The Trump Administration’s Supreme Court Defense of the ACA’s Free Preventive Health Care Guarantee

On April 21, the United States Supreme Court will hear oral arguments this term in Kennedy v Braidwood Management (previously named Becerra v Braidwood Management). Braidwood, which began in 2020, challenges to the Affordable Care Act’s free preventive benefit guarantee, which assures first-dollar coverage for a broad array of highly effective types of preventive screening and treatment services. More than 150 million privately insured people have access to this care, along with Medicare beneficiaries and millions of Medicaid enrollees.  

Braidwood’s immediate focus is the constitutionality of recommendations made by the United States Preventive Services Task Force (USPSTF). Ultimately, however, access to the full range of ACA preventive care recommendations is on the line, not only the USPSTF recommendations but also those made by other expert bodies that focus on women’s health, child health, and immunizations. Taken together, hundreds of free preventive benefits could be implicated.

The Biden administration aggressively defended the constitutionality of the ACA’s free preventive benefit guarantee against a wide-ranging legal challenge brought by four individuals and two small businesses. For reasons of ideology and religion, the plaintiffs wanted to excise certain benefits, such as PrEP for people living with HIV, and various screening and treatment services to guard against sexually transmitted infections. In order to do so, they have claimed that the entire preventive benefit guarantee is unconstitutional. Those claims that focus on the USPSTF have now reached the Supreme Court.

Perhaps to the surprise of some, the Trump administration has come to the defense of the USPSTF recommendations. But once the precise nature of the legal issue before the Court becomes clear, it becomes fairly obvious why the administration is defending the law; indeed, the defense is part and parcel of its singular effort to gain a whole-of-government level of control over US policy, as well as absolute power over the federal workforce. Indeed, a win for the administration simply is part of its goal of controlling ACA preventive benefit coverage, so that it may freely eliminate certain benefits, dismiss experts, and hobble any future effort to expand evidence-based preventive benefits – precisely the opposite of making America healthy again. Braidwood concerns the USPSTF; ultimately all ACA free preventive care benefits may be in the crosshairs, including  covering women’s health, child health, and immunizations.

The Affordable Care Act established free, comprehensive, preventive care as a basic requirement of nearly all forms of health insurance, exempting small group of grandfathered health plans that are permitted to continue to operate under pre-ACA rules. The law specifies four separate prevention bundles, with coverage based on expert recommendations: (1) services with an A or B rating from the USPSTF; (2) immunizations recommended by the Advisory Committee on Immunization Practices (ACIP); (3) preventive screening and services for children and adolescents recommended by expert advisors to the Health Resources and Services Administration (HRSA); and (4) preventive care and screenings for women, also recommended by HRSA-convened experts, the most prominent benefit being all FDA-approved contraceptives.

Plaintiffs originally challenged the ACA preventive services guarantee in its entirety. Their chief allegation was that even though the various committees that formulate the recommendations consist of members with independent standard-setting powers and who thus are “principal officers,” their appointments violate the Constitution’s Appointments Clause because they were not nominated by the President and confirmed by the Senate. For this reason, plaintiffs argued, the recommendations are unconstitutional and nonbinding on insurers. The trial court rejected this claim with respect to the ACIP and HRSA panels, finding that their experts are  simply “inferior officers” subject to Secretarial oversight. But the court agreed that USPSTF was empowered to act independently of the HHS Secretary and yet its members were not properly appointed. The court then nullified all USPSTF recommendations made after March 23, 2010 (the date of ACA enactment) and enjoined their application to all insured Americans protected by the law, not just the plaintiffs. The Biden administration appealed.

On appeal, the Fifth Circuit Court of Appeals concurred that the USPSTF recommendations are unenforceable because of the Appointments Clause violation but declined to apply its holding nationwide. But the appeals court also sent the case back to the trial court complete with a roadmap of how they might make a further constitutional case against HRSA and ACIP, as well as how they might strengthen their request for a nationwide injunction affecting everyone, since plaintiffs claim that without such a population-wide remedy, insurers will not drop the benefits and sell them the policies they desire.

Even as portions of the case were remanded to the trial court, the Biden administration appealed the USPSTF holding to the Supreme Court. With the constitutionality of this body’s recommendations now on the line, the Trump administration has taken up the case.  Scores of benefits recommended by the USPSTF since the ACA’s enactment are on the line, such as  colorectal cancer, breast cancer, and lung cancer screening, treatments for high cholesterol and hypertension, and PrEP treatment for people living with HIV.

The question is why the Trump administration, which has made its hostility to the Affordable Care Act abundantly clear, would defend the law. The answer, of course, is the administration’s desire for control over the preventive benefits themselves. As with other high-profile Appointments Clause cases now under appeal, the administration’s Braidwood position is an expression of its desire for whole-of-policy powers, in this case, policies governing preventive health care.

The Biden administration of course also wanted to control the scope of preventive care, which is why it appealed. But the Trump administration’s brief to the Court is written in particularly forceful and revealing terms as the administration argues for control, claiming that the USPSTF “cannot make any legally binding final decisions on behalf of the United States without the Secretary’s permission; furthermore, the “Secretary can remove them at will, and the threat of removal is the ultimate tool for control over final decisions on recommendations.”

Winning the current case is essential to the future of the USPSTF recommendations. Should the administration lose, then all benefits added since the ACA’s enactment could ultimately be nullified, not only for the plaintiffs in the case but for all insured Americans. But in the longer term, a win may prove to be the start of a far darker journey, one in which public health experts are either removed or threatened with removal unless they bend to the administration’s will regarding what preventive services will be covered. Of special concern are benefits that some high-level officials might view as violating Presidential Executive Orders on gender ideology or claims of religious freedom, such as PrEP, contraception, or preventive care to prevent the spread of sexually transmitted infections. The ACA’s contraceptive coverage already has been successfully challenged on religious grounds and the list of objectionable benefits could grow. 

Litigation is very much an “in the moment” undertaking, a descendent of warfare itself, carried out in distinct stages and susceptible to sudden shifts in alliances, with allies one day becoming opponents the next. Today, the Trump administration and advocates for a comprehensive public health approach to preventive care are allies in a common cause to save the constitutionality of the USPSTF. Should the administration begin to use its power to unravel coverage, an alliance presumably will no longer be the case.

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