Supreme Court Weighs Case That Could Undermine HIV Prevention, Cancer Screenings

No one discussed HIV prevention drugs or breast cancer screenings at the U.S. Supreme Court on Monday, April 21, but federal funding for those critical medical efforts—and others—was in jeopardy in the case before it: Kennedy v. Braidwood Management.

While arguments on the surface focused on legal procedures and the interpretation of various constitutional clauses and statutes, the court’s eventual decision could place access to controversial medications on a metaphorical trapdoor, controlled by political or religious hostilities.

The battleground is the federal Affordable Care Act (ACA). When Congress passed the ACA 15 years ago, it included a requirement that health insurance coverage provided by private employers include certain “preventive health services” at no cost to employees. Congress designated the existing U.S. Preventive Services Task Force (PSTF) to recommend which services should be covered.

Fast-forward to six years ago: The PSTF recommended extending coverage to pre-exposure prophylaxis (PrEP) to help prevent HIV infection. According to a brief filed by Lambda Legal on behalf of Equality California and 34 AIDS organizations, PrEP “reduces the risk of acquiring HIV from sexual contact by approximately 99%.” Citing a paper by the U.S. Centers for Disease Control and Prevention, the brief added, “Increased use of PrEP has been linked to a decline in national HIV transmission rates, particularly among young people.”

Jose Abrigo, Lambda’s HIV Project Director, said in a video press release that the case is about much more than just PrEP.

“This case is about a pillar of the Affordable Care Act: cancer screenings, diabetes testing, maternal health services, STI screenings [for sexually transmitted infections],” he said.

If the court rules in favor of the Braidwood clinic that brought the lawsuit, Abrigo warned, “People will have to choose between putting food on the table or getting a mammogram.”

Hashim Mooppan, principal deputy solicitor general under the Trump administration, told the court that the HHS secretary has ample supervision over the PSTF—he can remove its members “at will” and block any recommendation from taking effect.

“In addition, he can require the Task Force to obtain his pre-approval before they issue any recommendation at all,” Mooppan said.

Chief Justice John Roberts noted: “What the Task Force does is fairly technical, medically and scientifically. Is the secretary really supposed to be in the position of going down the line and saying [to the PSTF members], ‘I know you think we should use this particular thing with this atomic structure and all that kind of stuff, but I’ve got a different view on that’? Is that a pertinent consideration in deciding whether they’re adequately supervised?”

Mooppan replied that the secretary “clearly has the authority to do so.”

Justice Neil Gorsuch pointed out that the Fifth Circuit decision did not confirm the secretary’s authority to appoint members. (The PSTF website indicates that the secretary appoints them.) Gorsuch questioned whether the issue should be sent back to the appeals court. Mooppan urged the court to rule on the matter.

Jonathan Mitchell, attorney for Braidwood, argued that the PSTF’s “preventive care coverage mandates are neither directed nor supervised by the secretary of Health and Human Services or by anyone else who has been appointed as a principal officer,” adding, “It is not even clear that Congress would have approved a regime in which politicians, rather than an independent Task Force, decide the preventive care that insurers must cover.”

He rejected the Trump administration’s argument that the HHS secretary can exercise extensive power over the PSTF.

“We don’t see any way that statutory language can be squared with the regime envisioned by the government, where the secretary can come in and influence the Task Force decisions on the front end—which Mr. Mooppan once again acknowledged at oral argument he believes the secretary can do. And we don’t see how that can be squared with the actual statutory language.”

Braidwood Management, which oversees a Houston holistic medical practice, framed its legal objection to PrEP in procedural terms: It claims the president should appoint each of the 16 members of the PSTF, and the Senate should confirm them.

The Trump administration is relying on the Constitution’s Appointments Clause, which requires the president to appoint and the Senate to confirm any “officer” of the U.S. government who has “significant authority.”

But Braidwood argued that presidential appointment isn’t necessary if the HHS secretary can review and reject any PSTF recommendation.

In its original lawsuit, Braidwood claimed the requirement that employers cover PrEP forces the company to “encourage homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman.”

The company says that violates its religious beliefs.

The Biden administration, which was in office on Jan. 10 when the Braidwood case was accepted for Supreme Court review, appealed the Fifth Circuit U.S. Court of Appeals decision. Braidwood, which lost at both the district and circuit court levels, also filed an appeal of the Fifth Circuit ruling, but the Supreme Court declined Braidwood’s petition on Jan. 13.

The Fifth Circuit upheld the federal district court’s finding that PSTF members should be appointed under the Appointments Clause. However, it concluded that while the HHS secretary has the authority to remove any member, the secretary does not have the authority to reject a PSTF recommendation.

Braidwood Management’s original lawsuit objected to covering the cost of PrEP. According to court briefs, Dr. Steven F. Hotze owns Braidwood, which manages the Hotze Health and Wellness Center in Houston.

The center identifies as “holistic” and provides numerous treatments, many involving “bioidentical hormones.” The Fifth Circuit decision noted that Dr. Hotze considers Braidwood a Christian business and that it refuses to hire LGBTQ people.

Braidwood claims religious objections to homosexuality and argues that providing PrEP coverage makes the company complicit in facilitating homosexual activity. (Court briefs indicate that none of the company’s 70 employees has ever sought PrEP coverage.)

The U.S. Preventive Services Task Force operates within the Public Health Service of the Department of Health and Human Services. Its members are currently appointed by the HHS secretary to four-year terms.

The legal question the Supreme Court agreed to consider was whether the Fifth Circuit erred when it (1) held that the structure of the PSTF violates the Appointments Clause and (2) unduly insulates the Task Force from the HHS secretary’s supervision.

“Millions of Americans rely on insurance coverage for preventive services without cost sharing,” wrote the Biden administration in its petition to the Supreme Court. “If allowed to stand, the decision would call into question the legal duty of insurance issuers and group health plans to cover” any preventive service recommended by the Task Force.

Both the district and appeals courts held that PSTF members are subject to the Appointments Clause and should have been appointed by the president and confirmed by the Senate.

However, the Fifth Circuit disagreed with the district court’s remedy: to vacate all PSTF actions, including its authority to enforce preventive care mandates against Braidwood.

Most organizations submitting amicus briefs to the Supreme Court, including the American Medical Association, the American Public Health Association, and the American Cancer Society, expressed support for funding PrEP.

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