A conservative federal judge ruled on Wednesday that it is a violation of corporations’ and health insurance companies’ religious freedom for the government to mandate that health plans cover the life-saving HIV prevention drug PrEP, in a win for Christian right-wingers who brought the suit.
President George W. Bush-nominated District Judge Reed O’Connor ruled that the Department of Health and Human Services (HHS) did not show enough evidence to prove that “private, religious corporations” should have to cover PrEP under regulations implemented by the Affordable Care Act (ACA).
The Christian plaintiffs, led by Republican private lawyer Jonathan Mitchell, brought the case for openly homophobic reasons. While public health experts say that PrEP is a crucial tool for containing HIV in the population as a whole, the plaintiffs argued that allowing people to use the drug “encourages” people to engage in same-sex intercourse — which would be a violation of corporations’ religious rights, they claimed.
O’Connor is notoriously anti-LGBTQ and anti-ACA. He has previously ruled against rights for gay couples and has made multiple attempts to strike down the ACA altogether, and it’s possible that the plaintiffs specifically sought him out for their case.
The ruling is a win for the far right, which has been perpetuating a renewed wave of anti-LGBTQ panic while working to legally rescind the rights of LGBTQ people in some Republican-governed states and localities — an effort that now includes rescinding the right of people to affordably access potentially life-saving drugs for an illness that disproportionately affects gay and bisexual men in the U.S.
The ruling is also another win for Mitchell, who last year played a huge hand in crafting Texas’s anti-abortion bill that legally marked the beginning of the end for Roe v. Wade.
In his decision, O’Connor accepts the plaintiff’s argument that PrEP incentivizes people to have more risky sex. But, aside from the ethical nature of the argument, this isn’t even true; experts say that the use of PrEP generally doesn’t cause people to engage in more risky sex or use more intravenous drugs.
Even if PrEP did encourage people to have more risky sex, however, it is concerning that O’Connor or the plaintiffs think that employers should have a say in their employees’ sex lives.
The plaintiff’s argument that only gay and bisexual people need PrEP is also untrue.
According to the Texas Tribune, one plaintiff, John Kelley, while noting that he also opposes contraceptive coverage, said “They do not want or need free sexually-transmitted disease testing covered by their health insurance because they are in monogamous relationships with their respective spouses. And they do not want or need health insurance that covers Truvada or PrEP drugs because neither they nor any of their family members are engaged in behavior that transmits HIV.”
Kelley’s argument ignores a number of realities. First, it is not possible for anyone to know for certain that their family members or even their spouses aren’t engaged in HIV-transmitting actions and thus would not need PrEP. Additionally, while HIV does disproportionately affect gay and bisexual men, there are still hundreds of thousands of people who get the illness through heterosexual contact — and, in fact, in the U.K., the number of new HIV diagnoses among heterosexual people recently surpassed those of gay and bisexual men.
Alarmingly, O’Connor’s decision could also affect a wide swath of other drugs that insurers are mandated to cover under the ACA. As Slate legal writer Mark Joseph Stern points out, O’Connor suggests in his decision that the existence of a large portion of the entities regulating health insurers itself is illegal.
“Invalidating [these regulatory groups] would undo a huge portion of the Affordable Care Act, freeing private insurers from the obligation to provide so much basic coverage — again, we’re talking vaccines, pregnancy care, cancer screening and treatment … The list is nearly endless,” Stern said, noting that this case could be yet another crack at invalidating the ACA by O’Connor. “This is an assault on the ACA, period.”
University of Pennsylvania law professor Allison Hoffman also pointed out the threat to the ACA posed by the case. “We’re talking about vaccines, we’re talking about mammograms, we’re talking about basic preventative health care that was being fully covered,” Hoffman told the Texas Tribune. “This is opening the doors to things that the ACA tried to eliminate, in terms of health plans that got to pick and choose what of these services they fully covered.”