Nearly 13 years after the Supreme Court first upheld the Affordable Care Act as constitutional, the justices will hear arguments Monday on a case that could unravel parts of the law that require coverage for cancer and diabetes screenings, mental health counseling, medication to prevent HIV and other preventive health care services.
Backers of the law say removing those requirements could be catastrophic. But the court is unlikely to hear much about that from the Trump administration, even as it defends the provisions in Kennedy v. Braidwood.
“There’s been less affirmative talk about the value of the preventive services now,” Katherine Hempstead, senior policy officer at the health-equity nonprofit Robert Wood Johnson Foundation, said at a press call last week.
The Trump administration’s argument “has been very clear about trying to maintain executive authority as their core focus” rather than considering what would happen if patients lost preventive service coverage, Georges Benjamin, executive director of the American Public Health Association, said on the same press call.
The ACA’s preventive care requirement gives a body known as the U.S. Preventive Services Task Force broad authority to require health insurers, both private and government-issued, to pay for the coverage of services they recommend. The Supreme Court will consider the question of whether the task force actually has the authority to make these decisions and, as a result, if insurers must offer preventive care coverage.
Supporters of the provision say it saves lives.
Getting rid of the preventative care requirement “would be a tremendous loss for America, and a tremendous increase in overall health care costs, because it means terrible diseases are not going to be detected, and either people will have to be treated at greater cost or they will die,” Andrew Pincus, an attorney specializing in Supreme Court and appellate litigation, said at a press conference organized by Protect Our Care, a group that advocates for affordable health care.
Opponents of the mandate say it oversteps the government’s authority. Braidwood Management, which represents conservative Christian employers in Texas and is being represented by anti-abortion advocate and former Trump attorney Jonathan Mitchell, sued over the provision, arguing that the mandate for insurers to cover recommendations made by the task force is unconstitutional because its members are not appointed by the president or confirmed by Congress.
The Trump administration inherited the case from the Biden administration and has continued to defend the provision in spite of Republicans’ overall opposition to the ACA. But its approach has been different from the Biden administration’s.
The Trump administration has argued in response to the suit that the health and human services secretary effectively oversees the decisions of the task force, including by appointing or removing members and approving or rejecting the task force’s decisions. That way, the administration argues, a presidential appointee that is approved by Congress is inherently making the recommendations.
Biden administration attorneys previously defended the provision when the case originated in the U.S. District Court for the Northern District of Texas under Judge Reed O’Connor, the same judge who in 2018 decided the ACA was invalid. (The Supreme Court reversed that ruling in 2021, marking the third time the justices rejected a challenge to the ACA.)
O’Connor ruled in favor of the plaintiffs on Kennedy v. Braidwood (originally named Braidwood v. Becerra) in June 2022, and his ruling was partly affirmed by the conservative-leaning U.S. 5th Circuit Court of Appeals last summer.
Under the Trump administration, the arguments about potential harm have largely gone away, advocates of the law said.
Dorianne Mason, director of health equity at the National Women’s Law Center, said the Biden administration not only argued “how the structure was constitutionally sound, but also the harm of removing this requirement.”
“That has been a stark shift in the substance of the arguments,” Mason said. However, she added, the implications of losing the coverage mandate continues to be argued “through friends of the court briefs.”
Public health experts warn that the shift in arguments should not be ignored, given how Health Secretary Robert F. Kennedy Jr. — who has jurisdiction over the Preventive Services Task Force — has been skeptical of science.
“This lawsuit is the gateway to allowing the American people to get what they deserve and what the laws of Congress meant for them to have,” said Leslie Dach, chair of Protect Our Care. “But we’re going to have to remain very vigilant in seeing how the administration, which thankfully is defending the law now, behaves when the power is in their hands.”
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Oriana González is a reporter at NOTUS.