On June 27, the US Supreme Court issued a decision that could have reshaped access to preventive healthcare for millions of Americans. In Kennedy v. Braidwood Management, Inc., the Court rebuffed a challenge to the constitutional authority of the US Preventive Services Task Force (USPSTF)—a scientifically independent, volunteer panel of national experts in disease prevention—and, with it, the Affordable Care Act’s (ACA) mandate requiring private insurers to cover dozens of preventive services at no cost to patients designated by the USPSTF.
Practical Implications of the Decision
The practical impact of this decision is that it will allow USPSTF to keep its authority to determine coverage of certain important preventive services at no out-of-pocket cost for consumers. The USPSTF is meant to ensure access to cost-effective preventive services that keep Americans healthy and help avoid more serious and expensive services in the future. These include screenings for cancers, mental health, infectious diseases, and medications like PrEP (pre-exposure prophylaxis for HIV).
Legal Implications of the Decisions
The legal issue in this case was a fundamental constitutional question: whether the structure of the USPSTF generally, and the appointment of its members specifically, violates the Constitution’s Appointments Clause (Article II, Section 2). The Appointments Clause requires the executive to nominate, with the advice and counsel of the Senate, certain public officials. Plaintiffs in the case—including a group of Christian business owners—argued that the USPSTF’s structure violates the Constitution because its members are not appointed by the president or confirmed by the Senate, yet their recommendations have binding legal force under the ACA. They contend this gives the Task Force an unconstitutional level of authority over federal policy in violation of the Appointments Clause of the Constitution.
Lower courts, including the Fifth Circuit Court of Appeals in 2024, sided partially with the plaintiffs, finding that recommendations issued after March 23, 2010—the day the ACA became law—cannot be constitutionally enforced without direct oversight by a Senate-confirmed official.
The Biden administration had previously argued that the USPSTF is constitutionally valid because its recommendations are ultimately under the purview of the Department of Health and Human Services. The Trump administration, perhaps surprisingly, agreed with the Biden administration’s position. The federal government argued that the Health and Human Services (HHS) Secretary retains sufficient authority to implement or delay Task Force decisions, keeping them within constitutional boundaries.
A 6–3 Supreme Court majority ruled that the structure of the USPSTF does not violate the Appointments Clause and notes the broad discretion that the executive (in this case, the HHS Secretary) has in selecting the appointees to the USPSTF. Justice Kavanaugh delivered the opinion, holding that the USPSTF members are “inferior officers” not required to be nominated by the president and confirmed by the Senate. As the Court noted, the Appointments Clause of the Constitution distinguishes between “principal officers” who must be appointed by the president and confirmed by the Senate, on one hand, and “inferior officers” which Congress may by law permit appointment by the President or a department head alone. The opinion noted that the USPSTF members are designated in the ACA and “are removable at will by the Secretary of HHS, and their recommendations are reviewable by the Secretary before they take effect.” The Court majority concluded that USPSTF “members are supervised and directed by the Secretary, who in turn answers to the President, preserving the chain of command in Article II [of the Constitution].” In dissent, Justice Thomas wrote that Congress may depart from the default process of appointment by the president with the Senate’s approval only if it does so expressly, which Thomas argued Congress did not in this case.
What Is At Stake for People With Private Health Insurance?
If the Supreme Court had affirmed the Fifth Circuit’s decision and found the structure of USPSTF unconstitutional, the consequences could have been significant for private health insurance and the more than 150 million Americans who receive coverage through employer-sponsored or individual plans under the protections of the ACA. Some of the issues at least temporarily avoided by the Supreme Court’s decision include:
- Loss of Guaranteed No-Cost Services. Services recommended by the USPSTF after 2010—such as lung cancer screenings, expanded depression screening, and newer cholesterol-lowering medications—would have become optional for insurers to cover at no cost. This would have effectively rolled back gains in preventive care access made over the past decade.
- Patchwork Coverage. Individual insurers could have begun deciding which preventive services to include in their coverage and whether to apply cost-sharing, leading to inconsistent benefits across plans and employers. High-deductible and narrow-network plans may have been the most likely to limit coverage.
- Increased Out-of-Pocket Costs. Studies show that even modest copayments can discourage people from seeking preventive care. If insurers dropped free coverage, patients may have delayed or avoided screenings and medications, potentially increasing long-term costs to individuals and the health system, generally resulting from untreated illness.
