A new Supreme Court case seeks to make it harder to get screened for cancer

The Supreme Court announced on Friday that it will hear Becerra v. Braidwood Management, the latest in a long line of lawsuits seeking to undermine the Affordable Care Act, the landmark health reform law that President Barack Obama signed in 2010.

Unlike some previous anti-Obamacare lawsuits, Braidwood Management is not an existential threat to the entire law. Should the Supreme Court buy the plaintiffs’ arguments in this case, however, that would give health insurers more leeway to refuse to cover certain treatments. Such a decision would also give employers more ability to offer health plans that deny coverage for those treatments.

There’s also a decent chance that the Court will reject this challenge, despite its 6-3 Republican supermajority. The Justice Department makes strong arguments in favor of maintaining the status quo. The appeals court, which heard this case, is often reversed by the Supreme Court. And the Braidwood Management plaintiffs have struggled to persuade even sympathetic judges with some of their arguments.

While Braidwood Management began as a sweeping challenge to three bodies within the US Department of Health and Human Services (HHS), which can require health insurers to cover various treatments, the scope of this lawsuit has shrunk as it has advanced through the courts.

The plaintiffs, who object to HHS’s decision to require insurers to cover an anti-HIV medication, raised a broad range of legal challenges to these three bodies. At the trial level, their case was also assigned to Judge Reed O’Connor, a former Republican Capitol Hill staffer best known for his failed attempt to repeal the entire Affordable Care Act in 2018. After O’Connor handed these plaintiffs a partial victory, his decision was appealed to the United States Court of Appeals for the Fifth Circuit, the most right-wing appeals court in the federal system.

And yet, despite the fact that this case has largely been heard by very sympathetic judges, those judges have only accepted some of the Braidwood Management plaintiffs’ arguments.

Originally, the case targeted three different bodies. The US Preventive Services Task Force (PSTF) — the fate of which is now before the Supreme Court — has fairly broad authority to require insurers to cover preventative health treatments such as cancer screenings.

Two other bodies, meanwhile, decide which vaccines insurers must cover, and which women’s health and pediatric treatments must be covered. O’Connor, however, did not strike down these two other bodies. And the Fifth Circuit largely dodged the question of what should happen to these bodies until a future date. That means that, at least for now, only the fate of the PSTF is before the Supreme Court.

All of that said, the stakes in this case remain quite high. As the Justice Department said in its petition asking the justices to hear this case, the PSTF currently requires insurers to cover “more than 50 preventive services,” including “screenings to detect lung, cervical, and colorectal cancer; screenings to detect diabetes; statin medications to reduce the risk of heart disease and strokes; medications to prevent HIV; physical therapy for older adults to prevent falls; and eye ointment for newborns to prevent blindness-causing infections.”

If the PSTF falls, insurers will be able to deny coverage for these treatments. And employers will potentially be able to offer health plans that don’t cover them.

So what is the specific legal issue before the Court in Braidwood Management?

O’Connor and the Fifth Circuit ruled that the PSTF violates an obscure provision of the Constitution dealing with how top government officials are hired.

The Constitution requires certain high-ranking federal officials, known as “officers of the United States,” to be appointed to their jobs using certain procedures. Though the Constitution does not define the term “officers of the United States,” the Supreme Court has said that most officials who exercise “significant authority pursuant to the laws” qualify as officers.

There are also two types of these officers. “Principal” officers include top-level officials such as Cabinet secretaries who typically answer directly to the president. These officers must be nominated by the president and confirmed by the Senate before they can take up their duties. Meanwhile, “inferior” officers may be appointed by the president alone, by a court, or by “heads of departments.”

The Constitution also does not define who is a principal, as opposed to an inferior, officer. But the Supreme Court said in Edmond v. United States (1997) that “the term ‘inferior officer’ connotes a relationship with some higher ranking officer or officers below the President,” as “whether one is an ‘inferior’ officer depends on whether he has a superior.”

Accordingly, principal officers (the ones who must be confirmed by the Senate) are generally understood to be department leaders and other very high-ranking officials who answer directly to the president. Inferior officers, by contrast, are officers of the United States who are responsible to a principal officer.

Members of the PSTF are not Senate-confirmed officials — they are typically appointed by the head of an agency within HHS, who acts pursuant to the authority of the HHS secretary — and thus could not qualify as principal officers. And even the Fifth Circuit conceded that “the HHS Secretary may remove members of the Task Force at will,” so they sure look like they are inferior officers, because they can be fired by the HHS secretary (a principal officer) if the HHS secretary disapproves of their performance or disagrees with their decisions.

Nevertheless, the Fifth Circuit concluded that members of the PSTF are not ultimately responsible to the secretary (and thus they must be Senate-confirmed), in large part because the Fifth Circuit believed that no statute actually gives the secretary the direct authority to override one of the PSTF’s decisions. Instead, if the secretary disagreed with a decision by the PSTF, the secretary would have to either threaten to fire PSTF members unless they reverse course, or actually fire them and replace them with people who will implement the secretary’s preferred policy.

This isn’t an especially persuasive argument — most people would rightfully think of someone as their boss if that individual had the power to hire and fire them. And it’s not even clear that the secretary doesn’t have the lawful authority to override the PSTF without firing any of its members.

As the Justice Department notes in its petition to the justices, the PSTF is part of the federal Public Health Service, which, by law, “shall be administered by the Assistant Secretary for Health under the supervision and direction of the Secretary.” Federal law also gives the secretary the power to exercise “all functions of the Public Health Service” — including, potentially, overruling PSTF decisions.

The Justice Department, in other words, has strong legal arguments against the two lower courts’ positions in this case. Whether that will be enough to persuade a GOP-controlled Court, however, remains to be seen.