President Joe Biden’s administration Monday is set to urge a U.S. appeals court to preserve a federal mandate that requires health insurers to cover preventive care services including HIV-preventing medication and cancer screenings at no extra cost to patients.

The preventive care mandate, which covers a wide range of services chosen by a federal task force, is part of the 2010 Affordable Care Act (ACA), often called Obamacare because it was championed by then-President Barack Obama.

The arguments scheduled before a three-judge panel of the New Orleans-based 5th U.S. Circuit Court of Appeals on Monday stem from a lawsuit brought by a group of businesses, including Texas-based Christian wellness center operator Braidwood Management, objecting to the requirement that they provide coverage for HIV pre-exposure prophylaxis (PrEP).

Braidwood and the other plaintiffs sued specifically over mandatory coverage for PrEP, which they said violates their religious beliefs by encouraging homosexuality and drug use.

The PrEP drugs approved in the United States to prevent HIV infection, which can cause AIDS, are made by Gilead Sciences and by ViiV Healthcare, a joint venture of GSK, Pfizer and Shionogi.

U.S. District Judge Reed O’Connor in Fort Worth in March 2023 went further than the plaintiffs had asked, blocking the federal government from enforcing the mandate for a wide range of services. O’Connor found that the law gave the members of the task force that chooses which services should be covered too much power for officials who are not appointed by the president and confirmed by the Senate, violating the U.S. Constitution.

O’Connor’s ruling is largely on hold under an agreement between Braidwood and Biden’s administration while the appeal proceeds, but allows Braidwood itself not to cover PrEP.

If O’Connor’s ruling is allowed to take effect, insurers would be able to charge patients co-pays and deductibles for preventive services.

The ruling does not apply to services the task force recommended before the ACA was enacted in 2010, including breast cancer screening.

Two members of the 5th Circuit panel, Circuit Judges Don Willett and Cory Wilson, were appointed by Republican former President Donald Trump, and the third, Circuit Judge Irma Carrillo Ramirez, was appointed by Biden, a Democrat.

O’Connor previously drew attention in 2018 for striking down all of Obamacare. That ruling was largely reversed by the 5th Circuit, and then completely reversed by the U.S. Supreme Court.


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