Two justices appointed during the Trump administration on the U.S. Supreme Court seemed crucial to potentially upholding a core Affordable Care Act (ACA) provision: no-cost access to preventive health services, including HIV prevention medication.
During Monday’s Supreme Court arguments in Kennedy v. Braidwood Management, Justices Brett Kavanaugh and Amy Coney Barrett expressed doubt regarding a legal challenge that seeks to eliminate free insurance coverage for services like PrEP, cancer screenings, and contraception. While the lawsuit originated under the Biden administration, it is now being defended in court by the prior administration—a notable aspect of a case with significant implications for LGBTQ+ health and overall public health.
The case centers on the U.S. Preventive Services Task Force, a group of independent medical experts whose recommendations guide the preventive services insurers must cover without patient cost under the ACA. Lawyers representing conservative Christian business owners, including an attorney who previously worked for President Donald Trump, argue that the Task Force’s authority is unconstitutional because its members were not Senate-confirmed and lack adequate supervision.
However, Justices Kavanaugh and Barrett appeared unconvinced during the hearing. An attorney representing the prior administration defended the ACA’s structure, emphasizing the broad supervisory authority of the Secretary of Health and Human Services.
“At-will removal gives the Secretary the power to influence the content of recommendations before they’re made,” Justice Kavanaugh stated, seemingly in agreement.
Justice Barrett questioned the argument that the word “independent” in the statute implies the Task Force is free from oversight. Drawing on her judicial experience, she noted that providing “independent judgment” instructions doesn’t necessarily mean a complete separation from her own guidance.
Justice Sonia Sotomayor echoed this, stating that while analysis might be independent, ultimate authority remains.
The case, initially a religious objection to PrEP, has broadened into a challenge against the ACA’s preventive care guarantees. LGBTQ+ and public health advocates caution that a ruling favoring the plaintiffs could allow insurers to begin charging for or denying services currently guaranteed to be free, such as STI testing, diabetes screening, contraception, and maternal care.
While Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch appeared sympathetic to the arguments against the ACA provision, the questioning from Justices Barrett and Kavanaugh suggests a potential five-justice majority—joining the Court’s three liberal justices—to maintain preventive care coverage.
The attorney representing the plaintiffs, known for his role in crafting Texas’s 2021 abortion law, has indicated a wider aim to dismantle LGBTQ+ protections and ACA mandates. In this case, his clients have explicitly asserted that covering PrEP “encourages homosexual behavior.”
A decision in the case is anticipated by the end of June.
