CNN
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President Donald Trump’s Justice Department is defending the Affordable Care Act before the Supreme Court – a notable contrast to his first term, when his administration sought to repeal the law in Congress and then refused to defend it in a major challenge brought by GOP-led states.
But a win for the federal government in the current case, concerning the law’s mandates that certain preventive services are covered cost-free, could boost the power that Health and Human Services Secretary Robert F. Kennedy Jr. has in shaping those requirements.
It comes as Kennedy shakes up the health agency with mass layoffs and plans to consolidate huge swathes of its authorities in a new, $20 billion “Administration for a Healthy America.” Kennedy has questioned a litany of public health recommendations, and a victory in this case could put him in more direct control of at least one expert panel focused on those policies.
On Monday, the justices will be considering the legality of certain no cost-sharing coverage mandates that were created by a government entity known as the US Preventive Services Task Force, which issues recommendations that are supposed to be shielded from political influence.
At stake is the ability of millions of Americans to access cost-free preventive services that include cancer screenings, statins that help prevent cardiovascular disease, PrEP drugs that help prevent HIV infections, and counseling referrals for pregnant and postpartum women at increased risk of depression.
Cost sharing was an “enormous barrier” to people getting such care, according to Georges Benjamin, executive director of the American Public Health Association.
“Simple stuff, like more people getting their blood pressure checked, more people getting their flu shots, more people getting the cholesterol screenings, more people getting some cancer screenings, like colonoscopy, breast screenings, those kinds of things,” Benjamin told reporters at a press briefing organized by the advocacy group Protect Our Care.
The case is part of the latest wave of conservative legal attacks on the Affordable Care Act, but one that doesn’t threaten to take down the landmark health reform law, which has expanded health insurance coverage to tens of millions of Americans.
The challengers argue that mandates are unconstitutional because, under Obamacare, they come from a task force whose membership hasn’t been Senate confirmed.
A ruling in the government’s favor would leave those mandates intact for now, but the fight over how those mandates are crafted will continue, both in court and in the control that Kennedy attempts to exert over Obamacare’s requirements.
“The Supreme Court ruling in favor of preserving these services is not going to end the issue,” said Andrew Pincus, a partner at the law firm Mayer Brown who filed an amicus brief supporting the mandates on behalf of the American Public Health Association.
Pincus, speaking at the Protect Our Care briefing, predicted that the Supreme Court was likely to say, “that the Secretary of HHS has some authority to oversee how the task force operates and the decision that it makes.”
“So, the question will then be, will HHS follow the science and uphold the USPSTF recommendations, or will it take a different course?” he said.
CNN has reached out to HHS for comment.
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The lawsuit was filed at the end of the first Trump administration by a Texas business and other individuals who did not want to offer coverage of certain preventive services, including PrEP medications for HIV, because of their religious and moral objections to those treatments.
They are represented by Jonathan Mitchell, a well-known conservative lawyer who has been involved in other culture war disputes in court, including a significant abortion case at the Supreme Court, and who represented Trump when he was a presidential candidate in a challenge to the state of Colorado’s attempt to remove him from the ballot.
The challengers’ religious liberties claims were spun off into separate proceedings. The dispute in front of the court Monday focuses on a constitutional clause known as the Appointments Clause, which establishes the president and Senate’s role in appointing and confirming officials that wield significant government power.
Lower courts agreed with the challengers’ Appointments Clause arguments, but only as they applied to one of the three different entities that issue the recommendations that become the preventive coverage mandates under Obamacare.
As the Supreme Court’s weighs in on the taskforce’s constitutionality, another round of litigation will continue before US District Judge Reed O’Connor about the mandates based on the ACA recommendations of the other two entities, the Advisory Committee on Immunization Practices, and the Health Resources and Services Administration, which provides guidelines on preventive care for women and children, including annual visits and an array of screenings.
Those proceedings focus on procedural questions about those mandates, rather than whether those entities’ role in the process was constitutional.
Outside the courtroom, however, Kennedy has been particularly critical of ACIP, the committee overseeing vaccine recommendations.
The secretary has accused the panel — typically an assembly of pediatricians, vaccine experts, and other physicians — of being too close to the manufacturers that develop those vaccines. As secretary, he could remove and replace members of the committee.
In the dispute the justices are hearing Monday, the US Solicitor General and Obamacare’s foes will spar over the role the HHS secretary plays in deciding which of the Preventative Services Task Force’s recommendations ultimately become coverage mandates.
The challengers argue that the secretary has virtually no say over the matter, and thus the task force is acting like a so-called “Principal Officer” that should have been appointed by the president and confirmed by the Senate.
The administration argues in its briefs that the taskforce members are what’s known as “inferior officers” and that the “Secretary, not the Task Force, is ultimately responsible for deciding what recommendations will have final, binding legal effect.”
The Justice Department’s current argument is a continuation of how the Biden administration was approaching the case, and “it’s every bit as legally appropriate” now, said Nicholas Bagley, a professor at University of Michigan Law School who specializes in administrative and health law.
“But the ideological valiance has shifted, because you’re vesting the right to make important decisions about preventive services in someone who has medical views very outside of the mainstream,” Bagley said.
