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.,

v.

Petitioners,

BRAIDWOOD MANAGEMENT, INC., et al.,

Respondents.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

————

BRIEF OF AMICUS CURIAE ASSOCIATION OF

AMERICAN PHYSICIANS AND SURGEONS

IN SUPPORT OF RESPONDENTS

————

ANDREW L. SCHLAFLY

939 OLD CHESTER ROAD

FAR HILLS, NJ 07931

(908) 719-8608

aschlafly@aol.com

March 26, 2025

Counsel for Amicus Curiae

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

i

QUESTIONS PRESENTED

The Affordable Care Act requires health insurers

to cover “preventive health services.” 42 U.S.C. §

300gg-13(a). It also empowers the U.S. Preventive

Services Task Force (“Task Force”) to dictate and

decree the preventive items and services that insurers

must cover. See 42 U.S.C. § 300gg-13(a)(1). A separate

statute requires that the Task Force members and

their preventive-care coverage edicts be “independent

and, to the extent practicable, not subject to political

pressure.” 42 U.S.C. § 299b-4(a)(6).

The court of appeals held that Task Force members

must be appointed as “principal” officers because the

Task Force wields “significant authority” under the

laws of the United States, and because 42 U.S.C. §

299b-4(a)(6) shields the Task Force and its

recommendations from “direction and supervision” by

others. And because the Task Force was not appointed

by the president with Senate confirmation, the court

of appeals enjoined the government from enforcing the

Task Force’s preventive care coverage mandates

against the plaintiffs. The questions presented are:

1. Did the court of appeals correctly hold that Task

Force members are “principal” officers under

Article II’s Appointments Clause?

2. Did the court of appeals correctly refuse to issue

a remedy that would “sever,” i.e., nullify, 42 U.S.C.

§ 299b-4(a)(6) and empower the HHS Secretary to

direct and supervise the Task Force’s preventivecare coverage decisions?

ii

TABLE OF CONTENTS

Pages

Questions Presented .....................................................i

Table of Contents ........................................................ ii

Table of Authorities ................................................... iii

Interests of Amicus Curiae .......................................... 1

Summary of Argument ................................................ 2

Argument...................................................................... 5

I. Forcing Private Businesses to Fund Medications

For Risky Lifestyles, Especially Without Political

Accountability or Cost-Sharing, Renders Medical

Care Less Affordable for All ........................................ 5

A. “Free” Medications Interfere with the Free

Market, Inflate Medical Care Prices Overall,

and Cause More Harm than Good ......................... 5

B. Forcing Businesses to Pay for PrEP Requires

More Political Accountability than the Task

Force Has ................................................................ 8

II. Severance Here Would Be an Improper Judicial

Rewrite of the Statute, Thereby Constituting

Judicial Activism ....................................................... 13

III. Imposing, by Administrative Fiat, D.C.

Culture on Texas as Sought by the Petition Is a

Recipe for National Disunity ..................................... 16

Conclusion .................................................................. 18

iii

TABLE OF AUTHORITIES

Pages

Cases

Ass’n of Am. Physicians & Surgs. v. Clinton,

997 F.2d 898 (D.C. Cir. 1993) ................................ 1

Ass’n of Am. Physicians & Surgs. v. Mathews, 423

U.S. 975 (1975) ....................................................... 1

Ass’n of Am. Physicians & Surgs. v. Tex. Med. Bd.,

627 F.3d 547 (5th Cir. 2010) .................................. 1

Ayotte v. Planned Parenthood, 546 U.S. 320 (2006) . 15

Bituminous Cas. Corp. v. J & L Lumber Co.,

373 F.3d 807 (6th Cir. 2004) ................................ 17

Connolly v. Union Sewer Pipe Co., 184 U.S. 540

(1902) .................................................................... 15

Crystal Semiconductor Corp. v. Tritech

Microelectronics Int’l, Inc., 246 F.3d 1336

(Fed. Cir. 2001) ..................................................... 12

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) .............................................. 18

Florida v. Becerra, 544 F. Supp. 3d 1241

(M.D. Fla. 2021) ...................................................... 8

Howard Hess Dental Labs. Inc. v. Dentsply Int’l,

Inc., 424 F.3d 363 (3d Cir. 2005) ......................... 12

Kimble v. Marvel Entm’t, 576 U.S. 446 (2015) ......... 13

Little Sisters of the Poor Saints Peter & Paul

Home v. Pennsylvania, 591 U.S. 657 (2020) .......... 3

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ......................................... 2, 10

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) . 15

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519

(2012) ...................................................................... 1

Trade-Mark Cases, 100 U.S. 82 (1879) ..................... 15

iv

United States v. Arthrex, Inc.,

594 U.S. 1 (2021) ............................................ 15, 16

United States v. Crescendo Bioscience, Inc.,

No. 16-cv-02043-TSH, 2020 U.S. Dist. LEXIS

90940 (N.D. Cal. May 23, 2020) ............................ 7

Util. Air Regulatory Grp. v. EPA,

573 U.S. 302 (2014) ................................................ 4

West Virginia v. EPA, 597 U.S. 697 (2022) ................. 4

United States v. Reese, 92 U.S. 214 (1876) ............... 15

Constitution and Statutes

Appointments Clause, U.S. CONST. Art. II, § 2, cl. 2 ... i

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

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

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

Patient Protection and Affordable Care Act, Pub.

