Preventive services free availability at issue in U.S. Supreme Court case

Preventive care — including tests that primary care physicians use with patients — could be in for major changes due to a U.S. Supreme Court case.

On April 21, the High Court is scheduled to hear arguments on a case challenging the “preventive health services” that insurance companies cover for free for patients, as mandated by the Affordable Care Act (ACA). Those services are recommended by the U.S. Preventive Services Task Force (USPSTF).

The case so far

At least two businesses are challenging the USPSTF’s authority to issue “numerous decrees that force insurers to cover items and services without cost-sharing” to patients. That includes the pre-exposure prophylaxis (PrEP) drugs, such as Truvada and Descovy, used to fight HIV infection, according to a court brief.

But those medicines aren’t the only drugs or screenings involved. Preventive services include cancer screenings, tobacco cessation, contraception and immunizations involving more than 150 million people a year, according to an estimate published by the O’Neill Institute’s Health Care Litigation Tracker of Georgetown University. NBC News also cited the 150 million people and predicted a ruling “could have sweeping consequences for patient access to preventive health care” across the country.

Officers with authority?

USPSTF predates Obamacare; it was created in 1984 and for years worked closely with the U.S. Agency for Healthcare Research and Quality, one of the divisions of the U.S. Department of Health and Human Services (AHRQ).

Currently it has 16 members, each serving a four-year term. They were appointed by the AHRQ director, then by the HHS secretary starting in 2023. As health care advisers, the USPSTF members did not need to be “officers of the United States.”

Now they do because the ACA gives them authority to mandate insurance coverage for health care. But the USPSTF recommendations are invalid because the members have not been appointed rightly, according to the respondents arguing against the USPSTF rule.

‘Inferior officers’ and HHS control

The federal government staff, up to HHS Secretary Robert F. Kennedy Jr., argued federal law establishes two types of officers: principal officers appointed by the president and confirmed by the Senate, and inferior officers, accountable to the president, but without formal appointment by the president or a Senate vote. The USPSTF members are “inferior officers,” volunteer experts who can be removed at will by the HHS secretary, according to HHS.

That removal power is a tool that can influence the USPSTF’s recommendations in the first place, the HHS brief said, and that control gives the HHS secretary the ultimate responsibility for whether USPSTF recommendations become final, binding decisions.

Who are the challengers?

Under the new administration of President Donald J. Trump, the case has become known as Robert F. Kennedy Jr., secretary of Health and Human Services, vs. Braidwood Management Inc., et al. While it may seem unexpected that HHS would defend the lawsuit, KFF noted a ruling “could give the administration broader latitude to shape the recommendations issued by the entities that were originally established with the goal of providing independent analysis and review.”

The court parties Braidwood Management is a for-profit businesses owned by a trust with Dr. Steven F. Hotze as sole trustee and beneficiary. It is self-insured and provides health insurance to 70 workers, according to a policy issue brief published by KFF. Kelley Orthodontics, a “Christian professional association” owned by John Kelley, also is a respondent, according to KFF.

The employers had a limited victory in court in 2024 when the 5^th U.S. Circuit Court of Appeals ruled in their favor. But that decision was limited to just eight companies, based in Texas, that got involved in the case.