WASHINGTON – At the Supreme Court this week, a Texas corporation argued that the secretary of Health and Human Services did not have the authority to convene a health task force, but justices seemed skeptical.
“It’s unlikely that Congress was just throwing it out there in terms of who would [appoint the board],” Justice Brett Kavanaugh said.
Although arguments in Monday’s hearing of Kennedy v. Braidwood focused on technical legal issues, many observers saw the case as a harbinger of whether private corporations would be allowed to reject government mandates because of religious reasons.
The original lawsuit, filed by Braidwood Management, argued that it opposed on religious grounds providing an HIV medication that the task force required it to offer patients. In the lawsuit, Braidwood argued that providing coverage for HIV “facilitate[s] and encourage[s] homosexual behavior, prostitution, sexual promiscuity, and intravenous drug use,” which conflicted with the management company’s religious freedoms.
Several health and LGBTQ+ organizations raised concerns that a decision requiring task force members to be appointed by the president would limit the task force’s work and endanger the health of all Americans under the guise of religious freedom. GLAAD, an organization dedicated to LGBTQ+ advocacy, said in a statement yesterday the Supreme Court’s decision would be a “pivotal moment.”
“Religious exemptions should not be weaponized to erode healthcare protections and restrict medically necessary, life-saving preventative healthcare for every American,” the statement read.
Other organizations, mainly religious ones, have argued in support of Braidwood Management, saying the task force inappropriately required companies to provide medical services that violate their principles.
“They cannot exercise executive power without direct or indirect supervision from the President. They must be accountable to him who in turn is accountable to all of us,” said the Christian Employers Alliance, an organization that filed support for Braidwood. “That’s our system.”
Congress created the U.S. Preventive Services Task Force in 2010 as part of the Affordable Care Act, commonly known as Obamacare. The task force gives recommendations to the Health and Human Services secretary on what preventive services should be provided at no cost by private insurers. Examples include immunizations and certain pharmaceuticals.
One medication, which helps prevent the transmission of HIV, spurred the Texan company to challenge the task force’s constitutionality.
In the original petition, the federal government asked the Supreme Court to overturn a lower court’s ruling that sided with Braidwood. The Biden Administration took issue with the religious freedom claims by the respondent while also highlighting the medical importance of the task force’s work.
The Trump Administration adopted the defense of the previous administration, but made no mention of religious freedoms or the task force’s health mandates during arguments. The only mention of medication during the argument was a brief aside from Justice Amy Coney Barrett.
Jonathan Mitchell, an attorney for Braidwood, argued the task force members were principal officers, a position within the federal government akin to judges and ambassadors, which require presidential appointment and Senate confirmation, not inferior officers, which do not.
“[Task force members] cannot be inferior officers because they’re preventive care coverage mandates are neither directed nor supervised by the secretary of health and human services or by anyone else who has been appointed by a principal officer,” Mitchell said.
Mitchell’s argument stemmed from a section of the Affordable Care Act, which said that the task force must be independent and “free from political pressure.” Mitchell argued that specific language indicated the task force’s actions or decisions could not be governed by the Health and Human Services secretary.
Mitchell also argued the composition of the task force was unconstitutional because Congress never explicitly gave the secretary power to appoint task force members.
However, Hashim Mooppan, the principal deputy solicitor general, argued the Health and Human Services secretary could oversee the task force’s work through the power to terminate anyone in the task force at any point. He also said the health secretary has the ability to ignore the task force’s recommendation.
“You have bureaucrats who contribute their expertise, but ultimately, final decision power is in the politically-accountable head of [an] agency,” Mooppan said.
Several justices seemed skeptical of Braidwood’s argument. Kavanaugh questioned whether Congress would create a task force without clarifying who could appoint the members.
The justices also questioned the assertion that task force members were principal officers since they have limited power in final decision making when it came to the no-cost services. Justice Elena Kagan said that since the secretary can fire them, they are clearly inferior officers.
“The court has suggested on many occasions that removal power is really the essence of control,” Kagan said.
Some of the justices, specifically Justice Samuel Alito, seemed more sympathetic with the argument from Braidwood.
The Supreme Court’s decision was expected to be released this summer.