L. No. 111-148, 124 Stat. 119.................................. i

Minn. Stat. Ann. § 611.17 (c)....................................... 8

Other Authorities

ABA Section of Antitrust Law, Proving Antitrust

Damages: Legal and Economic Issues (1996) ...... 12

B.M. Autry, et al., Mifepristone (StatPearls

Publishing: 2024) .................................................. 17

R. Chou, C. Evans, A. Hoverman, et al.,

“Preexposure Prophylaxis for the Prevention of

HIV Infection: Evidence Report and Systematic

Review for the US Preventive Services Task

Force,” JAMA (June 11, 2019)

https://jamanetwork.com/journals/jama/

fullarticle/2735508................................................ 11

Mitch Daniels, “America could use a shot of

P.J. about now,” Washington Post A17

(Feb. 14, 2025) ........................................................ 1

v

Sean Dickson and Katelyn James, “Trends in

HIV preexposure prophylaxis utilization and

spending among individuals with commercial

insurance,” AIDS (Mar. 15, 2024)

https://pmc.ncbi.nlm.nih.gov/articles/

PMC10906206/ ....................................................... 9

Marcus Dillender, et al., “Effects of the Affordable

Care Act on Part-Time Employment Early

Evidence,” 314 Cato Research Briefs in

Economic Policy 2 (Jan. 4, 2023) ........................... 6

CMS FAQS About Affordable Care Act

Implementation Part 47,

https://www.cms.gov/CCIIO/Resources/FactSheets-and-FAQs/Downloads/FAQs-Part-47.pdf .. 9

Federalist No. 10 (Madison, J.) ................................. 13

David H. Gans, “Severability as Judicial

Lawmaking,” 76 Geo. Wash. L. Rev. 639

(April 2008) ........................................................... 15

Kristen Gerencher, “5 Ways to Save on PrEP

Costs (With or Without Insurance),” GoodRx

(Aug. 25, 2022)

https://www.goodrx.com/truvada/truvada-hivprep-cost-generic-how-to-save................................ 9

“Hungary: Parliament Bans Gay Pride Parade,”

FSSPX News (Mar. 21, 2025)

https://tinyurl.com/y2bzpzst................................. 17

Katie Keith, “New Guidance On PrEP: Support

Services Must Be Covered Without

Cost-Sharing” (July 28, 2021)

https://tinyurl.com/2a75h6em .............................. 16

Kenneth A. Klukowski, “Severability Doctrine:

How Much of a Statute Should Federal Courts

Invalidate?”,

16 Tex. Rev. Law & Pol. 1 (Fall 2011) .................. 15

vi

David Lerman, “House passes wrapup spending

package ahead of Friday deadline” Roll Call

(Mar. 11, 2025)

https://rollcall.com/2025/03/11/house-passeswrapup-spending-package-ahead-of-fridaydeadline/............................................................... 18

“Let’s Stop HIV Together,” CDC (Feb. 18, 2025)

https://www.cdc.gov/stophivtogether/hivprevention/prep.html............................................ 11

Anna Massoglia, “Record-breaking federal lobbying

tops $2.2 billion in first half of 2024” (Aug. 29,

2024), https://tinyurl.com/25397mmj................... 17

Medication Guide, TRUVADA® (tru-VAH-dah)

https://www.gilead.com/~/media/Files/pdfs/

medicines/hiv/truvada/truvada_medication_

guide.pdf ............................................................... 10

“Obamacare Has Doubled the Cost of Individual

Health Insurance,” Heritage Foundation

(Mar. 21, 2021).

https://www.heritage.org/health-carereform/report/obamacare-has-doubled-the-costindividual-health-insurance .................................. 6

“PrEP4ALL Applauds The Updated USPSTF

Grading Adding Long-Acting PrEP, But

Demands Gov’t Action to Ensure Access”

(Dec. 13, 2022), https://tinyurl.com/mshx2kan ..... 9

Margot Rubin, “Billboard promoting Alberta to join

USA pops up north of Calgary,” CityNews

Everywhere (Feb. 21, 2025)

https://calgary.citynews.ca/2025/02/20/

billboard-canada-usa-alberta-highway-2/ ...... 17-18

Paul A. Samuelson, Economics (11th ed. 1980)........ 12

Shelby County Health Department,

https://tinyurl.com/bdex4fdt ................................... 9

vii

Michael Shumsky, “Severability, Inseverability,

and the Rule of Law,”

