By Brendan Pierson

(Reuters) – A U.S. appeals court on Friday refused to block a federal mandate requiring health insurers to cover preventive care services like cancer screenings and HIV-preventing medication at no extra cost to patients, but ruled against the government on a key legal issue that leaves the mandate’s future in doubt.

A unanimous panel of the 5th U.S. Circuit Court of Appeals agreed with a group of Christian businesses suing to challenge the mandate that claimed that the way services were chosen for coverage violates the U.S. Constitution.

However, the panel found that U.S. District Judge Reed O’Connor in Fort Worth, Texas had gone too far by blocking the mandate nationwide in March 2023, and instead blocked its enforcement only against the businesses that brought the lawsuit. O’Connor’s ruling had been on hold while the appeals court considered the case.

The panel said that O’Connor had not explained why a nationwide order was necessary and noted that the U.S. Supreme Court had expressed “conspicuous skepticism” about such orders in past cases.

The panel also ordered O’Connor to reconsider his decision to uphold mandatory coverage of certain vaccines and childhood screening services, which the businesses had also challenged. The panel said O’Connor had not considered some relevant legal issues, though it did not weigh in on how he should decide.

While the 5th Circuit’s ruling allows the government to continue enforcing the mandate, it could provide support for other employers or insurers wishing to challenge it.

Major U.S. medical groups have said that eliminating the preventive care mandate would put patients at risk and increase healthcare costs.

The U.S. Department of Health and Human Services (HHS) and a lawyer for the plaintiffs, led by Texas-based Christian wellness center operator Braidwood Management, did not immediately respond to requests for comment.

In their 2020 lawsuit, the businesses objected to covering pre-exposure prophylaxis (PrEP) for HIV on religious grounds, but also argued that the entire mandate violated the U.S. Constitution by having an HHS-appointed task force choose what treatments must be covered. A task force with that much power must be appointed by the president and confirmed by the Senate, they said.

Both O’Connor and the 5th Circuit agreed with that argument, and the 5th Circuit rejected the government’s claim that HHS Secretary Xavier Becerra could fix the problem retroactively by “ratifying” the task force’s decisions.

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

The preventive care mandate is part of the 2010 Affordable Care Act, often called Obamacare because it was championed by then-President Barack Obama. O’Connor drew widespread attention in 2019 by ruling that the entire act was unconstitutional, which was later overturned.

His ruling on the preventive care mandate did not apply to preventive services the task force recommended before the ACA was enacted, including breast cancer screening.