The 5th US Circuit Court of Appeals in New Orleans on 2015.
CNN  — 

With access that millions of Americans have to preventive care at stake, a conservative federal appeals court on Monday picked apart how the Biden administration has tried to maneuver around the latest significant challenge to Obamacare.

The case concerns the Affordable Care Act provision that mandates insurers cover preventive care services – including screenings for certain cancers and HIV-prevention drugs – at no cost to patients. The 5th US Circuit Court of Appeals 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.

Very little of Monday’s 40-minute hearing in front of the 5th Circuit focused on the legal claim that started the case.

Instead, the appeals court dug into the actions that the Biden administration took after the lawsuit was filed to try to neutralize the challengers’ arguments. Members of the panel also showed skepticism towards Justice Department’s assertions that the lower court acted inappropriately by applying its ruling nationwide, rather than just to the individuals and business in Texas that brought the lawsuit.

“You wouldn’t just vacate these things just for people in Texas or just for the plaintiffs – if they’re invalid, they’re invalid,” said Circuit Judge Cory Wilson.

Circuit Judge Don Willett suggested that the lower court’s nationwide move was the “default” approach in such a case, as he pressed the Justice Department to explain why the appeals court should deviate from that nationwide approach.

Willett and Wilson – both appointees of former President Donald Trump who showed hostility towards the Affordable Care Act before they were nominated to the federal bench – were joined on the panel by Circuit Judge Irma Carrillo Ramirez, an appointee of President Joe Biden.

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.

“These are preventative service provisions that are critical and life-saving to millions to Americans,” Justice Department attorney Daniel Aguilar told the appeals court Monday, calling the wide reach of O’Connor’s ruling “unwarranted and unjustified.”

The plaintiffs don’t have a reason to object to someone who is constantly receiving lung cancer screenings at no cost or a Maine resident getting a colonoscopy, Aguilar continued.

However, the administration’s opponents say 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.

The appeals court on Monday asked the challengers’ lawyer Jonathan Mitchell to clarify that the move by his client – Dr. Steven Hotze, the sole trustee of the trust that owns Braidwood Management – was to challenge all of the mandates, rather than the handful that were singled out in his initial complaint.

“Dr. Hotze does not want to be compelled by force of law to include any preventive care coverage in his plan, without any deductibles or co-pays, unless he chooses on his own initiative to do that,” Mitchell said. “He wants to have control over what he would charge with respect to co-pays, whether he will allow preventive care to count towards his deductible. He wants full autonomy.”

Hurting access to care

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.

Appeals panel judges hostile to Obamacare

Wilson 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 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 Biden in 2023 and had broad bipartisan support when she was confirmed. Monday’s hearing marked the first panel Carrillo Ramirez has sat on as a 5th Circuit judge.

The breadth of the judge’s ruling

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.”

This story has been updated following oral arguments.