Kennedy v. Braidwood Management, Inc: The Outcome of the U.S. Supreme Court Case Could Impact No-Cost Coverage for Preventive Services

On Monday, April 21, 2025, the U.S. Supreme Court heard nearly 90 minutes of oral arguments in the case of Kennedy v. Braidwood Management, Inc., a case challenging whether the U.S. Preventive Services Task Force (Task Force) is authorized to issue binding recommendations that require private health insurance companies to cover certain preventive services with no copayments or coinsurance for covered individuals. Under the Patient Protection and Affordable Care Act (ACA) the Task Force is authorized to issue recommendations for specific services that must be covered in all marketplace health insurance plans, including those offered to Kansans through the federally facilitated health insurance marketplace, HealthCare.gov, and many private employer plans without requiring individuals covered by those plans to pay copayments and coinsurance when they receive those services. 

On Jan. 17, 2025, the Centers for Medicare and Medicaid Services (CMS) reported that 24.2 million consumers, including 200,046 Kansans, selected a plan for health insurance coverage during the 2025 Open Enrollment Period, which ended Jan. 15, 2025. For the 2025 plan year, marketplace insurance plans are required to cover more than 70 preventive services for all adults, women only, and children, including screening tests, immunizations, behavioral health counseling, and medications that prevent the development or worsening of diseases and health conditions.  

In 2020, six individuals, the Christian-owned business Braidwood Management, Inc., (Braidwood), a for-profit organization owned by a trust that provides health insurance to its 70 employees, and Kelley Orthodontics, a Christian professional association, filed a lawsuit in federal district court in Texas. They sought to prevent the Task Force from enforcing the ACA preventive services requirements for employer health insurance plans. The Braidwood plaintiffs asserted that the ACA preventive services requirements were unconstitutional for several reasons, arguing that the requirements violated the Appointments Clause of the U.S. Constitution, on the grounds that the Task Force members were not properly appointed federal officers authorized to set binding coverage rules. The individual plaintiffs also claimed they suffered economic harm by having to pay more money for a health plan that included services they do not want or need, and the corporate plaintiffs claimed religious harm for having to include services in their employee health plans that they object to.  

In September 2022, Judge Reed O’Connor of the U.S District Court for the Northern District of Texas ruled in favor of the Braidwood plaintiffs and struck down the ACA’s requirement for no-cost coverage of preventive services recommended or updated by the Task Force on or after March 23, 2010 (the date the ACA was enacted). In his ruling, Judge O’Connor stated that Congress had improperly delegated authority to issue coverage mandates to a body (the Task Force) whose members were not appointed in accordance with the Appointments Clause. The federal government appealed this decision to the Fifth Circuit Court of Appeals and on June 13, 2023, the Court issued an administrative stay of the district court’s ruling, which meant that the federal government could continue to enforce the preventive services requirements while the Fifth Circuit considered the federal government’s appeal. On June 21, 2024, the Fifth Circuit ruled on the appeal and agreed with Judge O’Connor that the Task Force’s role in determining which preventive services must be covered under the ACA was unconstitutional under the Appointments Clause because the Secretary of Health and Human Services (HHS) does not have the power to direct or remove members of the Task Force, thus failing to meet requirements for supervision under the Appointments Clause, and because the Task Force members were not appointed by the President and confirmed by the Senate.  

 On Sept. 19, 2024, the Biden administration filed for certiorari, asking the U.S. Supreme Court to review the Fifth Circuit’s decision. The Court agreed to hear the case on Jan. 10, 2025, and restricted the focus of the case to whether the Fifth Circuit had erroneously found that the Task Force structure violated the Appointments Clause. On Feb. 18, 2025, the Department of Justice (DOJ) under the Trump administration filed a brief continuing to defend the constitutionality of the Task Force. In addition, because of the change in administration and the appointment by President Donald Trump of Robert F. Kennedy Jr. as Secretary of HHS, the case before the Supreme Court is now called Kennedy v. Braidwood Management, Inc.  

The Argument at the Supreme Court

The Braidwood plaintiffs continued to argue at the Supreme Court that the ACA provisions that authorize the Task Force to make binding recommendations for preventive services that must be covered without cost sharing for covered individuals violates the Appointments Clause, which provides that officers of the U.S. may only be appointed by the President, subject to the advice and consent of the Senate. Since the members of the Task Force have not been appointed in compliance with the Appointments Clause, the plaintiffs are asking the Court to declare that the preventive care mandates, based on the Task Force recommendations after March 23, 2010, are unconstitutional. The plaintiffs further argue that the ACA does not allow the Secretary of HHS or the directors of agencies within HHS to reject the recommendations made by the Task Force and oversight is therefore insufficient. In the district court in Texas, Judge O’Connor noted in his ruling that the Task Force violates the Appointments Clause because the Secretary has no authority to direct which services are covered under the ACA and found that the Task Force members are officers of the U.S. subject to the Appointments Clause requirements.  

During the oral argument on April 21, the Supreme Court Justices focused on whether or not the Task Force was an “independent” body or whether the HHS Secretary had sufficient control over the Task Force and their recommendations, which would ensure they were in compliance with the Appointments Clause. The DOJ argued that the Task Force was not independent of the Secretary, because the Secretary had the power to not only hire and fire members of the Task Force, but also to review the recommendations they make and to delay their implementation. The Braidwood plaintiffs argued that the Task Force was independent because it was protected from “political pressure,” which made it impossible for the Secretary to review their recommendations and potentially prevent the coverage from going into effect if the Secretary disagreed with the recommendations.  

After the oral argument, on April 25, the Supreme Court directed the parties in the case to submit supplemental briefs on the issue of whether Congress had properly given the HHS Secretary the power to appoint members of the Task Force. The Court also asked both sides to address past Supreme Court decision regarding who would or would not be considered an officer of the U.S. under the Constitution. Both parties filed their supplemental briefs with the Court on May 5. The Court will likely issue its opinion in the case in June or July 2025.

What Are the Potential Implications of the Supreme Court’s Decision?

If the Court rules in favor of the Braidwood plaintiffs, this likely would end the federal requirement that private insurers and some employer plans cover the Task Force recommendations without cost-sharing. This would mean that insurers and employers would be able to decide which preventive services they will cover and if they will charge patients a copayment or coinsurance when they receive these services. This could lead to a patchwork of coverage, with some insurers continuing to cover services without cost-sharing while others impose fees or drop coverage altogether — potentially increasing disparities in access to preventive care. 

If the DOJ wins the case, the Court will have agreed that the HHS Secretary has sufficient power over the Task Force’s recommendations to influence which recommendations will be required to be covered without cost-sharing, which has not been the practice since the ACA was passed by Congress in 2010.

Will the Court’s Decision Impact the Medicaid or Medicare Programs?

The ACA requires states to offer essential health benefits (EHB) to the ACA’s Medicaid expansion group. EHB includes preventive services, which have been defined to include coverage of Task Force recommended services without cost sharing. There was nothing in the Fifth Circuit’s 2024 decision that would impact the requirement that states that expanded Medicaid offer preventive services for this group, although future review of these issues by the courts could consider the relationship between the EHB regulations and the constitutionality of the ACA’s preventive care mandate for private insurers. 

The Braidwood case also did not address any Medicare statutes or regulations. Since 2009 the Secretary of HHS has had the authority to identify preventive services in the Task Force’s recommendations that should be covered under Medicare and under the ACA those services must be covered without cost sharing.