Amicus Curiae Brief — Robert F. Kennedy, Jr., Secretary of Health and Human Services, et al., Petitioners v. Braidwood Management, Inc., et al.

No. 24-316

IN THE

Supreme Court of the United States

_________

ROBERT F. KENNEDY, JR., SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.,

Petitioners,

v.

BRAIDWOOD MANAGEMENT INC., ET AL.,

Respondents.

________

On Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

________

BRIEF OF THE CENTER FOR HIV LAW AND POLICY

AND OTHER LEADING HEALTH POLICY AND

REPRODUCTIVE JUSTICE ORGANIZATIONS AS

AMICI CURIAE IN SUPPORT OF PETITIONERS

________

S. MANDISA MOORE-O’NEAL

KAE GREENBERG

CENTER FOR HIV LAW AND

POLICY

147 Prince Street

Brooklyn, NY 11201

JULIUS J. MITCHELL

JENNER & BLOCK LLP

1155 Avenue of the Americas

New York, NY 10036

(212) 891-1600

DAVID W. DEBRUIN

Counsel of Record

EMANUEL POWELL III

ILLYANA A. GREEN

JENNER & BLOCK LLP

1099 New York Avenue NW

Suite 900

Washington, DC 20001

(202) 639-6000

ddebruin@jenner.com

Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................... iii

INTEREST OF AMICI CURIAE .................................. 1

STATEMENT ..................................................................... 5

SUMMARY OF ARGUMENT ......................................... 9

ARGUMENT ..................................................................... 11

I. Members of the U.S. Preventive Services

Task Force Are Inferior Officers Who Are

Subordinate To The HHS Secretary. ................. 11

A. The Task Force Members are

Removable at Will and Subject to the

HHS Secretary’s Direct Supervision. .......... 13

B. The Other Three Factors Are Also Met. ..... 15

1. Narrow Jurisdiction. ................................. 16

2. Certain, Limited Duties. .......................... 20

3. Limited Tenure. ......................................... 22

II. The Task Force Makes Critical, EvidenceBased Recommendations to Improve Health

Outcomes Nationwide. .......................................... 25

A. The Task Force’s Mandate Is Narrow,

But Critical to Developing Objective and

Evidence-Based

Preventive

Care

Services Recommendations. .......................... 25

B. The Task Force’s Recommendations

Have Had an Immeasurable Impact on

the Southern Black and Brown LGBTQ+

Communities Amici Serve.............................. 27

ii

CONCLUSION ................................................................. 35

iii

TABLE OF AUTHORITIES

CASES

Buckley v. Valeo, 424 U.S. 1 (1976) (per

curiam), superseded by statute as stated

in McConnell v. Federal Election

Commission, 540 U.S. 93 (2003) ........................... 11

Collins v. Yellen, 594 U.S. 220 (2021) ........................ 14

Edmond v. United States, 520 U.S. 651

(1997) ..................................................... 12, 13, 14, 15,

16, 21, 23

Free Enterprise Fund v. Public Co.

Accounting Oversight Board, 537 F.3d

667 (D.C. Cir. 2008), aff’d in part, rev’d

in part, and remanded 561 U.S. 477

(2010) ........................................................................ 13

Free Enterprise Fund v. Public Co.

Accounting Oversight Board, 561 U.S.

477 (2010) ........................................................... 13, 14

Karsner v. Lothian, 532 F.3d 876 (D.C. Cir.

2008) .......................................................................... 18

Mistretta v. United States, 488 U.S. 361

(1989) ........................................................................ 26

Morrison v. Olson, 487 U.S. 654 (1988) .. 11, 12, 14, 16,

17, 21, 22, 23, 27

Pennsylvania v. United States Department

of Health & Human Services, 80 F.3d

796 (3d Cir. 1996) .................................................... 24

iv

Stanley v. Gonzales, 476 F.3d 653 (9th Cir.

2007) .......................................................................... 24

Utility Audit, Inc. v. Horace Mann Service

Corp., 383 F.3d 683 (7th Cir. 2004) ....................... 19

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S. Const. art. II, § 2, cl. 2 ......................................... 11

42 U.S.C. § 299b-4(a) .................................................... 19

42 U.S.C. § 299b-4(a)(1)............................ 6, 9, 17, 18, 21

42 U.S.C. § 299b-4(a)(2)(A) .......................................... 21

42 U.S.C. § 299b-4(a)(2)(C) .......................................... 22

42 U.S.C. § 299b-4(a)(2)(F) .......................................... 22

42 U.S.C. § 299b-4(a)(4)................................................ 22

42 U.S.C. § 299b-4(a)(6)................................................ 18

42 U.S.C. § 299b-4(c) .............................................. 19, 20

42 U.S.C. § 300gg-13 ..................................................... 20

42 U.S.C. § 300gg-13(a)(1) ............................................. 9

42 U.S.C. § 300gg-22(a) ................................................ 20

42 U.S.C. § 300gg-22(b) ................................................ 20

42 U.S.C. § 300gg-22(b)(1) ........................................... 20

Healthcare Research and Quality Act of

1999, Pub. L. No. 106–129, 113 Stat 1653 .............. 6

Patient Protection and Affordable Care Act,

Pub. L. No. 111-148, 124 Stat. 119 (2010) .............. 8

v

LEGISLATIVE MATERIALS

Agency for Health Care Policy and

Research Role in Health Care Quality

Improvement: Hearing Before the

Subcomm. on Public Health and Safety

of the S. Comm. on Labor and Human

Resources, 105th Cong. (1998) ........................ 25, 26

Examining the United States Preventive

Services Task Force: Hearing Before the

Subcomm. on Health of the H. Comm. on

Energy and Commerce, 114th Cong.

(2016) ................................................................ 5, 9, 34

Prevention and Public Health: The Key to

Transforming Our Sickcare System:

Hearing Before the S. Comm. on Health,

Education, Labor, and Pensions, 110th

Cong. (2008) ........................................................27-28

S. Rep. No. 106-82 (1999) ....................................... 25, 26

OTHER AUTHORITIES

A & B Recommendations, U.S. Preventive

Services Task Force, https://bit.ly/

3JnxC7m (last visited Feb. 25, 2025) ................... 29

Cagdas Agirdas & Jordan G. Holding,

Effects of the ACA on Preventive Care

Disparities, 16 Applied Health Econ. &

Health Pol’y 859 (2018) .......................................... 33

vi

Nick Armstrong & Rachel Klein, PreExposure

Prophylaxis:

Coverage,

Compliance, and Ending the HIV

Epidemic, The Aids Inst. (2024),

https://bit.ly/3D6HC54 ..................................... 29, 32

Samantha Artiga & Anthony Damico,

Health and Health Coverage in the

South: A Data Update, Kaiser Family

Foundation

(Feb.

10,

2016),

https://bit.ly/4gQkfdQ ............................................ 28

Samantha Artiga et al., Survey on Racism,

Discrimination

and

Health:

Experiences and Impacts Across Racial

and Ethnic Groups, KFF (Dec. 5, 2023),

https://bit.ly/4hIegJx .............................................. 31

Gabriel A. Benavidez et al., Chronic Disease

Prevalence

in

the

US:

Sociodemographic and Geographic

Variations by Zip Code Tabulation

Area, 21 Prev. Chronic Disease 1 (Feb.

2024) .......................................................................... 28

Cancer Facts & Figures for African

American/Black People 2022-2024, Am.

Cancer Soc’y, Inc. (2022) ........................................ 33

Cancer

Facts

&

Figures

for

Hispanic/Latino People 2024-2026 Am.

