Their lawsuit also alleges that Obamacare’s requirement for insurance to cover the pre-exposure prophylaxis pill used to prevent the transmission of HIV known as PrEP violates the religious rights of challengers. In their legal briefs, they equated the highly effective drug coverage with the encouragement of homosexuality and promiscuity.
The merits of those legal arguments did not emerge in Tuesday’s hearing before the 5th US Circuit Court of Appeals in New Orleans, which squarely focused on whether a nationwide freeze on the Obamacare mandate ordered by a lower court in March went too far.
That ruling, Justice Department attorney Alisa Klein told the court, was a legal blunder that extinguished the rights of an estimated 150 million people who are not litigants.
Klein urged appellate court judges to consider the balance of the actions, arguing that there would be no harm to plaintiffs already protected by staying the national injunction, but great harm to everyone else if they didn’t.
It cannot be overstated how important ensuring free access is when patients undergo mammograms and colonoscopies, he said. We are talking about 50 different types of treatments.
The Conservative challengers’ attorney, Jonathan Mitchell, responded that the national ruling was appropriate because the agency’s actions must be reversed if they are illegal.
Mitchell the architect of Texas’ earlier six-week abortion ban roe deer was overturned attempted to reassure judges that imposing a nationwide injunction would not cause harm because insurers are unlikely to drop coverage of preventive care services while the case is still pending.
The appeals court judges didn’t seem convinced.
Leslie Southwick, appointed by former President George W. Bush, called this statement speculative and said it was very unusual for us to be asked to comment on our perception of how insurance companies would react.
I’m not sure what to do, he said.
The judges also asked Mitchell whether a win for his team would solve his clients’ problem a legal threshold known as remediability. When Mitchell argued that individual workers he represents who refuse to purchase insurance because of the PrEP coverage requirement would be able to be covered if their warrants were revoked, Judge Stephen Higginson noted that the workers’ affidavits do not they say it.
Higginson, an appointee for former President Barack Obama, pointed out that only one of the four workers came close to making that claim and that he expressed a desire to purchase insurance, not specific intent.
Mitchell acknowledged that there is no hard-and-fast guarantee that his clients would buy health insurance if the courts blocked Obamacare’s mandate.
In closing, the judges urged both he and the Justice Department to try to broker a compromise that would have more narrowly fit the national ruling without violating the rights of the plaintiffs.
Tuesday’s hearing was the latest in a months-long saga about the preventive care mandate that has been in place for more than a decade.
Texas District Court Judge Reed O’Connor, author of several rulings against pieces of Obamacare, issued a nationwide ruling in March for the challengers, reversing all decisions made by the US Preventive Services Task Force since 2010 on what insurers should cover without cost sharing.
In May, the 5th Circuit Court issued an administrative stay of the lower court’s ruling while keeping the current coverage rules in effect as the case progresses.
Public health groups warn of serious consequences if O’Connor’s ruling is upheld, citing research showing even small out-of-pocket costs deter many people from seeking preventative care, leading to sicker patients and more expensive treatments. Medical experts are particularly concerned that rolling back coverage would exacerbate already record rates of STDs, making testing and treatment services unaffordable for vulnerable populations.
Many major insurers have pledged to keep preventive care at no cost to patients for now, regardless of what the courts decide, but experts fear patients could eventually be hit with out-of-pocket expenses if the 5th Circuit and the Supreme Court sided with the challengers.
The case also imperils more than two dozen new recommendations the federal task force is currently considering, rules that could expand coverage of everything from prenatal care to speech therapy to osteoporosis.
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