On Feb. 18, the Justice Department filed a brief with the Supreme Court, arguing in favor of maintaining the Biden administration’s stance regarding the landmark case that centers on whether employers can exclude covered services on religious grounds. Specifically, the case addresses the authority of the U.S. Preventive Services Task Force (USPSTF) in mandating coverage for preventive services, including medications such as PrEP for HIV prevention.
Braidwood Management, a Texas company, and other individuals originally sued HHS in 2021. The company argued that the ACA’s requirement to cover HIV-prevention medication violated its religious freedoms. In March 2023, U.S. District Judge Reed O’Connor decided that recommendations made by the USPSTF after 2010 do not need to be followed. The decision also blocked the government from enforcing task force recommendations among private health insurers. HHS then reached a deal to temporarily preserve the preventive care mandate while the case proceeded through the courts.
In June 2023, the 5th U.S. Circuit Court of Appeals issued a mixed ruling on the case. While it agreed that Braidwood should not be required to cover PrEP for its employees, it also reversed Judge O’Connor’s earlier decision blocking the preventive care mandate for all health plans. The appeals court concluded that because the USPSTF’s members are not confirmed by the Senate, their authority to mandate coverage is unconstitutional. However, the ruling only applied to the plaintiffs, leaving the broader preventive care mandate intact.
The Justice Department, through petitioners that include newly appointed HHS Secretary Robert F. Kennedy Jr., are arguing that the task force’s structure is not unconstitutional. In its brief, the department argued that members of the USPSTF are “inferior officers” and not “principal officers,” meaning they are legally appointed. The brief argues that the HHS secretary has the authority to remove task force members and can override their recommendations before they are pushed to insurers. The department further suggested that the Supreme Court could resolve any constitutional concerns by allowing HHS to have full supervision over the task force’s recommendations.
The ACA currently mandates insurers to cover over 100 preventive health services with no copays, benefiting more than 100 million people annually. The Supreme Court is expected to hear the case this spring.
