Preventive health care mandate survives Supreme Court scrutiny

WASHINGTON (CN) — The Supreme Court upheld the constitutionality of a panel of medical experts recommending preventive health care coverage on Friday, finding that the executive branch had sufficient control over the independent task force.

Under the Affordable Care Act’s preventive health care mandate, insurance companies must cover the full cost of certain services like cancer screenings, diabetes detection and HIV prevention drugs like pre-exposure prophylaxis, or PrEP.

Services are added to this list by the U.S. Preventive Services Task Force, an independent, nonpartisan panel comprised of 16 volunteer experts from various medical fields who undergo a rigorous vetting process. Members serve four-year terms but can be removed at any time.

The business owners argued that task force members operated as an independent agency without control from the political branches.

Activist Steve Hotze’s firm, Braidwood Management, led the challenge against the task force, opposing PrEP. Hotze has promoted false medical claims, including about the Covid-19 vaccine. He opposes equal rights for gay and transgender people, whom he calls “homofascists.”

But during oral arguments in April, the justices appeared skeptical of the business owners’ claims that the independent health care task force was acting as an unchecked authority with “quasi-legislative power” and that its members must be appointed by the president and confirmed by the Senate.

In the high court’s majority opinion published Friday, Justice Brett Kavanaugh formally rejected those arguments, siding with the federal government’s contention that members of the Preventative Service Task Force are “inferior officers” under the Constitution.

“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,” the Donald Trump appointee 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.”

Braidwood and the other plaintiffs had told the Supreme Court that the structure of the preventive care task force violated the Constitution’s appointments clause, which lays out executive powers for naming government officials.

The Constitution divides federal officers into two categories: principal officers, who are appointed by the president and approved by the Senate; and inferior officers, who may also be named by the “heads of departments.” Braidwood had argued that the task force’s members were unconstitutionally appointed by the director of the Agency for Healthcare Research and Quality and not the head of the Health and Human Services Department.

The high court, though, disagreed, reasoning that the board members were inferior officers because their work was “directed and supervised” by the secretary of the Health and Human Services Department — who can remove members at will and block their decisions from taking effect.

“An officer such as a task force member who is removable at will by a principal officer … typically qualifies as an inferior officer,” said Kavanaugh. “So it is here.”

The court rejected Braidwood’s claims that the Health and Human Services secretary cannot remove members of the preventive care board at will if the body is considered “independent” from the agency, pointing out that only Congress would have authority to shield its members from such dismissal.

“The word ‘independent’ alone in a statute does not make an officer removable only for cause,” said the majority opinion. “Rather, Congress must speak clearly if it wishes to insulate officers from at-will removal. It has not done so here.”

Kavanaugh similarly tossed Braidwood’s argument that decisions made by the preventive care board are in fact not reviewable by the government, which he said was “essentially, just another version of its first argument.”

And the majority opinion further dismissed plaintiffs’ claim that the board was unconstitutional because the Health and Human Services secretary cannot compel its members to make recommendations. The justices said that the court has not suggested that an agency head “must be able to compel a subordinate” in order for that subordinate to be considered an inferior officer under the Constitution.

In the Supreme Court’s dissenting opinion, Justice Clarence Thomas said that the government relied on “ambiguously worded statues” to make the case that the Health and Human Services secretary can appoint members of the preventive care task force.

Thomas contended that the government had altered its theory during Braidwood’s lawsuit and had argued “for the first time” that the task force members are inferior officers subordinate to the Health and Human Services secretary rather than the director of a subagency.

The government, the George H.W. Bush appointee said, had relied on one federal statute which gave the Agency for Healthcare Research and Quality director power to convene the task force, and another which transferred the Health and Human Services secretary all functions of the federal public health service, including that subagency.

“The court today rushes to embrace this theory,” Thomas wrote. “I cannot.”

Kevin King, a partner at Washington-based law firm Covington & Burling, told Courthouse News in an interview that the justices’ ruling Friday was a result of the court navigating a “statutory thicket” to make a judgment call about the powers of the executive.

“There were other ways of reading the statutes, as Justice Thomas points out in dissent,” King said. “In making that judgment call about how to read the statutes, I think one of the key factors for the majority was: how can we enhance the separation of powers? How can we enhance democratic accountability? How can we enhance the functioning of the executive branch?”

And King also cited Friday’s ruling as part of a recent trend on the high court, under which three of the justices’ key swing votes — Kavanaugh, Justice Amy Coney Barrett and Chief Justice John Roberts — have exercised their influence over the bench.

Those three justices, he said, have a “great deal of respect” for the institutions of government and the separation of powers, and he reasoned that their judgment in the Braidwood case was emblematic of their unwillingness to adopt new judicial frameworks or tests for existing institutions.

“The majority was not willing to go out and apply the appointments clause more aggressively than it has in the past,” said King. In the case of Braidwood, he pointed out, the justices “stretch” to interpret federal statutes in a way that aligned with the government’s reasoning.

“The statutes are not a model of clarity,” King explained. “And yet, the majority worked through that statutory thicket and came out concluding that the HHS secretary does have adequate supervision authority — but it wasn’t obvious on the front end that that was going to be the right answer.”

Meanwhile, advocacy groups celebrated Friday’s ruling as a victory for Americans’ access to preventive care such as cancer screenings and PrEP, but warned that the justices’ decision could also pose new challenges.

“What we know is that this was a victory, by and large, for our communities in terms of being able to uphold protections for PrEP and other preventive services under the Affordable Care Act,” said Jeremiah Johnson, acting executive director of PrEP4All. “But … it comes with some important caveats.”

Jose Abrigo, HIV project director at civil rights legal organization Lambda Legal, called the ruling a “mixed bag,” pointing out that it affirmed the health and human services secretary’s supervision over the Preventative Services Task Force and its recommendations.

Health and Human Services Secretary Robert F. Kennedy Jr. has already taken some steps as head of the government’s health care authority that have worried advocates, such as his move to reshape the Centers for Disease Control’s vaccine panel. Some have expressed concern that Kennedy could use his authority to similarly appoint a new board for the preventive care task force.

Abrigo said it was still too early to say what would happen.

“But I think our tasks as advocates moving forward is to ensure that Secretary Kennedy follows the Administrative Procedure Act, that he listens to the expert bodies and that he defers to them on their expert medical opinions based on science and based on data.”

As CEO of Hotze Health & Wellness Center, an alternative wellness center run by Braidwood in Houston, Hotze joined a group of Christians and conservative businesses challenging the preventive care mandate’s constitutionality in 2020.

Hotze refused to allow the company’s insurance plan to cover PrEP drugs because “these drugs facilitate behaviors such as homosexual sodomy, prostitution and intravenous drug use — all of which are contrary to Dr. Hotze’s sincere religious beliefs.”

The business owners challenged the preventive care requirement under the Religious Freedom Restoration Act and the Appointments Clause. However, the constitutionality of the task force was the only question before the justices.

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