Yesterday, April 21, the Supreme Court of the United States (SCOTUS) heard oral arguments in the case Kennedy v. Braidwood Management, Inc., which challenges the constitutionality of the no-cost preventive services established by the Affordable Care Act (ACA). This case holds significant implications for over 150 million Americans who currently receive preventive services—such as cancer screenings, HIV prevention medications, and mental health counseling—without out-of-pocket costs. Earlier this year, Health Care For All (HCFA) joined 47 other advocacy organizations across the country filing an amicus brief urging SCOTUS to protect access to these services.
How did we get here?
The ACA requires private insurance companies to cover certain preventive services at no cost to the patient. Three expert panels determine which services should be covered – the US Preventive Services Task Force (USPSTF), the Advisory Committee on Immunization Practices (ACIP) and the Health Resources Services Administration (HRSA). This lawsuit challenges the USPSTF’s authority to make these recommendations arguing that because the task force members are not appointed by the President nor confirmed by the Senate, requiring insurers to cover these services is unconstitutional.
In 2022, a federal District Court agreed with Braidwood’s arguments, striking down the USPSTF’s recommendations on and after March 23, 2010. The case was appealed, and the ruling was paused. In June 2024, the Circuit Court of Appeals agreed with the District Court’s ruling that requiring coverage of the USPSTF’s recommendations was unconstitutional. However, they stopped short of applying that ruling to all insurance plans and ruled only that the plaintiffs were permitted to exclude the recommended services from the insurance plans that their employees receive. In early January of this year, SCOTUS agreed to hear the case.
What happened during oral arguments at the Supreme Court?
Reporting from the oral arguments today indicates that three of the conservative justices – Justices Clarence Thomas, Samuel Alito and Neil Gorsuch — are likely to vote in favor of the plaintiffs agreeing with the argument that the current process for determining no-cost preventive services is unconstitutional. While all three of SCOTUS’s liberal justices – Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson – appeared likely to vote to uphold the current law. With Chief Justice Roberts not indicating a stance, the final decision will likely come down to conservative Justices Brett Kavanaugh and Amy Coney Barrett who both appeared skeptical of the plaintiff’s reasoning in the case. If their skepticism holds, that would likely mean at least five justices would vote to uphold the law and a victory for the ACA. After several years of litigation, we expect SCOTUS to release its decision on this case this summer.
What does this mean for MA?
Thankfully, in 2023, the Massachusetts Legislature passed protections for no-cost preventive services as a part of the FY24 budget. Further building on this protection, the MA Health Connector Board amended the minimum creditable coverage (MCC) requirements, the standard amount of coverage a person needs to meet the state’s health insurance mandate, to include no cost-sharing for preventive health services. With these two policy changes working together, the over 4 million residents in MA who are covered by private insurance health plans are protected if SCOTUS strikes down the federal law.
While policymakers in the Commonwealth have done everything they can to protect our residents, we are not entirely out of the woods. The Trump Administration’s arguments for protecting the USPSTF’s recommendation power largely center around the idea that the Secretary of Health and Human Services, who is appointed by the President, has the ability influence the recommendations by removing any of the expert members of the task force whenever they do not comply with the administration’s requests. With Secretary Kennedy’s history of vaccine skepticism and the Trump Administration’s quest to wield executive power, there is reason for concern about the future of the USPSTF and their ability to make recommendations based on scientific evidence alone.
Whatever comes next, Health Care For All is ready to work with state policymakers and health care stakeholders to ensure that our residents continue to have access to these critical services without any cost sharing.
Marcella Lampon is a Policy & Project Coordinator at Health Care For All.
