This overview is excerpted from Manatt on Health, Manatt’s subscription service that provides in-depth insights and analysis focused on the legal, policy and market developments.
On August 27, the government filed a motion indicating that it intends to seek Supreme Court review of the U.S. Court of Appeals for the Fifth Circuit’s decision in Braidwood Management v. Becerra. In June, the Fifth Circuit ruled that the law requiring commercial health plans to cover without cost sharing certain preventive services recommended by the U.S. Preventive Services Task Force (USPSTF) is unconstitutional because the manner of the USPSTF’s appointment violates the Constitution’s Appointments Clause.
The government’s decision to seek Supreme Court review of the decision is somewhat unexpected because it risks a Supreme Court decision holding the law unconstitutional and barring its enforcement nationwide. Should the Supreme Court hear the case, it could intensify pressure on Congress to enact legislation to change the way members of the USPSTF are appointed, which would eliminate the constitutional defect.
