Balkinization: How the Braidwood SCOTUS "win" may still be a huge loss for preventive care

How the Braidwood SCOTUS "win" may still be a huge loss for preventive care

Abbe Gluck

I have previously written about the Court's decision in Kennedy v. Braidwood Mgmt., which upheld the constitutionality of the Affordable Care Act's regime to determine whether critical preventive services--from cancer screening to heart medications--are cost free for patients. More than 150 million Americans in the private insurance system have benefitted from these provisions. (If you received your Covid vaccine for free during the height of the pandemic, like most everyone, you did too. Same for your annual flu shot.) The opinion has a lot in it for those interested in statutory interpretation and administrative law, including a dose of implicit Skidmore deference (more about that here), but I write now to point out that my prediction that this "win" would be an actual loss for healthcare may soon be become true.

To ensure a victory under the Appointments Clause, the Biden Administration took the position--subsequently adopted by the Trump Administration--that the HHS Secretary has the authority to appoint and remove all the members of the expert taskforce that makes the evidence-based determinations about which services deserve the benefit (the medical profession has been relying on these taskforce recommendations since 1984), and to decide when, if ever, to implement its recommendations. This was a highly risky strategy, as I previously explained:

By doubling down on the secretary’s control in order to protect the preventive care structure from possible constitutional invalidity, the Biden administration’s litigating position constructed the pedestal on which the current HHS secretary, Robert F. Kennedy, Jr. – known for his controversial views on many aspects of health policy, including vaccines – now stands. Indeed, just prior to the Braidwood decision, Secretary Kennedy fired all 17 members of the advisory council charged with making determinations about vaccine coverage [a different part of the ACA's preventive care structure not at issue in Braidwood....

The ACA requires that task force members and their recommendations be “independent and, to the extent practicable, not subject to political pressure.” Yet Kavanaugh’s opinion interprets this language to mean only that “Task Force members must not be unduly influenced by their outside affiliations” with universities and other employers, and says nothing about their need to exercise independent, evidence-based scientific judgment in selecting the services to be covered, consistent with both the ACA’s directive and the requirement of reasoned decision-making under the Administrative Procedure Act.

Indeed, days after the decision, Secretary Kennedy postponed a long-scheduled meeting of the taskforce at issue in the case – which, among other things, had on its agenda preventive services for heart disease – the same action he took before he fired all the members of the vaccine task force, prompting fears this one will be next. Those fears have been fueled by recent statements out of HHS stating the Secretary is still deciding the taskforce's future. The AMA just issued a public statement urging him not to fire the entire body.

Whatever happens, the courts are likely going to see more of this issue. Any decisions made without scientific bases seem likely to face challenges as arbitrary and capricious under the APA. Indeed, one such challenge – to the newly constituted vaccine committees’ recommendation that the COVID-19 vaccine for healthy children and healthy pregnant women be removed from the CDC-recommended immunization schedules – already has been filed.

Posted 11:06 AM by Abbe Gluck [link]