- Disproportionate Effects on Marginalized Groups. Low-income populations, women, and people of color—who statistically benefit the most from no-cost preventive care—could have been hardest hit by any rollback. Public health experts have noted widening disparities in cancer detection, heart disease prevention, and HIV treatment access.
What Comes Next
The Court rejected the plaintiffs’ challenge and upheld the validity of the USPSTF. As a result, there appears to be no immediate need for Congress or federal agencies to revise how preventive care recommendations are implemented or overseen to comply with the Constitution.
Nevertheless, the public health policy goals of the ACA, in empowering HHS and the USPSTF, are not necessarily safe. Insurers, employers, and consumers alike will still have to watch closely for changes to the USPSTF, especially since the Court affirmed the broad authority of the HHS Secretary. The Court’s decision affirms the Trump administration’s ability to ultimately determine the fate of the services covered with no cost-sharing provided for under the ACA.
There are at least two ways the Trump administration could alter the services covered with no cost-sharing. First, the HHS Secretary—Robert F. Kennedy, Jr.—could appoint new USPSTF members who share a narrower view on which services, if any, should be covered with no cost-sharing. And this appears to be a real possibility, given other similar actions. The HHS Secretary recently fired all 17 members of the Advisory Committee on Immunization Practices (ACIP), which develops recommendations for the use of vaccines, and replaced them with members who more closely mirrored the Secretary’s views on immunizations and their risks. Second, HHS could draft new rules that limit which services, if any, are covered with no cost-sharing. Thus, while not making immediate changes, the Court’s decision in Kennedy leaves the door open to reintroducing cost barriers for services that have long been freely available, marking a major shift in the landscape of private health insurance.
Implications for States
While the Supreme Court’s decision avoids an immediate issue for states that want to preserve the ACA’s requirement to cover important preventive services at no cost-sharing, state residents may still face a loss of coverage given the Court expressly acknowledges that the authority over which preventive services are covered with no cost-sharing is retained by the executive. The executive by regulation could limit—or Congress could pass a law that limits or repeals—the USPSTF’s ability to identify no-cost-sharing preventive services. More likely, a newly appointed or directed USPSTF may revise or repeal recommendations such that preventive services without cost-sharing would be more limited in the future.
Should new limits be placed on the types of services with no cost-sharing by the USPSTF or HHS Secretary, states would still have some options to try to mitigate possible retrenchments in preventive service coverage, though those options also have significant potential limitations as outlined below.
Option 1: States protect coverage for those under fully insured plans with state laws that adopt USPSTF recommendations or the recommendations of another legitimate medical body.
Potential Limitation: Should Congress, by law, or HHS, by regulation, repeal or revise the ACA requirement that Essential Health Benefits (EHB) include no-cost preventive services designated by the USPSTF, state laws that preserve that ACA requirement could apply to state-regulated fully-insured plans. However, this mitigation effort by states may be limited in part because many employer health plans are not subject to state regulation and because it leaves open the possibility that a newly appointed USPSTF or HHS Secretary directive could simply revise or repeal the recommendations.
Explanation: State insurance regulators generally have important but limited authority over commercial health insurance. Federal preemption of state regulation of employer-provided health insurance—where most Americans get coverage—restricts state governments from regulating certain “self-insured” employee health plans. Under self-insured plans, employers typically use an insurer or other third party to administer the plan while the employer pays the claims, often with stop-loss insurance that limits the employer’s exposure to large claims. These self-insured plans now comprise a majority of the employer health insurance market in most states.
While states are federally preempted from taking further action to protect consumers from losses in no-cost coverage in self-insured employer plans, states can act to protect consumers in fully-insured plans, where employers simply pay monthly premiums and insurers retain the risk that premiums will cover the cost of care and administrative expenses, plus profit. New York, like some other states, has enacted legislation that adopts the ACA’s preventive services requirements as a matter of state law. This will help protect consumers from losses in no-cost coverage if Congress or HHS repeals or limits the reach of the USPSTF recommendations. However, if the USPSTF or HHS Secretary makes new recommendations that revise or repeal preventive services with no cost-sharing, a state law that adopts the USPSTF recommendations as a matter of state law will be of little help inasmuch as the new recommendations would simply be a matter of state law as well as federal law.
