Policy Researchers: Legal Upset Could Imperil Health Screenings For Americans
A team of healthcare policy researchers is arguing that one major element in the foundation of public health in the U.S. is in danger from the ongoing litigation around the issue of screenings. Writing in the Forefront opinion section of Health Affairs online on Dec. 23, Andrew Twinamatsiko, Zachary Baron, and Sheela Ranganathan, in an article entitled “Fate of ACA Preventive Services Uncertain Before Supreme Court,” explain the background, current situation, and prospects for, the Braidwood Management, Inc. v. Becerra case, which appears headed to the U.S. Supreme Court for adjudication.
The Braidwood case has received almost no coverage in the mainstream media, but the stakes are high. “On September 19, 2024,” the article’s authors write, “the Biden Administration petitioned for certiorari, requesting that the Supreme Court review the Fifth Circuit’s decision in Braidwood Management, Inc. v Becerra, which impairs free access to over 50 preventive health services. The government is asking the Supreme Court to decide whether the structure of the US Preventive Services Task Force (the “Task Force”)—a group of nationally recognized experts who recommend services that virtually all private insurers must cover for free—is constitutional. The parties on the other side of the case (the challengers), dissatisfied with part of the trial court’s decision, are also asking the Supreme Court to invalidate the required coverage of all the preventive services without cost-sharing. (emphasis added). They fault the lower court for ruling that Congress appropriately delegated authority to various agencies within the U.S. Department of Health and Human Services (HHS) to recommend evidence-based services that insurers must cover.”
In fact, they write, “The stakes in this case couldn’t be any higher. The requirement that certain preventive services be covered without cost-sharing is one of the most popular provisions of the ACA. It has enabled over 150 million people to access free preventive care, which has improved overall health outcomes and minimized gaps in access to care, especially among marginalized populations. Ending this requirement would roll back health care to the pre-ACA era when cost-sharing barriers made it harder for many Americans to access preventive services. We have covered this litigation’s background and the different turns the case has taken in various Health Affairs Forefront articles. This article summarizes the government’s reasons for asking the Supreme Court to intervene and the challengers’ nondelegation argument.”
They further note that “The ACA requires virtually all insurers to provide cost-free coverage of various preventive services, including screenings for lung cancer, mammograms, cholesterol medication, vaccinations, tobacco cessation, and many other services. These interventions help detect and treat conditions before they worsen, thus improving health outcomes and reducing health care costs. The ACA does not spell out the preventive services that must be covered. Rather, it entrusts that task with federal experts in HHS—the Task Force, the Health Resources and Services Administration (HRSA), and the Advisory Committee on Immunization Practices (ACIP).”
The legal dispute hinges on the question of whether the Task Force members are “principal officers” or “inferior officers.” The distinction matters, because the plaintiffs’ legal argument is based on their contention that the Task Force members are “principal officers” whose appointments should have been confirmed by the U.S. Senate; on the other side, the Biden administration has argued that they are “inferior officers,” meaning that they did not require Senate confirmation. If the U.S. Supreme Court declines to hear the case, the Fifth Circuit’s decision that the Taks Force members are “principal officers” stands, and the Task Force will be determined to be unconstitutional.
The underlying, substantive issue, as Richard Hughes IV wrote on June 24, 2024 in a Forefront article entitled “Braidwood v. Becerra: The Threat to Preventive Services Just Got Worse,” is this: “The Braidwood plaintiffs The Braidwood plaintiffs harbor religious objections to purchasing health insurance that includes some recommended preventive services, including “abortifacient contraception,” PrEP (pre-exposure prophylaxis) to prevent HIV transmission, the human papillomavirus (HPV) vaccine, and screenings and behavioral counseling for sexually transmitted disease and drug use. They believe these interventions ‘encourage homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman.’”
As Hughes noted in June, The plaintiffs’ legal strategy has been two-fold: (1) attack the ACA-conferred role of the recommending bodies as unconstitutional under the by alleging the law burdens their religious exercise and forcing the government to justify it on ‘strict scrutiny’ judicial review.”
Back to the Dec. 23 article: Twinamatsiko, Baron, and Ranganathan note that “The path forward in the Braidwood case is murky at the moment. The Supreme Court has yet to decide whether to hear the case. Should the Supreme Court decide to do so, full briefing will follow, and it will be set for oral argument, potentially early next year. But the results of the recent election are likely to heavily affect how the preventive services requirement will be defended before the Supreme Court. The challengers’ attorney, Jonathan Mitchell, has also served as [Donald] Trump’s attorney. The last time the ACA was before the Supreme Court, the Trump administration declined to defend it. The same scenario could well be repeated under another Trump administration, which could withdraw the government’s petition before the Supreme Court, giving the high court the opportunity to simply remove the case from its docket.”
And, they add, “The litigation would then resume before Judge O’Connor, who the Fifth Circuit asked to determine whether the HHS Secretary had appropriately ratified the recommendations by ACIP and HRSA. A new Trump Administration—with an HHS led by RFK Jr.—that seems interested in upending the broader public health infrastructure could also explore other avenues to restrict access to vaccines or other treatments that could invite separate legal challenges.”
Andrew Twinamatsiko, J.D., is an associate director of the Health Policy and the Law Initiative at the O’Neill Institute for National and Global Health Law at Georgetown University Law Center. He provides technical assistance for policy makers and public education on health policy legal issues—primarily focusing on access to health care coverage, affordability, transparency, and equity. Zachary Baron, J.D., is a director of the Health Policy and the Law Initiative at the O’Neill Institute. And Sheela Ranganathan is an associate with the Health Policy and the Law Initiative.