41 Harv. J. on Legis. 228 (2004) .......................... 15

Task Force Member Joel Tsevat,

https://www.uspreventiveservicestaskforce.org/

uspstf/about-uspstf/current-members/

joel-tsevat-md-mph................................................. 4

Task Force Member Sei Lee,

https://www.uspreventiveservicestaskforce.org/

uspstf/about-uspstf/current-members/joel-tsevatmd-mph ................................................................... 4

Jennifer Tolbert, et al., “Key Facts about the

Uninsured Population” (Dec 18, 2024)

https://www.kff.org/uninsured/issue-brief/keyfacts-about-the-uninsured-population/ .................. 7

“Wait Till It’s Free” (film, 2014) .................................. 1

1

INTERESTS OF AMICUS CURIAE1

Amicus Association of American Physicians and

Surgeons (“AAPS”) is a national association of

physicians, founded in 1943. AAPS is dedicated to

protecting the patient-physician relationship, and has

been a litigant in this Court and in other appellate

courts. See, e.g., Ass’n of Am. Physicians & Surgs. v.

Mathews, 423 U.S. 975 (1975); Ass’n of Am. Physicians

& Surgs. v. Tex. Med. Bd., 627 F.3d 547 (5th Cir. 2010);

Ass’n of Am. Physicians & Surgs. v. Clinton, 997 F.2d

898 (D.C. Cir. 1993). AAPS filed an amicus brief in

defense of the Constitution in the landmark case

decided by this Court concerning the Affordable Care

Act (“ACA”) in Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012).

For more than 80 years AAPS has been an advocate

of the free market in medical care, and adherence to

the principles of the U.S. Constitution. AAPS has

consistently been an opponent of socialism and

government mandates for “free” medical care.

Members of AAPS were featured in the documentary

movie “Wait Till It’s Free” (2014) as produced by Colin

Gunn, which takes its title from this observation by

satirist P.J. O’Rourke: “If you think health care is

expensive now, wait until you see what it costs when

it's free.” Mitch Daniels, “America could use a shot of

P.J. about now,” Washington Post A17 (Feb. 14, 2025).

1 Pursuant to Rule 37.6, counsel for amicus curiae authored this

brief in whole, no counsel for a party authored this brief in whole

or in part, and no such counsel or a party made a monetary

contribution intended to fund the preparation or submission of

this brief. No person or entity – other than this amicus curiae, its

members, and its counsel – contributed monetarily to the

preparation or submission of this brief.

2

AAPS has strong interests in opposing mandates

that impose expensive medical obligations by

administrative fiat, in bypass of the checks-andbalances required by the U.S. Constitution.

SUMMARY OF ARGUMENT

There is no such thing as “free” medical care, and

the push for it by Petitioners and their amicus briefs

is detrimental to the overall access and affordability of

treatment. Requiring subsidies for free access to

medication interferes with the healthy market forces

that drive down retail prices for every good and

service. In addition, co-pays and insurance deductibles

are essential in medical care to deter overuse and

waste. The mandate at issue here for completely free

use by employees of costly medication, without any copay or insurance deductible, is both unconstitutional

and economically harmful.

If Congress blunders while complying with the

Constitution, then repeal might be the only available

option. But here Congress has allowed unaccountable

administrators to cause havoc in violation of the

Constitution. The resultant economic harm is the

handiwork of the administrative state, which has run

amok and must be reined in. The era of judicial

deference to the runaway administrative state should

be finished, as this Court made clear last term in Loper

Bright. It is tyranny for mandates to be imposed by

faceless, never-confirmed bureaucrats while they dine

with K-Street lobbyists.

The administrative mandate in this case forces

millions of ACA-covered businesses to pay tens of

thousands of dollars annually, to benefit merely one or

a few employees, for medication to reduce the risk of

3

HIV while engaging in a lifestyle prone to it. Without

any co-payment requirement, there is no guardrail

against misuse. The medication does not prevent

many other types of sexually transmitted diseases,

and has a side effect of worsening the sexually

transmitted Hepatitis B. The medication can create a

false sense of security, as daily consumption of the

drug is essential to its effectiveness, yet in studies noncompliance was common. There were no congressional

hearings in connection with imposing this mandate,

and instead this decision was made by members of the

Task Force who are appointed by the Secretary of

Health & Human Services (“HHS”) for four-year

terms, without Senate approval.