Cancer Soc’y, Inc. (2024) ...................................28-29

vii

Lorraine T. Dean et. al., Estimating the

Impact of Out-of-Pocket Cost Changes

On Abandonment of HIV Pre-Exposure

Prophylaxis, 43 Health Affairs 36

(2024), https://bit.ly/4kg5BzG................................ 32

Maria Godoy, Black Americans Expect to

Face Racism in the Doctor’s Office,

Survey Finds, NPR (Dec. 5, 2023),

https://bit.ly/4hHMoVQ ......................................... 31

Sayward E. Harrison et al., “Do I want

PrEP or do I want a roof?”: Social

Determinants of Health and HIV

Prevention in the Southern United

States, 34 AIDS Care 1435 (2022) ........................ 32

The Impact of HIV on Black People in the

United States, KFF (Sep. 9, 2024),

https://bit.ly/4b2l2qV.............................................. 28

The Impact of HIV on Hispanic/Latino

People in the United States, KFF (Oct.

15, 2024), https://bit.ly/41k3a7z ............................. 28

Whitney C. Irie et al., Where do we go from

here? Reconciling implementation

failure of PrEP for Black women in the

South. Leveraging critical realism to

identify unaddressed barriers as we

move forward., Frontiers Reprod.

Health (2024), https://bit.ly/41u8wx9 ............. 29, 30

viii

Marquisha Jones & Jill Rosenthal, How the

Affordable Care Act Improved Access to

Preventive Health Services, Ctr. for Am.

Progress

(July

10,

2024),

https://bit.ly/43h94ro ........................................ 27, 33

Leading

Causes

of

Death,

CDC,

https://bit.ly/4k7m1dI (last reviewed

Oct. 25, 2024)............................................................ 28

National Center for Health Statistics,

Health, United States, 2020-2021:

Annual

Perspective

(2023),

https://bit.ly/3CW0bZT .......................................... 30

OLC Opinion, Officers of the United States

Within

the

Meaning

of

the

Appointments Clause (Apr. 16, 2007) ................. 11

Our Members, U.S. Preventive Services

Task Force, https://bit.ly/3Qoevxd (last

visited Feb. 25, 2024) ................................................ 6

A. David Paltiel et al., Increased HIV

Transmissions

With

Reduced

Insurance

Coverage

for

HIV

Preexposure Prophylaxis: Potential

Consequences

of

Braidwood

Management v. Becerra, Open Forum

Infectious Diseases, Vol. 10, Issue 3,

(Mar. 2023), https://bit.ly/3EMiyRt...................... 10

Pre-Exposure Prophylaxis, HIV.gov (last

updated

Feb.

7,

2025),

https://bit.ly/4h2VifD ............................................. 29

ix

Laura Skopec & Jessica Banthin, Free

Preventive Services Improve Access to

Care, Urban Inst. (2022) ........................................ 32

Solicitation for Nominations for Members

of the U.S. Preventive Services Task

Force (USPSTF), 87 Fed. Reg. 2436

(Jan. 14, 2022) ............................................................ 7

Steven W. Thrasher, The Viral Underclass:

The Human Toll When Inequality and

Disease Collide (2022) ............................................ 31

U.S. Preventive Services Task Force,

Procedure Manual (2021)................................ 6, 7, 8

U.S. Preventive Services Task Force,

USPSTF: Who We Are & How We Work

(2022) .......................................................................... 8

Sam Whitehead, PrEP Prevents HIV

Infections, but it’s Not Reaching Black

Women,

NPR

(Oct.

3,

2023),

https://bit.ly/41hheid .............................................. 30

Tiara C. Willie et al., Where’s the “Everyday

Black Woman”? An Intersectional

Qualitative Analysis of Black Women’s

Decision-making Regarding HIV Preexposure Prophylaxis (PrEP) in

Mississippi, 22 BMC Pub. Health 1604

(2022), https://bit.ly/4ieMXWP ........................30-31

Alexis Wojtowicz et al., Closing Evidence

Gaps in Clinical Prevention (2022) ............... 5, 6, 7

INTEREST OF AMICI CURIAE1

Amici are leading health policy and reproductive

justice organizations committed to serving lesbian, gay,

bisexual, transgender, and queer (“LGBTQ+”) and

Black, Indigenous, and People of Color (“BIPOC”) in the

Southern United States who are disproportionately

vulnerable to preventable health conditions. For these

conditions, early detection and preventive services,

including those recommended by the U.S. Preventive

Services Task Force (“USPSTF” or “Task Force”), are

critical. Further, removal of financial barriers for such

preventive services pursuant to the preventive care

mandate of the Patient Protection and Affordable Care

Act (“ACA”), 42 U.S.C. § 300gg-13, is one of the most

effective tools amici have to ensure the health and wellbeing of their communities. Amici write to explain the

legal errors of the lower court’s decision and to provide

unique insights, based on their direct experience

working

with

disproportionately

vulnerable

communities, how the outcome of this case will impact

access to critical preventive services such as diabetes

screening, cancer prevention measures, and numerous

other preventive interventions recommended by the

USPSTF.

The Center for HIV Law and Policy (“CHLP”) is a

national, abolitionist legal and policy organization

fighting to end stigma, discrimination, and violence

1

Pursuant to Rule 37.6, counsel for amici curiae state that no

counsel for a party authored this brief in whole or in part, and no

person or entity other than amici or their counsel has made a

monetary contribution to the preparation or submission of this

brief.

2

against people living with and vulnerable to human

immunodeficiency virus (“HIV”) and other stigmatized

health conditions. CHLP utilizes legal advocacy, highimpact policy and research initiatives, and the creation

of multi-issue partnerships, networks, and resources to

support its communities. CHLP operates within and

around criminal, legal, and public health systems at the

state and federal levels to craft policies that amplify the

power of mobilizations for systemic change guided by

racial, gender, and economic justice. CHLP collaborates

with people living with HIV, organizers and base

builders, direct service providers, and national

organizations to identify, create, and share expertly

crafted, intersectional legal and policy resources and

advocacy strategies.

The Afiya Center is a reproductive justice

organization centered on transforming the lives of Black

women and girls in Texas. This case directly impacts

Afiya Center’s mission to advocate for comprehensive

healthcare access for Black communities in Texas,

particularly those affected by HIV. The Afiya Center

serves as a crucial support system for Black Texans

living with HIV, many of whom rely on preventive care

services mandated by the ACA.

The potential

elimination of the requirement that health plans cover

pre-exposure prophylaxis (“PrEP”) medications without

cost-sharing would have devastating consequences for

the community the Afiya Center serves. Texas already

faces significant disparities in HIV prevention and

treatment, with Black individuals accounting for a

disproportionate number of new HIV diagnoses in the

state.

3

Women With A Vision (“WWAV”) is a Louisianabased organization working to improve the lives of

marginalized women, their families, and communities by

addressing the social conditions that hinder their health

and well-being. WWAV accomplishes this through

relentless advocacy, health education, supportive

services, and community-based participatory research.

WWAV was founded in direct response to the

HIV/AIDS epidemic, to ensure that its communities

received the resources necessary to prevent the

transmission of HIV. Thirty-five years later, WWAV

continues to lead this work through the implementation

of Louisiana’s Ending the HIV Epidemic Initiative,

alongside community-based organizations, healthcare

and direct service providers, and health departments.

