The US supreme court has ruled that a key provision of “Obamacare”, formally known as the Affordable Care Act, is constitutional. The case challenged how members of an obscure but vital healthcare committee are appointed.
The committee, the US Preventive Services Task Force (USPSTF), is a panel of 16 volunteer health experts who determine which evidence-based preventive health services private insurance companies must cover without cost for patients.
The requirement is a provision of the ACA – and one of the few instances when privately insured American patients pay nothing for healthcare.
The case, “in line with other court decisions, strengthens the control of political appointees over the bureaucracy”, said Dorit Reiss, a University of California San Francisco law professor and an expert in health law and vaccine policy.
The case, formally called Kennedy v Braidwood Management, Inc, affirms that final decisions come by secretaries, in this case health secretary Robert F Kennedy Jr, a known vaccine skeptic.
“This makes it harder for Congress to isolate expert decisions from political review. So the stakes in appointing the political heads – in this case the secretary – are very, very high,” said Reiss.
While the court affirms the constitutionality of the taskforce itself, it also held that members force can be removed at will by the health secretary, and that the secretary may review the taskforce’s recommendations before they take effect.
Kennedy used those powers only this June, when he unilaterally fired all sitting members of a critical vaccine advisory panel, and remade the panel with ideological allies. The new panel members then delivered Kennedy a victory by recommending against a vaccine preservative called thimerosal, despite a scientific consensus that the ingredient was safe.
The court issued the opinion in a 6-3 ruling. The opinion was written by Justice Brett Kavanaugh, and joined by John Roberts, Sonya Sotomayor, Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson.
In 2020 alone, an estimated 150 million Americans benefited from the preventive healthcare provision, according to the O’Neill Institute at the Georgetown University law center in Washington DC. Although the provision requires insurers to cover a wide range of services – from annual check-ups to cancer screenings and immunizations – the case centered on the provision of Prep, or pre-exposure prophylaxis for HIV.
A small group of plaintiffs claimed provision of PrEP violated their religious beliefs. They were represented by Jonathan Mitchell, the former solicitor general of Texas who pioneered the state’s “bounty hunter” abortion law.
Their arguments were backed by Republican and conservative groups, although the specific ACA provision was defended by both the Trump and Biden administrations. Major public health groups, hospitals, disease advocacy groups and Democratic attorneys general opposed ending the provision.
Although the court affirmed the constitutionality of the panel, it also affirms that any health secretary, including Kennedy, could remake the panel with allies.
The secretary could “override experts’ conclusions and remove things like PrEP”, said Reiss. However, she added that the power was not “absolute”. If the secretary’s recommendation contravened the decision of an expert panel and there was a lawsuit, the secretary would still need to make “a convincing case that there was a reason to deviate from the panel, if there is a lawsuit”, said Reiss.
That has left the Aids institute, and other groups who advocate for healthcare access for HIV and Aids patients, to say it “celebrates” the decision while acknowledging uncertainty about the future.
“I think we have to be worried about what that means for future USPSTF decisions given what has happened with” the vaccine panel, said Rachel Klein, the deputy executive director of the Aids Institute.
“Knowing what preventive care is effective to keeping people healthy – and therefore cost-effective to cover – is crucial to helping people be as healthy as possible. That requires listening to medical and scientific experts. We hope that USPSTF will continue to be a body worthy of our trust to make scientifically sound decisions about preventive services going forward.”
