Case threatening Obamacare mandate for cost-free preventive services goes before federal appellate court

The seemingly never-ending legal war over Obamacare returns Monday to a familiar battlefront: the 5th US Circuit Court of Appeals.

The latest case concerns the Affordable Care Act provision that mandates insurers cover preventive care services at no cost to patients. The appeals court is reviewing a district judge’s ruling that wiped away that requirement for certain preventive services – a ruling that was paused while the appeal plays out.

Two of the three circuit judges on the panel hearing arguments in the case, brought by employers and individuals in Texas, have shown previous hostility to former President Barack Obama’s 2010 health care law. Not only will they be weighing whether to uphold the ruling that partially invalidated the mandate, they will also be deciding whether additional coverage requirements targeted by the challengers should be struck down, including no-cost coverage for some vaccines as well as for certain preventive health services for women and children.

The case, called Braidwood v. Becerra, is the latest significant challenge to the Affordable Care Act, though it does not pose the existential threat to the landmark law that previous lawsuits did. A previous suit that challenged the law’s validity also emerged out of Texas and moved through the 5th Circuit before it was shut down by the Supreme Court in 2021.

In the case now before 5th Circuit, the Biden administration is asking the appeals court to reverse a ruling by US District Judge Reed O’Connor that jeopardizes access to no-cost coverage for statins, screenings for certain cancers and HIV-prevention drugs, among other services. If allowed to take effect, O’Connor’s ruling would end the mandates for cost-free coverage of preventive care services that were recommended by the US Preventive Services Task Force after Obamacare’s March 2010 enactment.

However, the government’s opponents in the case are arguing to the 5th Circuit that O’Connor did not go far enough. They’re asking the court to reverse aspects of his ruling that upheld no-cost coverage mandates based on recommendations by two other entities: the Advisory Committee on Immunization Practices, which recommends which vaccines should be covered cost-free, and the Health Resources and Services Administration, which issues recommendations for coverage of certain services for women and children.

If the 5th Circuit upholds O’Connor’s ruling, it could make it harder for Americans to obtain important preventive screenings and services aimed at early detection of diseases.

They include lung cancer screenings for certain current and former smokers; colorectal cancer screenings for adults ages 45 to 49; the use of statins to prevent cardiovascular disease; counseling referrals for pregnant and postpartum women at increased risk of depression; and the offer of HIV-prevention pills, known as PrEP drugs, for those at high risk.

The lower court’s ruling does not apply to preventive care recommendations issued by the Preventive Services Task Force before the Affordable Care Act became law. However, some of the recommendations issued prior to Obamacare’s enactment have since been updated based on the latest scientific evidence, and those updates were invalidated by the ruling.

If the 5th Circuit expands the ruling to encompass recommendations by the other entities, the impact would be much broader. It could wipe out the requirement that insurers provide vaccines for the flu, RSV and shingles at no charge, as well as infant screenings for more than 70 genetic diseases and conditions, testing for post-pregnancy diabetes, and annual checkups for women at no cost.

The cost-sharing for some of these preventive services can be substantial, which would deter some people – particularly those with lower incomes – from accessing the care.

“You can see insurance companies imposing costs that will likely make folks think twice before getting checked for particular ailments,” said Andrew Twinamatsiko, a director at the O’Neill Institute for National and Global Health Law at Georgetown University.

More than 150 million people with private insurance can receive preventive services without cost-sharing under the Affordable Care Act, according to a 2022 report by the Department of Health and Human Services. Studies have shown the Obamacare mandate prompted an uptake in preventive services and narrowed care disparities in communities of color.

The appeal will be argued in front of Circuit Judges Don Willett, Cory Wilson and Irma Carrillo Ramirez in the 5th Circuit’s New Orleans courthouse at 1 p.m. CT.

Wilson, a Donald Trump appointee, wrote a series of op-eds bashing the health care law in the years after it was passed. He called it a “massive, unworkable intrusion” by the federal government and a “slow-motion train wreck,” and wrote in 2012 that, if it its individual mandate was upheld by the Supreme Court, it would “mark an end to any meaningful limit on the federal government.”

When the commentary was brought up at his judicial confirmation hearings, Wilson, then a Mississippi state court judge, told the Senate that his views on Obamacare “have no part in serving as a judge, and I’ve not expressed that belief since becoming a judge.”

Willett, who was appointed to the 5th Circuit by Trump in 2017, reportedly praised Texas officials’ legal efforts against the Affordable Care Act when he was a justice on the state’s Supreme Court.

“Government will have carte blanche to control every sphere of your everyday life,” Willett said at a 2012 event, according to the Denton Record-Chronicle, where he was speaking alongside then-Texas Attorney General Greg Abbott, who was challenging the law’s individual mandate.

Carrillo Ramirez was appointed to the 5th Circuit by President Joe Biden in 2023 and had broad bipartisan support when she was confirmed.

The Braidwood challengers argue the government entities that recommend the mandates for no-cost preventive care run afoul of the Constitution’s Appointments Clause, which requires that the officers of the United States be appointed by the president with the consent of the Senate.

“The Task Force members, the members of [the Committee on Immunization Practices], and the [Health Resources and Services] Administrator all wield significant authority pursuant to the laws of the United States, and they must be appointed as ‘officers’ under Article II of the Constitution,” the challengers told the 5th Circuit in a brief. “Yet none of these decisionmakers have been constitutionally appointed. The Court should declare it so and enjoin implementation of their preventive-care coverage edicts until they receive a constitutional appointment.”

When the case was before O’Connor, he additionally ruled the requirement that employers cover PrEP drugs violated the challengers’ religious rights under the Religious Freedom Restoration Act. However, that part of his ruling applied only to the challengers in the case, and the Justice Department has not appealed it to the 5th Circuit. But the mandate for no-cost coverage mandates for PrEP treatments was also blocked by a nationwide order O’Connor issued under the Appointments Clause claims.

Much of the briefing in the dispute in front of the appeals court focuses not on the substance of the case, but on the breadth of O’Connor’s ruling, which blocked for the entire country the mandates issued by the task force after Obamacare took effect in 2010.

The Justice Department argues that such a sweeping order was not appropriate and that any ruling against the mandates should affect just the handful of individuals and business who brought the lawsuit.

O’Connor’s order undermined “the statutory right of 150 million Americans to coverage without cost sharing for more than 50 vital preventive services,” the Justice Department told the appeals court in a brief.

“[T]he whole point of the statutory requirement is to remove barriers to those preventive services that can save peoples’ lives,” the Biden administration said. “The district court’s universal remedies thus pose a grave threat to the public health.”