Equality Federation is a national advocacy

organization dedicated to advancing equality for lesbian,

gay, bisexual, transgender, and queer people across the

United States, that has a substantial interest in ensuring

LGBTQ+ individuals can lead fulfilling lives free from

discrimination, with unimpeded access to essential

healthcare services. As an organization at the forefront

of LGBTQ+ advocacy, Equality Federation seeks to

provide this Court with crucial insights into the realworld implications of the Fifth Circuit’s decision.

PrEP In Black America (“the Coalition”) is a

coalition of Black HIV prevention advocates from across

the country that mobilizes communities around various

policy issues that impact access to PrEP, for the

prevention of HIV. The Coalition convenes community

members through in-person summits, virtual webinars,

and workshops at leading HIV and sexual health

4

conferences. Through community engagement, the

Coalition generates reports and statements to engage

key stakeholders such as legislators, as well as local,

state, and federal public health officials.

SisterLove, Inc., founded in 1989, is the first

women’s HIV, Sexual and Reproductive Justice

organization in the southeastern United States

dedicated to eradicating the adverse impact of HIV, and

sexual and reproductive health rights and justice

challenges impacting women and their families, gender

expansive and LGBTQ+ individuals, and others from

marginalized communities. SisterLove operates at the

intersection of human rights and social justice, focusing

on education, prevention, support, research, and legal

and political advocacy both in the United States and

internationally.

BlaqOut is a Black-led organization dedicated to

advancing the health and well-being of Black LGBTQ+

communities through culturally responsive care,

advocacy, and public health innovation. Central to its

work is ensuring access to lifesaving HIV prevention

tools, particularly PrEP. The USPSTF awarded PrEP

an “A” rating based on its proven efficacy in preventing

HIV transmission. BlaqOut’s proprietary public health

interventions have achieved a 96% adherence rate

among members—a rate among the highest documented

nationally. Given the Center for Disease Control’s

(“CDC”) 2016 projection that one in two Black men who

have sex with men will contract HIV in their lifetime

without substantial reductions in transmission rates,

continued cost-free access to PrEP is essential.

Restricting access would reverse critical progress,

5

endangering

the

lives

of

those

disproportionately impacted by HIV.

already

STATEMENT

Established in 1984, under the Reagan

Administration, the United States Preventive Services

Task Force (“Task Force”) was originally convened by

Edward N. Brandt, assistant secretary of the

Department of Health and Human Services (“HHS”),

building upon “the innovative work of the Canadian

Task Force on the Periodic Health Examination” that

“began issuing preventive service recommendations in

the late 1970s.”2 The Task Force was formed as “an

independent nonpartisan expert panel” to provide

evidence-based recommendations that “inform care” and

serve as “useful guides for all stakeholders about what

the evidence tells us about which preventive services

work.”3 From its inception, the Task Force’s role was

focused on “evaluat[ing] the science on the benefits and

harms of a given preventive service and to inform the

public so they can make informed decisions about their

healthcare.”4

2

Alexis Wojtowicz et al., Closing Evidence Gaps in Clinical

Prevention 28 (2022).

3

Examining the United States Preventive Servs. Task Force:

Hearing Before the Subcomm. on Health of the H. Comm. on

Energy and Comm., 114th Cong. 6, 14 (2016) [hereinafter

Examining the United States Preventive Task Force] (statement of

Kirsten Bibbins-Domingo, M.D., Chairperson, U.S. Preventive

Services Task Force).

4

Id. at 14.

6

Over its more than 40-year history, the Task Force’s

primary contribution has been the creation of reports

identifying effective clinical preventive services

following a rigorous review of peer-reviewed evidence.5

Congress codified the Task Force’s role by legislation in

1999, authorizing the Director of the Agency for

Healthcare Research and Quality (“AHRQ”)—an

agency “established within the Public Health Service”—

to “periodically convene” the Task Force.6 The Task

Force’s initial reports, the Guide to Clinical Preventive

Services, were published in 1989, 1996, and 2002.7 The

Task Force has continued to issue its recommendations

periodically “as well as ‘pocket guides’ with abridged

recommendations the task force had issued individually

in the preceding years.”8

Today, the Task Force is composed of 16 volunteers

“with appropriate expertise,” 42 U.S.C. § 299b-4(a)(1), in

preventive medicine and primary care, including

“nationally recognized experts” in “behavioral health,

family medicine, geriatrics, internal medicine,

pediatrics, obstetrics and gynecology, and nursing.”9

5

Alexis Wojtowicz et al., supra note 2, at 28-30.

6

Healthcare Research and Quality Act of 1999, Pub. L. No. 106-129,

113 Stat 1653.

7

Alexis Wojtowicz et al., supra note 2, at 28-29; see also U.S.

Preventive Services Task Force, Procedure Manual 1 (2021)

[hereinafter Procedure Manual].

8

9

Alexis Wojtowicz et al., supra note 2, at 29-30.

Our Members, U.S. Preventive Services

https://bit.ly/3Qoevxd (last visited Feb. 25, 2025).

Task

Force,

7

Members of the Task Force can be removed at any time

by the AHRQ Director. See Pet. App. 18a-19a. Task

Force members serve limited, four-year terms, see

Solicitation for Nominations for Members of the U.S.

Preventive Services Task Force (USPSTF), 87 Fed.

Reg. 2436, 2436-37 (Jan. 14, 2022), allowing the Task

Force’s work to benefit from new expertise on an

ongoing basis. New volunteers are selected following a

rigorous selection process focused on ensuring each

member can support the Task Force’s mandate to create

“balanced, independent, objective, and scientifically

rigorous product,” including the Task Force’s

“recommendation statements.”10

On average, each recommendation statement by the

Task Force takes three years to complete,11 and is

“based on a body of scientific evidence that is derived

from systematic evidence reviews.”12 During that time,

the Task Force selects topics through an open

nomination process, develops a rigorous research plan

with public comment, reviews peer-reviewed evidence

as part of the research process, and drafts preliminary

and final recommendations after public comment.13

Recommendations resulting from this process

receive a grade: A, B, C, D, or I.14 The Task Force

10

Procedure Manual, supra note 7, at 2-3.

11

Alexis Wojtowicz et al., supra note 2, at 30.

12

Procedure Manual, supra note 7, at 47.

13

Alexis Wojtowicz et al., supra note 2, at 30-31.

14

Procedure Manual, supra note 7, at 48.

8

recommends a preventive service for those receiving an

A or B, recognizing the Task Force’s certainty that the

preventive service will have a moderate to substantial

net benefit on health outcomes.15 The Task Force

assigns a C grade when there is a “moderate certainty

that the net benefit is small” and therefore recommends

healthcare providers offer the service “based on

professional judgment and patient preferences.”16 The

Task Force issues a D grade when the evidence shows

the service has no benefit or the “harms outweigh the

benefits,” and an I grade when “the current evidence is

insufficient to assess the balance of benefits and harms

of the service.”17

The Task Force has developed recommendations for

over 80 different preventive services topics, ranging

“from vision screening in young children, to heart

disease prevention in adults, to colorectal cancer

screening in older adults.”18 When passing the ACA,

Congress decided that private insurers should not

impose cost-sharing requirements to cover preventive

services that have “a rating of ‘A’ or ‘B’ in the current

recommendations of the [USPSTF].”19

15

Id.

16

Id.

17

Id.

18

U.S. Preventive Services Task Force, USPSTF: Who We Are &

How We Work 1 (2022).

