On April 21, the Supreme Court will hear arguments in Kennedy v. Braidwood Management, Inc., a case that challenges a key component of the Affordable Care Act (ACA) that requires most private health plans to cover certain evidence-based preventive services without cost sharing. The Court’s decision could lead to higher health care costs for consumers, less screening and prevention, and worse health outcomes if it undermines access to more than 50 evidence-based preventive services recommended by the U.S. Preventive Services Task Force (Task Force).
This Expert Column provides an overview of the ACA’s preventive services requirement, summarizes the history of Braidwood Management, and highlights several key issues to listen for during oral argument.
What Is the Preventive Services Requirement?
To promote the utilization of evidence-based preventive services, Congress required most private health insurers and group health plans to cover, without cost sharing, four categories of services identified by experts within the U.S. Department of Health and Human Services (HHS). Specifically, insurers and plans must cover services with “A” and “B” ratings from the Task Force; preventive services for women and children as recommended by the Health Resources and Services Administration (HRSA); and immunizations recommended by the CDC’s Advisory Committee on Immunization Practices (ACIP). Task Force recommendations with an “A” or “B” rating include cancer screenings, statins for heart disease, folic acid, preexposure prophylaxis (PrEP) to prevent HIV, and tobacco cessation.
The preventive services requirement is among the ACA’s most popular provisions and has enabled millions of Americans to access evidence-based services without cost-sharing. In 2020 alone, more than 150 million people with private health insurance benefited from this provision; the preventive services requirement led to increased cancer screening and vaccinations, improved contraception access, earlier detection and treatment of chronic health conditions, and narrowed racial disparities in access to preventive services. Over time, Congress also built on this ACA requirement on a bipartisan basis, leveraging these provisions to rapidly expand access to COVID-19 testing and vaccines in the Families First Coronavirus Response Act and the CARES Act.
Brief Background
Braidwood Management has been five years in the making. Initially filed against the first Trump administration in 2020 as Kelley v. Azar, several individuals and employers — many of whom are repeat players in ACA litigation — challenged the ACA’s preventive services requirement as unconstitutional. The plaintiffs are represented by Jonathan Mitchell, who served as former solicitor general of Texas, crafted the state’s “bounty hunter” abortion law, and served as President Trump’s personal attorney. The case has spanned three presidential administrations, and the preventive services requirement has now been defended in court by both Trump administrations and the Biden administration.
Before the district court, the plaintiffs argued that the preventive services requirement was unconstitutional because members of the Task Force, HRSA, and ACIP were improperly appointed. Under the Appointments Clause, federal officers can be principal officers (who must be appointed by the president and confirmed by the Senate) or inferior officers (who may be appointed by the president, department heads, or the courts and do not require Senate confirmation). The plaintiffs argued that the Task Force, HRSA, and ACIP members were principal officers because they could unilaterally determine which preventive services must be covered without cost-sharing by insurers and plans. Because these individuals were not appointed by the president and confirmed by the Senate, their appointments were unconstitutional.
The district court agreed in part, concluding that the requirement to cover Task Force-recommended services violates the Appointments Clause. The court found that the Task Force’s members are principal officers who are insulated from political pressure and thus not subject to the control of the secretary of HHS. In concluding that Task Force members are insulated from political pressure, the court cited a separate provision in federal law designed to safeguard the scientific integrity of the Task Force’s recommendations where Congress explicitly directed that the Task Force members and recommendations “shall be independent and, to the extent practicable, not subject to political pressure.”
Because the secretary does not have the authority to dictate the Task Force recommendations, he also cannot ratify those recommendations, as then-Secretary Xavier Becerra tried to do in 2022. In contrast, the court found that the secretary could ratify the HRSA and ACIP recommendations since no comparable statutory language protects HRSA and ACIP from political pressure. In short, HRSA and ACIP fall under the secretary’s supervision. (The district court also ruled that the requirement to cover PrEP violated one plaintiff’s rights under the Religious Freedom Restoration Act, an issue that was not appealed.)
The Fifth Circuit affirmed the district court’s ruling but limited its scope to only the plaintiffs in the litigation. And while agreeing that the secretary of HHS could ratify the HRSA and ACIP recommendations, the Fifth Circuit asked the district court to consider further whether the secretary should have done so using notice-and-comment rulemaking procedures (rather than doing so through a one-page memo signed by Secretary Becerra).
Journey to the Supreme Court
The Biden administration appealed the Fifth Circuit’s decision to the Supreme Court in September 2024, a request granted on January 10, 2025 — just ahead of President Trump’s inauguration. The Trump administration continued to defend the preventive services requirement with arguments largely consistent with the Biden administration’s prior positions. (Separately, the plaintiffs asked the Court to consider whether the entire preventive services requirement violates the nondelegation doctrine; the lower courts rejected this argument, and the Supreme Court denied this request on January 13, 2025.)
