Last week, the Supreme Court heard arguments in a case questioning the constitutionality of the HHS’ Preventative Services Task Force, a body created in 2010 under the Affordable Care Act. The task force is a group of experts appointed by the Secretary of HHS. It is designed to operate independently from political pressures and is responsible for recommending preventative health services that insurers should cover at no-cost to patients.  

The argument started in 2019, when a group in Texas objected to the task force’s recommendation for coverage of PrEP, the HIV-preventative medication, on religious grounds, stating it would encourage “homosexual behavior, intravenous drug use, and sexual activity outside of marriage.” The plaintiffs argued that the task force is unconstitutional because the members are not appointed by the President nor confirmed by the Senate, instead being selected by the HHS Secretary. While some lower courts agreed, many of the justices appear skeptical of the challengers’ argument, instead noting that the HHS Secretary exercises enough oversight of the task force and does have to approve its recommendations.  

A key issue now is whether the HHS secretary has the legal authority to appoint task force members — a question that was not fully addressed in lower courts. In an unusual move, the Supreme Court has requested additional briefing from both sides, asking them to clarify the Secretary’s appointment authority and discuss two historic precedents (United States v. Hartwell and United States v. Smith). How the Court resolves this question could impact not only PrEP coverage but also the broader framework of preventive health services under the ACA. Final briefs are due by May 5th, signaling the Court’s ongoing focus on the constitutional structure behind major health policy decisions.