19

Patient Protection and Affordable Care Act, Pub. L. No. 111-148,

124 Stat 119 (2010) (codified at 42 U.S.C. § 300gg-13(a)(1)).

9

While Congress expanded the use of the Task

Force’s recommendations in the ACA, the volunteer

body’s mandate has remained limited and consistent

over its 40-year history, namely “to evaluate the science

on the benefits and harms of a given preventive service

and to inform the public so they can make informed

decisions about their healthcare.”20

SUMMARY OF ARGUMENT

The Task Force works to improve the lives of

Americans nationwide by recommending preventive

medical services, such as screenings and medications, to

avoid serious health conditions. Under the ACA,

Congress requires health insurance issuers and health

plans to cover certain preventive services recommended

by the Task Force without imposing any cost-sharing

requirements on patients. 42 U.S.C. § 300gg-13(a)(1).

The Fifth Circuit’s decision would jeopardize the ACA’s

guarantee of cost-free coverage for the Task Force’s

recommended services—a measure that ensures more

than 150 million Americans’ access to life-saving

healthcare.

Amici submit that Congress’s choice to empower the

Task Force should be upheld. The Task Force sits

within the Public Health Service, over which the HHS

Secretary exercises supervisory authority. Moreover,

the HHS Secretary may remove Task Force members at

will, and these members have a limited mandate: issue

20

Examining the United States Preventive Task Force, supra note

3, at 14; see also 42 U.S.C. § 299b-4(a)(1).

10

evidence-based

recommendations

preventive health services.

concerning

Contrary to the Fifth Circuit’s decision, the Task

Force’s structure does not violate the Appointments

Clause of the Constitution, art. II, § 2, cl. 2. Task Force

members are removable at will, are supervised by

superiors, and have narrow jurisdiction, limited duties,

and limited tenure. Under this Court’s precedents, Task

Force members are inferior officers who are subordinate

to the HHS Secretary. Upending the scheme that

Congress crafted would have severe practical

consequences for millions of Americans who benefit from

no-cost preventive services based on the Task Force’s

recommendations.

Further, amici write to emphasize the importance of

Task Force recommendations and no-cost preventive

care on public health in America. No-cost preventive

care reduces the incidence of many diseases and other

health conditions—from cardiovascular disease to

diabetes to HIV—thereby improving quality of life and

reducing premature death. For example, one study

estimates that if allowed to stand, the Fifth Circuit’s

ruling in the first year alone “will result in more than

2000 entirely preventable primary HIV infections … and

many more infections in other populations at high risk of

HIV transmission.”21 For the communities that amici

21

A. David Paltiel et al., Increased HIV Transmissions With

Reduced Insurance Coverage for HIV Preexposure Prophylaxis:

Potential Consequences of Braidwood Management v. Becerra,

Open Forum Infectious Diseases, Vol. 10, Issue 3, at 3 (Mar. 2023),

https://bit.ly/3EMiyRt.

11

serve, the Task Force’s recommendations improve

access to critical, life-saving health care.

Amici therefore respectfully request that this Court

reverse the Fifth Circuit’s decision.

ARGUMENT

I.

Members of the U.S. Preventive Services Task

Force Are Inferior Officers Who Are

Subordinate to The HHS Secretary.

The Appointments Clause of the Constitution

empowers the President to:

nominate, and by and with the Advice and Consent

of the Senate, … appoint ... all other Officers of the

United States, whose Appointments are not herein

otherwise provided for, and which shall be

established by Law: but the Congress may by Law

vest the Appointment of such inferior Officers, as

they think proper, in the President alone, in the

Courts of Law, or in the Heads of Departments.

U.S. Const. art. II, § 2, cl. 2. The clause limits the

exercise of certain kinds of governmental power to those

persons appointed pursuant to the special procedures

provided for officers. See Buckley v. Valeo, 424 U.S. 1,

125-26 (1976) (per curiam), superseded by statute as

stated in McConnell v. Fed. Election Comm’n, 540 U.S.

93 (2003); OLC Opinion, Officers of the United States

Within the Meaning of the Appointments Clause (Apr.

16, 2007).

For purposes of appointment, the Constitution

“divides all its officers into two classes.” Morrison v.

Olson, 487 U.S. 654, 670 (1988) (quoting United States v.

12

Germaine, 99 U.S. 508, 509 (1878)). “[P]rincipal officers

are selected by the President with the advice and

consent of the Senate.” Id. While “[g]enerally speaking,

the term ‘inferior officer’ connotes a relationship with

some higher ranking officer or officers below the

President,” “[w]hether one is an ‘inferior’ officer

depends on whether he has a superior.” Edmond v.

United States, 520 U.S. 651, 662 (1997). Thus, “inferior

officers” are “officers whose work is directed and

supervised at some level by others who were appointed

by Presidential nomination with the advice and consent

of the Senate.” Id. at 663.

The Clause therefore establishes two tiers of

officers—principal and inferior—and provides different

appointment processes for each. As this Court has

repeatedly held, the Clause’s delineation of principal and

inferior officers is “among the significant structural

safeguards of the constitutional scheme” and is

“designed to preserve political accountability relative to

important Government assignments.” Id. at 659, 663.

Though this Court has not “set forth an exclusive

criterion for distinguishing between principal and

inferior officers,” id. at 661, its precedents set forth

“several factors” that guide its analysis, including

whether the officer: (1) “was subject to removal by a

higher officer,” (2) only performed “limited duties,” (3)

has limited jurisdiction, and (4) limited tenure. Id.

Indeed, looking to these factors, this Court has held that

the independent counsel created by provisions of the

Ethics in Government Act of 1978, 28 U.S.C. §§ 591-599,

was an inferior officer, Morrison, 487 U.S. at 695-97; that

judges of the Coast Guard Court of Criminal Appeals

13

were inferior officers, Edmond, 520 U.S. at 661; and that

members of the Public Company Accounting Oversight

Board were inferior officers, Free Enterprise Fund v.

Public Co. Accounting Oversight Board, 561 U.S. 477,

510 (2010).

Here, all four factors are met, confirming that the

Task Force members are inferior officers for purposes of

the Appointments Clause.

A. The Task Force Members are Removable at

Will and Subject to the HHS Secretary’s Direct

Supervision.

This Court’s cases have recognized that the key

threshold question in determining whether an officer is

inferior is whether the officer is removable at will. In

Edmond, this Court held that judges of the Coast Guard

Court of Criminal Appeals were inferior officers in part

because they could be removed by the Judge Advocate

General “without cause.” 520 U.S. at 664. This Court

noted that “[t]he power to remove officers” at will and

without cause “is a powerful tool for control” of an

inferior. Id.; see also Free Enter. Fund v. Pub. Co. Acct.

Oversight Bd., 537 F.3d 667, 707 (D.C. Cir. 2008)

(Kavanaugh, J., dissenting) (noting that “Edmond was a

relatively easy case” because “[t]he officers were

removable at will”), aff’d in part, rev’d in part, and

remanded 561 U.S. 477 (2010).

In Free Enterprise Fund, then-Judge Kavanaugh

reasoned that “[r]emovability at will carries with it the

inherent power to direct and supervise,” which connotes

an officer’s inferiority for purposes of the Appointments

Clause. 537 F.3d at 707. In holding that members of the

14

Public Company Accounting Oversight Board were

inferior officers, this Court relied heavily on the fact that

the “statutory restrictions on the Commission’s power

to remove Board members” was “unconstitutional and

void,” without which the Commission could “remove

Board members at will.” Free Enterprise Fund, 561

U.S. at 510. Likewise, Justice Scalia’s dissent in

Morrison reasoned that if the independent counsel there

had been “removable at will by the Attorney General,

then she would [have been] subordinate to him and thus

properly designated as inferior.” 487 U.S. at 716 (Scalia,

J., dissenting).

