SCOTUS Upholds ACA Preventive Care Task Force, Free Services Measure

The Supreme Court of the United States (SCOTUS) on Friday, June 27, upheld the validity of a task force that recommends preventive healthcare services and related products that health insurers and group health plans must cover at no cost, derailing the latest legal challenge to the Affordable Care Act (ACA).

The Supreme Court’s 6-3 decision in the case Kennedy, Secretary of Health and Human Services, et al. v. Braidwood Management, Inc., et al. overturned a June 21, 2024, decision by the U.S. Court of Appeals for the Fifth Circuit. Supreme Court justices Brett Kavanaugh, John Roberts, Sonia Sotomayor, Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson comprised the majority; Clarence Thomas, Samuel Alito and Neil Gorsuch dissented.

Though the case never threatened to scuttle the ACA per se, it did call into question the legality of a facet of the law that provides free consumer access to preventive healthcare services for millions of Americans. The ACA inclusion in question is grounded in the stance that cost-free preventive care makes it more likely people will get screenings and other services aimed at detecting disease at an earlier stage.

While the ACA does not specify what “preventive services” must be covered, the Preventive Services Task Force within the Department of Health and Human Services has served as the primary identifier and determined contraceptives, human papilloma virus (HPV) vaccines, human immunodeficiency virus (HIV) prevention medication, statins for heart disease, and services such as lung and colon cancer screenings and various pregnancy screenings are among the healthcare components that warrant coverage.

Background on the Case

The crux of the legal case was whether the structure of the Preventive Services Task Force was compliant with Article II of the U.S. Constitution’s Appointments Clause. The purpose of the clause is to establish the process for appointing certain federal officials and to structure the relationship between the president and the Senate in the appointment process. It outlines what officers the president appoints and with what degree of Senate involvement.

The task force has traditionally consisted of 16 volunteers, each of whom serves a four-year term. Task force members and their recommendations are required by law to be “independent, and to the extent practicable, not subject to political pressure.”

If the court system determined the task force was not constitutional, the group’s recommendations would be called into question, if not nullified.

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 HIV medication. They believe such coverage violates the Religious Freedom Restoration Act. The lead plaintiff, Braidwood Management, is a Christian-owned business that provides health insurance to its 70 employees.

Details on the Supreme Court Ruling

In examining the facts in the case, SCOTUS ruled that task force members are “inferior” officers, meaning they do not need to be appointed by the president. The ruling confirmed that Health and Human Services (HHS) Secretary Robert F. Kennedy Jr., and his predecessor in the Biden administration (Xavier Becerra), had the ability to select the experts who comprise the panel.

In the court’s majority opinion, Justice Kavanaugh wrote, “The Executive Branch under both President [Donald] Trump and President [Joe] Biden has argued that the Preventive Services Task Force members are inferior officers and, therefore, may be appointed by the Secretary of HHS. We agree. The task force members are removable at will by the secretary of HHS, and their recommendations are reviewable by the secretary before they take effect. So, task force members are supervised and directed by the secretary, who in turn answers to the president, preserving the chain of command in Article II. Therefore, under Article II and this court’s precedents, the task force members are inferior officers. As a result, appointment of task force members by the secretary of HHS is consistent with the Appointments Clause.”

In the dissenting opinion, Justice Thomas wrote, “I do not see how Congress has spoken with the clarity needed to depart from the default rule established by the Appointments Clause. In ruling otherwise, the court treats the default rule as an inconvenient obstacle to be overcome, not a constitutional principle to be honored. And, it distorts Congress’ 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.”

Thomas added, “I would remand for the Fifth Circuit to consider the important threshold question that it skipped: whether the secretary has the statutory power to appoint the task force. The secretary may appoint the task force’s members only if (1) Congress has vested in the secretary the power to appoint them, and (2) the members are inferior officers under the Appointments Clause. The answer to the first question significantly affects the analysis of the second question. But, no court has passed on the first question, and this Court has had only a limited opportunity to consider it. We should resolve the statutory challenge to the secretary’s appointment authority before addressing the constitutional challenge.”

Possible Next Steps

While SCOTUS has now spoken out on the task force’s structure and validity, additional impacts may be generated by HHS secretary Kennedy and his allies. In recent months, Kennedy has sought to remake another independent advisory panel — the Advisory Committee on Immunization Practices within the Centers for Disease Control and Prevention (CDC) — by firing its 17 sitting experts and backfilling them with eight new members, many of whom align with his stance on vaccine safety and efficacy.

It’s unclear if or when Kennedy might turn his attention to the Preventive Services Task Force. However, he has publicly questioned whether HIV is the only cause of acquired immunodeficiency syndrome (AIDS) and Marty Makary, Kennedy’s commissioner of the Food and Drug Administration, has suggested statins may be overprescribed.

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