Richard H. Hughes, IV, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, was quoted in the Washington Examiner, in “Supreme Court Case Offers Trump Path to Dismantle Obamacare Mandates,” by Gabrielle M. Etzel and Kaelan Deese.

Following is an excerpt:

A new case before the Supreme Court targeting preventive coverage mandates under Obamacare gives President-elect Donald Trump a chance to undermine one of the most controversial aspects of the healthcare program that he promised to “repeal and replace” nearly a decade ago.

The Supreme Court on Jan. 10 agreed to take up a Biden administration petition to overturn a lower court ruling that declared the U.S. Preventive Services Task Force’s role in setting Affordable Care Act insurance coverage rules unconstitutional.

Legal experts say the timing of the case presents a unique opportunity for Trump’s Department of Justice to revise the current Biden administration’s position, which favors maintaining the task force’s role in setting preventive care mandates.

A “likely factor that will impact the case’s outcome is whether the government maintains its position in support of the USPSTF following the upcoming change in administration,” said Richard Hughes, a healthcare lawyer at Epstein Becker Green.

And if a majority of the justices uphold the lower court ruling, it could limit access copay-free access to services like certain cancer screenings, contraceptives, heart disease medications, and HIV drugs known as PrEP, or preexposure prophylaxis.

While an official date has not yet been set, the Supreme Court will hear full arguments in the case known as Braidwood v. Becerra later this spring.

Facts of the case

The Biden administration appealed to the Supreme Court last year after the conservative-leaning 5th U.S. Circuit Court of Appeals sided with Braidwood Management Inc., a Christian-owned business, and other plaintiffs who argued that they cannot be compelled to provide full insurance coverage for health services such as medication to prevent HIV and some forms of cancer screenings. 

The 5th Circuit decision mostly upheld an initial ruling against the ACA provision in 2023 by U.S. District Judge Reed O’Connor, an appointee of former President George W. Bush, who found that all mandates authorized since 2010 by the USPSTF were unconstitutional. In a prior 2022 ruling, O’Connor reasoned that it violated the Constitution’s appointments clause because the task force members who set the rules were not nominated by the president or confirmed by the Senate.

The appeals court limited its decision to exempt only the plaintiffs in the case from the coverage mandates, allowing the requirements to remain in effect for everyone else enrolled under the ACA.

Although the case began as relating to a religious exemption to the mandates, the Supreme Court will not directly weigh on the merits of those claims. Rather, they will narrowly consider whether 5th Circuit erred by finding the USPSTF structure violated the appointments clause and also whether the appeals court was wrong to avoid fixing the problem by merely removing the specific portion of the law that limits the Department of Health and Human Services secretary’s control over the task force.

Braidwood focuses on the constitutional legality of the task force, differentiating it from other Obamacare-related cases, such as Burwell v. Hobby Lobby Stores, Inc. in 2014 and Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania in 2020, that dealt with more specific religious objections to providing contraceptive coverage.

While the lower court outcomes of Braidwood have alarmed the pro-ACA Biden administration, there are still many forms of preventive care were not touched by the rulings, including screenings for mammography and cervical cancer, which are still covered without out-of-pocket costs, according to a 2023 analysis conducted by the nonprofit group KFF.

Trump can use the case to renew war against Obamacare

Hughes told the Washington Examiner that the case poses a threat to the USPSTF. A ruling against the task force would be a departure from years past, when the high court might have been predisposed to uphold its role, citing the so-called severability doctrine, the legal notion that courts should not invalidate more parts of a law than necessary.

“The Supreme Court is not predictable and the trend toward curtailing the role of experts and the administrative state could win the day,” Hughes said.

The Braidwood case arrives at a critical moment, providing a fresh opportunity for Trump’s Justice Department lawyers to challenge the ACA’s reliance on expert panels to dictate insurance coverage rules.

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