The Supreme Court appears likely to uphold a key provision of the Affordable Care Act (ACA) requiring insurers to cover preventive care, like pre-exposure prophylaxis (PrEP), recommended by the U.S. Preventive Services Task Force at no cost, while also handing greater control over the task force’s recommendations to Health and Human Services (HHS) Secretary Robert F. Kennedy Jr.
The case stems from a 2020 lawsuit brought by a group of individuals and a Texas business, Braidwood Management, who object to the ACA’s preventive care mandate because the U.S. Preventive Services Task Force recommended in 2019 that PrEP be included among the preventive services covered by insurers at no cost. The plaintiffs say that providing health insurance plans that cover PrEP conflicts with their religious beliefs because it “encourages and facilitates homosexual behavior.”
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However, their legal argument rests on their assertion that the 16 members of the task force are “principal officers” who must be nominated by the president and approved by the Senate under the Constitution’s Appointments Clause. As CBS News and Jezebel both note, U.S. District Judge Reed O’Connor sided with the plaintiffs in 2023, invalidating all of the task force’s preventive-care coverage recommendations and barring the government from enforcing the ACA’s coverage requirements based on that task force’s recommendations.
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Supporters of the ACA’s preventive care mandate argue that if O’Connor’s ruling were to stand, it could jeopardize access to hundreds of services, such as PrEP, prenatal nutritional supplements, physical therapy for older Americans to prevent falls, and lung cancer screenings, which save 10,000 to 20,000 lives each year.
The 5th Circuit Court of Appeals upheld O’Connor’s decision in part, agreeing that the 16 task force members were improperly appointed, while disagreeing with his invalidation of its previous recommendations.
As CBS notes, the Biden administration appealed the decision to the Supreme Court, and the Trump administration has continued to defend the task force’s structure. On Monday, the Justices heard oral arguments in the case.
As Slate senior writer Mark Joseph Stern noted on Bluesky, Justice Brett Kavanaugh, a Trump appointee, seemed particularly skeptical of attorney Jonathan Mitchell’s argument that the task force has “unreviewable authority” and is “more powerful than the secretary of Health and Human Services or the president in terms of how these recommendations are going to affect the health care industry.”
Justice Elena Kagan also pointed to the HHS secretary’s power to remove task force members at will, according to CBS News, noting that “removal power is really the essence of control: If you have it, you have control. If you don’t have it, you don’t have control.”
Kagan echoed Principal Deputy Solicitor General Hashim Mooppan’s argument that the U.S. Preventive Services Task Force, and thus the ACA’s preventive care requirements, are constitutional. In addition to the HHS secretary’s removal power, Mooppan argued on behalf of the
While a decision in the Braidwood case isn’t expected until late June or early July, court watchers like Stern say that the justices seem likely to side with the Trump administration, upholding both the task force and the ACA’s preventive care mandate. However, as both Stern and Jezebel note, such a decision could also confirm Secretary Kennedy’s power to control the types of preventive care insurers are required to cover for free under the ACA.
“The Supreme Court will likely read the ACA to give the Secretary of Health and Human Services significant control over decision by the U.S. Preventive Services Task Force,” Stern wrote on Bluesky. “Normally, that wouldn’t be a big deal. With RFK Jr. at the helm, it could be an issue.”
“We’ll just have to hope that RFK Jr. doesn’t screw with the task force,” Stern added.
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