The U.S. Supreme Court affirmed the legality of a provision in the Affordable Care Act (ACA) requiring insurers to cover preventative care services without cost sharing, including services that employers may find objectionable.
The U.S. Preventive Services Task Force determines what services should be covered. The plaintiffs in Kennedy, Sec. of H&HS v. Braidwood Management argued the organization’s structure violated the Appointments Clause of the Constitution.
In 2019, the Task Force recommended insurers cover PrEP, “pre-exposure prophylaxis,” to reduce the chance of getting HIV from unprotected sex or injection drug use. Other preventive services ACA plans must cover without cost share are contraception and HPV vaccines.
The plaintiffs, two Christian-based businesses in Texas, argued the services violated their religious beliefs by making them “complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman.”
In a 6-3 decision, the justices ruled the Task Force appointments by the Secretary of Health and Human Services are constitutional.
In dissent, Justice Clarence Thomas, joined by Samuel Alito and Neil Gorsuch, argued the authority of the HHS secretary to make the appointments involves “two ambiguously worded statutes enacted decades apart.”
“The ACA transformed the Task Force from a purely advisory body into one whose recommendations carry the force of law,” wrote Thomas.
The 16-member panel is appointed by “lower-level officials” outside the purview of the Appointments Clause, the dissent notes.
“Congress established the Task Force to be an independent agency that answers directly to the President,” wrote Thomas. “By misinterpreting the statute, the Court reconfigures the Task Force to be subordinate to the Secretary of HHS.”
—Staff reports
AnneMarie Schieber is a research fellow at The Heartland Institute and managing editor of Health Care News, Heartland’s monthly newspaper for health care reform.
