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Latest Ruling Against ACA Could Lead to Thousands of New HIV Infections Per Year

Physicians are fearful of what “Braidwood Management v. Becerra” could mean for many forms of preventable health care.

A man displays a sign reading "DROP AIDS DENIALISM" during an outdoor protest in New York City, on March 27, 2023.

The passage of Obamacare — formally, the Patient Protection and Affordable Care Act (ACA) — in 2010 meant that that most private insurance plans were required to cover recommended preventive care services without making patients bear some of the cost. Since then, the ACA, or parts of it, have been legally challenged nearly 2,000 times.

In the most recent litigation, Braidwood Management v. Becerra, the plaintiffs allege that requiring insurance companies to pay for the HIV prevention medicine preexposure prophylaxis (PrEP) violates their religious beliefs. The judge in the case ruled on March 30 in favor of the plaintiffs’ argument, thus striking down that part of the ACA that required no-cost coverage of preventive services like PrEP. In short, the judge found that the requirement to cover PrEP medications for HIV prevention violated the rights of the plaintiffs, who had religious objections to the medicine.

Public health experts predict that the ruling will, if upheld, lead to more than 2,000 preventable cases of HIV a year.

The latest ruling was based on the precedent set by the 2014 Supreme Court case Burwell v. Hobby Lobby Stores, Inc, where the judge ruled that providing contraceptive coverage for employees was an infringement on the religious freedoms of employers. Last week’s Braidwood Management v. Becerra order now blocks the requirement nationwide.

While the federal government is appealing the most recent decision, public health experts predict that the ruling will, if upheld, lead to more than 2,000 preventable cases of HIV a year.

“It’s all a question of whether the ruling is upheld — nothing’s going to happen right away because insurance will probably stay the same until open enrollment period,” A. David Paltiel, a professor at the Yale School of Public Health, told Salon in an interview. “But if insurers are no longer required to cover these things completely, no cost sharing, no deductibles, no copays, many of them are going to scale back — and if they do, access will be curtailed.”

Taking PrEP lowers a person’s chances of getting HIV from sex by up to 99 percent. Users can take it one of three ways: as a daily pill, a bimonthly shot, or “on demand” 2 to 24 hours before having sex. Most insurance plans cover PrEP — including Medicaid, according to Planned Parenthood. Public health research has concluded that the drug has decreased new HIV infections by a “statistically significant” margin.

One of the plaintiffs in the case, Braidwood Management, is a for-profit company owned by a trust. The sole trustee is Dr. Steven F. Hotze, who identifies as a religious Christian. The second plaintiff, Kelley Orthodontics, is a Christian “professional association” owned by a man named John Kelley. As reported by the nonprofit Kaiser Family Foundation, the plaintiffs are “asserting both economic harm for having to pay more money for a health plan that includes services they do not want or need, and religious harm for having to include services they object to.”

Writing in Open Forum Infectious Diseases, Paltiel tried to estimate how the possible outcome of the case could affect men who have sex with men, who often request PrEP prescriptions. Paltiel has done previous modeling on how well PrEP works and how many people use it.

“For every 1 percent decline in [PrEP] coverage in this country, there are going to be about 114 cases of HIV infection, entirely preventable among men who have sex with men, in the coming year alone,” Paltiel said.

Based on estimates that 28 percent of men who have sex with men are eligible for PrEP, Paltiel said he and his colleagues estimated that nearly 2,000 new HIV cases could come from restricted insurance coverage. “Not to mention all the other risk groups, like transgender women, injection drug users and all sorts of other people, but just among men who have sex with men, just in the coming year — 2,000 new infections that could be completely attributed to this decision.”

“If people adhere to it the way as instructed it is virtually 100% protective,” Paltiel said. “It’s like a chemical vaccine, it’s just unbelievable — now, getting people to adhere to it as assiduously as they ought to, is a challenge.”

Paltiel said for people who take it as instructed, it’s been “revolutionary.”

“Ignorance, stupidity, defiance and fascism are no more in the interests of public health for HIV than they were for COVID,” Mass said.

“It’s not a cure for HIV infection, but it’s as close to, let’s call it a chemical vaccine,” Paltiel said. “And it’s incredibly cost effective, too.”

In an email, Dr. Lawrence Mass , co-founder of Gay Men’s Health Crisis, said this will result in the preventable spread of disease.

“Ignorance, stupidity, defiance and fascism are no more in the interests of public health for HIV than they were for COVID,” Mass said. “Already, I think it’s not hyperbole to say that we’re headed where Nazi Germany was headed. By and large, organized medicine in Nazi Germany passively accepted and abetted the worst atrocities in the history of the human race. Is this where we’re headed?”

Physicians across the country are fearful of what the interpretation of Braidwood Management v. Becerra could mean for various forms of preventable healthcare.

“Our physicians are on the frontlines of care, and we fear this decision will strip millions of patients of their access to important screenings for cancer, heart disease, counseling services, and preventive medications, including pre-exposure prophylaxis (PrEP) medications for the prevention of HIV. Invalidating these coverage requirements will make access to evidence-based preventive care financially unattainable for many patients,” the American Academy of Pediatrics said in a statement. The organization advocated for the decision to be appealed and overturned. “The health and well-being of millions of Americans is at stake,” they added.

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