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 Health Affairs, titled “The US Supreme Court and the Uncertain Future of Preventive Care.”
Following is an excerpt:
As the US Supreme Court begins its 2024–25 term, the possibility looms that it might put yet another consequential case on its docket concerning the future of the Affordable Care Act (ACA). This time, the case concerns one of the law’s most popular provisions—its preventive services mandate.
Meanwhile, recent trends in the Court’s jurisprudence on the role of regulators and experts—most notably its overturning of Chevron—raise the specter of greater political and judicial involvement in determining which preventive services must be covered by health insurance.
In the balance is access to preventive care for more than 150 million Americans.
Will Braidwood Come Before The US Supreme Court?
On September 19, the federal government filed its petition for certiorari (seeking judicial review of a lower court’s decision) with the Supreme Court of the United States in Braidwood v. Becerra, asking it to uphold the authority of the US Preventive Services Task Force (Task Force) in determining insurance coverage requirements for preventive services under the ACA.
The plaintiffs have until October 21 to file their brief in opposition and/or cross-petition for certiorari. They may raise the constitutionality of the ACA’s delegation to the Advisory Committee on Immunization Practices (ACIP) and the Health Resources and Services Administration (HRSA), too.
The Supreme Court must still determine whether it will take the case, which it will likely do by the end of November—setting up the potential for oral arguments and a decision in its 2024–25 term (from October 2024 through June 2025).
The Braidwood plaintiffs oppose health insurance that covers certain preventive services contrary to their religious beliefs, claiming such services encourage sexual behaviors and drug use. Their principal legal claim challenges the ACA's delegation of coverage decisions to advisory bodies as unconstitutional, arguing it infringes on their religious exercise.
The specific legal question at the heart of the case is whether the Task Force’s role is constitutional.
The government’s case hinges on a statute that specifies that the Task Force is independent and not subject to political pressure. The Texas trial court in Braidwood has interpreted this purported limitation on political accountability to violate the Appointments Clause of the US Constitution. The Fifth Circuit agreed in its June ruling.
To remedy this constitutional problem, the government asked the Fifth Circuit, and now the Supreme Court, to strike only the statutory provision insulating the Task Force under the doctrine of severability. The doctrine presumes Congress wishes for its laws to stand, thereby deploying a “scalpel” rather than a “bulldozer” to excise a faulty provision. This would effectively allow for oversight of the Task Force by those “up the political chain,” effectively resolving any constitutional problems and keeping its role under the ACA intact.
Chief Justice John Roberts’ description of the Court’s “settled severability doctrine” should favor the Task Force, but the Supreme Court has been prone to producing surprises in recent terms. In United States v. Arthrex, seven of the justices in an otherwise splintered decision agreed to sever a similarly problematic statutory provision, allowing for supervision of a patent board. Its previous stance on severability suggests that the Fifth Circuit may have misjudged the Appointments Clause issue, and the Supreme Court may overturn that decision in favor of the Task Force.
