Texas Judge’s Ruling That Threatens PrEP Access Paused by Appeals Court

In a temporary ruling issued on Monday, a federal appeals court in Louisiana reversed a lower court’s decision overturning the Affordable Care Act’s requirement that all health plans cover preventive health care as part of their coverage.

A decision by conservative U.S. federal district judge Reed O’Connor from March that threatened insurance coverage for recommended services, including depression screenings and drugs that prevent HIV transmission, was placed on hold by the Fifth Circuit Court of Appeals in New Orleans.

According to the court, a stay will be in effect until the appeals process has been completed.

Earlier this year, O’Connor, who sits in the Northern District of Texas, ruled that insurers don’t have to cover any preventive services recommended by the United States Preventive Services Task Force under the Affordable Care Act since 2010. He argued that the task force was not accountable to Congress, so it did not have the constitutional authority to determine whether a health insurer must cover certain services.

Jonathan Mitchell, the former solicitor general of Texas who helped author the state’s controversial SB 8 bounty hunting bill against women who have abortions, filed a lawsuit on behalf of several Texas individuals and business owners who claimed they were being forced to pay for services that would contribute to gayness and that this violated their religious freedoms as Christians.

“The PrEP mandate forces religious employers to provide coverage for drugs that facilitate and encourage homosexual behavior, prostitution, sexual promiscuity, and intravenous drug use,” the lawsuit stated. “It also compels religious employers and religious individuals who purchase health insurance to subsidize these behaviors as a condition of purchasing health insurance.”

O’Connor ruled that the plaintiffs’ rights were indeed infringed upon even though PrEP medications are used by people regardless of their sexual orientation since pathogens don’t discriminate.

In 2018, O’Connor ruled the ACA unconstitutional, but the Supreme Court overturned his decision later. Then, in September, he ruled that employers’ mandate to cover pre-exposure prophylaxis or PrEP, an HIV prevention medication, violates their religious freedom.

Executive director of the HIV and Hepatitis Policy Institute Carl Schmid tells The Advocate that it’s important for people to know that while the ruing is stayed, access to preventative care, including PrEP, has not changed. His organization will file an amicus brief with the appeals court in June in opposition to the lower court’s ruling.

“It’s important for the gay community and others to realize that PrEP is [still now] available without cost sharing, and it’s not just the drug, it’s the labs as well,” Schmid says. “[People being] charged by their insurerers need to complain and speak up because just having a $20 or $100 copay is a barrier for a lot of people and we want to make PrEP access to be as easy as possible.”

Preventive services will continue to be covered at no cost by employers for the time being. However, the Fifth Circuit has a conservative bent, and the case could end up at the Supreme Court as another challenge to the ACA.