A panel of the 5th U.S. Circuit Court of Appeals in New Orleans on Monday heard oral arguments in a challenge to the preventive care mandate in the Affordable Care Act.
The case, Braidwood v. Becerra, was filed in 2020 by the Texas wellness center Braidwood Management. Although the plaintiffs sued because they objected on religious grounds to covering HIV pre-exposure prophylaxis (PrEP), they argued that the entire mandate violated the U.S. Constitution because it gave too much power to a task force chosen by a mid-level U.S. health official rather than appointed by the president and confirmed by the Senate.
Last March, U.S. District Judge Reed O’Connor agreed and blocked enforcement of the mandate nationwide. Jonathan Mitchell, a lawyer for Braidwood, argued that the 5th Circuit should uphold that conclusion.
“The individuals who wield these powers to impose compulsory preventive care coverage mandates on private insurers hold sufficient authority to make them into officers of the United States,” he said.
The Biden administration has argued that HHS Secretary Xavier Becerra, who was confirmed by the Senate, can retroactively “ratify” the task force’s decisions. Becerra issued a memo in 2022 doing so, but Mitchell argued that the Obamacare law did not allow it.
The government asked the appeals court to preserve the mandate, which requires health insurers to cover preventive care services including HIV-preventing medication and cancer screenings at no extra cost to patients. “These are preventive services provisions that are critical and lifesaving to millions of Americans,” Justice Department attorney Daniel Aguilar said.
Even if the court agrees with O’Connor’s conclusions, it should narrow his order, he said. “Plaintiffs don’t have a particular reason to object to somebody in Wisconsin receiving lung cancer screening without cost sharing,” Aguilar said.
Much of the panel’s questioning focused on potential remedies for the situation rather than the substance of the case. A decision is likely to come later this summer, and it then could be appealed to the U.S. Supreme Court.
Two members of the 5th Circuit panel, Circuit Judges Don Willett and Cory Wilson, were appointed by former President Donald Trump, and the third, Circuit Judge Irma Carrillo Ramirez, was appointed by President Biden.