If its authority is upheld here, the Task Force could

act in the future without political accountability to

impose a mandate for no-cost abortifacient

mifepristone on businesses nationwide. The dissent in

Little Sisters of the Poor quoted the statutory grant of

authority to the Task Force, and viewed this as not

allowing the exemption sought. Little Sisters of the

Poor Saints Peter & Paul Home v. Pennsylvania, 591

U.S. 657, 717 (2020) (Ginsburg and Sotomayor, JJ.,

dissenting). The dissent favorably quoted assertions

that contraception has preventive benefits, id. at 714,

and there are similar assertions about mifepristone

such that the Task Force could mandate it next.

Despite the transformative presidential election

last November in favor of deregulation, the members

of the Task Force remain insulated from public

opinion. For example, Joel Tsevat, M.D., M.P.H.,

began serving on the Task force in 2023 and his term

4

presumably lasts until 2027.2 University of California

at San Francisco Professor Sei Lee, M.D., M.A.S.,

joined the Task Force in 2024, and thus his term lasts

until 2028, which will be President Trump’s last year

in office.3 The Task Force wields vast economic power

over millions of American businesses, apparently

without any responsiveness to the electorate, and this

Court should invalidate that administrative power.

“[W]e ‘typically greet’ assertions of ‘extravagant

statutory power over the national economy’ with

‘skepticism.’” West Virginia v. EPA, 597 U.S. 697, 724,

142 S. Ct. 2587, 2609 (2022) (quoting Util. Air

Regulatory Grp. v. EPA, 573 U.S. 302, 324 (2014)).

Salvaging the underlying statute by rewriting it is

inappropriate here, as the Fifth Circuit correctly ruled

below. The statute itself does not include a severability

clause, and it is far from clear that passage would have

occurred in Congress without this delegation to the

lobbyist-influenced Task Force. Petitioners grasp at a

few distinguishable precedents, including obscure

cases from 1829 and 1900, which did not actually sever

anything. Only Congress can correct its error, after

holding legislative hearings that include testimony

about how harmful mandates for free medical care are,

and how they are suffocating businesses.

Finally, disunity in our Nation is worsened by

federal administrative mandates, without political

accountability, as presented here. States and

businesses, many of which are entirely intrastate in

2 https://www.uspreventiveservicestaskforce.org/uspstf/about-

uspstf/current-members/joel-tsevat-md-mph (viewed Mar. 1,

2025).

3 https://www.uspreventiveservicestaskforce.org/uspstf/aboutuspstf/current-members/sei-lee-md-mas (viewed Mar. 1, 2025).

5

their employment, can themselves best decide which

preventive care should be offered to employees.

Mandates from D.C. having an unwanted cultural

impact on Texas are unhealthy for national unity, in

addition to being unconstitutional.

ARGUMENT

I.

Forcing Private Businesses to Fund

Medications For Risky Lifestyles, Especially

Without Political Accountability or CostSharing, Renders Medical Care Less

Affordable for All.

A mandate implicated here is not for a beneficial

screening for a medical condition, such as

mammograms or blood tests, despite the impression

left by many amicus briefs in support of Petitioners.

Inexpensive, widely beneficial screening tests, such as

$70 blood work to measure the prostate-specific

antigen (PSA) to test for prostate cancer or

mammograms to screen for breast cancer, are not what

this case is about. This case relates to an expensive

new mandate that benefits only those who choose to

partake in a high-risk lifestyle. The overall harm from

this exceeds its potential benefits, and greater political

accountability is required by the Constitution.

A. “Free” Medications Interfere with the Free

Market, Inflate Medical Care Prices Overall,

and Cause More Harm than Good.

This mandate prevents beneficial market forces

from lowering the price of the medication that

employees are being forced to fully subsidize. The

poorer segments of society, who arguably need this

HIV medication the most, are uninsured without ACAcovered full-time employment. They get whipsawed by

6

this mandate because it keeps the price of the

medication high. The tag-team of lobbyists and

administrators making this HIV drug free to those in

ACA has the effect of keeping the price exorbitantly

high for the 25 million American adults who lack

access to ACA-mandated insurance. The uninsured

would benefit most from preventive treatment, yet are

harmed by mandates that increase medical costs.

“Eleven years after the passage of Obamacare,

Americans buying health insurance under the law are

still worse off financially than before the health law

was enacted,” concluded the Heritage Foundation in

2021 concerning a period when overall inflation was

low. “Obamacare Has Doubled the Cost of Individual

Health Insurance,” Heritage Foundation (Mar. 21,

2021).4 Specifically, “the national average premium

increasing by 129 percent from 2013 to 2019.” Id.

A study by Cato showed that employers reduce

hours for employees to avoid the ACA mandates:

Using the same data, we estimated that the ACA

increased

low-hours,

involuntary

parttime

employment by 2–3 percentage points, or 500,000

to 1 million workers, in retail, accommodations,

and food services—the sectors where employers are

most likely to reduce hours if they choose to

circumvent the mandate.