In the alternative, states could adopt laws that refer to another body to determine which preventive services should be designated as no cost-sharing. However, these state rules may conflict with federal rules requiring EHB should the ACA continue to designate the USPSTF as the entity to determine these services under the ACA.
Option 2: Update the state’s benchmark plan.
Potential Limitation: Should the USPSTF or HHS Secretary revise or repeal the federal list of services covered at no cost-sharing, New York and other states could seek benchmark plans that explicitly list services covered with no cost-sharing. However, whether options for all the same preventive services with no cost-sharing that states seek will be available choices for EHB benchmark selection is uncertain.
Explanation: States could seek to mitigate revision or repeal of preventive services at no cost-sharing by updating the state’s “benchmark” plan. The ACA requires insurers offering employer-sponsored health plans to cover certain Essential Health Benefits (EHB). Federal authorities have given states significant discretion in determining in their state which services are covered under each of the 10 EHB categories, including “preventive and wellness services.” New York and other states could adopt a benchmark plan that includes preventive services at no cost-sharing for USPSTF-recommended services. However, the types of benchmark choices available to states are limited. Under current HHS regulations, states can choose an EHB benchmark plan from a specified list of choices. The choices are not a list of specific benefits. Rather, it is a list of types of plans. For example, states can choose the largest small group plan in the state, one of the three largest state employee health plans, one of the three largest Federal Employee Health Benefits Program (FEHBP) plans, or the largest commercial HMO in the state. Additionally, states can choose to adopt an EHB benchmark plan from another state. However, if none of these choices include the list of preventive services a state would want, this approach may be of limited value. Further, this approach for states may not keep up with the latest developments in preventive service recommendations by truly independent, evidence-based sources. Preserving a truly independent, evidence-based USPSTF would be preferable.
Option 3: States could adopt standardized health plan benefits.
Potential Limitation: The USPSTF or the HHS Secretary could revise or repeal the federal list of services covered at no cost-sharing. It is unclear whether a state’s use of such authority would meet federal EHB requirements and, in any event, such standardized state health benefits would only apply to the minority of health plans regulated by the states and not preempted by federal ERISA law, as described above.
Explanation: New York and other states could establish standardized health plan requirements using existing or new state law authority. New York has done this with tremendous effect. Prior to adopting the required and standardized model health plan language, New York had thousands of different contracts for employers and individuals. This created significant confusion and administrative challenges for consumers as well as physicians, hospitals, and other healthcare providers. The standardized language adopted by the state’s Department of Financial Services (DFS) has helped provide clarity in benefit coverage, reducing administrative friction, allowing consumers and employers to more easily comparison shop, and encouraging insurers to compete more on price and quality. DFS could seek to use its authority to direct coverage of specified preventive services at no cost-sharing.
Unfortunately, this approach has limitations. First, DFS’s authority to create standardized health plan contract language may not fully extend to establishing new benefit cost-sharing requirements. In addition, while the state could require coverage of certain preventive services, it is unclear whether this would conflict with possible changes in the ACA EHB rules regarding preventive services at no cost-sharing or conflict with the USPSTF requirements. This could involve lengthy litigation to be resolved in court. In any event, because of federal ERISA preemption described above, the state authority is limited to a minority of fully-insured, state-regulated plans.
Conclusion
While the constitutional arguments in Kennedy v. Braidwood centered on administrative authority that was upheld, the case’s practical and potential impact could still touch nearly every privately insured American. Even in rejecting the plaintiff’s challenge, the Supreme Court leaves open the possibility that HHS could unravel a key pillar of the Affordable Care Act—and bring cost-sharing back into the doctor’s office for millions seeking preventive care services. This is precisely why states should be mindful of future actions that USPSTF may take, so that they, too, can take appropriate action to maintain coverage of preventive services if desired by policymakers. While the state options to address federal retrenchment of no-cost-sharing preventive services discussed above may be limited, state policymakers in New York and other states that seek to preserve this important consumer protection in the ACA should continue to explore alternatives.
ABOUT THE AUTHORS
Troy Oechsner is a fellow at the Rockefeller Institute of Government.
Courtney Burke is a senior health policy fellow at the Rockefeller Institute of Government.