The rule that emerges from this Court’s precedents

dictates that “the term ‘inferior officer’ connotes a

relationship with some higher-ranking officer or officers

below the President.” Edmond, 520 U.S. at 662. In

other words, “[w]hether one is an ‘inferior’ officer

depends on whether he has a superior.” Id. Moreover,

this Court has repeatedly held that at-will removal is the

sine qua non of inferior officer status.

Applying that framework here, Task Force members

are inferior officers. The Fifth Circuit acknowledged

that an “officer’s removability” is the “most important”

“hallmark[] of inferiority.” Pet. App. 17a. That factor is

met here. As the Fifth Circuit acknowledged, “the HHS

Secretary may remove members of the Task Force at

will.” Pet. App. 18a-19a (reasoning that 42 U.S.C.

§ 229b-4(a)(6) cannot be construed to “inhibit the HHS

Secretary from removing the Task Force members at

his will”); cf. Collins v. Yellen, 594 U.S. 220, 248 (2021)

(“When a statute does not limit the President’s power to

remove an agency head, we generally presume that the

15

officer serves at the President’s pleasure.”). Moreover,

as the Government emphasizes in its brief, the HHS

Secretary has direct supervisory authority over the

Task Force and can deny binding effect to their

preventive services recommendations. See Pet’r Br. 2630.

In sum, that the HHS Secretary has the power to

“control” Task Force members “by removal”

“establishe[d] that the [members] here have the

necessary superior.” Edmond, 520 U.S. at 667 (Souter,

J., concurring in part).

B. The Other Three Factors Are Also Met.

This Court considers three other factors when

determining whether an officer is inferior under the

Appointments Clause. The Fifth Circuit overlooks these

factors, which are relevant indicia of inferiority. The

Court in Edmond recognized that its prior cases did “not

set forth an exclusive criterion for distinguishing

between principal and inferior officers,” but that its

decision in Morrison was guided by “several factors:

that the [officer] was subject to removal by a higher

officer . . . that she performed only limited duties, that

her jurisdiction was narrow, and that her tenure was

limited,” 520 U.S. at 661 (citing Morrison, 487 U.S. at

671-72).

As discussed supra, the Task Force members are

removable at-will and supervised by the HHS

Secretary. The other three factors—limited duties,

narrow jurisdiction, and limited tenure—are also

satisfied. We begin with narrow jurisdiction.

16

1.

Narrow Jurisdiction.

The Task Force has narrow jurisdiction.

Its

members make recommendations regarding specific

types of care for a specific subset of the healthcare

community subject to review of a specific set of clinical

preventive best practice recommendations.

Its

“recommendations,” plainly read, are mere suggestions

or proposals for actions authorized to be taken only by

the HHS Secretary. Finally, the Task Force has no

authority whatsoever to enforce its recommendations.

That authority lies instead with the 50 states and the

HHS Secretary.

When deciding if an officer is inferior, the Court

examines whether an officer is “limited in jurisdiction.”

Edmond, 520 U.S. at 661. In Edmond, this Court

concluded that the military judges at issue were not

‘“limited in jurisdiction,’ as used in Morrison to refer to

the fact that an independent counsel may investigate

and prosecute only those individuals, and for only those

crimes, that are within the scope of jurisdiction granted

by the special three judge appointing panel.” Id. In

Morrison, the Court concluded that “the Act itself [was]

restricted in applicability to certain federal officials

suspected of certain serious federal crimes,” and “c[ould]

only act within the scope of the jurisdiction” granted by

“the Special Division [of the U.S. Court of Appeals for

the District of Columbia Circuit] pursuant to a request

by the Attorney General.” 487 U.S. at 672. There, Title

VI of the Ethics in Government Act granted the

independent counsel, (once requested by the Attorney

General and appointed by the Special Division), “full

power and independent authority to exercise all

17

investigative and prosecutorial functions and powers of

the Department of Justice, the Attorney General, and

any other officer or employee of the Department of

Justice”—with a minor exception for matters requiring

“personal action” by the Attorney General alone. Id. at

660-63, 663 n.6 (emphasis added). The scope of such

jurisdiction, upon consideration of the Attorney

General’s request, was specifically defined by the

Special Division. Id. at 661.

Likewise, the Task Force is limited in jurisdiction.

First, Task Force members are limited in that they make

“recommendations” for a specific type of care for a

specific subset of the healthcare community. Initially

“convene[d]” only by the AHRQ Director, the Task

Force “shall review” “scientific evidence” and

“develop[]” and “updat[e]” “previous clinical preventive

recommendations” “for the health care community.” 42

U.S.C. § 299b-4(a)(1). Upon being “convene[d]” by the

AHRQ Director, the ACA provides that the Task Force

is

restricted

to

only

“clinical

preventive

recommendations,” id. (emphasis added)—as opposed to

a much broader range of care, which might include

diagnostic or therapeutic care for the management and

treatment of existing medical conditions. Under Section

299b-4(a)(1), the “recommendations” are then

“published in the Guide to Clinical Preventive Services”

for a specific group—“individuals and organizations

delivering clinical services”—rather than a more

expansive group that might include pivotal non-clinical

roles in the areas of hospital administration, research,

and patient data management.

18

Second, the Act also limits the Task Force’s scope of

review to a narrow set of “clinical preventive best

practice recommendations” from specific groups,

including “from the Agency for Healthcare Research

and Quality,” which retains authority to convene the

Task Force. 42 U.S.C. § 299b-4(a)(1). The relevant

provision provides that Task Force “recommendations”

“shall consider clinical preventive best practice

recommendations from the Agency for Healthcare

Research and Quality, the National Institutes of Health,

the Centers for Disease Control and Prevention, the

Institute of Medicine, specialty medical associations,

patient groups, and scientific societies.” Id. (emphasis

added). Task Force recommendations, therefore, must

consider best practice recommendations from other

federal agencies such as the NIH and the CDC.22

Further, the ACA requires the Task Force to make

“recommendations,” which, plainly read, constrains its

authority.

A “recommendation” is defined as a

suggestion or proposal for a particular course of action.

Karsner v. Lothian, 532 F.3d 876, 886-87 (D.C. Cir. 2008)

(“‘Recommend’ is defined as to suggest that (a particular

action) should be done.” (internal quotation marks and

22

We briefly note that this provision also highlights the Fifth

Circuit’s legally erroneous overreading of “independent and, to the

extent practicable, not subject to political pressure.” 42 U.S.C.

§ 299b-4(a)(6). Congress intended the Task Force to be independent

only insofar as its recommendations and free from political

influence. Mandating that the Task Force consider specific best

practice recommendations from other federal agencies such as the

NIH and the CDC, in addition to its members’ removability at will

and the direct supervision by the HHS Secretary, demonstrates

that the Task Force’s role is quite constrained in scope.

19

citation omitted)); Utility Audit, Inc. v. Horace Mann

Serv. Corp., 383 F.3d 683, 687 (7th Cir. 2004)

(“‘[R]ecommendation’ is defined as a suggestion that

something is good or suitable for a particular job, while

‘recommend’ is defined as to suggest that (a particular

action) should be done.” (cleaned up)).

As the

Government has explained, the HHS Secretary, and not

the Task Force, retains the sole authority to determine

whether and when certain recommendations become

binding on private parties. Pet’r Br. 26-30. The Task

Force, therefore, merely makes suggestions or

proposals, while the HHS Secretary performs the

affirmative action that gives the recommendations legal

effect.