Marcus Dillender, et al., “Effects of the Affordable

Care Act on Part-Time Employment Early Evidence,”

314 Cato Research Briefs in Economic Policy 2 (Jan. 4,

2023).

4 https://www.heritage.org/health-care-reform/report/obamacare-

has-doubled-the-cost-individual-health-insurance (viewed Mar.

15, 2025).

7

Government mandates for health care insurance

drive up the number of uninsured, who total 25 million

or about 10% of the adult population.5 As explained by

the San Francisco-based KFF, a leading health policy

organization, the high cost of insurance causes the

large uninsured population:

Many uninsured people cite the high cost of

insurance as the main reason they lack coverage.

In 2023, 63% of uninsured adults ages 18-64 said

that they were uninsured because the cost of

coverage was too high. Many uninsured people do

not have access to coverage through a job …. 6

Yet Petitioners’ amici flood this Court with

arguments that making medical care entirely free to

ACA-covered employees has the result of increasing

their usage of that free care. That raises the question

of the impact on those who do not have the free access,

and the additional harm from socialized medicine such

as lowering incentives to improve care.

The federal government and the American People

fully reject the approach of entirely free care as urged

by Petitioners and their amici. Medicare strictly

requires co-payment, and federal law even

criminalizes waiving the co-payment because it is so

essential to decrease the wasteful utilization of our

medical system. See, e.g., United States v. Crescendo

Bioscience, Inc., No. 16-cv-02043-TSH, 2020 U.S. Dist.

LEXIS 90940, at *9 (N.D. Cal. May 23, 2020) (“In an

Jennifer Tolbert, et al., “Key Facts about the Uninsured

Population” (Dec 18, 2024) https://www.kff.org/uninsured/issuebrief/key-facts-about-the-uninsured-population/ (analyzing the

uninsured population through 2023, viewed Mar. 15, 2025).

6 Id.

5

8

effort to conceal the scheme and avoid liability,

[defendant] informs its salespeople not to include

information on the capping and waiving of fees in

emails.”). Co-payments are sometimes even required

of defendants who receive free legal services. See, e.g.,

Minn. Stat. Ann. § 611.17 (c) (“Upon disposition of the

case, an individual who has received public defender

services shall pay to the court a $ 75 co-payment for

representation provided by a public defender, unless

the co-payment is, or has been, reduced in part or

waived by the court.”). There is no disincentive against

losing or otherwise wasting medication that is

provided free.

B. Forcing Businesses to Pay for PrEP

Requires More Political Accountability than

the Task Force Has.

While enjoining an overreaching “no sail order” by

the CDC against cruise ships during Covid, District

Court Judge Merryday aptly criticized how:

Courts have allowed an increasing hegemony to the

unelected, electorally unaccountable, and largely

anonymous executive agents, comfortably housed

in one of many formidable edifices in Washington,

D.C., or in a regional office, and doing who knows

what, for who knows what reason, and at who

knows whose instigation — but always answering

to no one (at least, no one that the citizenry can

perceive) and always reliably defended in their

pronouncements by a legion of lawyers, staff,

consultants, experts, and others, as well as litigious

special interest entities.

Florida v. Becerra, 544 F. Supp. 3d 1241, 1286 (M.D.

Fla. 2021).

9

An issue here is that the Task Force imposed a

nationwide mandate for pre-exposure prophylaxis for

HIV (PrEP), which is costly medication for those

expose themselves to HIV through narcotics or sexual

conduct.7 As explained by a public health website:

“There are two pills approved for use as PrEP:

Truvada® and Descovy®.”8 These PrEP medications

cost $22,000 to $30,000 annually,9 and the mandate

allows an employee to require a supply of the highpriced brand drug version rather than a less expensive

generic.10 “Commercial insurers in the sample spent

$295 million on PrEP in 2021, with $177 million spent

on Descovy, $31 million on Truvada and $87 million on

generic TDF/FTC.” Sean Dickson and Katelyn James,

“Trends in HIV preexposure prophylaxis utilization

and spending among individuals with commercial

insurance,” AIDS (Mar. 15, 2024).11 In addition, an

injectable, longer-lasting PrEP alternative, estimated

to cost $22,500 annually, has since been added to this

same Task Force mandate.12

7 CMS FAQS About Affordable Care Act Implementation Part

47, https://www.cms.gov/CCIIO/Resources/Fact-Sheets-andFAQs/Downloads/FAQs-Part-47.pdf (viewed Mar. 22, 2025).

8 Shelby County Health Department,

https://tinyurl.com/bdex4fdt (viewed Mar. 24, 2025).

