The Supreme Court on Friday rejected an attempt to undo a portion of Obamacare preventive coverage mandates, once again thwarting another try from conservatives to get rid of a major piece of the law via legal challenge.
The 6-3 majority decision upholding the current structure of the U.S. Preventive Services Task Force protects insurance coverage mandates for 10 different preventive treatments, including for certain cancers, perinatal depression, preeclampsia, and HIV.
The case, Kennedy v. Braidwood Management, turned on the fact that the members of the USPSTF are “inferior officers” under the appointments clause of the Constitution, meaning that they do not need to be appointed by the president and confirmed by the Senate. The task force members have been chosen by the health and human services secretary since the panel was created by Congress in 1984 in a purely advisory capacity. The power of the body changed with the passage of the Patient Protection and Affordable Care Act in 2010, which mandated the recommendations of the board upon the HHS secretary’s approval.
Braidwood Management, a Texas-based, Christian-owned business, challenged the USPSTF’s authority by arguing that task force members ought to be considered “primary officers” under the appointments clause of the Constitution.
Justice Brett Kavanaugh wrote the majority opinion in the case, to which Chief Justice John Roberts and Justices Sonja Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson joined.
Kavanaugh argued that the members of the task force are not independent of the HHS secretary and, as such, cannot be construed as primary officers.
“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,” Kavanaugh wrote. “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.”
Because task force members “cannot make any legally binding, final decisions” without the assent of the HHS secretary, Kavanaugh argued, the HHS secretary ultimately controls whether or not the task force recommendations become mandates for insurance companies.
That means that they would need to be appointed by the president and confirmed by the Senate. In the current system, they are appointed by the HHS secretary.
Preventive care mandates have been one of the most controversial elements of the Affordable Care Act, requiring private health insurance plans to cover a range of preventive services without cost-sharing.
Since the passage of the Patient Protection and Affordable Care Act in 2010, the USPSTF has implemented 10 different preventive service mandates, ranging from cancers, perinatal depression, preeclampsia, and HIV prevention.
A study published in April in the Journal of the American Medical Association Health Forum found that about 30% of privately insured people, including half of all privately insured women, use at least one of the 10 preventive services mandated by the task force since 2010.
During oral arguments, liberal and conservative Supreme Court justices appeared skeptical of the challenger’s argument that the USPSTF functioned as an independent agency, citing that the 16 members of the panel serve “at-will” of the HHS secretary.
Kagan, during oral arguments, sparked laughter from the audience when she forcefully pushed back against the assertion that the USPSTF is an independent agency.
“More often we destroy independent agencies,” Kagan said. “The idea that we would take a statute which doesn’t set up an independent agency and declare it one strikes me as pretty inconsistent with everything that we’ve done in this area.”
In the dissenting opinion, Justice Clarence Thomas argued that both the statutes creating the USPSTF and Obamacare are ambiguous with respect to the oversight authority of the HHS secretary.
Thomas wrote in his dissent that the issue should be remanded to the lower court to address the challenge to the statute before addressing the constitutionality of the body’s appointment.
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“Due respect for Congress as a coordinate branch of Government usually demands that we refrain from calling the constitutionality of its enactments into question ‘unless absolutely necessary to the decision of a case,’’ Thomas wrote, citing precedent from the 1930s.
Thomas was joined by Justices Samuel Alito and Neil Gorsuch.
