UPDATE: Department of Justice attorneys representing the Department of Health and Human Services will appeal a Texas federal judge’s ruling on the Affordable Care Act to the 5th Circuit Court of Appeals in New Orleans, according to a notice of appeal filed in federal court Friday.
According to a Texas federal judge, insuring against HIV transmission violates the religious freedom of businesses that object to LGBTQ+ people, meaning insurance companies cannot be forced to cover the medicines. As a result of his ruling, a 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.
HIV prevention medications available in California without prescription
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.
“Because of the (Affordable Care Act), 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,” Jean-Pierre said.
“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.
Lambda Legal HIV project director Jose Abrigo criticized the ruling.
“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.”
The president and CEO of Democracy Forward, a legal advocacy and research organization, Skye Perryman also criticized the ruling.
“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,” Perryman said.
This article originally appeared on Advocate.com, and is shared here as part of an LGBTQ+ community exchange between Q Voice News and Equal Pride.