Federal Judge Rules Against Obamacare Coverage Of HIV Prevention Drugs
Thembelani Sibanda shows the Pre-Exposure Prophylaxis (PrEP), an HIV preventative drug during an interview on November 30, 2017 in Soweto, South Africa.
Daniel Born/The Times/Gallo Images/Getty Images

A federal judge in Texas struck down a provision in the Affordable Care Act that requires employers and insurers to cover HIV prevention drugs, ruling that the requirement opposes the religious freedom of some Christian-led companies.

Judge Reed O’Connor’s ruling on Wednesday could have far-reaching consequences for the act popularly known as Obamacare.

“Braidwood has shown that the PrEP mandate substantially burdens its religious exercise,” he wrote. “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. Defendants have not carried that burden.”

The case, Braidwood Management Inc. et al. v. Becerra, included six individuals and two businesses that challenged the preventive care mandates under the Constitution and Religious Freedom Restoration Act.

The Religious Freedom Restoration Act prohibits any government agency from substantially burdening an individual’s religious practice. The plaintiffs argued that the coverage of the drug opposed their religious convictions as they did not desire to encourage same-sex behavior.

The drug targeted in the lawsuit is preexposure prophylaxis, popularly called PrEP. The drug was recommended by the Department of Health and Human Services in 2019 to help prevent HIV infection for those at high risk, forcing health insurance plans to cover it.

The drug reportedly reduces the risk of contracting HIV from sex by roughly 99% and from drug injection by about 74%. The drug is taken primarily by men who have sex with men, but also by heterosexual individuals who may be at high risk for the disease, according to the Centers for Disease Control and Prevention (CDC). Survivors of sexual assaults are also sometimes prescribed PEP (postexposure prophylaxis).

O’Connor also stated in the ruling that the task force’s system for deciding which services should be fully covered under the Affordable Care Act was unconstitutional. The ruling opposed some additional preventive services covered under the U.S. Preventive Services Task Force, including colorectal and other cancer screenings, depression screenings, and hypertension screenings.

Carl Schmid, executive director of the HIV+Hepatitis Policy Institute, told Roll Call that he expects the case will be appealed.

“Preventive services covered by private insurance plans without cost-sharing, such as HIV testing, hepatitis B and C testing, and PrEP, are all critical and well-established public health preventive services that must continue,” he said in a statement. “To single out PrEP, which are FDA approved drugs that effectively prevent HIV, and conclude that its coverage violates the religious freedom of certain individuals, is plain wrong.”

The ruling follows a 7-2 Supreme Court ruling in June 2021 to reject a challenge to the Affordable Care Act from Texas Attorney General Ken Paxton and 17 other Republican attorneys general.

The attorneys general argued against the constitutionality of the law’s individual mandate, its prohibition on lifetime benefit caps, and its guarantee of protection for individuals with pre-existing conditions.

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