On Monday, the Supreme Court seemed split during discussions concerning the legality of a section of the Affordable Care Act that mandates insurance companies to provide certain preventive services at no cost.
This provision is part of the 2010 health care legislation that established a panel responsible for identifying specific preventive health services that insurers must cover.
Two small Christian businesses offering health insurance to their employees, alongside some Texas residents, filed a lawsuit against the federal government, questioning the constitutionality of this panel.
They specifically objected on religious grounds to the provision of free H.I.V. medications, arguing that these drugs “promote and facilitate homosexual behavior.”
However, the case, Kennedy v. Braidwood Management, could have significant repercussions for millions of Americans who currently benefit from various free health care services, such as cancer and diabetes screenings, heart disease medications, and eye ointments for newborns to prevent blindness.
If the court rules in favor of the challengers, it could mean insurers would no longer be obligated to cover free services recommended by the U.S. Preventive Services Task Force since 2010.
One of the most impactful recommendations from the task force since then is for full coverage of medications preventing H.I.V. transmission, commonly referred to as PrEP. Although these drugs are extremely effective, they can be quite costly.
A new injectable PrEP medication, which the Food and Drug Administration could approve this summer, would offer six months of H.I.V. protection from a single injection. Currently, this treatment costs around $42,000 per year for patients with H.I.V., but Gilead, the manufacturer, has not yet disclosed the price for its preventive use.
If the preventive care requirement remains intact, insurers would have to provide this medication without any cost to patients. If it is overturned, many anticipate that insurers would still cover it but would require out-of-pocket payments from patients.
Nevertheless, during the hour-long court proceedings on Monday, the discussion primarily centered on technical aspects of interpreting the law, rather than the potential effects on patients. The justices examined the statute’s language regarding the task force’s “independence” and whether that independence posed constitutional challenges by limiting the oversight of the Health and Human Services secretary.
The challengers contended that the task force breaches the Constitution’s appointments clause because its members are selected by the health secretary rather than appointed by the president or confirmed by the Senate.
Justices Sonia Sotomayor and Amy Coney Barrett seemed inclined to agree with the government’s stance, arguing that independence does not imply the task force operates without the secretary’s guidance. They compared the relationship between the task force and the secretary to that of law clerks and justices.
Justice Sotomayor mentioned that independence entails acting based on scientific expertise and professional judgment.
“My law clerks provide me their independent opinions on legal matters, and there are many instances when I do not take their advice, even though I can dismiss them,” Justice Sotomayor pointed out.
“And they still provide their insight,” she added, eliciting laughter from the audience.
Justice Barrett noted that independence doesn’t necessarily mean a decision is completely detached from the secretary’s perspective.
“Does ‘independent’ imply complete detachment from the secretary?” she questioned.
She explained that a law clerk’s independence could still allow for guidance from her own instructions.
“I could instruct my clerk to form an independent judgment free of external influences, but that might not mean total independence from my guidance,” Justice Barrett stated.
In contrast, Justice Brett M. Kavanaugh expressed doubt regarding the government’s interpretation of independence.
After Hashim M. Mooppan, the principal deputy solicitor general, stated that the secretary has the authority to dismiss task force members and that this awareness could sway their decisions, Justice Kavanaugh interjected.
“That’s a peculiar interpretation of ‘independent,’ I would say,” Justice Kavanaugh remarked.
This case reached the justices after a lower court in Texas ruled in favor of the challengers, concluding that the task force lacked the authority to dictate what health insurance providers must cover. The U.S. Court of Appeals for the Fifth Circuit in New Orleans, known as one of the most conservative appeals courts, slightly refined that ruling by suggesting the task force had excessive independence.
The Biden administration subsequently requested the Supreme Court’s involvement to affirm the task force’s constitutionality, enabling it to continue sanctioning preventive medication. The court agreed to hear the matter during the final days of the Biden administration in early January.
The Trump administration had also maintained that the task force was constitutional.
Even if the justices uphold the law and determine that task force members do not need presidential appointment, the case may not conclude. Various questions could persist for lower courts regarding the legality of any decisions the task force has previously made, such as free access to H.I.V. medications.
This case unfolds amid a trend of recent court rulings aimed at limiting the powers of administrative agencies.
Sarah Kliff contributed reporting.
