Court seeks compromise that might preserve preventive health insurance mandates as appeals play out

NEW ORLEANS -- Federal appeals court judges are seeking compromise on whether government requirements that health insurance include coverage for HIV prevention, cancer screenings and some other types of preventive care can be maintained while a legal battle over the mandates plays out.

The 5th U.S. Circuit Court of Appeals panel on Wednesday told attorneys on both sides of the issue to report by Friday on the possibility of a temporary compromise in the case.

At issue is a March ruling by a federal judge in Texas who said some of the preventive care requirements under former President Barack Obama's 13-year-old health care law are unconstitutional. The decision jeopardized cost-free coverage of HIV-preventing drugs, cancer screenings and various other types of preventive care for millions of Americans.

The New Orleans-based 5th U.S. Circuit blocked immediate enforcement of the ruling in May. On Tuesday, three 5th Circuit judges heard arguments on whether they should continue to stay enforcement of the ruling during what could be a lengthy appeals process.

An attorney for plaintiffs in the case — including a conservative activist and a Christian dentist who oppose coverage for contraception and HIV prevention on religious grounds — said in court Tuesday that a stay is unnecessary. Insurers and employers who provide employee health insurance would be unlikely to drop preventive coverage before the case is finally resolved, attorney Jonathan Mitchell said.

Judge Leslie Southwick, one of three appellate judges in the case, was skeptical. "You may be right, but it really is speculation if you want us to apply some of our sense of how insurance companies react," Southwick said.

Lawyers for the Biden administration stressed that they are not seeking to block enforcement protecting the plaintiffs in the case from requirements to provide preventive care. They do want a stay that would keep the Texas judge's ruling from applying nationwide while the appeals play out.

The panel ordered a report on compromise efforts by 5 p.m. Friday.