The Supreme Court on Friday upheld a key Affordable Care Act provision requiring health insurers to cover certain recommended preventive services cost-free. The decision delivers a victory to health advocates, because services including cancer screenings, statins, and HIV prevention drugs called PrEP will continue to be available at no cost to many Americans.
But the decision also ratifies a strong role for the Health and Human Services secretary in overseeing a key expert panel that has long evaluated preventive services, including removing members and modifying its rulings. That means Robert F. Kennedy Jr. could have more latitude to reshape what’s covered.
The court’s 6-3 decision in the case, Kennedy v. Braidwood Management, was written by Justice Brett Kavanaugh, who was appointed by President Trump. The ruling could challenge the U.S. Preventive Services Task Force’s independence and potentially its credibility, health experts told STAT.
“It’s a win for preventive care access, but there is a cost,” said Josh Salomon, a professor of health policy at Stanford University School of Medicine. “The concern is that the task force really needs to be credible and independent in order to be able to rely on the recommendations. That’s the value of the task force.”
The task force’s job is to figure out whether a preventive health intervention is beneficial to patients. To do that, these health experts evaluate the best available scientific evidence and often run statistical models to understand the intervention’s impact.
Then, the task force comes up with a recommendation ranging from A to D. A and B recommendations are positive. It can also decide that the evidence is not sufficient to come to a conclusion.
Under the Affordable Care Act, insurers are required to cover services with an A or B recommendation from the task force at no cost to patients.
A group of conservative Christian employers in Texas, represented by Braidwood Management, argued that having this independent panel determine national health coverage violated the appointments clause of the Constitution. The group also did not want to cover PrEP, specifically, arguing in lower courts that covering it violated its religious freedom. The Supreme Court only weighed in on whether the ACA provision violated the Constitution’s appointments clause.
The appointments clause identifies two types of executive branch officers: principal officers that are appointed by the president and confirmed by the Senate and inferior officers under those principal officers.
Certain decisions, like national policies or regulations that would force health insurers to provide certain services cost-free, can only be made by either principal or inferior officers, since these individuals should theoretically be more politically accountable. Braidwood argued that task force members were not appointed as either kind of officer. That means they would be unconstitutionally appointed, so their recommendations could not have legal force.
The government countered that HHS officials do appoint task force members, putting task force members under the control of the HHS secretary. And the government argued the secretary has the power to veto task force recommendations. By agreeing with the government, the Supreme Court affirmed that the HHS secretary does have these powers over the task force and its recommendations.
That paves the way for Kennedy to reject recommendations he disagrees with, legal experts told STAT, allowing insurers to charge for those services or avoid covering them in some cases. A new task force could also reject previous recommendations.
If that happens, the concern is that access to those services could decrease, leading to worse health outcomes for Americans. For example, a group of Yale epidemiologists found that removing the cost-free mandate for PrEP could lead to 20,000 new HIV infections in the next five years.
“Even if we are looking at small amounts of cost sharing, just a few dollars, it’s enough to make people think twice about getting needed health care,” said Eric Waskowicz, senior policy manager at the health policy organization United States of Care.
The ruling also opens the door for Kennedy to remove all the task force members and appoint new people. Kennedy did this very thing with a different panel in June, when he dismissed everyone on the Advisory Committee on Immunization Practices, an expert panel that helps set vaccine policy. Then he named new members, including well-known vaccine critics.
If the same thing happens to the task force, experts said it could undermine the public and scientific community’s trust in the panel and its recommendations.
“The premise relies on our confidence that the task force can operate independently, apolitically, in the interest of the public and really answering what is a scientific question about evidence,” said Stanford’s Salomon. “What we’ve seen with ACIP is a sort of exercising of the secretary’s power to replace ACIP members, then seeing how the new members quickly were able to reverse long standing guidance shows us what it looks like when scientific panels become subject to political priorities.”
The Supreme Court has, in recent years, looked upon such structural independence outside the control of the president unfavorably, said Jennifer Nou, a constitutional law professor at the University of Chicago Law School.
Nou said that there are other mechanisms for independence in the government. For one, “norms of independence” have historically helped protect groups that are also supposed to be independent but technically subject to removal — like the Securities and Exchange Commission, U.S. attorneys, and certain scientific boards like ACIP.
“But that norm is under threat,” Nou said.
As these changes reach into the realm of health and science governance, Nou said, the risk is politicizing health care to the point where policies move further away from what the scientific evidence suggests is best for a healthy country.
Source: Supreme Court rejects challenge to free preventive care, bolsters RFK Jr.'s power
