Washington – Public Health defenders won a great case in the Supreme Court the last day of this year's mandate, but victory came with an asterisk.
The decision ended a threat to non -cost preventive services, from cancer and diabetes exams to statins of medicines and vaccines, used by more than 150 million Americans who have health insurance.
But he did it by training the skeptic of the most important vaccine in the Nation: the Secretary of Health and Human Services Robert F. Kennedy Jr.
Losing would have been “a terrible result,” said Washington Andrew Pincus's lawyer. Insurers would have been free to stop paying medications, projections and other services that were demonstrated in force to save lives and money.
But winning means that “the secretary has the power to book” the recommendations of medical experts and eliminate approved medications, he said. “His actions will be subject to review in the Court,” he added.
The new legal fight has already begun.
Last month, Kennedy cited a “public trusted crisis” when he eliminated the 17 members of a separate vaccine advice committee. Their replacements included some vaccine skeptics.
Vaccines recommended by this committee are included as preventive services that insurers must provide.
On Monday, the American Academy of Pediatrics and other medical groups demanded Kennedy for having eliminated the COVID-19 vaccine as a recommended immunization for pregnant women and healthy children. The lawsuit described this an “arbitrary” and “without foundation” that violates the Administrative Procedure Law.
“We are taking legal actions because we believe that children deserve better,” said Dr. Susan J. Kressly, president of the Academy. “This was not just marking science. It is an attack on the basis of how we protect the families and health of children.”
On Wednesday, Kennedy postponed a scheduled meeting of the United States Preventive Services Task Force that was in the center of the judicial case.
“Obviously, many projections related to chronic diseases could face changes,” said Richard Hughes IV, a Washington lawyer and law teacher. “An important area of concern is the coverage of HIV preparation”, a preventive medication that was challenged in the demand for Texas that reached the Supreme Court.
For a measure, the decision of the Supreme Court 6-3 was a rare victory for the liberals. The judges revoked a decision of the Texas judges who would have annulled the popular benefit that came with Obamacare. The 2012 law required that insurers provide without cost the preventive services that were approved as highly effective.
But conservative critics had seen what they saw that it was a defect in the Law of Health Care at a low price. They noticed that the work group of unpaid medical experts who recommend the best and most profitable preventive care was described in the law as “independent.”
That word was enough to boost the legal battle of five years.
Steven Hotze, a Texas employer, had sued in 2020 and said he opposed religious reasons to provide HIV prevention drugs, even if none of his employees used those drugs.
The lawsuit was before the United States District Judge, Reed O'Connor, in Fort Worth, who in 2018 had demolished Obamacare as unconstitutional. In 2022, he failed for the Texas employer and annulled the required preventive services on the reasons that members of the US preventive services task force made legally binding decisions despite the fact that the president has not designated them and confirmed by the Senate.
The 5th Circuit Court made its decision on hold, but confirmed its ruling that the work of the preventive services task force was unconstitutional because its members were “free of any supervision” by the president.
Last year, the Biden administration asked the Supreme Court to listen to the case of Xavier Becerra vs. Braidwood Management. The appeal said that the Texas ruling “endangers the health protections that have been in force for 14 years and that millions of Americans currently enjoy.”
The court agreed to hear the case, and at the time of the oral argument in April, the Trump administration had a new HHS secretary. The case was now Robert F. Kennedy Jr. vs. Braidwood Management.
The six conservatives of the court believe that the Constitution gives the President the Executive Power to control the Government and put their officials in charge. But they divided into what that meant in this case.
The Constitution says that the president can appoint ambassadors, judges and “all other officers of the United States” with the approval of the Senate. In addition, “Congress can by law grant the appointment of such lower officers” in the hands of the president or “departments chiefs.”
Option two made more sense, Judge Brett M. Kavanaugh said. He spoke for the court, including the president of the Supreme Court John G. Roberts and Judge Amy Coney Barrett, and the three liberal judges of the Court.
“The executive branch under President Trump and President Biden have argued that the members of the preventive services task group are lower officials and, therefore, can be appointed by the secretary of HHS. We agree,” he wrote.
This “preserves the chain of political responsibility … The members of the working group are removable at will by the secretary of the HHS, and their recommendations are reviewable by the secretary before they arise in force.”
The ruling was a clear victory for Kennedy and the Trump administration. It made it clear that medical experts are not “independent” and can be easily replaced by RFK Jr.
He did not win the three judges on the right. Judge Clarence Thomas wrote a dissent of 37 pages.
“According to our Constitution, the president's appointment with the confirmation of the Senate is the rule. The appointment of a department head is an exception that Congress must consciously choose to adopt,” he said, accompanied by Judges Samuel A. Alito and Neil M. Gorsuch.