9 Kristen Gerencher, “5 Ways to Save on PrEP Costs (With or

Without Insurance),” GoodRx (Aug. 25, 2022)

https://www.goodrx.com/truvada/truvada-hiv-prep-cost-generichow-to-save (viewed Mar. 22, 2025).

10 See supra n.7, at 2, 5.

11 https://pmc.ncbi.nlm.nih.gov/articles/PMC10906206/ (viewed

Mar. 22, 2025).

12 “PrEP4ALL Applauds The Updated USPSTF Grading Adding

Long-Acting PrEP, But Demands Gov’t Action to Ensure Access”

10

Despite this enormous expense, the Task Force

requires that every business subject to the Affordable

Care Act (ACA) pay in full for the costs of this drug for

every employee who wants it, without the employee

bearing even a dollar of the costs. The economic effect

of this is to impose a substantial levy on all ACAcovered businesses for the benefit of only those who

engage in high-risk sexual conduct or illegal

intravenous drug use. This mandate is conceptually

similar to – but far more expensive than – requiring

businesses to provide for free to their employees clean

needles for illegal drug use or condoms for sexual

promiscuity. Perhaps Congress has the authority

under the Commerce Clause to try to enact a law

requiring this, but it has not and presumably would

not have the political support to do so. Instead, the

politically unaccountable Task Force mandates this in

an example of administrative tyranny.

In Loper Bright, the Supreme Court struck down

an administrative mandate costing an estimated $710

per day for fishermen. See Loper Bright Enters. v.

Raimondo, 603 U.S. 369, 382 (2024) (The federal

agency “estimated that the cost of such an observer

would be up to $710 per day, reducing annual returns

to the vessel owner by up to 20 percent.”). This added

cost struck down in Loper Bright is comparable to the

agency-imposed added cost on businesses here.

The drug manufacturer Gilead posts the following

about Truvada®:13

(Dec. 13, 2022), https://tinyurl.com/mshx2kan (viewed Mar. 24,

2035).

13 Medication Guide, TRUVADA® (tru-VAH-dah)

11



this medication can worsen a Hepatitis B viral

infection, which is common among homosexual

men;



“TRUVADA does not prevent other sexually

transmitted infections (STIs),” which then make

one more susceptible to contracting HIV;



For

those

who

are

pregnant,

“[i]t is not known if TRUVADA can harm your

unborn baby”; and



“You must be HIV-1 negative to start

TRUVADA,” and it must be taken every day or

else its effectiveness diminishes.

In promoting use of these medications, CDC asserts

that they are 99% effective in preventing HIV,14 but

studies present a less optimistic picture, including a

lack of adherence to the necessary once-per-day

treatment schedule. “In trials for which adherence was

70% or greater, the reduction in risk was

approximately 75% ….” R. Chou, C. Evans, A.

Hoverman, et al., “Preexposure Prophylaxis for the

Prevention of HIV Infection: Evidence Report and

Systematic Review for the US Preventive Services

Task Force,” JAMA (June 11, 2019).15

In arguing that this mandate be free without a copay, the amicus brief by the United States of Care and

47 Other Organizations says “[e]ven modest out-ofhttps://www.gilead.com/~/media/Files/pdfs/medicines/hiv/truvad

a/truvada_medication_guide.pdf (viewed Mar. 15, 2025).

14 “Let’s Stop HIV Together,” CDC (Feb. 18, 2025)

https://www.cdc.gov/stophivtogether/hiv-prevention/prep.html

(viewed Mar. 15, 2025).

15 https://jamanetwork.com/journals/jama/fullarticle/2735508

(viewed Mar. 15, 2025).

12

pocket costs reduce utilization of health care services.”

(US Care Amici Br. 13) But that merely restates the

basic law of demand familiar to economics students:

All

markets

must

respect

the law

of

demand. See Paul A. Samuelson, Economics 53-55

(11th ed. 1980). According to the law of demand,

consumers will almost always purchase fewer units

of a product at a higher price than at a lower price,

possibly substituting other products. Id. at 55.

Crystal

Semiconductor

Corp.

v.

Tritech

Microelectronics Int’l, Inc., 246 F.3d 1336, 1359 (Fed.

Cir. 2001). See also Howard Hess Dental Labs. Inc. v.

Dentsply Int’l, Inc., 424 F.3d 363, 374 (3d Cir. 2005)

(“‘It is the fundamental law of demand that as the price

of a product increases the amount purchased

decreases. A collusive price increase, therefore, will

result in a reduction of the quantity of the good

purchased.’”) (quoting ABA Section of Antitrust Law,

Proving Antitrust Damages: Legal and Economic

Issues 194, 195 (1996)).

