching, more technical argument that the members of the US Preventive Services Task Force were so powerful that they required Senate confirmation. The Biden administration decided to appeal that second part of the ruling, which threatened to invalidate all task force ratings since 2010.
When the Supreme Court decided to hear the case this year, the Trump administration surprised observers and picked up where Biden left off, opposing Hotze’s challenge. (Trump, in the past, has tried to repeal the ACA.) At oral argument, administration lawyers argued that HHS Secretary Robert F. Kennedy Jr. has the power to appoint and remove task force members at will, making them accountable to him.
A Supreme Court majority agreed, protecting the ACA’s preventive care mandate. Yet the decision cements power in the hands of RFK Jr., whom the court said can remove task force members at will and block task force recommendations. “Task Force members issue preventive services recommendations of critical importance to patients, doctors, insurers, employers, healthcare organizations, and the American people more broadly, ” Kavanaugh wrote. “In doing so, however, the Task Force members remain subject to the Secretary of HHS’s supervision and direction, and the Secretary remains subject to the President’s supervision and direction.”
In a dissent joined by Justices Samuel Alito, and Neil Gorsuch, Justice Clarence Thomas argued that the ruling “distorts Congress’s design for the Task Force, changing it from an independent body that reports directly to the President to one subject to the control of the Secretary of HHS.”
Read the opinion here.
This post has been syndicated from Mother Jones, where it was published under this address.