The use of “recommendation” elsewhere in the Act is

consistent with that interpretation.

Part B of

Subchapter VII of the ACA, which amends the role of

the Task Force, further supports that the meaning of

“recommendation” is a mere suggestion or proposal.

Part B mandates that the HHS Secretary act “through

the … Task Force” to “conduct a series of studies

designed to identify preventive interventions that can

be delivered in the primary care setting and that are

most valuable to older Americans.” 42 U.S.C. § 299b4a(a). It also stipulates that the HHS Secretary, once a

year, “shall submit to Congress a report on the

conclusions of the studies conducted . . . “together with

recommendations

for

such

legislation

and

administrative actions as the Secretary considers

appropriate.” 42 U.S.C. § 299b-4a(c) (emphasis added).

In other words, as part of this annual report, the HHS

Secretary, through the Task Force, provides its

20

suggestions or proposals to Congress about a separate

course of action—specifically “for such legislation and

administrative actions as the Secretary considers

appropriate.” Id. These “recommendations” further

reflect Congress’s intent that the Task Force’s

jurisdiction be limited in scope.

Finally, the Task Force has no investigative or

prosecutorial authority to enforce its recommendations,

which requires group health plans and individual health

issuers to provide coverage with no cost-sharing for

certain “evidence-based items or services” in the Task

Force’s “current recommendations.” 42 U.S.C. § 300gg13. Enforcement authority for this provision, including

the potential imposition of civil penalties, lies with the

states and the HHS Secretary, not the Task Force. 42

U.S.C. § 300gg-22(a)-(b) (explaining enforcement

authority of each state and the Secretary to enforce

provisions of Part A or Part D, including the imposition

of penalties). As argued by the Government, the Task

Force also lacks the authority to determine whether and

when their recommendations become binding. Pet’r Br.

26-30. Congress expressly placed that authority in the

hands of the HHS Secretary. 42 U.S.C. § 300gg-13(b)(1)

(“The Secretary shall establish a minimum interval

between the date on which a recommendation . . . is

issued and the plan year with respect to which the

requirement . . . is effective with respect to the service

described in such recommendation”).

2.

Certain, Limited Duties.

As mentioned supra, the Task Force is authorized to

“review

scientific

evidence”

and

“develop[]

recommendations” for specific types of care for specific

21

individuals and groups and, in doing so, must consider

specific best practice recommendations. 42 U.S.C.

§ 299b-4(a)(1). The duties set forth in the ACA that

follow from this narrow jurisdiction are limited in scope.

To determine if an officer is inferior, the Court in

Edmond wrote that it examined whether the officer had

“performed only limited duties.” 520 U.S. at 661. In

Morrison, the Court concluded that the independent

counsel had limited duties because her role, as compared

to other prosecutors, was “restricted primarily to

investigation and, if appropriate, prosecution for certain

federal crimes.” 487 U.S. at 671. Though the statute

there delegated “full power and independent authority

to exercise all investigative and prosecutorial functions

and powers of the Department of Justice,” the Court

emphasized that such authority “does not include any

authority to formulate policy for the Government or the

Executive Branch, nor does it give [the independent

counsel] any administrative duties outside of those

necessary to operate her office.” Id. at 671-72 (internal

quotation marks and citation omitted). It further noted

that the statute “specifically provides that in policy

matters [the independent counsel] is to comply to the

extent possible with the policies of the Department.” Id.

at 672.

Task Force duties align with the limited authority

extended to its members. For example, the statutory

provision establishing the Task Force requires that its

duties “shall include” “development of additional topic

areas for new recommendations and interventions

related to those topic areas,” 42 U.S.C. § 299b-4(a)(2)(A),

and “submission of yearly reports to Congress and

22

related agencies identifying gaps in research, . . . and

recommending priority areas that deserve further

examination,” 42 U.S.C. § 299b-4(a)(2)(F). These duties

are consistent with the limited jurisdiction of the Task

Force to “develop[]” and “updat[e]” “recommendations”

regarding clinical preventive care.

Furthermore, the Task Force has a statutory duty to

develop recommendations not unilaterally or arbitrarily,

but in coordination with the Federal Government’s

health policy and objectives, 42 U.S.C. § 299b-4(a)(2)(C)

(duties “shall include . . . improved integration with

Federal Government health objectives and related

target setting for health improvement”), and by

“tak[ing] appropriate steps to coordinate its work with

the Community Preventive Services Task Force and the

Advisory Committee on Immunization Practices,” 42

U.S.C. § 299b-4(a)(4). And, as mentioned supra, the

Task Force makes recommendations subject to specific

types of care for specific subsets of the healthcare

community and must consider certain best practices

recommendations for clinical preventive care from other

federal entities such as the NIH and the CDC. Thus, the

Task Force “does not [have] any authority to formulate

policy for the Government or the Executive Branch, nor

. . . any administrative duties outside of those necessary

to operate [its] office.” Morrison, 487 U.S. at 671-72.

3.

Limited Tenure.

Finally, Task Force members are sufficiently limited

in tenure. They each serve a fixed four-year term and

have no ongoing duties beyond said term. The Task

Force’s tenure is even more limited than the

independent counsel in Morrison, who was statutorily

23

permitted to serve under an indefinite term until the

Special Division or the independent counsel herself

decided otherwise.

Another factor the Court has considered is whether

an officer is “limited in tenure.” Edmond, 520 U.S. at

661. In Morrison, the Court reasoned that there was

“concededly no time limit on the appointment of a

particular [independent] counsel,” but that the office

was nevertheless ‘“temporary’ in the sense that an

independent counsel is appointed essentially to

accomplish a single task, and when that task is over the

office is terminated, either by the counsel herself or by

action of the Special Division.” 487 U.S. at 672.

The independent counsel from Morrison had “no

time limit on the appointment” and was still deemed

“limited in tenure.” Id. However, Task Force members

serve four-year terms, with annual turnover. Moreover,

Task Force members are removable at will, so their

terms can be cut short at any time.

Neither

Respondents nor the Fifth Circuit have pointed to

anything in the ACA or any caselaw that would bar the

HHS Secretary from removing a member of the Task

Force before the end of their four-year term. And there

is no language in the ACA indicating that Task Force

members maintain responsibilities beyond the end of

their term. In other words, Task Force members are

“appointed essentially to accomplish a single task, and

when that task is over the office is terminated, . . . [with]

no ongoing responsibilities that extend beyond the

accomplishment of the mission . . . appointed for and

authorized by the [Act] to undertake.” Id.

24

Two federal appellate decisions are persuasive on

this point. Relying on Morrison, the Third Circuit has

ruled that Appeals Board members appointed by the

HHS Secretary were inferior officers even where they

served

terms

“not

restricted

in duration.”

Pennsylvania v. U.S. Dep’t of Health & Hum. Servs., 80

F.3d 796, 803 (3d Cir. 1996). Balancing the other factors,

including that the HHS Secretary could “remove a

member for cause or misconduct at any time” and the

Appeals Board’s “powers and responsibilities [we]re

limited by regulation,” the court found that the Board

members were inferior officers. Id. at 803-04. The court

specifically rejected an argument that the Board

members were principal officers because they “will

serve indefinitely unless removed for misconduct.” Id.

at 802. And in Stanley v. Gonzales, a former federal

bankruptcy trustee appointed by the Attorney General

challenged her subsequent removal as a violation of the

Appointments Clause. 476 F.3d 653, 655 (9th Cir. 2007).

