WASHINGTON — The Supreme Court on Monday grappled with a complex challenge to a panel set up as part of the Affordable Care Act to recommend preventive care services that insurers have to provide at no cost to patients.
The case on which the court heard oral arguments arose from a challenge brought by Christian employers Braidwood Management and Kelley Orthodontics, in addition to several individuals, who objected on religious grounds to the Preventive Services Task Force’s approving no-cost coverage for the HIV prevention medication known as PrEP.
The plaintiffs believe their religious rights are violated “by making them complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman,” according to court papers.
The case at the Supreme Court does not hinge on the religious questions raised under the Constitution’s First Amendment.
At issue is whether the Preventive Services Task Force — which recommends a wide array of preventive services related to such issues as cancer, diabetes and heart disease — is unconstitutionally structured.
The challenges say it violates the Constitution’s appointments clause because its members are not nominated by the president and confirmed by the Senate. Furthermore, the task force members are intended to be independent and not under the control of the health and human services secretary, the challengers say.
During the oral arguments, several justices seemed unpersuaded that the members have to be appointed by the president.
But even a ruling rejecting that argument does not necessarily mean the case is over, as other questions remain, including whether previous members were properly appointed and whether their previous decisions, including about the AIDS-related medication, should be thrown out.
A broad ruling in favor of Braidwood would have a significant impact, as the task force’s previous decisions would be cast into doubt and insurers would no longer be required to cover the affected preventive services.
The panel, which is composed of outside experts, was set up as an independent body appointed by the federal official who heads the Agency for Healthcare Research and Quality. It has 16 members.
The issue of whether the statute’s requirement that the panel be independent and whether that creates constitutional issues by limiting the HHS secretary’s power to supervise it was heavily debated during the argument.
Liberal Justice Elena Kagan told Jonathan Michell, the lawyer representing the challengers, that his argument
Supreme Court wrestles with challenge to Obamacare preventive care panel
