NEW ORLEANS  — Whether health insurance plans affecting an estimated 150 million Americans must cover certain types of preventive care at no cost – including HIV prevention and some types of cancer screenings – was debated before federal appellate judges Monday in the latest legal battle involving former President Barack Obama’s signature health care law.

The requirements were adopted by federal health officials under provisions of that law, sometimes referred to as Obamacare. U.S. District Judge Reed O’Connor ruled last year that the requirements violated the Constitution because they came from a volunteer task force, not from constitutionally appointed officials.

US Obamacare Rule in 2021 in Fort Washington, Md. Alex Brandon/Associated Press, file

“These are preventative services provisions that are critical and lifesaving to millions of Americans and to enjoin the federal government nationwide from enforcing those preventative care coverage requirements and vacating them as to the entire country is unwarranted and unjustified,” Daniel Aguilar, arguing for the Biden administration, told a panel of three judges with the 5th U.S. Circuit Court of Appeals in New Orleans.

The government argues that the task force members have been legally appointed by Health and Human Services Secretary Xavier Becerra and that he properly ratified their recommendations. An attorney for the policy’s challengers argued that the recommendations must come from appointees who are directly supervised by an appointee of the president who has been confirmed by the Senate. The task force members don’t meet that test, said Jonathan Mitchell, attorney for Braidwood Management and other plaintiffs, some of whom opposed the required coverage for religious reasons.

“There’s no possibility of direction or supervision here by someone who has been appointed by the president,” Mitchell said.

The panel hearing the case consisted of judges Don Willett and Cory Wilson, both nominated to the court by former President Donald Trump, and Irma Carrillo Ramirez, nominated by President Joe Biden. They gave no indication when they would rule.


The coverage mandates remain in effect for now. O’Connor’s ruling was put on hold pending the appeal.

Not all preventive care was threatened by O’Connor’s ruling. An analysis by the nonprofit KFF foundation found that some screenings, including mammography and cervical cancer screening, would still be covered without out-of-pocket costs because the task force recommended them before the health care law was enacted in March 2010.

The Biden administration is appealing the ruling. Meanwhile, plaintiffs in the case have filed a cross-appeal that could broaden O’Connor’s ruling and endanger more preventive care mandates, according to the advocacy group , United States of Care.

Monday’s arguments mark the latest in more than a decade of conservative efforts to chip away at the Affordable Care Act. O’Connor, based in Fort Worth, Texas, threw out the entire law in 2018, a decision later undone by the Supreme Court.