The fallacy in this argument for free medication is

that it does not result in more affordable, accessible, or

higher quality medical care. The supplier of the

service, in this case expensive HIV drugs, no longer

has any incentive to reduce the price or improve the

product once the Task Force mandated that businesses

pay in full for it. Patients overall are harmed by this

scheme as urged by Petitioners and their amici in

interference with free market pressures that would

drive down the medications’ prices. The overall result

of this socialist approach of mandating free care is to

deny many people affordable access to these

medications.

13

In addition, this expansive PrEP mandate has no

benefit – zero – for the vast majority of employees,

including those who decline to participate in sexual

conduct likely to spread HIV, or use illegal

intravenous drugs.

This imprudent mandate is not the result of

representative government, but comes from billiondollar lobbying in Washington, D.C., by a wealthy and

political powerful faction at the expense of the vast

majority. This sort of faction-driven tyranny is what

James Madison hoped the Constitution would prevent,

as he wrote in Federalist No. 10: “The influence of

factious leaders may kindle a flame within their

particular States, but will be unable to spread a

general conflagration through the other States.”

James Madison would be mortified at how today

lobbying by a faction imposes mandates nationwide.

II. Severance Here Would Be an Improper

Judicial Rewrite of the Statute, Thereby

Constituting Judicial Activism.

No provision enacted by Congress authorizes

severability here, and there is no clear path to

severability. The fiction argued by Petitioners and

their amici is that severability must be done by this

Court anyway, or else the proverbial sky will fall upon

us all. No, it will not, because businesses acting out of

self-interest will fund medications that reduce their

future medical care expenses. But even if the sky were

to fall, so to speak, it is the job of Congress, the states

(as some have already done), or businesses themselves

to provide coverage for preventive care in ways that

make sense. See Kimble v. Marvel Entm’t, 576 U.S.

446, 464-65 (2015) (“[T]hat is not our job. … That

branch [Congress], far more than this one, has … the

14

prerogative to determine the exact right response—

choosing the policy fix, among many conceivable ones,

that will optimally serve the public interest.”).

In its brief, the government does not persuade that

a provision can be properly severed, or that precedents

on severability support its argument. The government

makes only passing references to a few decisions on

severability, some from the early 19th century that did

not actually sever anything, and then baldly concludes

that “[i]f the Court believes that the Task Force’s

current structure is unconstitutional, the Court should

apply its traditional severability principles.” (Pet. Br.

45) In essence, the government couches a demand to

rewrite an unconstitutional statute as though it is

merely making a modest request for severance. But no

provision can be severed here from ACA while

preserving its purpose and while advancing the

government’s goal of upholding a Task Force authority

to impose expensive mandates on businesses.

The structure of the Task Force as enacted by

Congress in ACA is plainly one of independence, and

not designed to be subject to control by the Secretary

of HHS. In this case, the Task Force has imposed

astoundingly expensive mandates on businesses for

the narrow benefit of a high-risk lifestyle choice,

without any suggestion that the HHS Secretary would

exercise any oversight over these decisions by the Task

Force. This is contrary to how our Republic requires

accountability to the electorate.

When an invalid provision is judicially severed

from a statute lacking a severability clause, it

interferes with the legislative role of Congress, and

with the President’s role. The President never

approves the truncated version (i.e., post-severance) of

15

the statute, and the President is denied his veto power

over the truncated version of the text.

This Court should adhere to a presumption of nonseverability, in order to encourage Congress to write

constitutional laws and include severability clauses

where appropriate. Indeed, “[t]he surest way to insure

that Congress addresses severability is to discipline it

into doing so ….” Michael Shumsky, “Severability,

Inseverability, and the Rule of Law,” 41 Harv. J. on

Legis. 228, 276 (2004). See also David H. Gans,

“Severability as Judicial Lawmaking,” 76 Geo. Wash.

L. Rev. 639, 644-645 (April 2008) (“[T]he judicial power

to sever has to be constrained by structural

constitutional principles. Courts cannot simply focus

on legislative intent. They must also consider whether

severance in any particular case amounts to

impermissible judicial lawmaking.”).

The government reaches all the way back to

Marbury v. Madison, but Supreme Court severability

decisions did not begin in earnest until 1876. See

Kenneth A. Klukowski, “Severability Doctrine: How

Much of a Statute Should Federal Courts Invalidate?”,

16 Tex. Rev. Law & Pol. 1, 4-5 (Fall 2011) (citing

United States v. Reese, 92 U.S. 214, 221 (1876), TradeMark Cases, 100 U.S. 82, 98 (1879), Connolly v. Union

Sewer Pipe Co., 184 U.S. 540, 565 (1902)).

Even when there is a severability clause – and

there is none here – this Court has remanded because

“legislators [may have] preferred no statute at all to a

statute enjoined in the way we have described.” Ayotte

v. Planned Parenthood, 546 U.S. 320, 331 (2006).

