Judge Rules ACA Can’t Require Coverage for HIV Prevention Drug PrEP

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Health experts say the recent ruling by a Texas federal judge striking down the ACA’s requirement that employers provide coverage for HIV prevention drugs could have a negative effect on efforts to curtail the spread of the virus. Sara Jurado/Getty Images
  • A Texas federal judge has ruled that requiring employers to provide coverage for HIV prevention drugs (PrEP) is unconstitutional.
  • The basis for the ruling was the plaintiff’s claim that it would violate his religious beliefs.
  • Experts are worried that it could make it harder for people to obtain needed preventive healthcare.
  • It could have a negative effect on efforts to curtail the spread of HIV.
  • It might also reinforce stigmas associated with HIV.

The Texas Tribune reports that on September 7, 2022, U.S. District Judge Reed O’Connor, a federal judge located in Fort Worth, Texas, ruled that the Affordable Care Act (ACA) requirement for employers and insurance companies to provide free coverage of HIV prevention drugs was unconstitutional.

According to the U.S. Centers for Disease Control and Prevention (CDC), PrEP (preexposure prophylaxis) medications can reduce a person’s risk of getting HIV from sexual activity or intravenous drug use and is highly effective when taken properly.

O’Connor’s rationale for his decision rested in the fact that he deemed it a violation of a Christian business owner’s freedom of religion.

He also found that certain features of how the federal government decides which preventive care is covered are unconstitutional.

Public health experts have expressed concerns that this ruling could weaken the ability of the ACA to provide preventive care to a large segment of Americans.

Around 49% of people in the United States rely on employer-sponsored health insurance, according to Policy Advice.

Josh Perry, associate dean for academics and the Graf Family Professor of Business Law and Ethics at the Indiana University Kelley School of Business, explained that Braidwood Management v. Becerra involved a small business owner who was joined by a coalition of other individuals as well as another business in challenging certain provisions of the ACA.

According to Perry, the plaintiff claimed that he did not want to “facilitate and encourage homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman” and that he felt he would be “complicit in those behaviors” if he provided insurance coverage for PrEP medications to his employees.

He further claimed that this was due to his Christian beliefs and how he interpreted the Bible.

Perry said that while government lawyers argued that it was wrong to assume that PrEP drugs “facilitated or encouraged” these behaviors, the Court said “correctness” of beliefs doesn’t matter – only the “sincerity” of those beliefs.

Perry also explained that the lawyers argued that HIV can be a fatal illness so the government has a compelling interest in reducing its spread in order to protect the public, which the plaintiff did not disagree with.

“Ultimately, the Court ruled that this mandate imposed a substantial burden on the religious freedom of the small business owner that was not permitted under the Religious Freedom Restoration Act (RFRA),” said Perry.

“Furthermore, and this is very important,” added Perry, “the Court ruled that one of the three entities empowered by the Affordable Care Act to make determinations about what preventive healthcare must be covered by insurance companies is not constitutionally permitted to make these types of authoritative binding decisions.”

“If this ruling were to stand,” said Nancy Nielsen, Senior Associate Dean for Health Policy at Jacobs School of Medicine and Biomedical Sciences, University at Buffalo, “public health officials fear that ACA-mandated coverage for other no-cost preventive and screening measures that are now available, such as vaccines or cancer screenings like colonoscopies or mammograms, could be eliminated as well.”

“We know healthcare is less costly with prevention and early detection of disease,” added Perry, “and thus, to the extent this ruling undermines the ACA’s process for determining which preventive services will be covered, overall systemic healthcare costs will rise and individuals are more likely to experience poor health outcomes.”

When it comes to PrEP, Nielsen said, “There’s no question that PrEP has prevented HIV infection in high risk individuals.”

“It is expensive and if not covered by insurance, will be out of reach of most Americans who would benefit from it.”

Perry further noted that the cost for a PrEP prescription can run as high as $20,000 annually. “PrEP drugs reduce the risk of getting HIV from sex by 99% and from injection drug use by 74%,” he noted.

Nielsen also said that this decision reinforces the stigma that is often associated with HIV. “At its heart, the ‘religious freedom’ of an employer to deny lifesaving coverage to employees who have different beliefs is discriminatory,” she said.

Perry additionally noted that the Court failed to comment on the lack of factual support for the business owner’s statement that access to such medication could encourage behaviors like intravenous drug use and premarital sex. “The risk of reinforcing stigma is real,” he said.

It should be kept in mind that, like any judicial ruling, the potential exists for it to be overturned by a higher court; and, this is not Judge O’Connor’s first time facing off against the ACA.

In 2018, The Texas Tribune reported that he had “gutted” the healthcare law. However, his ruling was later overruled by the U.S. Supreme Court, said Nielsen. “So his reading of what is constitutional or not shouldn’t be taken as gospel truth.”

While it remains to be seen whether the current ruling will be overturned as well, Perry explained that “This Court’s decision, if it were to survive intact after review by the Supreme Court, could have a catastrophic impact on the ACA’s preventive health dynamics.”

“As someone who studies the legal and ethical dynamics of healthcare in this country, [this recent] ruling leaves me very concerned about the long-term viability of the ACA’s preventive healthcare dimensions,” concluded Perry.

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