Insurance Law
Insurance coverage for preventive care at risk unless Supreme Court acts, cert petition says
The federal government is asking the U.S. Supreme Court to reverse a federal appeals court decision that could end free preventive care services provided by health insurance. (Image from Shutterstock)
The federal government is asking the U.S. Supreme Court to reverse a federal appeals court decision that could end free preventive care services provided by health insurance.
At issue is the constitutionality of the U.S. Preventive Services Task Force, which issues recommendations on preventive care, Law Dork reports via How Appealing. Under the Affordable Care Act, insurers must cover top-recommended services without cost to patients.
The 5th U.S. Circuit Court of Appeals at New Orleans ruled in June that the task force members are principal officers who have not been constitutionally appointed under the appointments clause, which requires nomination by the president and confirmation by the U.S. Senate.
“The court’s holding jeopardizes health care protections that have been in place for 14 years and that millions of Americans currently enjoy,” the government cert petition says.
The challengers are four people who provide health coverage to their families and two businesses that provide health coverage for employees. They object to free coverage for HIV-prevention medications, contraception and HPV vaccines on religious grounds, according to the 5th Circuit’s opinion by Judge Don R. Willett, an appointee of former President Donald Trump.
The plaintiffs think that the free services make them “complicit in facilitating homosexual behavior, drug use and sexual activity outside of marriage between one man and one woman.”
The 5th Circuit said the unreviewable power wielded by the task force makes its members principal officers of the United States who have not been constitutionally appointed. The appeals court cited United States v. Arthrex, a June 2021 Supreme Court decision that said members of the Patent Trial and Appeal Board were principal officers who were unconstitutionally appointed.
The appeals court also said provisions in the law that make task force members principal officers can’t be severed from the rest of the law.
The 5th Circuit restricted an injunction against enforcement of the preventive care mandates, however, to the parties who challenged the task force. The appeals court said there was no basis to set aside agency actions that enforce task force recommendations because the challengers didn’t plead a violation of the Administrative Procedure Act.
The government argues that the task force members are inferior officers and, if not, “the lone provision that respondents cite as unduly insulating task force members from secretarial control can be construed or severed to cure any constitutional defect.”
Supreme Court review is warranted, the government said, “because the court of appeals has held an act of Congress unconstitutional, and its legal rationale would inflict immense practical harms. Millions of Americans rely on insurance coverage for preventive services without cost sharing. If allowed to stand, the decision below would call into question the legal duty of insurance issuers and group health plans to cover” top preventive care recommendations by the task force.
The case is Becerra v. Braidwood Management Inc.
