SCOTUS to review ACA-mandated coverage of preventative care

A case study of American law butting heads with common-sense medical practice. Spoiler - the outcome doesn't look good

I always told myself if medicine was not an option for me, I would highly consider a career in law. You’ll see some of that here.

I was in equal parts horrified yet oddly fascinated by a recent CNN piece discussing the case of Braidwood v. Becerra, a case about ACA mandates for insurance coverage for certain preventative care services. This was decided by the U.S. Court of Appeals for the Fifth Circuit and is anticipated to be taken up by the Supreme Court soon.

I read the entire appellate court decision, and it is quite the complex case, but I will attempt to break it down to its most simple terms. I think it is a perfect example of how centuries-old American law butts heads with how modern medicine is practiced and advanced.

Currently, the Affordable Care Act mandates that certain preventative care services be covered by most insurers. These include statin use for primary prevention of ASCVD, certain routine cancer screenings, childhood immunizations, and pre-exposure prophylaxis (PrEP) for HIV. This is a very good thing and makes it more accessible for many, especially those with lower socioeconomic status, to obtain preventive care at little to no cost.

Preventative care recommendations come from three major bodies. The first and most important is the United States Preventative Services Task Force (USPSTF), of which Grade A and Grade B recommendations must be covered by insurers. The other two are the Health Resources and Services Administration (HRSA) and the CDC’s Advisory Committee on Immunization Practices (ACIP).

The plaintiffs, which include two Christian-based for-profit insurance providers, made two distinct arguments:

1. Mandating coverage for PrEP violates the religious freedom of insurers “by making them complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman.”

2. Mandating insurance coverage of recommendations made by the USPSTF is unconstitutional as the task force was not properly appointed by the President under the Appointments Clause of the Constitution.

Lower courts have sided with the plaintiffs on both accounts, with the Court of Appeals reaffirming this decision. If the Supreme Court upholds this decision as well, insurance companies nationwide will no longer be required to provide coverage for these essential services. And with the current textualist-originalist majority of the Court, the outcome looks grim. I can already picture the champagne parties being planned by Aetna and United Healthcare once this happens. This will lead to a slew of worse outcomes for the public at large.

Now let’s get into the details of the appellate court decision. I’ll mostly discuss the second point as that is the one that has much of the nuance and will likely affect the majority of services.

The Appointments Clause establishes two tiers of officers - “Principal officers,” which are appointed by the president with Senate confirmation, and “Inferior officers,” who work under the direct supervision of their Principal officers but require no such appointment. The main point of contention was that the ability to issue recommendations that must be covered by all domestic insurers was a power specific to a Principal officer, of which the members of the USPSTF are not.

The USPSTF, organized under HHS, consists of a body of 16 volunteers with subject-matter expertise who serve four-year terms to develop and evaluate recommendations which officially guide the practice of physicians around the country. Unlike other bodies such as ACIP or HRSA, the USPSTF enjoys several legal protections guaranteeing a degree of independence from HHS and freedom from political pressure. This includes a lack of a recommendation approval process as well as discouragement (though not a restriction) of the HHS Secretary’s ability to remove Task Force members. This was intentional to keep their recommendations science-based and maintain political neutrality. However, the courts decided that their extensive power (via recommendations) combined with their legal semi-independence was not sufficient to render them constitutionally inferior to their Principal officer - the HHS Secretary.

In my opinion, it makes perfect sense that the USPSTF is designed this way. Guideline-writing in modern medicine isn’t done under a typical bureaucratic model with an overseeing officer approving the recommendations of subordinates. It requires debate and consensus-building between a panel of equal-powered experts, with each member evaluating the evidence independently and having a say.

Another point - HHS secretaries are often neither physicians nor subject matter experts in preventative care. Xavier Becerra, the current HHS secretary, is a lawyer and politician and despite being the Principal officer for the USPSTF, does not have the expertise to approve or deny these recommendations, even if he had the power to do so. This is the whole reason the task force exists - so that the power of writing guidelines remains with evidence-based physicians and scientists who have practiced and researched their entire lives.

HHS Secretaries also come and go every so often. You could not describe two so ideologically different people than Xavier Becerra and RFK Jr. (the likely incoming HHS secretary). They should not have the ability to pressure the USPSTF and greatly change sets of important medical guidelines used by millions every 4-8 years. Medicine, after all, should be neither ideological nor political.

However, this common-sense structure does not so neatly fit into the centuries-old bureaucratic paradigm devised in the Constitution. This perfectly exemplifies the clash between the old and the new.

An important question arises - who is at fault here? Well, it’s difficult to say. It is impossible that the Framers of the Constitution, despite their genius, could have predicted the ideal way which modern medicine would be advanced 250 years in the future and how to define the government’s role in that process. It also makes perfect sense in 99% of government agencies that the strongest powers are granted only to appointed Principal officers and that they must have supervisory powers and control over the actions of Inferior officers. It is also not really the fault of Congress, who devised the current structure of the USPSTF in what I believe to be an adequate and politically independent way. The only fault I see lies with the insurers, who seem to stop at nothing to ensure they cover as little as possible.

Preventive care is perhaps the most important part of our healthcare system and something not enough people get. Given our declining life expectancy, obesity epidemic, and expanding healthcare disparities, it seems we need it now more than ever. Too much of our healthcare is reactive, often pursuing costly and ineffective treatments for those who have built up a lifetime of risks and are afflicted with life-threatening disease. Improved preventative care methods and access would save the country billions in healthcare spending.

Millions of Americans currently enjoy access to these important medications and services, and it seems to be one of the last beacons left in American healthcare. Two of the top 10 most prescribed drugs in the United States are statins. As a future physician, this is quite upsetting.

Despite my fierce opposition to this decision on medical and public health grounds, I somewhat see how the structure and oversight model of the USPSTF created a legal gray area that could be the subject of litigation, especially from powerful plaintiffs such as insurance companies.

How can we fix this? I wish I had a great solution. Perhaps Congress could overhaul the USPSTF structure, stripping some of its legal and political protections in exchange for keeping its coverage mandates for preventative care recommendations. They could use the examples of ACIP and HRSA, which were deemed constitutional, as a model. But I am a bit uneasy leaving a body such as the Task Force open to political pressure. If any of you think of better idea, please let me know. Until then, enjoy your last free colonoscopy.