Kennedy v. Braidwood Management, Inc. (formerly Braidwood Management, Inc. v Becerra) (formerly Kelley v. Becerra)
Issue: Is the ACA’s requirement that health insurers provide cost-free coverage of preventive services constitutional?
Background: In 2020, six individuals and two employers filed a lawsuit seeking to invalidate the Affordable Care Act’s requirement that health insurers provide cost-free coverage of preventive services. These services include services rated A or B by the U.S. Preventive Services Task Force (USPSTF), routine vaccinations recommended by the Advisory Committee on Immunization Practices (ACIP), and services for infants, children, and adolescents and preventive care and screenings for women in the Health Resources and Services Administration (HRSA) guidelines. The plaintiffs argue that the ACA makes it impossible for them to buy insurance unless they pay for preventive care that they do not want or need, such as PrEP drugs to prevent HIV, contraception, the HPV vaccine, and screening and behavioral counseling for sexually transmitted diseases and drug use. Some of the plaintiffs also argue that purchasing coverage that includes PrEP violates their religious beliefs.
The trial court held that requiring health plans to cover USPSTF services violates the Constitution’s Appointments Clause because USPSTF members are not appointed by the president or confirmed by the Senate. The trial court also upheld the requirement for health plans to cover ACIP and HRSA recommended services and found that the PrEP coverage requirement violates plaintiffs’ religious freedom.
On appeal, the 5th Circuit agreed that requiring cost-free coverage of USPSTF recommended services violates the Appointments Clause. The 5th Circuit also held that the requirement to cover ACIP and HRSA services is constitutional but sent the case back to the trial court to determine whether the HHS Secretary has effectively ratified those recommendations.
In June 2025, the U.S. Supreme Court upheld the constitutionality of the USPSTF provision.
The Court found that the HHS Secretary has the power to remove USPSTF members and review and block their recommendations, a structure that does not violate the Appointments Clause. This means that about 100 million privately insured people will continue to receive cost-free coverage of preventive services each year unless or until the Secretary changes those recommendations. These include over 50 services such as lung, breast, and colon cancer screenings, statins to prevent heart disease, and PrEP drugs.
Current Status: Final decision issued on constitutionality of USPSTF. Case returns to trial court for determination on whether Secretary properly adopted ACIP and HRSA recommendations
Supreme Court Amicus Brief in Support of Federal Government on Merits, Feb. 25, 2025
Amici: The American Public Health Association, 111 deans and professors of public health and health law and policy, the Robert Wood Johnson Foundation, and the Trust for America’s Health
Argument Summary: The court of appeals’ decision effectively invalidates a critical provision of the ACA that ensures Americans’ access to essential life-saving tests and treatments. If the ruling is permitted to stand, deadly diseases will not be detected and important treatments will be unavailable—resulting in serious illnesses, chronic medical conditions, and deaths that otherwise would have been prevented.
Supreme Court Amicus Brief in Support of Federal Government’s Cert. Petition Oct. 21, 2024
Amici: American Public Health Association, 120 public health deans and scholars, Robert Wood Johnson Foundation, Trust for America’s Health, ChangeLab Solutions
Argument Summary:
The Court of Appeals’ ruling will cause Americans to suffer preventable illness and even death. The court of appeals’ decision jeopardizes guaranteed cost-free coverage for life-saving services. The ACA’s requirement of cost-free coverage has significantly increased Americans’ use of these critical services. Without the federal requirement, companies and insurers will re-impose cost-sharing, which will reduce the use of life-saving services.
5th Circuit Amicus Brief in Support of Federal Government (ACIP and HRSA), Oct. 6, 2023
Amici: The American Public Health Association, 115 public health deans and scholars, the Robert Wood Johnson Foundation, and the Trust for America’s Health, ChangeLab Solutions
Argument Summary:
The inevitable consequence of eliminating guaranteed cost-free coverage of immunizations; evidence-informed preventive care and screenings for infants, children, and adolescents; and preventive care and screenings for women will be serious harm to Americans’ health.
5th Circuit Amicus Brief in Support of Federal Government (USPSTF), June 27, 2023
Amici: American Public Health Association, 112 public health deans and scholars, Robert Wood Johnson Foundation, Trust for America’s Health, ChangeLab Solutions
Argument Summary:
The district court’s decision will cause Americans to suffer increased illness and even death. The district court’s order eliminates guaranteed cost-free coverage for life-saving services. The ACA’s requirement of cost-free coverage has significantly increased Americans’ use of these services. Without the federal requirement, companies and insurers will re-impose cost-sharing, which will reduce the use of life-saving services. The district court’s universal remedy is the principal source of these draconian consequences.
