Insurers are required to cover preventive health care services such as cancer and diabetes screenings, mental health counseling and medication to prevent HIV, the Supreme Court ruled on Friday, upholding a key provision of the Affordable Care Act.
But in doing so, the court gave Secretary of Health and Human Services Robert F. Kennedy Jr. unprecedented power over the U.S. Preventive Services Task Force, an independent panel that recommends which preventive services health plans must cover under the ACA.
“The Executive Branch under both President Trump and President Biden has argued that the Preventive Services Task Force members are inferior officers and therefore may be appointed by the Secretary of HHS. We agree,” Justice Brett Kavanaugh wrote in the court’s opinion.
Kavanaugh said that the task force’s recommendations are “of critical importance to
patients, doctors, insurers, employers, healthcare organizations, and the American people more broadly.”
But health and medical experts have expressed concerns about Kennedy’s scientific views. Task force members are considered leading experts in their respective fields — if Kennedy disagrees with what they have recommended, the panel could now be subjected to “the moment’s political whims,” a former task force member told NOTUS in April.
“To say that the panel ought to be making this recommendation, not based upon their best judgment, but based upon the desires of the sitting administration, whoever they are, would move it in a different direction,” a former senior HHS official during the first Trump administration previously told NOTUS.
The senior official said that during President Donald Trump’s first term, “There was never any approval through the Office of the Secretary” of the task force’s recommendations.
The case, Kennedy v. Braidwood, originated when conservative employers challenged the ACA’s preventive care requirement because they opposed covering HIV preventive medication on religious grounds.
The plaintiffs then challenged the entirety of the mandate, arguing that the Preventive Services Task Force is not appointed properly and, therefore, it is unconstitutional to mandate insurers cover its recommendations for which health care services should be considered “preventive.”
In a 6-3 decision, the justices ultimately disagreed that the task force was improperly appointed. Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson joined Kavanaugh. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented.
“Task Force members are supervised and directed by the Secretary, who in turn answers to the President, preserving the chain of command,” wrote Kavanaugh.
The Trump administration, which inherited the case from the Biden administration, argued that task force members’ preventive care recommendations must be approved by Kennedy before they are finalized and that the secretary can fire members of the task force if he doesn’t agree with their decisions. Previous task force members and former Trump senior officials told NOTUS in April that such power by the HHS secretary over the panel was unprecedented.
The former task force members, as well as other health experts, said the HHS secretary had never been involved in the recommendation-making process — nor, they said, has a task force member ever been fired by the secretary.
“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.
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Oriana González is a reporter at NOTUS.