Reasoning that her role was “limited geographically,

temporally, and topically” and that she was “initially

appointed to a five-year term,” the Ninth Circuit ruled

that the Morrison factors meant that “[i]f she was an

officer at all, she was most certainly an inferior officer.”

Id. at 659-60. Here, Task Force members are removable

at any time, are supervised by the HHS Secretary, and

serve shorter terms than the officers deemed inferior in

Pennsylvania (indefinite) and Stanley (five years).

In sum, the three other factors relied upon to

determine if an officer is inferior—narrow jurisdiction,

limited duties, and limited tenure—are satisfied and

therefore weigh in favor of concluding that Task Force

25

members are inferior officers. Accordingly, this Court

should reverse the Fifth Circuit’s determination that

Task Force members are not inferior officers.

II.

The Task Force Makes Critical, EvidenceBased Recommendations to Improve Health

Outcomes Nationwide.

Congress has ensured that the Task Force provides

evidence-based recommendations that allow millions of

Americans to access critical preventive health care

services at no-cost.

A. The Task Force’s Mandate Is Narrow, But

Critical to Developing Objective and EvidenceBased

Preventive

Care

Services

Recommendations.

Congress codified the Task Force by statute in the

face of increasing “public pressure to improve health

Escalating

care quality” in the United States.23

instances of medical errors served as one cause of

“growing public concern,” with a reputable study at the

time “of more than 30,000 hospital patients in New York

f[inding] that nearly 4[%] suffered serious injuries that

were related to the management of their illness rather

than the illness itself.”24 Congress asked whether the

23

Agency for Health Care Policy and Research Role in Health Care

Quality Improvement: Hearing Before the Subcomm. on Public

Health and Safety of the S. Comm. on Labor and Human

Resources, 105th Cong. 2 (1998) [hereinafter Hearing] (opening

statement of Sen. William H. Frist).

24

S. Rep. No. 106-82, at 12 (1999).

26

Federal Government had “the ability … to make a

difference.”25

Congressional hearings uncovered an overall “lack of

information available to consumers. . . . to make

appropriate choices” about their care as one “primary”

barrier to improved health care quality in the United

States.26 Despite the country’s “growing investment in

basic and biomedical research,” Congress recognized

that any benefits would be forfeited if “physicians and

patients [we]re unable to make the best use of the

knowledge in everyday care.”27 The answer: provide

“objective, science-based information” so that “patients

and those who deliver care [have] the information they

need to make informed decisions regarding treatment

options.”28

Set against this backdrop, it makes perfect sense that

Congress structured the Task Force so that it could

focus on its limited mandate to develop objective,

evidence-based recommendations on the effectiveness of

different preventive services. It is further well within

the authority of Congress to ultimately determine that

such research findings should be covered by insurers to

encourage better preventive health outcomes for people

across the United States. Cf. Mistretta v. United States,

488 U.S. 361, 385 (1989) (“[M]ere anomaly or innovation”

25

Hearing, supra note 23, at 2.

26

S. Rep., supra note 24, at 9.

27

Id. at 13.

28

Id. at 12.

27

does not violate the separation of powers). This Court

has recognized that Congress has the authority to make

these judgments, and such judgments do not offend the

President’s removal power. See, e.g., Morrison, 487 U.S.

at 686 (reasoning that Congress could limit the

President’s power of removal through a for-cause

provision without offending the Constitution).

B. The Task Force’s Recommendations Have Had

an Immeasurable Impact on the Southern Black

and Brown LGBTQ+ Communities Amici

Serve.

Americans have reaped the benefits of Congress’s

decision to ensure that the Task Force’s objective,

evidence-based

recommendations

inform

which

preventive services are covered by private insurers

without cost-sharing. People have increased access to

life-saving preventive care, and taxpayer dollars are not

being spent to treat preventable conditions.29 Under the

current structure, the Task Force remains subject to the

HHS Secretary’s supervisory authority while properly

focused on developing recommendations that allow both

patients and healthcare providers to better “prevent

unnecessary diseases and conditions, things like obesity

and type 2 diabetes, heart disease, mental health

conditions, and some forms of cancer.”30

29

See generally Marquisha Jones & Jill Rosenthal, How the

Affordable Care Act Improved Access to Preventive Health

Services,

Ctr.

for

Am.

Progress

(July

10,

2024),

https://bit.ly/43h94ro.

30

Prevention and Public Health: The Key to Transforming Our

Sickcare System: Hearing Before the S. Comm. on Health,

28

The impact of the Task Force’s recommendations

cannot be overstated, especially in the context of

breaking down the numerous barriers to equitable

health care access faced by the Black and Brown

communities that amici serve in the Southern United

States. Historically and presently, Southerners face

greater risk of “certain chronic illnesses” and are

disproportionately likely “to experience worse health

outcomes” than the rest of the United States.31 Recent

studies have identified “a high prevalence of chronic

disease” in the South, recognizing that many such

illnesses are leading causes of death nationwide despite

being “preventable and treatable.”32 Such illnesses

include cancer, diabetes, heart disease, and, particularly

for Black and Brown Southerners, HIV.33

Education, Labor, and Pensions, 110th Cong. 2 (2008) (opening

statement of Senator Tom Harkin).

31

Samantha Artiga & Anthony Damico, Health and Health

Coverage in the South: A Data Update, Kaiser Family Found., at 3

(Feb. 10, 2016), https://bit.ly/4gQkfdQ.

32

Gabriel A. Benavidez et al., Chronic Disease Prevalence in the

US: Sociodemographic and Geographic Variations by Zip Code

Tabulation Area, 21 Prev. Chronic Disease 1 (Feb. 2024).

33

See Leading Causes of Death, CDC, https://bit.ly/4k7m1dI (last

reviewed Oct. 25, 2024); The Impact of HIV on Black People in the

United States, KFF (Sept. 9, 2024), https://bit.ly/4b2l2qV (“[I]n 2021

HIV was the 8th leading cause of death for Black men and for Black

women ages 25-34.”); The Impact of HIV on Hispanic/Latino

People in the United States, KFF (Oct. 15, 2024),

https://bit.ly/41k3a7z (“Rates for deaths where HIV was indicated

as the leading cause of death are second highest among

Hispanic/Latino people (after Black people) compared to people of

other race/ethnicities.”); Cancer Facts & Figures for

29

For each of these conditions, among others, the Task

Force developed recommendations for critical

preventive services that have mitigated their impact

nationwide.34 While increased access to preventive care

without cost-sharing has decreased the divide, Black

Southerners, especially Black women and members of

the LGBTQ+ community, remain particularly

vulnerable to fully preventable conditions.

One condition exemplifying the continuing

importance of Task Force recommendations is HIV.

Unlike in decades past, preexposure prophylaxis, or

PrEP, makes HIV a preventable condition, having an

incredible 99% efficacy rate.35 However, “[w]hile an

estimated 94% of white people [nationwide] who could

benefit from PrEP have a prescription,”36 only 10% of

Black women in the United States who could benefit

from being prescribed PrEP are receiving it.37 Instead,

Hispanic/Latino People 2024-2026 American Cancer Society, Inc.

(2024) (“Cancer is the second leading cause of death among Hispanic

people, accounting for 17% of deaths.”).

34

See generally A & B Recommendations, U.S. Preventive Services

Task Force, https://bit.ly/3JnxC7m (last visited Feb. 25, 2025).

35

Pre-Exposure Prophylaxis, HIV.gov, https://bit.ly/4h2VifD (last

updated Feb. 7, 2025).

