Federal Judge Strikes Down ACA Coverage of HIV Prevention Drug

September 7, 2022 by Dan McCue
Federal Judge Strikes Down ACA Coverage of HIV Prevention Drug
(Rich Pedroncelli/AP Photo)

FORT WORTH, Texas — A federal judge known for controversial rulings when it comes to the Affordable Care Act ruled on Wednesday that coverage of an HIV prevention drug under the act violates the religious beliefs of some employers and is therefore unconstitutional.

In his ruling, U.S. District Judge Reed O’Connor — the same judge who in 2018 ruled the entire Affordable Care Act invalid — said the defendants in the case failed to show “a compelling interest” in forcing private, religious corporations to cover pre-exposure prophylaxis drugs with no cost-sharing and no religious exemptions.

It was nearly four years ago that O’Connor held the individual mandate — a financial penalty for not having insurance — as written into the ACA was unconstitutional because it could be interpreted to be a tax in an instance where Congress set the tax at $0.

O’Connor on Friday ruled that a major provision of the ACA is unconstitutional — and that the rest of the landmark law must fall as well.

He went on to write that because the individual mandate — then a pillar of the ACA — was unconstitutional, then the entire act was null and void.

O’Connor’s decision in that case was later overturned by the U.S. Supreme Court.

His latest ruling targets a mandate under the law that requires employers to cover the HIV prevention treatment known as PrEP, which is a pill taken daily to prevent infection.

The challenge was brought by a company owned by Steven Hotze, a conservative activist in Texas, who said in his lawsuit that he strives to run his business “according to Christian principles and teaching.” 

In 2019, the Department of Health and Human Services recommended the use of PrEP to help prevent HIV infection for those at high risk, meaning health insurance plans must cover the drug.

According to HHS, the drug reduces the risk of contracting HIV from sex by roughly 99% and from drug injection by about 74%. 

PrEP is taken primarily by men who have sex with men but also by heterosexual individuals who may be at high risk for the disease. 

In many cases, survivors of sexual assaults are also prescribed PrEP.

But Hotze, who runs a company called Braidwood Management Inc., and his co-plaintiffs challenged the legality of preventative care mandates in the ACA, claiming that in the case of PrEP, they violated both the U.S. Constitution and the Religious Freedom Restoration Act.

The RFRA prohibits any government agency from substantially burdening an individual’s religious practice.

In the complaint, the plaintiffs argued they believe the Bible is “the authoritative and inerrant word of God” and said that being forced to provide coverage for PrEP drugs violated their beliefs because it “facilitates” homosexual behavior, intravenous drug use, and “sexual activity outside of marriage between one man and one woman.”

Neither the White House nor HHS immediately responded to the ruling, but an appeal is widely expected.

In the meantime, House Speaker Nancy Pelosi, D-Calif., issued a written statement in which she described O’Connor as “a radical, Republican-appointed” federal judge intent on allowing employers to deny coverage for PrEP, a drug, she said, that has “proven to save lives from HIV/AIDS and a key strategy for ending the epidemic.”  

“This disturbing decision amounts to open homophobia: unleashing unthinkable suffering and death specifically among the LGBTQ community,” Pelosi continued. “This decision also threatens vital preventative health services guaranteed under the Affordable Care Act, including birth control, vaccinations and routine health screenings.

“This extreme MAGA ruling comes just months after the Republican-controlled Supreme Court discarded precedent and privacy in overturning Roe v. Wade,” she said. “Since then, House Republicans have plotted an unhinged, dangerous campaign to punish our most personal decisions, from abortion care to birth control and more. With the GOP’s utter disdain for our health, safety and freedom, it is only a matter of time that another drug, treatment, vaccine or health service becomes the next target of their extremism.”

In July the Urban Institute, a left-leaning think tank, released an analysis that said a ruling in the Texan’s favor could threaten coverage of preventive services for nearly 168 million people on employer health insurance and the Affordable Care Act’s individual market.

Dan can be reached at [email protected] and @DanMcCue

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