Given the alternative that long-acting injectable pre-exposure prophylaxis (PrEP) offers people who don’t want to take a daily medication, everyone should be able to get behind PrEP as a highly effective prevention tool. Even initial concerns over side effects—which were in fact relatively minimal from the outset—have been further reduced in recent years by new formulations. Best of all, PrEP doesn’t “slow your roll” on the way to sexual activity or interfere with sensation or the experience of intimacy.
With all these terrific attributes, who could possibly be opposed to PrEP? The answer is right-wing activists who want to impose their minority world view on everyone else. If you haven’t heard about Braidwood Management Inc. v. Becerra, the Texas lawsuit aimed at undermining access to certain types of preventive health care, this column will bring you up to speed. The plaintiffs have already prevailed in the trial court, and the case is likely on its way to the U.S. Supreme Court, with a brief layover in the Fifth Circuit Court of Appeals. Anyone who wants to see the end of the HIV epidemic in the U.S. should pay attention to this case.
The lawsuit—filed in 2022 by the attorney who devised the Texas bounty hunter abortion law allowing private citizens to collect a monetary award by suing doctors for performing abortions even in other states—alleges that the religious freedom rights of the plaintiffs are being infringed because they are required under the Affordable Care Act (ACA) to purchase health insurance that covers PrEP and a few other preventive services. Their legal theory is that in purchasing such health insurance they are being forced to support/promote sexual activity outside of marriage (“opposite sex” variety, of course), which is contrary to their religious views.
For (not) good measure, they also allege more broadly that the ACA provision mandating that specific preventive services be included in plans without a co-payment is unconstitutional because it gives a non-legislative body, the U.S. Preventive Services Task Force, the ability to determine which preventive services must be provided for free under the law.
‘Shopping for a judge’
It was not happenstance that this case landed before Judge Reed O’Connor, a federal judge in the Northern District of Texas. A very conservative jurist appointed by George W. Bush, Judge O’Connor has been the Right’s go-to judge for several years. For two years, he was the only judge in a small division of the Northern District of Texas, and plaintiffs knew that if they filed in that division, their case would be assigned to Judge O’Connor.
After the Chief Judge of the Northern District announced that she would be hearing 15% of the cases filed in Judge O’Connor’s division, plaintiffs with a conservative agenda started filing in a different division in which Judge O’Connor also heard cases where he was the only active judge. As before, plaintiffs’ lawyers—including the Attorney General of Texas—knew that if they filed in this division, they were very likely to end up before Judge O’Connor.
To some extent, lawyers for causes on both sides of the aisle engage in “forum shopping,” or “forum selection,” when you are the party doing it—with progressives placing their cases within the First, Second, or Ninth Circuit and conservatives opting for the Fifth, Eighth or Eleventh Circuit, but this blatant selection of a particular trial judge takes this tactic to new heights (or depths) and skirts the mechanisms in place to prevent gaming the system in this way.
But Judge O’Connor has delivered for conservatives every time, making it understandable why they feel compelled to take advantage of the circumstances allowing them to choose him. He prevented the Obama administration from using an inclusive definition of marriage under the Family and Medical Leave Act (2015), from requiring schools to allow transgender students to use the bathroom that corresponds with their gender identity (2016), and from implementing regulations prohibiting gender identity discrimination as sex discrimination under the ACA (2016).
In a 2018 ruling panned even by conservative legal scholars, he declared the entire ACA unconstitutional because the tax penalty for not obtaining insurance had been reduced to zero. The law had previously been validated by the Supreme Court of the United States (SCOTUS) solely under Congress’s taxing authority. He has also issued harmful rulings on gun control, the ability of Native Americans to adopt Native American children, and the U.S. military’s mandating of vaccines for service members, which it has required for decades.
Fortunately, most of these rulings have been reversed by SCOTUS or overtaken by subsequent events and legal developments, such as the Supreme Court’s ruling on marriage equality and the peak of COVID as a global health threat. Though his Braidwood ruling likewise may not stand the test of time, PrEP advocates should not count on a favorable outcome this round, in part because SCOTUS is very different now.
Making the case for PrEP
Here are a few of the arguments HIV prevention advocates should advance as this case moves to the Fifth Circuit and (likely) SCOTUS:
First, PrEP is designed to prevent disease transmission, not to promote sexual activity. People don’t need encouragement to have sex, and the plaintiffs have introduced no studies demonstrating that sexual activity has risen since PrEP was introduced. The percentage of condomless sex likely has increased, but plaintiffs’ purported religious views are anti-sex, not pro-condom. (They are also anti-birth control, so they should be happy about the rise in condomless sex, right?).
And while courts must accept as genuine almost anything a plaintiff presents as their religious views, courts need not accept unsubstantiated allegations about PrEP’s influence on rates of sexual activity. This second part of the equation is crucial to plaintiffs’ claim that government-incentivized PrEP coverage infringes on their religious freedom rights, and plaintiffs should be required to present evidence to support this aspect of the allegation.
Second, in addition to a lot of gay men, PrEP is used by some heterosexual people, including sero-different couples trying to conceive a child. Procreative sex within a heterosexual marriage is the one type of sex of which plaintiffs do approve, so they can’t claim they are religiously opposed to PrEP in all circumstances. Taking offense at some—or even most—but not all uses of PrEP reveals that the lawsuit embodies their desire to deny preventive medicine to certain people and has little to do with religious freedom.
Third, the “heckler’s veto” is antithetical to the whole system of health insurance. My premiums pay for health services I don’t use and yours pay for health services you don’t use—that’s just how the system works. Perhaps someone’s religious views are that the “body is a temple” and therefore people should not smoke cigarettes; does that mean health insurance should not pay for the treatment of lung cancer caused by smoking? And Christian Scientists, who often refrain from medical care because they believe in the power of prayer to heal the body, are not exempted from the mandates of the ACA. If they insisted upon the “heckler’s veto” that the Braidwood plaintiffs want to impose, mandating any kind of healthcare coverage could be deemed a violation of their religious freedoms.
But that is the point for the conservative activists behind the Braidwood case. Sure, they are anti-gay and anti-trans and anti-women and anti-(fill in the blank), but this lawsuit is really aimed at undermining the ACA and the more equitable system of healthcare it strives to create. Conservative activists tried three times to have the ACA struck down on constitutional grounds—with Judge O’Connor providing the trial court victory needed to advance the third case—and were successful in forcing the feds to separately fund certain types of women’s contraception for the employees of religious employers who believe those contraceptives are more akin to abortion.
The accommodation of conservative activists signified by the agreement to fund coverage for contraceptives separately for employees of some religious employers is coming back to bite them because conservative activists have returned to chip away at another piece of the ACA on the same religious freedom grounds. And though this column does not detail Braidwood’s claim regarding the USPSTF’s legitimacy to determine which preventive care services are required under the law (because it gets into some complex areas of constitutional law), that attack on the ACA’s preventive services mandates is broader and more dangerous.
Who doesn’t support easy access to preventive medicine? People who want to maintain the status quo because they think it benefits them. And just like on contraception and abortion, they want to take the country backwards. If that is to be prevented—or at least stalled—HIV and healthcare advocates need to start thinking two steps ahead of them in court and in the halls of Congress.
Scott Schoettes is an attorney and advocate who lives openly with HIV. He engages in impact litigation, public policy work, and education to protect, enhance, and advance the rights of people living with HIV.