Richard H. Hughes, IV, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, authored an article in STAT News, titled “The Future of Preventive Care Depends on the Supreme Court’s Reading of Two Words.”
Following is an excerpt:
After 15 years, the Affordable Care Act (ACA) has survived its share of challenges at the Supreme Court. On April 21, I attended the court’s first hearing in the latest of the series of ACA challenges, Kennedy v. Braidwood, which is focused on the ACA’s preventive services coverage requirement. I proudly represented 20 HIV advocacy organizations as amici in the case, urging the court to uphold the law, which requires payer coverage of items and services recommended with an A or B rating by the U.S. Preventive Services Task Force.
I left the court that Monday feeling optimistic. By Friday, the justices issued an order requesting additional briefing, and my optimism grew slightly dimmer.
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The challengers argue that the task force’s role violates the Constitution’s Appointments Clause because it is set up as an independent body but is effectively responsible for determining preventive health coverage for over 150 million Americans. Essentially, this argument would mean the task force members would need to be Senate-confirmed.
For these reasons, the issues at stake in Braidwood extend beyond the ACA requirement itself, delving into fundamental constitutional law and the separation of powers questions.
