Brendan Pearson
(Reuters) – President Joe Biden’s administration on Monday urged a U.S. appeals court to uphold a federal mandate that requires health insurers to cover preventive services, including HIV prevention drugs and cancer screenings, at no additional cost to patients.
“These are preventative services provisions that are critical and save the lives of millions of Americans,” Daniel Aguilar, a government lawyer, told a three-judge panel of the Fifth U.S. Circuit Court of Appeals in New Orleans during arguments in the administration’s appeal.
The administration is asking the 5th Circuit to overturn a federal judge’s ruling that, if given full effect, would overturn a mandate that insurers cover a wide range of services chosen by a federal task force without copays. The mandate is part of the 2010 Affordable Care Act (ACA), often called Obamacare because it was championed by then-President Barack Obama.
During the debate, the judges did not make it clear what decision they would make.
PrEP drugs, approved in the United States to prevent HIV infection, which can cause AIDS, are manufactured by Gilead Sciences (NASDAQ:) and ViiV Healthcare, a joint venture of GSK. Pfizer (NYSE:) and Shionogi.
A group of businesses led by Texas Christian health center operator Braidwood Management sued in 2020 over the mandate. Although they filed the lawsuit because they objected on religious grounds to coverage of HIV pre-exposure prophylaxis (PrEP), they argued that the entire mandate violated the US Constitution by giving too much power to a target group selected by a mid-level US health official. official rather than appointed by the President and confirmed by the Senate.
U.S. District Judge Reed O’Connor in Fort Worth agreed in March 2023 and blocked enforcement of the preventative care mandate nationwide.
Jonathan Mitchell, Braidwood’s lawyer, argued that the 5th Circuit should uphold that finding.
“The individuals who have this authority to impose mandatory preventive insurance on private insurers have sufficient authority to make them officers of the United States,” Mitchell said.
The Biden administration says U.S. Health and Human Services Secretary Xavier Becerra, confirmed by the Senate, can retroactively “ratify” the task force’s decisions. Becerra issued a memo in 2022, but Mitchell argued that Obamacare would not allow it.
Aguilar also told the justices Monday that even if the court agrees with O’Connor’s findings, he should narrow his order and give the plaintiffs what they want while preserving as much of Obamacare as possible—an approach he likened to using ” scalpel.” instead of “sledgehammer”.
“Plaintiffs have little reason to object to anyone in Wisconsin being screened for lung cancer without cost sharing,” Aguilar said.
O’Connor’s decision does not apply to services recommended by the task force before the ACA was enacted, including breast cancer screening.
Two members of the 5th Circuit panel, Circuit Judges Don Willett and Corey Wilson, were appointed by former Republican President Donald Trump, while the third, Circuit Judge Irma Carrillo Ramirez, was appointed by Democrat Biden.