Given the potential impact — with coverage for evidence-based preventive services at risk for more than 150 million Americans — many stakeholders filed amicus briefs. Groups that filed briefs in support of the preventive services requirement include the American Public Health Association and public health scholars, the Susan G. Komen Breast Cancer Foundation, the Chronic Illness and Disability Partnership, hospital associations, Democratic attorneys general (led by Illinois), and a wide range of patient advocacy organizations and physician organizations. Briefs were filed in support of the plaintiffs by groups that include Republican attorneys general (led by Texas) and organizations, such as the Cato Institute, the Manhattan Institute, and the Christian Employers Alliance.
All of the amicus briefs can be found on the Health Care Litigation Tracker.
What We’re Listening for During Oral Argument
On April 21, the Supreme Court will consider whether the structure of the Task Force violates the Appointments Clause. It is notoriously difficult to predict the outcome of a case from oral argument alone, but here are some of the issues we will be listening for during oral argument.
Do any justices question whether the Task Force members should be considered officers at all?
Much of Braidwood has focused on whether the Task Force members are principal or inferior officers — not whether the Task Force members qualify as officers at all. The government previously argued that Task Force members do not qualify as officers: they are not employees who receive compensation but volunteer medical experts who periodically serve on the Task Force for a limited time.
The district court rejected this argument, but it was raised before the Supreme Court by amici who describe the nature of the Task Force and argue that the preventive services requirement did not convert the Task Force’s members into federal officers subject to the Appointments Clause.
Do any of the justices seem troubled by the scope of the secretary’s authority to supervise Task Force members?
The government argues that the Task Force’s members are validly appointed inferior officers who are subject to the control and supervision of the secretary of HHS. This includes the authority under the ACA to review the Task Force’s recommendations before insurers and plans must cover those services without cost-sharing. Specifically, the ACA states that the secretary must establish an interval of at least one year before any new recommendations take effect. This interval, the government argues, gives the secretary the option to review the recommendations, potentially delay the effective date even longer than a year, or ask the Task Force to reanalyze or modify the recommendations. Combined with the removal power discussed below, the Task Force members are subject to the secretary’s supervision.
The plaintiffs disagree, asserting that coverage by insurers and plans is triggered by the Task Force’s “A” or “B” rating alone and that the secretary’s role in this process is purely ministerial. The plaintiffs further argue that the Task Force has complete autonomy, and nothing in the statute gives the secretary the power to approve or review the Task Force’s recommendations.
We expect the justices to ask a range of questions to assess the degree to which the secretary can control the Task Force’s recommendations; the Department of Justice’s responses to these questions could foreshadow how Secretary Robert F. Kennedy Jr. might approach preventive services under the ACA going forward.
How much attention do the justices pay to the statutory language that insulates Task Force members from political pressure?
As previously noted, the Task Force’s authorizing statute is designed to insulate the Task Force members and their recommendations from political pressure. This statute, the government argues, does not limit secretarial supervision. Rather, the secretary of HHS has the power to remove Task Force members for any reason, which the government refers to as a hallmark of control. As an alternative measure, rather than invalidating the coverage of the Task Force’s recommendations, the government urges the Supreme Court to sever the portion of the statute that insulates the Task Force from political pressure while keeping the rest of the statute intact. Severing that portion, the government argues, would cure any Appointments Clause infirmities by further allowing the secretary of HHS to supervise the Task Force. The plaintiffs disagree, arguing that severance here would exceed the Court’s authority.
It will be interesting to see the degree to which, if any, the justices focus on severing as an Appointments Clause remedy while leaving the Task Force’s recommendations in full operation.
How much, if at all, do the justices focus on the secretary’s ratification of the Task Force recommendations?
As noted above, the lower courts made distinctions between the secretary’s authority to control the HRSA and ACIP recommendations relative to the Task Force recommendations. The court concluded that the HRSA and ACIP recommendations could be ratified because the secretary has the authority to review or revise the recommendations from those entities. This does not, however, extend to the Task Force recommendations for the reasons discussed above. If ratification is raised, it will be interesting to see whether there is any discussion of the HRSA and ACIP recommendations and whether the 2022 ratification by Secretary Becerra is sufficient or should have been adopted with advance notice and the opportunity for public comment.
The Department of Justice’s responses to these questions, if they come up, could signal how Secretary Kennedy might approach this issue, including whether he might choose to ratify all or only some of the recommended preventive services.
Looking Ahead
The potential impact of the Supreme Court’s decision in Braidwood cannot be overstated, as millions of Americans stand to lose guaranteed access to life-saving preventive care without cost-sharing. Even if the Supreme Court upholds this part of the ACA, there will likely be more questions to consider. This includes how HHS Secretary Kennedy intends to approach his authority to supervise the recommended services, whether he revokes Secretary Becerra’s prior ratification, and whether the Court’s decision resolves remaining questions about the HRSA and ACIP recommendations for women’s and children’s preventive services. The Supreme Court’s decision this term is unlikely to bring finality to this litigation as the lower courts will continue to grapple with these questions.
