On Monday, the Supreme Court heard arguments in the approximately 1 millionth lawsuit over the Affordable Care Act, specifically a case about the law’s requirement that insurance has to cover certain preventive services with no out-of-pocket costs. While the arguments were focused on specific parts of the Obamacare statute, they also underscored that Health Secretary Robert F. Kennedy Jr. could wreak a lot of havoc on people’s health insurance.
The case is called Kennedy v. Braidwood Management, Inc. and the plaintiffs are Christian business owners who sued the Department of Health and Human Services over the constitutionality of an expert panel that recommends to HHS which health care services should be fully covered without cost-sharing. The plaintiffs, represented by right-wing legal activist Jonathan Mitchell, object to their health plans covering HIV prevention drugs called PrEP on religious grounds and claim the panel doesn’t have legal authority to advise HHS.
Their argument would affect more than PrEP: it could lead to the end of cost-free coverage for many other services recommended by the panel in question, the U.S. Preventive Services Task Force, including lung and colon cancer screenings, statins to prevent heart disease, and medications to prevent breast cancer. (Birth control isn’t immediately implicated; more on that below.) About 150 million people have private insurance that covers preventive services.
If the court sides with the employers, it would mean that these services could once again be subject to copays, deductibles, or coinsurance, added costs which could lead to people delaying care and having worse health outcomes. Some insurance companies wouldn’t change anything because preventive care does save them money, but people would be at their insurer’s mercy.
However, a decision for the Trump administration—which seemed more likely based on the arguments—could mean that Kennedy could not only remove members, but also veto certain recommendations of the task force. As a lawyer representing the American Public Health Association told Stat News ahead of arguments, “This is about giving them the power, to some extent. This is a fight to say, the secretary has the power. If they win, they can uphold the experts’ recommendations or attempt to veto them, which then would likely trigger a court challenge.”
Justice Brett Kavanaugh hinted at this potential outcome when he asked asked DOJ lawyer Hashim Mooppan about the independence of the task force members. “At-will removal gives the Secretary the power to influence the content of recommendations before they’re made. Is that accurate?” Kavanaugh asked. Mooppan responded that, yes, this influence exists even though the panel should still exercise its best scientific judgement. Kavanaugh continued, “the Secretary might say, and I think you acknowledge this, ‘if you don’t make the following recommendation, I’m going to fire you.'” And Mooppan said yes.
The one caveat is that the Supreme Court will likely read the ACA to give the Secretary of Health and Human Services significant control over decision by the U.S. Preventive Services Task Force. Normally, that wouldn't be a big deal. With RFK Jr. at the helm, it could be an issue.
— Mark Joseph Stern (@mjsdc.bsky.social) 2025-04-21T15:27:49.837Z
The employers originally filed the lawsuit in March 2020 and they initially sued over having to cover PrEP, contraception, STD screening, and the HPV vaccine Gardasil—services recommended by multiple entities at the Health Department—but the scope of the case was later narrowed to focus just on USPSTF. Texas district judge Reed O’Connor sided with the plaintiffs in 2023 saying the USPSTF was unconstitutional and an appeals court did the same in June 2024. It was the Biden administration that asked the Supreme Court to hear the case and, somewhat surprisingly, the Trump administration did not switch sides and is defending the ability of this panel to make recommendations. (Trump’s DOJ notably dropped a Biden DOJ case against Idaho over emergency abortions.)
However, the Trump DOJ also argued that if the Health Secretary disagrees with a recommendation, he can direct the task force to withdraw it or else its members will be removed. As the DOJ wrote in a brief earlier this month, “the Secretary’s ability to remove Task Force members after the fact provides a powerful tool to influence their recommendations in the first place.” A February brief said the Secretary “remains responsible for final decisions about whether Task Force recommendations will be legally binding on insurance issuers and group health plans.”
So a decision that technically upholds this part of the Affordable Care Act could still result in Kennedy making changes to insurance requirements. Laurie Sobel, an associate director for women’s health policy at KFF, told NBC News: “Even a ruling in favor of the federal government doesn’t necessarily assure that the preventative services will remain how they are right now.”
While the legal question on Monday doesn’t directly involve the contraception mandate, the Trump administration is already attacking birth control. It recently paused millions of dollars in federal grants that help low-income people access contraception and a far-right law firm that helped topple Roe v. Wade just urged the Health Department to cut ties with a top medical group that reviews insurance coverage of women’s health services—including birth control.
And the birth control part of this case isn’t technically over yet: the Texas judge is still considering the Braidwood plaintiffs’ claim that the Health Department didn’t follow federal law when ratifying preventive service recommendations for women. Litigation over that issue could come back to the court at a later date. Leslie Dach, a former HHS aide who now leads the group Protect Our Care, told Politico: “We are very, very nervous that they will take a sledgehammer to vaccines, take a sledgehammer to contraception and a number of other preventative services that the American people benefit from and need.”
A decision in Braidwood isn’t expected until late June.
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