The Supreme Court on Friday upheld a national preventive care coverage mandate in a decision that could allow the Health and Human Services secretary more control over the task force that issues recommendations about what services should be covered without cost to patients. The justices ruled 6-3 with Justice Brett M. Kavanaugh writing the majority opinion and Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch dissenting. At the core of the case is whether the U.S. Preventive Services Task Force, an independent body assembled by the federal government, is subject to the Appointments Clause of the Constitution. As it stands, its members are not confirmed by the Senate. Under the 2010 health care law, some preventive services recommendations made by the task force must be covered by private insurers without cost sharing with patients. A group of individuals and Christian-owned businesses filed suit, stating religious objections to the task force’s recommendation that insurers cover the HIV preventive drug PrEP, a preexposure prophylaxis treatment. They argued the task force is unconstitutional because its members were not appointed by the president and confirmed by the Senate. Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas agreed, invalidating the preventive care recommendations. The U.S. Court of Appeals for the 5th Circuit held that the task force was unconstitutional because the Senate does not confirm its members. In appealing, the Trump administration argued that the task force is legal because the HHS secretary has control over it and can fire its members and reject its recommendations — a power that has not been used before. The Supreme Court reversed the appellate decision and remanded the case, with Kavanaugh writing that “the Task Force members are removable at will by the Secretary of HHS, and their recommendations are reviewable by the Secretary before they take effect.” “Through the power to remove and replace task force members at will, the secretary can exert significant control over the task force — including by blocking recommendations he does not agree with,” Kavanaugh wrote. The ruling was a mixed bag for some health advocates, who want to preserve the preventive services requirement but worry about the power HHS Secretary Robert F. Kennedy Jr. could wield over the task force. “While we celebrate this ruling, The AIDS Institute remains concerned about growing efforts to politicize the work of independent, science-based expert bodies like the USPSTF,” the organization said in a statement Friday, referencing Kennedy’s decision to fire all the members on the Center for Disease Control and Prevention’s vaccine advisory committee. “[W]e urge the Administration to safeguard the independence of the USPSTF. The strength of its recommendations lies in its commitment to rigorous, evidence-based decision-making. Public health must remain grounded in science, especially if the Administration wants to prevent chronic disease.” The plaintiffs also had argued that the HHS secretary’s ratification of the Health Resources and Services Administration and the Advisory Committee on Immunization Practices violated the Administrative Procedure Act. The Supreme Court decided only on the question of the task force's authority. A separate set of claims regarding those other bodies is pending at the district court. The case is Kennedy et al. v. Braidwood Management et al.