Finally, the government’s heavy reliance on

Arthrex is misplaced. First, as Justice Gorsuch aptly

16

observed in Arthrex, “its severability analysis

seemingly confers legislative power to the Judiciary—

endowing us with the authority to make a raw policy

choice between competing lawful options.” United

States v. Arthrex, Inc., 594 U.S. 1, 33 (2021) (Gorsuch,

J., concurring and dissenting). But even the expansive

view of severability in the divided Arthrex decision

does not support the government’s demand here for

this Court to rewrite a federal law.

III. Imposing, by Administrative Fiat, D.C.

Culture on Texas as Sought by the Petition Is

a Recipe for National Disunity.

It is unhealthy to our Nation for the administrative

state in D.C. to impose a cultural change on Texas

about a lifestyle, by issuing one-size-fits-all

administrative mandates. As observed in 2021, large

left-leaning states had already required businesses to

pay for these sexual conduct medications independent

of the Task Force which Texas declines:

[I]nsurance regulators in some states—such as

California, Colorado, and New York—had already

issued guidance to require or encourage the

coverage of PrEP-related ancillary and support

services without cost sharing.

Katie Keith, “New Guidance On PrEP: Support

Services Must Be Covered Without Cost-Sharing”

(July 28, 2021).16 Costly mandates in California and

New York are not typically welcome in Texas.

The state level is where this decision belongs,

rather than D.C. imposing its culture, and that of

California and New York, on Texas. Lobbying firms on

16 https://tinyurl.com/2a75h6em (viewed Mar. 16, 2025).

17

K-street dominate administrative decision-making in

D.C.,17 but should not be dictating culture in Texas by

imposing culture-changing mandates there. Insurance

is within state jurisdiction. Bituminous Cas. Corp. v. J

& L Lumber Co., 373 F.3d 807, 815 (6th Cir. 2004).

Assertions emerge of preventive health benefits for

mifepristone, an abortifacient drug, and if Task Force

authority is upheld then a mandate for no-cost access

by employees to mifepristone may be next, without

political accountability. See, e.g., B.M. Autry, et al.,

Mifepristone (StatPearls Publishing: 2024) (“Higher

doses impede cortisol activity at the glucocorticoid

receptor, concurrently elevating circulating cortisol

levels to regulate hyperglycemia in individuals with

Cushing syndrome.”).18 Well-funded lobbying of the

politically unaccountable Task Force to mandate

mifepristone or other objectionable drugs is inevitable.

Warning signs of severe cultural fracturing on

social issues abound. Hungary, a member of the

European Union and NATO, recently banned gay

pride parades by an overwhelming parliamentary vote

of 136-27. “Hungary: Parliament Bans Gay Pride

Parade,” FSSPX News (Mar. 21, 2025).19 A movement

is afoot for conservative Alberta to depart Canada, and

President Trump talks about adding Canada to the

United States. Margot Rubin, “Billboard promoting

Alberta to join USA pops up north of Calgary,”

17 $2.2 billion overall was spent on federal lobbying in merely the

first half of 2024. Anna Massoglia, “Record-breaking federal

lobbying tops $2.2 billion in first half of 2024” (Aug. 29, 2024)

https://tinyurl.com/25397mmj (viewed Mar. 24, 2025).

18 https://www.ncbi.nlm.nih.gov/books/NBK557612/ (viewed Mar.

23, 2025).

19 https://tinyurl.com/y2bzpzst (viewed Mar. 24, 2025).

18

CityNews Everywhere (Feb. 21, 2025).20

There is a widening divide on social issues in the

U.S. If bureaucrats can impose by administrative fiat

costly treatment mandates without political

accountability, then the Task Force might try to order

private businesses to pay for “transgender”-related

medications. The recent Continuing Resolution to keep

the lights on for federal agencies passed by only two

votes in the House of Representatives, in another sign

of waning support for national government. David

Lerman, “House passes wrapup spending package

ahead of Friday deadline” Roll Call (Mar. 11, 2025).21

As held in Dobbs, states should have leeway to go

in their own direction on cultural and moral issues.

“We now … return that authority to the people and

their elected representatives.” See Dobbs v. Jackson

Women’s Health Org., 597 U.S. 215, 302 (2022).

CONCLUSION

For the above reasons and those from Respondents,

the Court should affirm the decision below.

Respectfully submitted,

ANDREW L. SCHLAFLY

939 OLD CHESTER ROAD

FAR HILLS, NJ 07931

(908) 719-8608

aschlafly@aol.com

Dated: March 26, 2025

Counsel for Amicus Curiae

20 https://calgary.citynews.ca/2025/02/20/billboard-canada-usa-

alberta-highway-2/ (viewed Mar. 22, 2025).

21 https://rollcall.com/2025/03/11/house-passes-wrapup-spendingpackage-ahead-of-friday-deadline/ (Mar. 11, 2025).