The task force consists of 16 volunteer members who serve four-year terms. By law, both the members and their recommendations must remain “independent and, to the extent practicable, not subject to political pressure.”

If the court rules that the USPSTF’s structure violates the Constitution’s Appointments Clause, its ability to make binding coverage mandates under the Affordable Care Act could be struck down. That could jeopardize access to dozens of preventive services currently required to be covered without cost-sharing, though some might remain in place through other legal or regulatory mechanisms.

“If you were to start chipping away at preventive services, which are a very popular benefit that are widely used, this wouldn’t obviously take down all preventative services,” said Laurie Sobel, associate director for Women’s Health Policy at KFF, noting that more types of preventive care could diminish down the line.

Although repealing and replacing Obamacare was a platform plank in President Donald Trump’s 2016 presidential campaign and an unrealized agenda item in his first term, this case does not threaten broad portions of the ACA, as past cases did. 

The Justice Department is partially aligned with former President Joe Biden’s position in the case over the notion that the USPSTF is properly supervised. However, the Trump administration would like to seek more power over the task force’s memberships and recommendations, which aligns with the president’s pattern of exerting more control over independent bodies.

Trump’s administration further contends that the HHS secretary has the appropriate constitutional authority over the USPSTF because the secretary can remove advisory board members at will and determine when their recommendations take effect for health insurance companies.

Should the Supreme Court rule in the administration’s favor, the outcome could enable Trump’s HHS Department to take a broader latitude in its recommendations, which could adjust the sorts of preventive care that receive coverage.

Preventive care mandates

Preventive care mandates, one of the most controversial elements of the ACA, require private health insurance plans to cover a range of preventive services without patient cost-sharing.

Services included in the original Obamacare framework included certain cancer screenings, children’s wellness visits, and routine vaccinations. Other preventive treatments, including contraception, were later added by the HHS secretary through the rulemaking process.

The Supreme Court is not reviewing the constitutionality of the other two advisory boards that make recommendations for preventive coverage: the Health Resources and Services Administration, which handles women’s and children’s health, and the Advisory Committee on Immunization Practices, which advises on vaccines.

Since the initial passage of Obamacare, the USPSTF has implemented 10 different preventive service mandates for a variety of health conditions, according to the left-leaning healthcare think tank KFF. 

A study published in the Journal of the American Medical Association Health Forum last week found that almost 30% of privately insured individuals, including almost half of privately insured women, use at least one of the 10 preventive services mandated by the task force since 2010. 

HIV PrEP was included by the USPSTF in 2023, citing nearly 31,000 new diagnoses of HIV in the U.S. in 2020, a likely underestimate due to the COVID-19 pandemic. About 80% of new cases occurred among adolescent and adult men, and 18% occurred among women.

The Centers for Disease Control and Prevention estimates that 1.2 million U.S. residents currently have HIV. The CDC recommends PrEP for anyone who has had a partner with a positive or unknown HIV diagnosis or uses injectable drugs. 

The lowest-cost generic version of the drug costs about $30 per month out-of-pocket, but the name-brand medication can cost nearly $2,000. 

Lung and colorectal cancer screenings were added to preventive coverage in 2021 for those most at risk of developing the condition. Preventive breast cancer medications for women over 35 at high risk were added to the mandates in 2019. 

Preventive interventions for perinatal depression during and after pregnancy, as well as preeclampsia prevention, were added to the preventive care list in 2019 and 2021, respectively.

Michael Cannon, director of health policy at the libertarian Cato Institute, previously told the Washington Examiner that coverage mandates for PrEP and other services dramatically increase their market prices.

In a 2020 article on the unintended consequences of the contraception mandate, Cannon argued that hormonal and oral contraceptive prices rose 108% between 2013, when the mandate went into effect, and 2019. That’s nearly three times the growth rate for prices of other prescription drugs during the same period.

Trump signaled last week that lowering the cost of healthcare, particularly prescription drugs, is a priority for the administration. On Thursday, the president signed an executive order reinstituting policies from the first administration to make drug costs more competitive.

Religious freedom argument dropped from the Supreme Court case

The initial complaint from Braidwood Management in this case argued that coverage of PrEP medications violated the deeply held beliefs of the owner, Steven Hotze, who contended that PrEP is associated with same-sex and extramarital sexual activity, contradicting his Christian convictions and therefore violating the Religious Freedom Restoration Act. 

Hotze and his counsel maintained that subsidizing this coverage is an affront to his sincere religious beliefs, an argument similar to those made in Burwell v. Hobby Lobby Stores in 2014 and Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania in 2020. 

Both cases challenged contraceptive coverage, which was added to the ACA preventive coverage mandate by former HHS Secretary Kathleen Sebelius in 2011 through the rulemaking procedure. 

In March 2023, U.S. District Judge Reed O’Connor, a former President George W. Bush appointee based in Texas, initially ruled broadly in favor of Braidwood Management, finding that the PrEP mandate both violated religious freedom and ran afoul of the Constitution in its structure, issuing a sweeping remedy that invalidated all preventive coverage mandates recommended by the USPSTF since 2010.

Last June, the Fifth Circuit Court of Appeals upheld the RFRA finding as applied to PrEP for Braidwood Management, but it significantly narrowed O’Connor’s ruling to solely apply to the plaintiff in the case.

The Supreme Court ultimately decided not to hear the religious aspects of the case. Instead, it will only consider whether the Fifth Circuit erred in finding that the USPSTF structure violated the Appointments Clause.

Sobel said that if the justices upheld the constitutionality of USPSTF, “then you might see more people coming forward with a religious objection to PReP” in future litigation.

However, if the Trump administration succeeds in its argument for more direct control by the HHS secretary over its panel memberships, she said, “it’s very possible” that the recommendation for preventive services involving PReP still ultimately “goes away.”

What are supporters and detractors saying?

Supporters of the government argue that a ruling for the plaintiffs could severely harm public health, warning that patients may skip preventive care if they have to pay out of pocket. The American Hospital Association emphasized in an amicus brief that removing no-cost coverage could lead many to forgo essential services altogether.

On the other side, supporters of Braidwood Management dismissed these concerns as exaggerated.

A coalition of states led by Texas argued in a separate brief that insurers already have financial incentives to offer preventive care and that any constitutional problems could be easily fixed by requiring the president to nominate and the Senate to confirm task force members. The coalition added that if such appointments spark more Senate debate, that’s a reason to require confirmation, not a flaw.

Richard Hughes, a healthcare attorney at Epstein Becker Green, told the Washington Examiner in January that this case presents a serious risk to the task force. He noted that a ruling against its constitutionality would mark a shift from past decisions, when the Supreme Court was more inclined to preserve such agencies by applying the severability doctrine — the principle that courts should strike down only the parts of a law deemed unconstitutional.

A series of recent 6-3 rulings from the Republican-appointed majority on the high court have limited the power of federal agencies and questioned the legitimacy of unelected regulatory bodies. That case law will likely affect Kennedy v. Braidwood, but Hughes says it’s impossible to discern exactly how.

SUPREME COURT CASE OFFERS TRUMP PATH TO DISMANTLE OBAMACARE MANDATES

“The Supreme Court is not predictable, and the trend toward curtailing the role of experts and the administrative state could win the day,” Hughes said.

A decision in the case is expected by June or early July.