5th Circuit Amicus Brief in Support of Partial Stay Pending Appeal, April 28, 2023
Amici: American Public Health Association and 69 public health deans and scholars
Argument Summary:
The Court should grant the partial stay. Americans’ will suffer irreparable injury – including death and serious illness – without a stay. The district court’s order eliminates guaranteed cost-free coverage for life-saving services. The ACA’s requirement of cost-free coverage has significantly increased Americans’ use of these services. Without the federal requirement, companies and insurers will re-impose cost-sharing, which will reduce the use of life-saving services. The balance of the equities and the public interest strongly favor a stay.
Amici: 20 health policy experts, American Public Health Association, Association of American Medical Colleges
Argument Summary:
There is clear evidence that the preventive services, screenings, and immunizations identified by the expert bodies designated by Congress in the ACA in fact improve health and save lives. There is also considerable evidence that removing cost-sharing increases the use of many beneficial preventive services. The roles assigned to the U.S. Preventive Services Task Force, the Advisory Committee on Immunization Practices, and the Health Resources Services Administration do not violate the Appointments or Vesting Clauses. The preventive services provision provides an intelligible principle satisfying the nondelegation doctrine.
Outside Counsel: Mayer Brown LLP
Related Resources:
GW Media Relations. High court ruling protects access to preventive care. June 30, 2025. https://mediarelations.gwu.edu/high-court-ruling-protects-access-preventive-care
GW Media Relations. A public health amicus brief highlights the harm if the Supreme Court invalidates a key provision of the Affordable Care Act. Feb. 27, 2025. https://mediarelations.gwu.edu/public-health-amicus-brief-highlights-harm-if-supreme-court-invalidates-key-provision-affordable
GW Media Relations. Public health advocates warn of consequences of Fifth Circuit ruling on preventive health services. Oct. 29, 2024. https://mediarelations.gwu.edu/public-health-advocates-warn-consequences-fifth-circuit-ruling-preventive-health-services
Rosenbaum S, Musumeci M. What the latest decision in the Braidwood case could mean for preventive care. To the Point (blog). Commonwealth Fund. July 19, 2024. https://doi.org/10.26099/vwhh-w470
Musumeci M, Rosenbaum S. The ACA’s promise of free preventive health care faces ongoing legal challenges. To the Point (blog). Commonwealth Fund. Oct. 20, 2023. https://doi.org/10.26099/sg14-1725
GW Media Relations. Braidwood Management v. Becerra puts over a decade of progress in preventive health care at risk. Oct. 17, 2023. https://mediarelations.gwu.edu/braidwood-management-v-becerra-puts-over-decade-progress-preventive-health-care-risk
Rosenbaum S, Murphy, C. Insurance Claims Data Show that Millions of Americans Rely on the Affordable Care Act’s Free Preventive Coverage Guarantee for Critical Maternal, Infant, and Child Health Care. Geiger Gibson Program in Community Health Data Note. Sept. 27, 2023. https://geigergibson.publichealth.gwu.edu/insurance-claims-data-show-millions-americans-rely-affordable-care-acts-free-preventive-coverage
Rosenbaum S, Casoni M, Morris R, Murphy C. Should the Challengers Prevail in Braidwood Management v. Becerra, Older Working-Age Adults Would Lose More Than Two Dozen Free Preventive Benefits. Geiger Gibson Program in Community Health Data Note. Sept. 26, 2023. https://geigergibson.publichealth.gwu.edu/should-challengers-prevail-braidwood-management-v-becerra-older-working-age-adults-would-lose-more
Murphy C., et al. Braidwood Management v. Becerra Could Eliminate Three Quarters of the Affordable Care Act’s Preventive Benefits for Women, Infants, and Children. Geiger Gibson Program in Community Health. Policy Issue Brief #71. June 8, 2023. Updated Sept. 19, 2023. https://geigergibson.publichealth.gwu.edu/71-braidwood-management-v-becerra-could-eliminate-three-quarters-affordable-care-acts-preventive
GW Media Relations. Report: Braidwood Management v. Becerra could eliminate 75% of the ACA’s preventive benefits for women, infants, and children. June 13, 2023. https://mediarelations.gwu.edu/report-braidwood-management-v-becerra-could-eliminate-75-acas-preventive-benefits-women-infants-and
Citations:
“But federal law stipulates that these policy decisions stemming from these groups’ [U.S. Preventive Services Task Force and Advisory Committee on Immunization Practices] advice be based on science, said Andrew Pincus, a Supreme Court attorney at the law firm Mayer Brown who represented public health groups that filed a brief supporting the government’s defense in the case.”