36

Nick Armstrong & Rachel Klein, Pre-Exposure Prophylaxis:

Coverage, Compliance, and Ending the HIV Epidemic, The Aids

Inst. 2 (2024), https://bit.ly/3D6HC54.

37

Whitney C. Irie et al., Where do we go from here? Reconciling

implementation failure of PrEP for Black women in the South.

Leveraging critical realism to identify unaddressed barriers as we

30

Black women acquire HIV 20 times more frequently

than white women.38 Non-Hispanic Black people are

four times more likely to die from HIV than any other

racial or ethnic group.39

Consider the story of Alexis Perkins, a twenty-fiveyear-old Black cisgender woman living in Atlanta,

Georgia.

After learning more about the risk of

contracting HIV during a sexual health education

course, she visited her healthcare provider to request a

prescription for PrEP.40 But she left empty-handed

after being told that while the “provider had heard of it”

they were not comfortable prescribing it given the

provider’s limited experience with PrEP.41

Alexis Perkins’s story is commonplace among

members of the communities that amici serve. It is

important to emphasize that the higher prevalence of

HIV among people of color is not due to individuals

engaging in risky behavior.42 Limited education in

move forward., Frontiers

https://bit.ly/41u8wx9.

38

Reprod.

Health,

at

2

(2024),

Id.

39

National Center for Health Statistics, Health, United States,

2020-2021:

Annual

Perspective,

at

12

(2023),

https://bit.ly/3CW0bZT.

40

Sam Whitehead, PrEP Prevents HIV Infections, But it’s Not

Reaching Black Women, NPR (Oct. 3, 2023), https://bit.ly/41hheid.

41

42

Id.

See, e.g., Tiara C. Willie et. al., Where’s the “Everyday Black

Woman”? An Intersectional Qualitative Analysis of Black

Women’s Decision-making Regarding HIV Pre-exposure

31

preventive strategies among healthcare providers is

just one of many barriers that continue to stymie access

to preventive care in the South, despite the preventive

care mandates of the ACA. Rurality, transportation

barriers, and limited access to providers also generally

impede access to preventive care. And Black and Brown

adults are “much more likely than their white

counterparts to report having negative interactions

during health care visits.”43

Cost serves as another critical barrier to preventive

care for Black and Brown Southerners. To maintain a

PrEP prescription, for example, patients not only have

to secure medication, which, if uncovered, costs

thousands of dollars per month, but also commit to

periodic doctor’s visits and related preventive services

including, among other things, HIV testing, STI

screening and counseling, and testing regarding their

Prophylaxis (PrEP) in Mississippi, 22 BMC Public Health 1604

(2022), https://bit.ly/4ieMXWP; see also Steven W. Thrasher, The

Viral Underclass: The Human Toll When Inequality and Disease

Collide 179 (2022) (“Black queer men’s behavior doesn’t account for

our heightened viral risk; we actually have been shown to have

fewer sexual partners and engage in less recreational drug use than

our white peers. What we have is more exposure to racism and less

protection from prophylaxis.”).

43

Maria Godoy, Black Americans Expect to Face Racism in the

Doctor’s Office, survey finds, NPR (Dec. 5, 2023),

https://bit.ly/4hHMoVQ; see also Samantha Artiga et al., Survey on

Racism, Discrimination and Health: Experiences and Impacts

Across Racial and Ethnic Groups, KFF (Dec. 5, 2023),

https://bit.ly/4hIegJx.

32

kidney function.44 Inability to pay the associated costs of

PrEP has been shown to be a driving force in people not

taking, or not remaining on, a lifesaving medication.45

Congress’s decision to remove cost burdens for the Task

Force’s A- and B-grade recommendations addresses this

critical problem in ensuring improved quality of

healthcare for all Americans.

HIV prevention provides just one example of the

impact that no-cost coverage of the Task Force’s

preventive care recommendations has had. “[I]ncreases

in blood pressure screenings, cholesterol screenings,

colorectal cancer screenings, human papillomavirus

vaccines, and flu vaccines” followed the ACA’s

requirement to cover key preventive services without

cost-sharing.46

For most types of cancer, Black people have the

highest death rates and shortest survival rates of any

racial/ethnic group in the United States. Black women

are 41% more likely to die from breast cancer than white

44

Armstrong & Klein, supra note 36, at 10.

45

See Lorraine T. Dean et. al., Estimating the Impact of Out-ofPocket Cost Changes On Abandonment of HIV Pre-Exposure

Prophylaxis,

43

Health

Affairs

36,

36-37

(2024),

https://bit.ly/4kg5BzG; Sayward E. Harrison et al., “Do I want

PrEP or do I want a roof?”: Social Determinants of Health and HIV

Prevention in the Southern United States, 34 AIDS Care 1435, 1437

(2022).

46

Laura Skopec & Jessica Banthin, Free Preventive Services

Improve Access to Care, Urban Inst., at 2 (2022).

33

women.47 That statistic is even more striking because

fewer Black women are diagnosed with breast cancer

With the advent of ACA

than white women.48

preventive care coverage, Black women are 2.4% more

likely to get a mammogram, a low percentage with a

large impact.49 This increase in screenings, especially for

Black and Brown communities, is directly tied to

decreasing cancer deaths and increasing the chances of

early diagnoses and treatment.50

If the Fifth Circuit’s decision is left standing by this

Court, the cost will be dire. To speak plainly, without

access to the coverage of the preventive care

recommended by the Task Force, Black and Brown

Southerners are going to die. It is counterintuitive to

abandon a statutory structure that has increased the

availability of lifesaving, evidence-based preventive

care services, when now, even though their provision is

mandated, Black Southerners still struggle to access

them.

Under these circumstances, the Task Force plays a

critical role.

The Task Force’s “recommendation

47

Cancer Facts & Figures for African American/Black People

2022-2024, Am. Cancer Soc’y, Inc., at 12 (2022).

48

Id.

49

Cagdas Agirdas & Jordan G. Holding, Effects of the ACA on

Preventive Care Disparities, 16 Applied Health Econ. & Health

Pol’y 859 (2018).

50

See generally Marquisha Jones & Jill Rosenthal, supra note 29

(noting that access has led to “better health outcomes, disease

prevention, and health promotion activities”).

34

statements are more than just the letter grade and

contain detailed information about the primary

evidence,

how

one

might

implement

the

recommendation, and about populations that are

disproportionately burdened by the condition we seek to

prevent.”51

Healthcare providers in Southern

communities who wish to better serve their patients

have access to important information on the efficacy of

preventive care strategies. Patients are provided the

information they need to access the best care, without

cost barriers and based on objective, evidence-based

recommendations. This work is done by the Task Force

under the supervision and at-will removal authority of

the HHS Secretary, as Congress intended, and the

Constitution allows.

51

Examining the United States Preventive Task Force, supra note

3, at 8.

35

CONCLUSION

For the foregoing reasons, amici respectfully request

that this Court reverse the decision below.

February 25, 2025

Respectfully submitted,

S. MANDISA MOORE-O’NEAL

KAE GREENBERG

CENTER FOR HIV LAW AND

POLICY

147 Prince Street

Brooklyn, NY 11201

DAVID W. DEBRUIN

Counsel of Record

EMANUEL POWELL III

ILLYANA A. GREEN

JENNER & BLOCK LLP

1099 New York Avenue NW

Suite 900

Washington, DC 20001

(202) 639-6000

ddebruin@jenner.com

JULIUS J. MITCHELL

JENNER & BLOCK LLP

1155 Avenue of the Americas

New York, NY 10036

(212) 891 1600

Counsel for Amici Curiae