What you missed in the SCOTUS case that could overturn the ACA
Yesterday, the Supreme Court heard arguments in Kennedy v. Braidwood Management. This case could change the way we understand the Affordable Care Act’s (ACA) preventive care requirements. This case appears to be about the separation of powers, and delegation of authority, in relation to preventive health care services under the ACA. The ACA has been a landmark piece of legislation for over a decade. Conservatives have spent over a decade launching every legal challenge they can to the ACA, but have lost time and again. The Court has allowed notable carve-outs around the birth control benefits for certain employers. The latest challenge, brought by the ghoul behind Texas’ notorious SB 8 abortion bounty-hunter law, seems likely to meet the same fate. The U.S. Preventive Services Task Force, a group comprised of 16 experts in various fields who make recommendations on which services should be classified as preventive under the ACA, determines these services. The Public Health Service Act mandates task force members and their work to be independent and free of “political pressure.” The task force’s recommendations for required preventive-care services include coverage for cancer screenings and pre-exposure prophylaxis (PrEP), the drug that prevents HIV transmission.
The task force, and its origins and structure, had operated largely unchallenged by conservatives since the ACA’s passage and despite all their other complaints about the ACA. The first Trump administration filled the federal courts with ideologues. This ensured that conservative legal theories would find a home at the Supreme Court with at least five Justices. The plaintiffs claim that the PSTF volunteers are not properly appointed government officials and therefore cannot make rules regarding services that must be covered under the ACA, such as PrEP. The plaintiffs claim the PSTF volunteers are not properly appointed government officials and therefore cannot make rules regarding services that must be covered under the ACA, such as PrEP.
They also argued that the PrEP requirement violated their religious rights under the Religious Freedom Restoration Act (RFRA), because they believe the drug coverage “encourage
homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman” in conflict with their sincerely-held religious beliefs.
RFRA is the same federal law private employers used to undermine the ACA’s birth control benefit more than a decade earlier in Hobby Lobby v. Burwell.
Unsurprisingly O’Connor sided with the plaintiffs in Braidwood, ruling in 2022 that the task force recommendations violated Braidwood Management’s rights under RFRA and that the task force’s recommendations were unconstitutional under the Appointments Clause. The Biden administration then appealed this ruling to the Fifth Circuit. In 2023, it issued its own muddled decision, mostly upholding O’Connor’s. The Biden administration asked the Supreme Court for a review of the Fifth Circuit decision. This was granted by the justices earlier this year. That’s because–thankfully–the RFRA question wasn’t before the Court to review. It’s irresponsible, however, to talk about this latest challenge to the ACA, without acknowledging the fact that Braidwood, at its heart, is another example of the way the conservative legal movement spent more than a decade trying to manipulate the courts in order to accomplish something their compatriots, in Congress, have not yet achieved: repealing the ACA. In some ways, Braidwood seemed to be a similar accommodations-style battle, but this time around PrEP. If the Court rules in Braidwood’s favor, private health insurance companies will no longer have to cover preventive services without cost sharing after 2010, when the ACA became law. This could mean that medications and care like statins for heart disease prevention, lung cancer screenings and PrEP would be subject to copays or deductibles. It could also be a deterrent to accessing these services. That’s because we have the Trump administration and the Make America Healthy Again movement setting federal health policy based on junk science, eugenics, and social media influencer campaigns.
The good news from Monday’s arguments is that a majority of justices on the Roberts Court seemed inclined to toss this latest challenge to the ACA away and outright reject Mitchell’s Appointments Clause arguments. That would mean the task force remains in place and can continue to issue recommendations.
The bad news is that it may come at the cost of granting Health and Human Services (HHS) Secretary Robert F. Kennedy Jr. clarified–and maybe even expanded–control over implementing PSTF recommendations. This is partly because the Trump Administration (and the Biden Administration before it) argued that the HHS secretary has the authority to remove task forces members at will and to review their recommendations. And during oral arguments, the justices picked up on this point specifically, with Justice Amy Coney Barrett noting that Mitchell was asking for a “maximalist” interpretation of the statutes to make his Appointments Clause case fit.[s]If Barrett’s point holds and becomes consensus among the Court’s conservatives, then the task force–and its recommendations–will continue to exist under law, and the conservative legal movement will have lost yet another ACA challenge before the Roberts Court. If Barrett’s point holds and becomes a consensus among the Court’s conservatives, then the task force–and its recommendations will continue to exist under law. The conservative legal movement will have lost yet another ACA challenge before Roberts Court. But politically? Kennedy’s previous statements on HIV in general make it reasonable to believe he would change the membership of the task force, which could significantly alter its recommendations going forward.
