A US supreme court decision affirming the constitutionality of Obamacare sets the stage for more politicized science in the future, health law experts said about the court’s decision.
The court’s majority opinion in Kennedy v Braidwood Management found that an expert panel – the preventive services taskforce – convened under the Affordable Care Act is under the direct oversight of the health secretary.
“This is your classic good news, bad news,” said Lawrence Gostin, a professor of global health law at Georgetown Law. “In a sane world, with a secretary of health that believes in science and doesn’t bring in conspiracy theories and agendas, you would applaud this decision.”
With health policy now in the hands of the Trump administration, “it gives Secretary [Robert F Kennedy Jr] complete power about what to recommend and what not to recommend,” Gostin said.
The court issued the opinion only hours after an expert vaccine advisory panel (ACIP) handpicked by Kennedy subverted the scientific consensus by recommending against vaccines containing thimerosal, a preservative overwhelmingly considered safe. Thimerosal has been a subject of misinformation and anti-vaccine advocacy for decades.
Much like the expert panel in question in the Braidwood case, the recommendations of the vaccine advisory committee are a key link in the treatment distribution pipeline.
Recommendations from both panels are typically affirmed by the leadership of the health department, and then become the basis on which insurers base coverage decisions. In the case of the ACIP, those recommendations typically concern vaccines. In the preventive taskforce context, they include a wide range of treatments – from statins to cancer screenings to HIV prevention.
It was widely recognized that Kennedy had the authority to hire and fire people for the vaccine panel – but legal controversy existed about whether health secretaries have the same power over the preventive services taskforce.
“The president and the Senate are accountable ‘for both the making of a bad appointment and the rejection of a good one’,” wrote Justice Brett Kavanaugh for the six-vote majority. In other words, the court said, if you don’t like it, go to the ballot box.
MaryBeth Musumeci, an associate professor of health law management at the George Washington University Milken Institute of Public Health, told the Guardian: “We have that structure in place – and that is a really great structure if the folks in charge are actually deferring to the experts and the science and what the evidence says.”
She added: “To the extent that we are going to make decisions based on bad science – that has really serious public health implications.”
The panel at the center of the vaccine decision is the ACIP vaccine panel. Until June, the advisory panel was made up of 17 experts vetted by CDC career scientists. Their recommendations, while not binding, were almost always approved by CDC leadership.
Kennedy fired all 17 members unilaterally in June and stocked the panel with eight ideological allies – including vaccine skeptics and medical professionals with little experience in vaccines. One panelist withdrew after a government financial review, and after it was widely publicized that the secretary’s claims about the panelist’s affiliation with two universities was false.
Wayne Turner, a senior attorney for the National Health Law Program, which advocates for the medically underserved, said that he and others were “certainly breathing a sigh of relief with the court’s decision today” because a key provision of Obamacare was found to be constitutional.
“But that sigh of relief is really short-lived,” Turner said. “We have long anticipated with the appointment of RFK Jr, and certainly with his actions with the ACIP, that we can fully expect the preventive services taskforce to be the next battleground in the ideological war this administration seems to be waging. And the war is against science.”
The subject of the Braidwood case provides a salient example. Plaintiffs were suing the government to claim that the taskforce was wrongly appointed. Although their legal argument was thorny, one treatment they specifically cited as wrong was insurance coverage of pre-exposure prophylaxis (PrEP), an HIV prevention drug.
Although the plaintiffs’ claim that the taskforce was unconstitutional was swatted down, it provides activists with a roadmap to get what they want – if they can convince Kennedy to appoint more ideological allies to the taskforce.
The preventive services taskforce may have one protective mechanism: a requirement that they be guided by evidence written into Obamacare, the legislation that impaneled them.
Gearing up for another fight, Turner said: “That’s going to be an important thing for us to point to in the weeks and months ahead, and years, quite frankly.”
