A federal judge in Fort Worth agreed Wednesday with a group of Christian conservatives that Affordable Care Act requirements to cover HIV prevention drugs violate their religious freedom.
U.S. District Judge Reed O鈥機onnor also agreed that aspects of the federal government鈥檚 system for deciding what preventive care is covered by the ACA violates the Constitution.
O鈥機onnor鈥檚 ruling could threaten access to sexual and reproductive health care for more than 150 million working Americans who are on employer-sponsored health care plans. It is likely to be appealed by the federal government.
This lawsuit is the latest in a decade of legal challenges to the Affordable Care Act, many of which have run through O鈥機onnor鈥檚 courtroom. In 2018, O鈥機onnor ruled that the , a decision that was struck down by the U.S. Supreme Court.
At issue in the class-action lawsuit is a 2020 mandate requiring health care plans to cover HIV prevention medication, known as PrEP, free of charge as preventive care.
In the suit, a group of self-described Christian business owners and employees in Texas argue that the preventive care mandates violate their constitutional right to religious freedom by requiring companies and policyholders to pay for coverage that conflicts with their faith and personal values.
The lawsuit was filed in 2020 by Austin attorney Jonathan Mitchell, the legal mind behind Texas鈥� civilly enforced six-week abortion ban. In the suit, Mitchell also challenges the entire framework through which the federal government decides what preventive services get covered.
O鈥機onnor threw out several of Mitchell鈥檚 arguments but agreed that the U.S. Preventive Services Task Force鈥檚 system for deciding what health care services are required to be fully covered under the ACA violates the Appointments Clause of the U.S. Constitution.
鈥淎t a high level, this lawsuit is part of a larger pushback against the government鈥檚 ability to regulate,鈥� said Allison Hoffman, a law professor at Penn Carey Law at the University of Pennsylvania. 鈥淎nd then also asking what happens when regulations and religion clash.鈥�
One of the plaintiffs, Dr. of Katy, often sues the government and elected officials over politically charged issues, including fights with GOP state leaders over emergency COVID-19 orders and an attempt to stop Harris County from expanding voter access.
In the complaint, Hotze said he is unwilling to pay for a health insurance plan for his employees that covers HIV prevention drugs such as Truvada and Descovy, known generally as PrEP, 鈥渂ecause these drugs facilitate or encourage homosexual behavior, which is contrary to Dr. Hotze鈥檚 sincere religious beliefs.鈥�
PrEP reduces the risk of getting HIV by 99% when taken as recommended, according to the U.S. . In spite of the assertions by the Christian group in Texas, the CDC also says that new cases are in women, not men who have sex with men.
鈥淭he virus doesn鈥檛 choose who to infect, it can infect anyone,鈥� said Dr. Satish Mocherla, an infectious disease specialist at Legacy Community Health Services in Dallas. 鈥淪o why a particular demographic is being targeted is a mystery to us.鈥�
And contrary to what the lawsuit asserts, PrEP does not 鈥渇acilitate or encourage homosexual behavior,鈥� said John Carlo, CEO of Prism Health North Texas and former public health director of Dallas County. 鈥淧rEP prevention research shows that its use does not increase risky behaviors or cause people to have more sex or use more intravenous drugs when using it,鈥� Carlo said. 鈥淭his is well studied.鈥�
The other plaintiffs, including John Kelley, a Tarrant County orthodontist, claim they 鈥渄o not need or want contraceptive coverage in their health insurance. 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.鈥�
Kelley was previously the named plaintiff in the case, but the name was changed last month 鈥渂ecause the media coverage of this case has triggered a wave of threats and cyberbullying鈥� against Kelley, .
Wide-reaching consequences
The lawsuit specifically addresses PrEP, but O鈥機onnor鈥檚 ruling, which addresses how the federal government can decide what preventive care is covered in employer health care plans, may end up having much more wide-reaching consequences, Hoffman said.
鈥淲e鈥檙e talking about vaccines, we鈥檙e talking about mammograms, we鈥檙e talking about basic preventative health care that was being fully covered,鈥� she said. 鈥淭his 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.鈥�
The , along with 60 leading medical organizations, issued a statement condemning the lawsuit.
鈥淲ith an adverse ruling, patients would lose access to vital preventive health care services, such as screening for breast cancer, colorectal cancer, cervical cancer, heart disease, diabetes, preeclampsia, and hearing, as well as access to immunizations critical to maintaining a healthy population,鈥� the organizations wrote.
While implementation has not been as universal as hoped, fully funded preventive care through the ACA has been shown to be largely effective at improving health outcomes, reducing health care spending and .
鈥淭he idea that an employer can shop a la carte for policy coverage goes against what we have learned over the last decade in the effort to end the HIV epidemic,鈥� said Carlo, the former Dallas County health director. 鈥淭his takes us into the wrong direction, and we have only just begun to head into the right one.鈥�
At Legacy Community Health Services in Houston, where patients include a large population of those receiving PrEP, the lawsuit has begun to worry those who rely on their insurance to cover their treatment 鈥� and those patients are not restricted to members of the LGBTQ community, Mocherla said.
They include hemophiliacs and others who are vulnerable to HIV infection, Mocherla said. The rate of infection since the introduction of pre-exposure prophylaxis has declined in almost every demographic, he said.
Allowing companies to drop free coverage would prevent many of Legacy鈥檚 patients from being able to afford the treatment, Mocherla said, and would reverse that historic trend of declining HIV rates.
Shutting down access right now, while 鈥渨e are on the verge of a breakthrough,鈥� would set back the effort to eradicate the deadly virus by decades, he said.
鈥淲ithout prevention, how can you cure the disease?鈥� Mocherla said. 鈥淚t鈥檚 just shocking. 鈥� And if ending the HIV epidemic is dear to anyone鈥檚 heart, we cannot leave prevention aside. And that鈥檚 why we are mystified. We are all very dismayed.鈥�
