Three-Minute Legal Talks: Kennedy v. Braidwood Management, Inc.
Since its enactment in 2010, the Affordable Care Act has become one of the most litigated pieces of legislation in recent U.S. history. In Kennedy v. Braidwood Management, Inc., opponents of the Obama-era statute are challenging the constitutionality of the ACA’s preventive care mandate, contending that the experts who determine which services are covered were not properly appointed.
What’s at stake, however, goes far beyond legal technicalities. If the Supreme Court sides with Braidwood, insurers could once again charge patients for preventive services that are currently free under the ACA, potentially reversing years of progress in public health and affecting the health and finances of tens of millions of Americans.
In three minutes, Elizabeth Pendo, the Kellye Y. Testy Professor of Law and Senior Associate Dean for Academic Affairs at UW Law, covers the Supreme Court case and its potential impact.
Read the Transcript
Elizabeth Pendo (EP): My name is Elizabeth Pendo. I'm the Kellye Y. Testy Professor of Law and the Senior Associate Dean for Academic Affairs here at UW Law.
UW Law: Can you give a brief overview of the Kennedy v. Braidwood Management, Inc. case?
EP: Braidwood Management is a business in Texas that provides health insurance for its employees. And Braidwood is challenging a key provision of the Affordable Care Act that requires private health insurance plans, like the ones they offer to their employees, to cover certain evidence-based preventative care services without cost-sharing.
The basis for Braidwood’s challenge is the Appointments Clause. It's in Article II of the U.S. Constitution, and the Appointments Clause outlines the process for appointing federal officers, like ambassadors, judges of the Supreme Court and other officers of the United States. And there's two kinds: principal officers, which need to be confirmed by the Senate, and inferior officers, which do not need to be confirmed by the Senate.
UW Law: Which services are at risk if the Affordable Care Act's preventive care mandate is struck down?
EP: Preventive services that would be at risk are cancer screenings, screenings for lung cancer, colon cancer, breast cancer, cervical cancer, and others, medications that prevent the spread of HIV, and also childhood immunizations and other medications for children and infants.
UW Law: How would a potential ruling against the preventive care mandate affect out-of-pocket expenses?
EP: If the preventive care mandate was struck down, it would mean that insurers are not required to cover these services and are not required to cover them without cost to the patient. So, from a patient's point of view, they would either need to decide to forego those services or pay out of pocket for those services.
UW Law: What are some worries that ACA proponents have if the preventive care mandate is struck down?
EP: The preventive care mandate was intended to reduce cost as a barrier to essential health care. It was also designed to reduce health care costs overall, to improve health outcomes and also to reduce health care disparities. So, there's a deep concern that reinstituting cost as a barrier to these essential services will cause us to lose the momentum and progress we've made on those goals.
UW Law: Do you have any additional thoughts on this case you would like to share?
EP: I think it's important to put this case in perspective. It's part of a long line of challenges to the Affordable Care Act beginning almost the day it was passed, and likely to continue. This is the challenge to the preventive health care services portion.