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 byJonathan Mitchell, a Republican private attorney, brought the case because he was openly homophobic. Public health experts agree that PrEP is an important tool to contain HIV in the entire population. 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-LGBTQAnd anti-ACA. He has previously ruled against rightsfor gay couples, and has made numerous efforts to strike down the ACA altogether, and it’s possible that the plaintiffs specifically sought him outThey are grateful.
The ruling is a victory of the far right, which has been perpetuatingThere is a new wave of antiLGBTQ panic as lawyers attempt to revoke 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 menIn 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 sayPrEP generally is not recommended. doesn’t cause peopleEngage in more risky sex, or take 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. HIV still has a significant impact on gay and bisexual males, but it is not disproportionately prevalent in these groups. 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 surpassedThose 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 SlateMark Joseph Stern, a lawyer, points out: O’Connor suggestsIn his decision, he stated that the existence and regulation of large parts of the entities that regulate the health insurance industry 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.”
Allison Hoffman, a University of Pennsylvania professor of law, pointed out the danger to the ACA posed 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.”