The U.S. Supreme Court is hearing oral arguments beginning on April 21 on a case that may impact no-cost preventive services such as breast and lung cancer screening.
In the case of Kennedy v. Braidwood Management, Inc., the court will decide whether the U.S. Court of Appeals for the 5th Circuit in 2024 mistakenly ruled that the structure of the U.S. Preventive Services Task Force (USPSTF) violates the Constitution’s appointments clause. The Fifth Circuit also declined to end the statutory provision that shields the USPSTF from the U.S. Health & Human Services secretary’s supervision.
“About 150 million Americans rely on these preventive services to get the care that they need,” said Valerie Nelson, manager of federal policy & advocacy at Susan G. Komen. “The stakes are pretty high here, especially if the Supreme Court were to uphold the decision of the lower courts.”
The Affordable Care Act (ACA) requires most private health insurance plans to cover recommended preventive services, with patients not sharing the cost. Along with breast and lung cancer screening, this also covers services such as behavioral counseling, immunizations, and preventive medicines.
The USPSTF, which consists of an independent panel of health experts in primary care and prevention, makes evidence-based recommendations about preventive services. Under the ACA, private plans and Medicaid expansion programs must cover preventive health services based on those receiving an A or B level recommendation by the task force.
And when the USPSTF issues new recommendations or updates current recommendations, plans must begin covering impacted services in the next plan year that begins on or after one year from the issue date.
Valerie Nelson from Susan G. Komen explains who may be or impacted should no-cost preventive services be taken away.
The U.S. Court of Appeals for the Fifth Circuit in 2024 ruled in the case of Braidwood Management Inc. et al. v. Xavier Becerra et al. that recommendations made by the USPSTF are unconstitutional since they violate the appointments clause. However, the Fifth Circuit did not agree with a lower court’s decision to apply this outcome nationwide, stating that the ruling should only apply to the parties in the case.
Still, imaging societies and health advocates criticized the Fifth Circuit’s ruling, saying that it would open the door for future legal challenges. Should the Supreme Court rule in favor of Braidwood Management, costs that insurance companies take on from ACA-covered services would be shifted to patients.
Nelson said that ruling against the validation of the USPSTF’s recommendations could open more hardships for women who rely on no-cost services for breast cancer screening. People may be discouraged from attending their scheduled screenings and test appointments due to the cost burdens that patients would have to take on, health advocates said. On the breast imaging front, this could mean more breast cancers being discovered at advanced stages, which carry a poorer prognosis.
“Unfortunately, we have a real-life example during COVID when there was a sudden stop in screening and we saw how difficult it was to get women to come back in,” said Linda Moy, MD, president of the Society of Breast Imaging. “These outcomes especially affected women of lower socioeconomic class and those who were of minority background. These women already face barriers to screening.”
Linda Moy, MD, president of the Society of Breast Imaging, discusses the society’s stance on the availability of no-cost preventive health services.
While previous challenges to ACA have largely been unsuccessful, the Braidwood case is unique in that the focus is on whether the USPSTF has the authority to make these recommendations.
“The scope in this case is narrower. But it is nevertheless very significant,” said Tom Greeson, a partner in the Reed Smith Life Sciences Health Industry Group. Greeson focuses his practice on health care regulatory law, representing radiology groups and diagnostic imaging suppliers.
Greeson said that services like screening mammography will be mostly unaffected by the ruling since that mandate preceded enactment of the ACA. However, he added that there could be uncertainty, since current federal law recognizes the 2002 USPSTF guidelines calling for screening every one to two years beginning at age 40.
“One hopes the fact that the Trump administration wants to sustain these no-cost preventive services will particularly persuade some of the conservative justices on the Supreme Court to join with the more liberal contingent of Justices in allowing these no-cost preventive services to be made widely available,” Greeson said.
Nelson meanwhile said Komen will continue monitoring the progress of this case. The organization in 2023 issued an Amicus Brief to the Supreme Court in favor of overturning the lower courts’ decision.
“Should the case go one way or another, we’re going to continue to advocate for high-quality, affordable care access for patients across the spectrum,” Nelson said.
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