Background

In the lawsuit, Kennedy v. Braidwood Management Inc., employers from Texas argued that USPSTF, which advises HHS on which services should be covered without cost-sharing, is unconstitutional because the members are neither confirmed by the Senate nor chosen by the head of an agency confirmed by the Senate. The plaintiffs also argued that USPSTF members are intended to be independent and not under the control of the HHS secretary.

The Constitution's appointment clause requires the president to appoint and get Senate approval for any principal officers like Cabinet secretaries, federal judges, and ambassadors, but allows Congress to delegate authority to department heads and other officials to appoint "inferior officers." The 16 USPSTF members are appointed by the head of the Agency for Healthcare Research and Quality.

The plaintiffs also argued that certain requirements, like coverage of the HIV prevention drug PrEP and certain contraceptive methods, violate employers' religious rights, and requiring them to provide the treatments make them "complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman."

SCOTUS leaves USPSTF intact

In the majority opinion, written by Justice Brett Kavanaugh, the Court left USPSTF intact, reversing the 5th Circuit's ruling and finding that USPSTF members are "inferior officers" since they're "removable at will by the Secretary of HHS, and their recommendations are reviewable by the Secretary before they take effect."

"[T]he Task Force members' appointments are fully consistent with the Appointments Clause in Article II of the Constitution," Kavanaugh wrote. "The structure of the Task Force and the manner of appointing its officers preserve the chain of political accountability that was central to the Framers' design of the Appointments Clause: The Task Force members were appointed by and are supervised and directed by the Secretary of HHS. And the Secretary of HHS, in turn, answers to the president of the United States" which "preserv[es] the chain of command in Article II."

"It's a win for preventive care access, but there is a cost," said Josh Salomon, a professor of health policy at Stanford University School of Medicine. "The concern is that the task force really needs to be credible and independent in order to be able to rely on the recommendations. That's the value of the task force."

Legal experts said the ruling could pave the way for HHS Secretary Robert F. Kennedy Jr. to reject any USPSTF recommendations he disagrees with, which allows insurers to charge for those services or avoid covering them in some cases.

If that were to happen, access to those services could decrease, which could lead to worse health outcomes for Americans. For example, epidemiologists at Yale University found that removing the cost-free mandate for PrEP could lead to 20,000 new HIV infections in the next five years.

"Even if we are looking at small amounts of cost-sharing, just a few dollars, it's enough to make people think twice about getting needed healthcare," said Eric Waskowicz, senior policy manager at United States of Care, a health policy organization.

The ruling also opens the possibility that Kennedy could remove the remaining task force members and appoint new ones, similar to what he recently did with CDC's Advisory Committee on Immunization Practices (ACIP). If a similar situation happened, experts said it could undermine the public and scientific community's trust in USPSTF and its recommendations.

The Court "really pointed out how much authority they think their Secretary wields, which is kind of foreboding given who the Secretary is and his ideas about science and health," said Andrew Twinamatsiko, director of the Health Policy and Law Initiative at Georgetown University's O'Neill Institute. "Somebody could be fairly concerned that there could be weaponization of the task force."