Federal appeals panel skeptical of ObamaCare’s preventative care authority

A federal appeals panel appeared skeptical Monday of the constitutionality of an Affordable Care Act (ACA) provision requiring insurers to cover specific preventive services.

Judges on the U.S. Court of Appeals for the 5th Circuit in New Orleans questioned whether the members of the U.S. Preventive Services Task Force (USPSTF) have the legal power to make recommendations, since its members are not appointed by the president or confirmed by the Senate.

The task force is a volunteer panel of national experts in disease prevention and evidence-based medicine. The ACA requires insurers to cover, without cost-sharing, more than 100 preventive health services recommended by the task force.

District Judge Reed O’Connor ruled last year that enforcing the recommendation was “unlawful” and a violation of the Constitution’s Appointment Clause, which establishes how government officials can be appointed.

O’Connor’s ruling applied nationwide, eliminating the coverage requirement for the entire country. If allowed to take effect, the decision would end the coverage mandate for preventive care recommendations adopted after 2010, when the ACA, or ObamaCare, was passed.

Those recommendations include anxiety screenings for kids, statins for cardiovascular disease and high-risk breast cancer screenings.

Much of the panel’s questioning of Justice Department attorney Daniel Aguilar focused on the remedy, rather than the substance, of the case. Aguilar argued the members of the panel and its recommendations are accountable to the Health and Human Services secretary.

But he said if the court finds otherwise, there shouldn’t be a nationwide injunction against the recommendations; the lawsuit was brought by one company and a handful of individuals who live in Texas, he said, and the ruling should only apply to them.

“These are preventative service provisions that are critical [and] lifesaving to millions of Americans, and to enjoin the federal government nationwide from enforcing those preventative care coverage requirements … is unwarranted and unjustified,” Aguilar argued.

The plaintiffs all reside in Texas, and they can only buy health plans on the Texas insurance exchanges, so “there’s not any justification for saying that we need to have a nationwide injunction on all the other states,” Aguilar said.

But Judge Cory Wilson, appointed by former President Trump, said if the mandates were unconstitutional for the plaintiffs, they were invalid for everyone.

“You wouldn’t vacate these things just for people in Texas or just for the plaintiffs — if they’re invalid, they’re invalid,” he said.

The government’s opponents in the case were represented by Jonathan Mitchell, a former solicitor general of Texas who helped write the state’s anti-abortion laws and who also represented Trump in his recent ballot case at the U.S. Supreme Court.

Mitchell asked the court to go even further than O’Connor’s ruling and invalidate two other entities: the Advisory Committee on Immunization Practices, a panel that 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. 

O’Connor found those groups had layers of constitutional supervisory authority within the federal government, but the USPSTF did not.