By John Fritze and Tami Luhby

(CNN) — The Supreme Court on Friday upheld a task force that recommends preventive health care services that insurers must cover at no-cost, turning away the latest legal challenge to Obamacare to reach the high court.

The opinion indicated that the panel’s recommendations – including pre-exposure prophylaxis, or PrEP, a medication which vastly reduces a person’s risk of getting HIV from sex or injection drug use – would remain in effect, some experts said.

However, the case is being remanded to a lower court, where the recommendations could be challenged again.

Though the appeal never threatened to take down the Affordable Care Act, it could have had a sweeping impact on millions of Americans and their access to preventive services. Keeping the cost of preventive care free makes it more likely that people will get screenings and other services that are aimed at detecting disease at an earlier stage.

“This is a big win for preventive services,” Andrew Twinamatsiko, a director of the Center for Health Policy and the Law at Georgetown University’s O’Neill Institute. “Over 150 million people have been able to access preventive services because of this provision. So this decision ensures that they can keep accessing those services without cost sharing, which is good for health and for minimizing death and disease.”

The Supreme Court ruled that members of the panel are “inferior” officers, meaning they do not need to be appointed by the president. The ruling confirms Health and Human Services Secretary Robert F. Kennedy Jr., and his predecessor in the Biden administration, had the ability to name the experts who sit on the panel.

Justice Brett Kavanaugh wrote the opinion for a 6-3 majority that included both liberal and conservative justices.

The 16-member US Preventive Services Task Force, made up of volunteers, has since 1984 provided recommendations to the government about preventive services – like cancer screenings and statin medications to help reduce the risk of heart disease – that can improve Americans’ health.

As part of the nationwide health care law enacted 15 years ago during President Barack Obama’s administration, those recommendations are used to determine which services insurers must cover without charge.

At issue in the case were newer recommendations the panel made after the Affordable Care Act was enacted in March 2010. Preventive services recommended before then were not at stake, nor were certain immunizations and preventive care for women and children, which are recommended by other government entities.

The more recent recommendations include lung cancer screenings for certain adults, hepatitis screenings and colorectal cancer screenings for younger adults, according to a brief submitted in the case by Public Citizen and several public health groups. Physical therapy for certain older adults to help prevent falls and counseling to help pregnant women maintain healthy body weights are also among the other newer recommendations.

A leading health insurance industry group said policies won’t change, at least for the time being.

“With this ruling, there are no impacts to existing coverage, and we will closely monitor the ongoing legal process,” AHIP, formerly America’s Health Insurance Plans, said in a statement.

Kennedy’s power over recommendations

The Supreme Court’s ruling comes at a time when Kennedy has started exerting his authority over panels that offer health care recommendations for the public. Earlier this month, he removed all 17 members of the US Centers for Disease Control and Prevention’s Advisory Committee on Immunization Practices, which guides the federal government’s vaccine recommendations, and then added eight new ones.

The move has sparked concerns that the new panel’s recommendations could be more in line with the views of Kennedy, who has a history of vaccine skepticism.

“The big takeaway here is that the Task Force’s recommendations are binding, just as the ACA’s drafters intended,” Nicholas Bagley, a law professor at the University of Michigan, posted on X. “BUT the scheme is constitutional only because Sec Kennedy can exercise near-complete control over Task Force recommendations. A mixed bag!”

Challenging task force structure

The task force structure was challenged by a Texas business, Braidwood Management, that objected on religious grounds to covering certain preventive services, including PrEP.

Braidwood argued that, under the Constitution, task force members must be appointed by the president with Senate confirmation. At the very least, the company said, Congress needed to affirmatively vest the appointment power in the secretary of the Department of Health and Human Services.

Before 2023, the task force members were appointed by the director of the Agency for Healthcare Research and Quality, or AHRQ, an agency that is part of HHS.

The case, on appeal from the conservative 5th US Circuit Court of Appeals, created an unusual political dynamic. Though initially appealed by the Biden administration, President Donald Trump’s administration has defended the task force since taking power this year – despite the president’s years-long campaign to repeal the 2010 health care law.

On the other side of the litigation, Braidwood was represented at the Supreme Court by Jonathan Mitchell, a veteran conservative lawyer who successfully argued against an effort in Colorado to remove Trump from that state’s primary ballot during last year’s election.

The fight over Braidwood’s religious objections to PrEP were spun off into separate proceedings. The dispute at the Supreme Court focused on the Constitution’s appointments clause, which establishes the president and Senate’s role in appointing and confirming officials that wield significant government power.

The Trump administration argued that the task force members were “inferior officers,” because they could be removed at-will by the HHS secretary and because the department appeared to have at least some oversight of the group’s recommendations. But if that’s true, Mitchell pointed out, then its members needed to be appointed by the secretary of the department, not the director of a subagency. The law is unclear on who actually appoints the board noting and notes only that the AHRQ should “convene” the group.

The Department of Justice said that, through a series of other congressional actions, the secretary effectively had the power to appoint the task force since the position oversees the AHRQ director.

During the course of the litigation, then-HHS Secretary Xavier Becerra “ratified” the earlier appointments during the Biden administration, but Braidwood argued that move wasn’t enough to overcome the fact that the law doesn’t specifically vest the power of appointment in his office.

The 5th Circuit sided with Braidwood, ruling that members of the task force are “principal officers” who must be appointed by the president and confirmed by the Senate.

Kennedy v. Braidwood was the fourth major appeal to reach the Supreme Court involving Obamacare since the law was enacted during Obama’s first term and became a target for conservatives.

In 2021, the high court ruled that conservative states challenging a key provision of the law did not have standing to sue because they were not directly harmed. The conservative court also rejected challenges to other provisions of Obamacare in 2012 and 2015.

The-CNN-Wire
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