A new case before the Supreme Court targeting preventive coverage mandates under Obamacare gives President-elect Donald Trump a chance to undermine one of the most controversial aspects of the healthcare program that he promised to “repeal and replace” nearly a decade ago.
The Supreme Court on Jan. 10 agreed to take up a Biden administration petition to overturn a lower court ruling that declared the U.S. Preventive Services Task Force’s role in setting Affordable Care Act insurance coverage rules unconstitutional.
Legal experts say the timing of the case presents a unique opportunity for Trump’s Department of Justice to revise the current Biden administration’s position, which favors maintaining the task force’s role in setting preventive care mandates.
A “likely factor that will impact the case’s outcome is whether the government maintains its position in support of the USPSTF following the upcoming change in administration,” said Richard Hughes, a healthcare lawyer a Epstein Becker Green.
And if a majority of the justices uphold the lower court ruling, it could limit access copay-free access to services like certain cancer screenings, contraceptives, heart disease medications, and HIV drugs known as PrEP, or preexposure prophylaxis.
While an official date has not yet been set, the Supreme Court will hear full arguments in the case known as Braidwood v. Becerra later this spring.
Facts of the case
The Biden administration appealed to the Supreme Court last year after the conservative-leaning 5th U.S. Circuit Court of Appeals sided with Braidwood Management Inc., a Christian-owned business, and other plaintiffs who argued that they cannot be compelled to provide full insurance coverage for health services such as medication to prevent HIV and some forms of cancer screenings.
The 5th Circuit decision mostly upheld an initial ruling against the ACA provision in 2023 by U.S. District Judge Reed O’Connor, an appointee of former President George W. Bush, who found that all mandates authorized since 2010 by the USPSTF were unconstitutional. In a prior 2022 ruling, O’Connor reasoned that it violated the Constitution’s appointments clause because the task force members who set the rules were not nominated by the president or confirmed by the Senate.
The appeals court limited its decision to exempt only the plaintiffs in the case from the coverage mandates, allowing the requirements to remain in effect for everyone else enrolled under the ACA.
Although the case began as relating to a religious exemption to the mandates, the Supreme Court will not directly weigh on the merits of those claims. Rather, they will narrowly consider whether 5th Circuit erred by finding the USPSTF structure violated the appointments clause and also whether the appeals court was wrong to avoid fixing the problem by merely removing the specific portion of the law that limits the Department of Health and Human Services secretary’s control over the task force.
Braidwood focuses on the constitutional legality of the task force, differentiating it from other Obamacare-related cases, such as Burwell v. Hobby Lobby Stores, Inc. in 2014 and Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania in 2020, that dealt with more specific religious objections to providing contraceptive coverage.
While the lower court outcomes of Braidwood have alarmed the pro-ACA Biden administration, there are still many forms of preventive care were not touched by the rulings, including screenings for mammography and cervical cancer, which are still covered without out-of-pocket costs, according to a 2023 analysis conducted by the nonprofit group KFF.
Trump can use the case to renew war against Obamacare
Hughes told the Washington Examiner that the case poses a threat to the USPSTF. A ruling against the task force would be a departure from years past, when the high court might have been predisposed to uphold its role, citing the so-called severability doctrine, the legal notion that courts should not invalidate more parts of a law than necessary.
“The Supreme Court is not predictable and the trend toward curtailing the role of experts and the administrative state could win the day,” Hughes said.
The Braidwood case arrives at a critical moment, providing a fresh opportunity for Trump’s Justice Department lawyers to challenge the ACA’s reliance on expert panels to dictate insurance coverage rules.
For the incoming DOJ, this case could serve as a legal foothold to dismantle parts of Obamacare without relying on Congress to “repeal and replace” it outright — a strategy that faltered during Trump’s first term despite Republican majorities. By targeting the ACA’s administrative framework, a ruling upholding the 5th Circuit could not only affect preventive care mandates but also raise broader questions about the constitutionality of delegating such authority to unelected panels.
