Supreme Court retains the Affordable Care Act’s mandate to waive cost sharing for preventive care

The status quo prevailed Friday for coverage of preventive care under the Affordable Care Act, with the Supreme Court backing a mandate for preventive services to be cost-free if supported by an expert panel.

With a 6-3 decision in Kennedy v. Braidwood, the court overruled an appeals court’s finding that members of the U.S. Preventive Services Task Force were not constitutionally appointed. If the Supreme Court had agreed with the earlier decision, health plans could have reverted to charging out-of-pocket costs for any service recommended by the Task Force since the ACA was enacted in 2010.

For example, offering cost-free screening for colorectal cancer to patients ages 45-50 would have been up to the insurer, and first-dollar coverage for some other screenings and pre-exposure prophylaxis (PrEP) treatment likewise would have been in doubt. The same would have applied to medications and behavioral counseling to prevent various conditions.

A different decision Friday likely would have left obligatory cost-free access in place for some services, including those recommended on a nonbinding basis by the Task Force prior to March 2010, along with those endorsed by the Health Resources and Services Administration (HRSA) for women and children and by the CDC’s Advisory Committee on Immunization Practices (ACIP).

The HRSA and ACIP recommendations remain the subject of a separate case brought by the same plaintiffs.

Case background

Braidwood Management, a health and wellness center with a self-funded health plan, and other plaintiffs sued the Biden administration in 2022. The plaintiffs said their religious rights were being violated by the requirement to cover certain drugs without cost sharing, including PreP.

In addition, the plaintiffs made the technical argument that members of the Task Force should be appointed by the president and confirmed by the Senate. As that did not happen, the decisions of the Task Force should be considered invalid.

The plaintiffs prevailed in cases before the Northern District of Texas federal court and the U.S. Court of Appeals for the Fifth Circuit. However, recognizing the possibility of widespread disruption in health insurance markets, the Fifth Circuit agreed to stay the lower court’s ruling until the Supreme Court weighed in. An exception was made for the plaintiffs.

The Supreme Court agreed to hear the case but chose to consider only whether Task Force members were appointed constitutionally, leaving out the question of religious rights.

After the presidential transition in January, the Trump administration opted to continue the government’s defense of the Task Force’s role in setting preventive care mandates. The new administration sought confirmation of HHS Secretary Robert F. Kennedy Jr.’s authority to shape the membership of the Task Force and its strategic priorities for public health.

The court’s arguments

Friday’s decision had the support of the high court’s three liberal-leaning justices and three of the six conservative-leaning justices: Chief Justice John Roberts and Justices Amy Coney Barrett and Brett Kavanaugh, with Kavanaugh writing the majority opinion.

The opinion states that the members of the Task Force can be appointed, rather than having to go through a confirmation process, because they are designated as inferior officers, rather than principal officers. That discrepancy hinges on whether the members operate under the supervision of a federal official such as the HHS secretary.

“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. So under Article II and this Court’s precedents, Task Force members are inferior officers, and Congress may vest the power to appoint them in the Secretary of HHS. Congress has done so, and the Secretary has appointed the Task Force members pursuant to that grant of authority.”

Until 2023, Task Force members were appointed by the Agency for Healthcare Research and Quality, rather than the HHS secretary. Because AHRQ is a division of HHS, the majority viewed the change as a distinction without a difference.

Dissenting were Justices Samuel Alito, Neil Gorsuch and Clarence Thomas, with Thomas writing, “Under our Constitution, appointment by the President with Senate confirmation is the rule. Appointment by a department head is an exception that Congress must consciously choose to adopt.”

What lies ahead

Kennedy, who rose to political prominence as an anti-vaccine advocate, already has exerted influence on ACIP, which makes recommendations as to who should receive specific vaccines. The secretary relieved all 17 committee members of their duties and appointed a handful of new members, whose decisions in recent days have begun to shift longstanding vaccine policy.

Per the Supreme Court’s decision, the secretary likewise has discretion to remove Task Force members if they make a recommendation with which the secretary disagrees. He also can block recommendations simply by not taking steps to implement them.

“Through the power to remove and replace Task Force members at will, the Secretary can exert significant control over the Task Force — including by blocking recommendations he does not agree with,” Kavanaugh’s opinion states.

Citing a prior ruling, the opinion also states that the authorities described in the ACA “ensure that the Task Force members have no power to render a final decision on behalf of the United States unless permitted to do so by the Secretary of HHS.”

In a case filing, the Trump administration stated, “In addition to removing Task Force members at will, the Secretary may supervise and review their recommendations directly.” The majority’s opinion backs that argument.

The big picture

The Supreme Court has a history of thwarting potentially existential challenges to the ACA.

In 2012, a 5-4 decision, with Roberts joining the four liberal justices, affirmed the ACA’s individual mandate to buy health insurance. Supporters of the law had feared that jettisoning the mandate, especially so soon after enactment, would cause the ACA’s entire structure to crumble. But in a key twist, the court also said the Medicaid expansion should be left up to individual states rather than required.

In 2015, the court ruled, 6-3, that subsidies for buying insurance in the federally facilitated marketplaces were legal (had the decision gone the other way, subsidies in the state-based marketplaces would not have been affected).

And in 2021, by a 7-2 decision, the court rebuffed an argument that after Congress nullified the individual mandate effective in 2019, the ACA should have been deemed unconstitutional. The majority did not rule on the merits of the argument but rather said the states and individuals bringing the suit had no standing.

Plaintiffs have had better luck mounting challenges that involved conscience-based objections. For example, in 2014, Hobby Lobby prevailed, 5-4, in a case about whether for-profit corporations could be exempted from the requirement to provide contraception in their health plans, if meeting the mandate would violate their owners’ religious beliefs.

It remains to be seen whether the Braidwood plaintiffs’ arguments about religious rights gain consideration in a potential case before the Supreme Court about the HRSA- and ACIP-recommended preventive services.