Gardner L. Supreme Court hands Trump major win. Politco. June 27, 2025. https://www.politico.com/live-updates/2025/06/27/supreme-court-rulings-decisions-today-news-analysis/the-next-legal-frontier-in-health-care-the-definition-of-evidence-00429836
“Briefs were filed in support of the federal government by groups that include American Public Health Association and public health scholars, the Susan G. Komen Breast Cancer Foundation, the Chronic Illness and Disability Partnership, hospital associations, Democratic state attorneys general (led by Illinois), and a wide range of patient advocacy organizations and physician organizations.”
Keith K, Twinamatsiko A, Baron Z. Supreme Court hears argument over fate of preventive services under ACA. Health Aff. Forefront. April 24, 2025. https://www.healthaffairs.org/do/10.1377/forefront.20250423.788939/full/
In its certiorari petition asking the Supreme Court to review the case, the federal government included four citations to the public health deans and scholars’ 5th Circuit amicus brief supporting the constitutionality of USPSTF recommendations:
“In the ACA, Congress sought to save lives, improve public health, and reduce healthcares pending by ensuring that Americans could receive preventive services without co-pays or other cost-sharing mechanisms. . . . Congress’s reform has proved effective. See American Pub. Health Ass’n C.A. Amici Br. 15-19. A review of numerous medical studies found that eliminating cost sharing has led to increased use of many preventive services, particularly among individuals with lower incomes. Id. at 15-16.*
The preventive services just mentioned represent only a fraction of the services that would be jeopardized by a universal remedy. Other affected services include cervical andcolorectal cancer screenings; hepatitis B and C screenings; physical therapy for olderadults to prevent falls; ointments to prevent blindness in newborns; and nutritional supplements to support healthy pregnancies. See A&B Recommendations, supra; American Pub. Health Ass’n C.A. Amici Br. 8-14 (documenting these and other services).*
A recent survey suggests that if issuers and group health plans did impose cost-sharing requirements for preventive services, 40% of Americans would be unable or unwilling topay out of pocket for those services. See D. Ct. Doc. 121-1, at 4. That survey is consistentwith substantial literature suggesting that “the presence of cost-sharing, even if the amount is relatively modest, deters patients from receiving care.” American Pub. Health Ass’n C.A. Amici Br. 17 (citation omitted).”
Becerra v. Braidwood Mgmt., No. 24-316, Petition for a Writ of Certiorari at 29, 32, 33 (S. Ct. Sept. 19, 2024) (emphasis added), https://www.supremecourt.gov/DocketPDF/24/24-316/326373/20240919152821295_Becerra%20v%20Braidwood%20-%20Cert_Pet.pdf
The federal government also cited our 5th Circuit amicus brief in support of the federal government’s motion for a partial stay in its 5th Circuit reply brief:
“Unsurprisingly, the leading public health organizations and nearly 70 public health deans and scholars have urged this Court to stay the district court’s universal remedies pending appeal. As amici explain, the final judgment encompasses dozens of vital services, including statins to prevent heart attacks and strokes; screenings for breast cancer, colon cancer, and lung cancer; aspirin to prevent preeclampsia deaths in pregnant women and pre-term births; and physical therapy for older adults to prevent falls, which are the leading cause of injury-related death among the elderly. See, e.g., American Public Health Association and Public Health Deans and Scholars Amicus Br. 7-13 (Doc. 56).”
Braidwood v. Becerra, No. 23-10326, U.S. Dep’t of Justice Reply In Support of Motion for a Partial Stay of Final Judgment Pending Appeal at 2 (5th Cir. May 12, 2023) (emphasis added), https://litigationtracker.law.georgetown.edu/wp-content/uploads/2023/04/Braidwood_20230512_REPLY-in-Support-of-Motion-for-Partial-Stay.pdf
Funding Acknowledgement:
Supported by the Commonwealth Fund, a national, private foundation based in New York City that supports independent research on health care issues and makes grants to improve health care practice and policy. The views presented here are those of the authors and not necessarily those of the Commonwealth Fund, its directors, officers, or staff. (applies to all 5th Cir & S. Ct briefs).