Texas Federal Judge: Companies Not Required to Cover PrEP

According to a Texas federal judge, insuring against HIV transmission violates the religious freedom of companies that object to LGBTQ+ people, so insurance companies cannot be forced to cover the medicines. As a result of his ruling, a whole host of preventative services required to be covered by insurance providers under the Affordable Care Act are in doubt.

In the U.S. District Court for the Northern District of Texas, the judge, Reed O’Connor, dismissed several claims in his 28-page opinion in Braidwood Management, Inc. v. Xavier Becerra et al. but ruled in favor of the plaintiff on the subject of PrEP.

The Fort Worth judge had previously ruled that the PrEP requirement violated a federal religious freedom law. Moreover, he found that other preventive care mandates were based on recommendations made by an illegally appointed task force.

Eight individuals and two businesses from Texas filed the lawsuit. It is their contention that the free PrEP requirement forces business owners and consumers to pay for services that encourage homosexuality, prostitution, sexual promiscuity, and intravenous drug abuse.

The plaintiffs include orthodontist John Kelley and Braidwood Management owner Steven F. Hotze, who argued against mandatory coverage of pre-exposure prophylaxis (PrEP) medications, screenings for sexually transmitted diseases, contraceptives, and counseling for unmarried people. Federal law required insurance providers to cover these components as part of minimum preventative care coverage under the Affordable Care Act.

The plaintiffs' counsel is conservative lawyer Jonathan Mitchell. Mitchell was the architect of Texas's controversial abortion ban. O’Connor previously granted Mitchell’s motion to rename it Braidwood Management ,Inc. v. Xavier Becerra in August after he argued there had been negative media attention drawn to the case.

Despite dismissing Braidwood’s objection to a contraceptive mandate, O’Connor ruled in favor of Kelley’s arguments.

According to O’Connor, insurance companies shouldn't be required to cover PrEP medications as a matter of religious freedom.

“The PrEP mandate substantially burdens the religious exercise of the remaining non-Braidwood Plaintiffs," he wrote. "And like the owner of Braidwood, these Plaintiffs object to purchasing or providing coverage for PrEP drugs because they believe that (1) the Bible is ‘the authoritative and inerrant word of God,’ (2) the ‘Bible condemns sexual activity outside marriage between one man and one woman, including homosexual conduct,’ (3) providing coverage of PrEP drugs’ facilitates and encourages homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman,’ and (4) purchasing coverage of PrEP drugs by purchasing such coverage for personal or business use makes them complicit in those behaviors.”

In O’Connor’s view, the Appointments Clause of the U.S. Constitution renders the Preventive Services Task Force, the agency that decides what services need to be covered, unconstitutional.

According to him, the ACA forces plaintiffs to choose between buying health insurance coverage that violates their religious beliefs or not having health insurance.

Anthony Michael Kreis, a professor at Georgia State University College of Law, slammed the judge’s decision on social media.

“We have to talk about how categorically insane this part of Judge O’Connor’s ruling is. The government can’t impose a mandate to stem a virus that anyone can contract because a business objects to gestures broadly gay people,” he tweeted.

“Plaintiffs have shown that the PrEP mandate substantially burdens their religious exercise. The burden thus shifts to Defendants to show that the PrEP mandate furthers a compelling governmental interest and is the least restrictive means of furthering that interest,” O’Connor wrote.

He ruled that the government’s evidence about PrEP’s ability to curb HIV transmission was not compelling.

“Defendants claim — and Plaintiffs do not dispute—a compelling government interest in inhibiting the spread of a potentially fatal infectious disease like HIV. But as this Court previously held, properly framed in the context of this [Religious Freedom Restoration Act] case, the question is whether the government has a compelling interest in requiring all private insurers to cover PrEP drugs in every one of their insurance policies.”

As a result of the ACA’s several exemptions for small businesses and grandfathered plans, he concludes that the government did not express this compelling interest.

White House Press Secretary Karine Jean-Pierre addressed the ruling in a statement to The Advocate.

“DOJ and HHS are reviewing the decision made by a judge in Texas earlier today. I want to be very clear – this case is yet another attack on the Affordable Care Act – which has been the law of the land for 13 years. In fact, the Supreme Court has upheld the legality of the ACA three times,” Jean-Pierre said.

“Because of the ACA, 150 million Americans have access to free preventive care like cancer and heart disease screenings. Sixty percent of people use a preventive care service under the ACA every year. Preventive care saves lives, saves families money, and protects and improves our health,” she explained.

“This case gets between patients and their doctors. It’s yet another attack on the ability of Americans to make health care choices free from political interference. Efforts to undermine this requirement are wrong and backwards.

“The Administration will continue to fight to improve health care and make it more affordable for hard-working families, even in the face of attacks from special interests,” Jean-Pierre concluded.

Lambda Legal HIV project director Jose Abrigo criticized the ruling.

“We are dismayed by today’s outrageous ruling in Braidwood Management v. Becerra that will put in jeopardy access to coverage of dozens of critical, life-saving preventative health care services, such as PrEP, impacting especially vulnerable populations,” Abrigo said.

“The case lays the dangerous groundwork that any potential religious objection- no matter how attenuated- could be covered by RFRA. Contrary to the decision’s underlying assumptions, PrEP is a neutral medication used by everyone to prevent HIV,” he added. “The ruling takes the outdated understanding that HIV is a gay epidemic rather than a global one. It is used by heterosexual women who want to safely conceive and others who might not identify as LGBTQ+ but are at risk of contracting HIV. PrEP has benefitted the entire nation in fighting the HIV epidemic and it must continue to be covered.”

The president and CEO of Democracy Forward, a legal advocacy and research organization, Skye Perryman also criticized the ruling.

“Gutting the ACA’s preventive care requirement is cruel and harmful and will leave millions of Americans across the country without meaningful access to life-saving preventive services – such as cancer screenings, services critical to women’s health, and prescription medications,” said Perryman.

“Today’s ruling will leave doctors and other healthcare professionals in an untenable situation, struggling to encourage their patients to accept medically indicated services that will save lives while patients face a loss of coverage and are required to be at the mercy of insurance providers. We urge the appellate courts to reverse this decision,” Perryman added.

Editor’s Note: This story has been updated to reflect remarks by White House Press Secretary Karine Jean-Pierre.