How the Pending Supreme Court Decision on Preventive Care Could Affect the Healthcare Industry

Since 2010, when the Affordable Care Act was enacted, most private insurance plans have been required to cover preventive care services recommended by the U.S. Preventive Services Task Force without making consumers pay a share of the cost. This includes cancer screenings, pregnancy care and testing for sexually transmitted diseases. It’s estimated that in 2020 alone, nearly 152 million people have benefited from this law.

But a pending Supreme Court case puts this in jeopardy.

This month, the Supreme Court will hear oral arguments on Braidwood Management v. Becerra. In this case, several Texas residents and two Christian-affiliated businesses sued the government, arguing that the way the task force was appointed violates the constitution. They also argued that the requirement to cover medications that prevent HIV infection goes against their religious beliefs.

In 2022, Judge Reed O’Connor, of the Federal District Court for the Northern District of Texas sided with the plaintiffs, stating that the task force had not been properly appointed by Congress and therefore, doesn’t have constitutional authority to require insurers to cover certain services. The U.S. Court of Appeals for the Fifth Circuit affirmed the ruling June 2024.

If the Supreme Court upholds the 5th U.S. Circuit Court of Appeals ruling, the government’s ability to require insurers and employers to cover preventive services without cost-sharing could be severely limited.

“We know from years of research that people who face cost sharing, particularly if they are low income, are much less likely to get needed healthcare,” said Sara R. Collins, Ph.D., senior scholar and vice president for health care coverage and access at the Commonwealth Fund, a private foundation focused on healthcare. “Preventive services is one such service that we know it’s important for people to get. Not only for themselves, but also for the broader community, and just for cost savings down the road.”

The case

The plaintiffs’ argument is really two-fold, according to Daniel Frier, founding partner of Frier Levitt.

First, they’re arguing that the preventive services provision violates the appointments clause, which requires that officers of the U.S. only be appointed by the president with advice and consent of the Senate. Members of USPSTF were not nominated by the president and approved by the Senate.

Their other argument is that covering benefits like preexposure prophylaxis (PrEP), which is used to prevent HIV, goes against their religious beliefs, which violates the Religious Freedom Restoration Act.

There are a few possibilities for how the case could play out.

The plaintiffs could win on the Religious Freedom Restoration Act, but lose on the appointments clause, Frier said. This would mean that the preventive care mandate would remain valid, but religious employers would get an exemption on services like PrEP.

Or the plaintiffs could win on the appointments clause and lose on the Religious Freedom Restoration Act, which would essentially strike down the entire preventive service mandate, he said.

The plaintiffs could also win on both arguments, which would be sweeping in ending the preventive care mandate. Alternatively, the government could win both arguments and the mandate would remain in place, regardless of religious beliefs.

Frier, however, believes that it could be likely that the Supreme Court sides with the plaintiffs on the Religious Freedom Restoration Act, particularly because the Supreme Court has been sympathetic to religious beliefs in the past.

“They might say that the task force is constitutional, but its decision related to the types of issues that religious organizations might find inappropriate is not enforceable,” he said. “That could open up a huge can of worms for healthcare decisions. You could have religious organizations that don’t believe in transfusions. You have religious organizations that don’t believe in treatment of certain types of illnesses or pregnancy prevention or pregnancy terminations.”

What’s at stake

If the Supreme Court upholds the lower court’s decision that the task force is unconstitutional, then the requirement for private insurers to cover services recommended by the U.S. Preventive Services Task Force after 2010 (when the ACA was enacted) would essentially go away, according to Collins of the Commonwealth Fund.

This includes screenings for colorectal cancer, medications to reduce breast cancer, statins to prevent cardiovascular disease, screening for Hepatitis B infection and more.

“These are not static recommendations, and the task force meets and updates recommendations based on emerging evidence about illness [and] disease, and as new technologies emerge. … So it’s very important that the task force keeps meeting, that they keep providing the recommendations,” Collins stated.

An executive at a women’s health company is hopeful that the preventive care provision remains intact.

“Preventive care saves lives. This is not controversial. We know that when people have preventive care, we prevent catastrophic events. We know that when preventive care is covered and people do not have an out of pocket cost associated with it, they engage in preventive care. The consequence of this case, resulting in the overturn of the preventive care clause, will have catastrophic consequences for decades,” said Jessica Horwitz, chief clinical officer of Tia, in an interview.

Another healthcare executive noted that getting rid of the preventive services requirement could lead to more costs down the road.

“There is a growing body of research that shows that putting more of the cost-sharing burden on patients actually decreases the use of high-value care. If insurers do not cover these preventive services, we will certainly see downstream impacts on both total cost of care and health outcomes when care is inevitably delayed due to out-of-pocket costs,” said Ami Parekh, chief health officer at Included Health. The company serves employers and health plans and offers primary and behavioral health support.

In other words, insurers or employers will end up paying more for acute incidents that may have been prevented with cheaper screening.

It’s possible that many health plans and employers will continue to cover these services without cost sharing even if the Court rules in favor of the plaintiffs because it’s in their best interest, according to Frier.

“Providing preventive care is a form of value-based care,” Frier said. “It ultimately reduces the overall cost of care over time. So employers, for example, are highly incentivized to provide preventive care because … it prevents absenteeism at work. It improves performance at work. Employers don’t want their employees to get sick.”

While financially it might be wiser for insurers to cover screenings without requiring cost sharing, without the preventive care provision in place, it would certainly not be at the level it is now, he added.

The Supreme Court will hear oral arguments on the case April 21.

Photo: Valerii Evlakhov, Getty Images