Ruling potentially jeopardizes preventive services under the Affordable Care Act

A Texas federal judge ruled on Wednesday that requiring employers to provide health coverage that includes HIV prevention drugs is unconstitutional, saying that it violates the religious freedom of a Christian-owned company.

The ruling by Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas could jeopardize the ability of the Affordable Care Act (known as Obamacare) to require which preventive health services and drugs must be fully covered by private health insurance. Under the ACA, employers must provide insurance coverage for drugs prescribed for HIV prevention, known as PrEP.

The case explicitly targets PrEP. Braidwood Management, Inc., a company based in Fort Worth, Texas filed suit in 2020, charging that requiring the company to offer PrEP “facilitates and encourages homosexual behavior.”

In his ruling, O’Connor said that Braidwood has “shown that the PrEP mandate substantially burdens its religious exercise.”

‘Incredibly disturbing’

Reaction by the HIV community was swift.

“This misinformed or misguided decision based solely on the individual’s religious beliefs is another example of the egregious lack of separation between church and state which is undermining the health of all of us,” said Perry N. Halkitis, dean of the Rutgers School of Public Health.

The Los Angeles LGBT Center issued a statement saying, “While the ruling is incredibly disturbing, we first want our community and allies to understand that its scope is currently limited to Braidwood, the Texas employer named in the lawsuit, and its 70 employees. It also undermines the bipartisan plans of the United States government to end HIV by 2030.”

"As a person of faith who also appreciates logic and reason, it is clear this decision is not about religious animus or freedom, but the continuation of politics, partisanship, and a supremacist ideology designed to maintain marginalization by advancing the heterosexual agenda,” said Dr. David J. Johns, executive director of the National Black Justice Coalition. “Medication to prevent the transmission of HIV is less accessible to Black same-gender loving men like me.”

“This shocking ruling defies evidence, logic, public health and human rights and sets back enormous progress made in the fight to end the HIV epidemic in the US and globally," said Mitchell Warren, executive director of AVAC, a global advocacy for HIV prevention. “It is a blatantly homophobic and misogynistic ruling that will endanger the lives of many gay men and others who rely on PrEP to protect themselves from HIV.”

Key players

Braidwood is owned by Steven Hotze, a Republican mega donor and conservative activist who helped defeat proposed nondiscrimination protections for gay and transgender people in Houston. The Houston doctor is a militant denier of the 2020 presidential election.

Braidwood’s attorney is Jonathan Mitchell, a former Texas solicitor general who is regarded as the architect of Senate Bill 8, the state law that bans abortions after six weeks and allows citizens to sue anyone who “aids or abets” an abortion.

At issue is the U.S. Preventive Services Task Force (PSTF), a volunteer panel of experts in disease prevention and medicine, which recommends which preventive measures should be mandated by the ACA.

In 2019, the PSTF gave Truvada and Descovy an “A” rating for PrEP (the two medications are also used for treatment of HIV), meaning that most insurors were required to provide the drugs for free starting in January 2021.

Braidwood’s attorney Mitchell sought to block the ACA’s preventive services mandate, arguing that the PSTF is too powerful. The judge agreed, ruling that the panel violates the appointments clause of the constitution.

“Because PSTF members are principal officers, they must be appointed by the President and confirmed by the Senate,” O’Connor stated. “The PSTF members indisputably fail that constitutional requirement.”

However, O’Connor did rule that two other entities involved with ACA preventive services—the Health Resources and Services Administration (HRSA) and the Advisory Committee on Immunization Practices—were properly authorized. He also said that the PSTF did not violate a different provision of the constitution, as alleged by the lawsuit.

O’Connor upheld certain free preventive services for children as well as mammograms and breastfeeding support programs. 

Appointed in 2007 by then-president George W. Bush to the federal bench, O’Connor ruled in 2018 that the ACA was invalid, a decision that was later overturned by the U.S. Supreme Court. But O’Connor has become known as the “go-to” judge for conservatives who want to dismantle government policies that protect transgender students and enforce COVID vaccine mandates.

Uncertain impact

It's unclear how far the ruling will go beyond Braidwood, which employs about 70 people. O’Connor has asked for briefs to be filed by the end of the week before deciding on an “appropriate remedy.” If the ruling were to take effect nationwide, it could have a potentially major impact on access to free preventive health services. For now, the ACA remains in force.

In addition to PrEP, more than 100 preventive health services are recommended by the PSTF, which have improved health outcomes through early detection and treatment of disease and chronic conditions. These recommendations must be then covered by insurors.

The U.S. Department of Health and Human Services estimates that in 2020, 151.6 million people had access to free preventive care under the ACA.

According to the Centers for Disease Control and Prevention (CDC), 1.2 million people are eligible for PrEP. Less than one-quarter are on the medication, in part because they are uninsured and cannot pay for it themselves. President Biden’s 2023 budget has proposed $9.8 billion for a national program to distribute PrEP.

Carl Schmid, executive director of the HIV+Hepatitis Policy Institute, said he expects the case will soon be appealed. “Preventive services covered by private insurance plans without cost-sharing, such as HIV testing, hepatitis B and C testing, and PrEP, are all critical and well-established public health preventive services that must continue,” he said in a statement. “To single out PrEP, which are FDA-approved drugs that effectively prevent HIV, and conclude that its coverage violates the religious freedom of certain individuals, is plain wrong.”

Compiled by Rick Guasco from reports by The New York Times, the Washington Post, Bloomberg News, NBC News, and Roll Call.