Repairing the US Preventive Services Task Force After Braidwood v. Becerra

The United States Preventive Services Task Force (“Task Force”)—a body of experts who recommend clinical preventive services for deployment across broad populations—is suffering a severe setback. Judge Reed O’Connor recently enjoined enforcement of its recommendations under the ACA provision that requires private health plans and Medicaid expansion programs to cover preventive care without cost sharing.

The judge’s final ruling in Braidwood v. Becerra issued on March 30th of this year follows his earlier decision that determined the Task Force was wielding such significant authority that it violated the Appointments Clause of the United States Constitution. He reasoned that the Task Force should be Senate—confirmed and that it was too politically insulated, considering its ability to set insurance policy for millions of Americans. Moreover, he found that the practice of requiring employers to purchase health insurance that included Task Force-recommended HIV prevention substantially burdened their religious exercise and failed to meet the highest standard of judicial review—strict scrutiny. Under that standard, he found that the government has no compelling governmental interest and the HIV policy was insufficiently tailored.

Preventive care for millions of Americans now hangs in the balance. Required coverage without cost sharing for cancer screenings, cholesterol control, HIV prevention, and many other services are all suspended subsequent to this ruling. But real policy solutions are available to the Biden Administration, including installing oversight by government leaders and exercising administrative solutions to increase the Task Force’s accountability.