The Latest Supreme Court case targeting the ACA comes from a longtime anti-gay activist

The legal argument is highly technical, and oral arguments on Monday barely touched on the case’s potentially vast consequences for public health. If the justices agree with the plaintiffs, the task force and its recommendations for the last 15 years could be thrown out, and insurers could start denying coverage or imposing out-of-pocket costs on dozens of currently free preventive screenings and services—meaning many fewer patients would choose to get them.

“The people who are going to be hurt most are the people who can’t just pull out a credit card and pay full cost for a service, or pay a $50 co-pay or an $80 co-pay,” says Wayne Turner, senior attorney at the National Health Law Program. “It is a literal lifesaver for people to be able to have some early detection.”

Among the threatened services are free HIV screenings for all, and PrEP for those at increased risk of contracting the virus. While HIV has become much less deadly since the mid-1990s, when more than 40,000 people in the United States were dying of related causes annually, there are still nearly 32,000 new infections and 8,000 HIV-linked deaths in the US every year, according to the health policy think tank KFF. PrEP—first approved by the FDA as a daily pill in 2012—lowers the risk of acquiring HIV through sex by 99 percent, and through injection drug use by 74 percent.

But the drug can cost up to $1,800 per month, so when the Preventive Services Task Force gave it an “A” rating in 2019, making it 100 percent covered by insurance, use of the drug appears to have soared. In 2015, 3 percent of people recommended for a PrEP prescription got one; in 2022, 31 percent did, according to the HIV and Hepatitis Policy Institute. Kennedy v. Braidwood threatens to reverse this progress.

At the center of the lawsuit are a trio of Texans who have become conservative heroes in the culture wars against LGBTQ and reproductive rights: A powerful anti-LGBTQ activist, a lawyer known for masterminding Texas’ abortion vigilante law, and the judge they like to bring their cases to.

The lead plaintiff, Braidwood Management, is owned by 74-year-old doctor Steven Hotze, a Houston-area alternative medicine guru, conservative powerbroker, far-right activist, and Republican megadonor.

In 2020, Braidwood Management and other plaintiffs sued over the ACA again, this time claiming their religious freedom was being violated by the law’s zero-cost preventive services requirement. Hotze specifically objected to mandatory insurance coverage for PrEP medications, which the lawsuit claimed “facilitate behaviors such as homosexual sodomy, prostitution, and intravenous drug use, which are contrary to Dr. Hotze’s sincere religious beliefs.”

“Our first and most immediate goal is to save this Affordable Care Act provision, which is so important for so many people.”

Representing Hotze and the other plaintiffs was none other than Jonathan Mitchell, the legal strategist and former Texas solicitor general known for crafting Texas’s “bounty hunter” anti-abortion law, SB 8, which cut off most abortion access in his state even before the fall of Roe v. Wade. Last year, Mitchell served as President Donald Trump‘s lawyer in front of the Supreme Court, arguing (successfully) against Colorado’s attempt to exclude Trump from the 2024 ballot.

Mitchell has represented Braidwood Management before, in a case claiming that Title VII, the federal law banning discrimination in employment, violated Hotze’s religious beliefs. In both that case, and in the current ACA one, Mitchell filed the lawsuit in the Northern District of Texas, where it was duly assigned to yet another Texas conservative hero, federal Judge Reed O’Connor. In a 2018 ruling involving the constitutionality of the ACA’s individual mandate, O’Connor had already proved willing to strike down the law altogether. The 2018 decision was ultimately overturned by the Supreme Court, which said that O’Connor should have dismissed the case from the get-go.

In the Braidwood case, O’Connor handed Mitchell and Hotze a partial win—ruling that the PrEP insurance mandate violated Hotze’s religious freedom, and exempting Braidwood Management from that requirement. Crucially, he also sided with them on an additional, more technical claim that members of the US Preventive Services Task Force are improperly appointed.

It’s that second argument that the Biden administration appealed, and the Supreme Court is now reviewing. Turner, the health policy attorney, says the case comes down to a line in the law that created the task force, declaring it “independent and, to the extent practicable, not subject to political pressure.” Braidwood Management argues that that line makes the task force too unaccountable. (Vaccines and birth control aren’t threatened by this case, since those recommendations are made by other entities—though powerful conservative activists are currently targeting the leading medical group that makes contraception coverage recommendations, as Susan Rinkunas recently reported at Jezebel.)

To the surprise of patient advocacy groups, the Trump administration decided earlier this year to fight back against Braidwood’s challenge. Trump, in the past, has tried to repeal the health care law. But now, his administration argues that the task force is indeed accountable to Trump’s Senate-confirmed Secretary of Health and Human Services, Robert F. Kennedy Jr. During oral arguments on Monday, the administration’s lawyer claimed the secretary has the power to both appoint and remove members at will, and could use those powers to influence task force recommendations.

Turner says it’s a “real concern” that the Trump administration will eventually attempt to exert greater political control over the task force and its recommendations. “We’ve seen the administration do this in other parts of the federal government and other parts of HHS—purge the current leadership, purge the current members, and fill it with cronies who are going to be rubber stamping,” he says. But he says it’s a risk worth taking: “In my view, our first and most immediate goal is to save this Affordable Care Act provision, which is so important for so many people.”

After oral arguments on Monday, court observers predicted that the justices would ultimately reject Hotze and Mitchell’s challenge to Obamacare. The ruling is expected by this summer.