The United States Supreme Court is scheduled to hear oral arguments today, September 21, in an appeal from U.S. 5^th Circuit Court of Appeals that can be expected to determine the constitutionality of offering numerous preventive care services with “no out-of-pocket cost” to patients in the United States. The outcome of this case could impact whether many preventive health services recommended by the U.S. Preventive Services Task Force (USPSTF), as mandated in the Patient Protection and Affordable Care Act (ACA), can continue be offered on a no-cost basis. 

In 2022, the U.S. District Court for the Northern District of Texas struck down Section 2713, a key provision of the ACA, which mandated coverage without co-pay or deductible payments for preventive services. It did so on the basis that the members of the USPSTF, because they are not both Presidentially appointed and Senate confirmed, are not constitutionally permitted under the Appointments Clause of the Constitution to wield the authority to determine coverages subject to the ACA's mandate.

Significantly, the Trump Administration is defending the ACA's use of the USPSTF recommendations as a basis for designating the pertinent preventive services in today's arguments. The Government's Reply Brief  in Robert F. Kennedy, Jr., Secretary of Health and Human Services, et al. v. Braidwood Management, Inc., et al. narrowly focuses on the question of whether Presidential appointment and Senate confirmation of USPSTF members are necessary. The government's support for this aspect of the ACA appears to be more grounded in preservation of executive power without Congressional oversight than in the merits of access to no-cost preventive health services. It contends that members of the United States Preventive Services Task Force are inferior - not principal - officers because their “work is directed and supervised at some level” by the Secretary of Health and Human Services, thus not subject to the Constitution's Appointments Clause. 

We will need to stay tuned to await the outcome of these arguments.

Needless to say, much is at stake since the Supreme Court's decision will impact the availability of zero dollar preventive health services for millions of Americans.