O’Connor more notably struck down the entire ACA in a separate case in 2018, one that also rose to the Supreme Court and was decided in 2021 by a 7-2 vote, dismissing the case by finding the plaintiffs lacked standing to challenge the ACA.
What are preventive care mandates?
Mandates for no-cost coverage of preventive care are intended to make such procedures and services more accessible to patients, staving off chronic disease and theoretically lowering healthcare expenditures in the long run.
But critics say that, by making end users insensitive to the cost, they can end up driving up prices.
Michael Cannon, director of health policy at the libertarian Cato Institute, told the Washington Examiner that mandating coverage of PrEP likely dramatically increases its list price, just like the preventive care mandate did for other prescription drugs like hormonal contraception.
In a 2020 article, Cannon wrote that prices for hormones and oral contraceptives rose 108% between 2013, when the Obamacare mandate went into effect, and 2019, nearly three times the rate of price growth for other prescription drugs.
Lindsey Dawson, associate director for HIV policy at the healthcare thinktank KFF, told the Washington Examiner that the PrEP coverage mandate is “not really comparable” to that of contraceptives in large part because the treatment was developed after Obamacare became law.
Dawson also highlighted that significantly more people use hormonal contraception than PrEP and that there are a plethora of competing options for birth control compared to HIV prevention medication.
History of PrEP
For PrEP specifically, the Centers for Disease Control and Prevention estimates that just over 1 million Americans would have a medical indicator that qualifies them for the preventive treatment, but only about one-third of patients actually seek the care. Currently, about 1.2 million people in the United States are living with HIV, and there are about 30,000 new infections each year.
The CDC recommends the use of HIV PrEP for anyone who has had a partner with a positive or unknown HIV diagnosis or uses injectable drugs.
While the initial legal argument from Braidwood Inc. contended that the mandatory coverage of PrEP violates an employer’s religious liberty by tacitly endorsing homosexuality and sexual promiscuity, contracting HIV is not determined by sexual orientation, although from a medical standpoint, biological males who have other male sex partners are most at risk.
“It’s the biological sex act that puts somebody at higher risk,” said Dawson. “So somebody having receptive anal intercourse with a sex partner whose HIV status is unknown is sort of in greater need of protection.”
Truvada for PrEP, the brand name version of the pill form of HIV prevention medication, was approved by the Food and Drug Administration in July 2012 for sexually active adults after having been approved in the early 2000s as a treatment for the condition. As a preventive measure, Truvada reduces the risk of being infected with HIV through sex by more than 90% and through drug use by at least 74%.
The generic version of the drug, also referred to as generic Truvada, was approved by the FDA in 2020. Since then, generic Truvada for PrEP is available for about $30 per month out-of-pocket, compared to the nearly $2,000 for the name brand versions of the drug.
The injectable form of HIV PrEP, Apretude, was approved by the FDA in 2021 as an alternative to Truvada, but it also has a significantly higher out-of-pocket cost. Both oral and injectable forms of HIV PrEP require frequent blood work and lab testing, as often as every two months, to ensure that the patient stays HIV-negative and to monitor for kidney and liver function or other individual risk factors.
“The lifetime cost of having HIV is hundreds of thousands of dollars. If we’re talking about PrEP as sort of a low-cost generic option with lab tests, we’re talking in the neighborhood of $2,000 a year,” said Dawson.
Economics of preventive medicine
From the perspective of healthcare economics, preventive medicine for chronic disease, even HIV, might not be the cost savings measure that it is promised. Cannon says the old adage that an ounce of prevention is worth a pound of cure only “makes sense until you do the math.”
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“It’s usually the case, almost always, but not uniformly, that preventive care does not save money. It is just as expensive as waiting until people get sick and then treating them,” said Cannon.
“It might produce better health outcomes, and so it might be worth doing, but you can’t sell it on the basis of this is going to save money,” Cannon added.
