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A person pours two PrEP pills from a bottle. (Photo: NAM aidsmap/cc)

'Monstrous': Federal Judge Rules HIV Drug Coverage Mandate Violates Religious Freedom

The right-wing judge found that requiring insurers and employers to cover the HIV prevention drug violates the religious liberty of a company whose owner advocated executing LGBTQ+ people.

Brett Wilkins

Legal, healthcare, and LGBTQ+ advocates on Wednesday denounced a ruling by a right-wing federal judge in Texas who found that the federal law requiring insurance coverage of an HIV prevention drug violates a Christian-owned company's religious freedom.

"No one's religious beliefs should ever prevent access to essential lifesaving medication."

U.S. District Judge Reed O'Connor ruled in Braidwood Management Inc., vs. Xavier Becerra that the Affordable Care Act's (ACA) requirement that insurers and employers cover pre-exposure prophylaxis, or PrEP, infringes upon the liberty of a company under the Religious Freedom Restoration Act (RFRA).

"This is monstrous," tweeted Alejandra Caraballo, an instructor at the Harvard Cyber Law Clinic. "No one's religious beliefs should ever prevent access to essential lifesaving medication."

Dr. Oni Blackstock, who specializes in HIV care, said O'Connor's ruling "makes no sense and [I] am assuming [it] is being driven solely by homophobia and transphobia. Disgusting and inhumane."

U.S. Rep. Cori Bush (D-Mo.) tweeted: "Allowing employers to deny coverage for PrEP—a lifesaving medication that prevents the spread of HIV—threatens the lives of our most vulnerable communities. We cannot and will not stand for this."

The plaintiffs in the case—two businesses owned by Christians and six individuals—argued that the ACA's requirement to cover PrEP "forces religious employers to provide coverage for drugs that facilitate and encourage homosexual behavior, prostitution, sexual promiscuity, and intravenous drug use."

One of the companies, Braidwood Management, Inc., is led by Steven Hotze, a medical doctor who chairs the Conservative Republicans of Texas PAC. Hotze once said on live television that the best way to control the HIV/AIDS epidemic would be to "shoot the queers."

In his ruling, O'Connor wrote that the U.S. Department of Health and Human Services (HHS) did not offer any "compelling" evidence that "private, religious corporations" should be forced to cover PrEP "with no cost-sharing and no religious exemptions."

The judge also concurred with the plaintiffs' contention that the U.S. Preventive Services Task Force (PSTF)—which makes recommendations about what qualifies as preventative care under the ACA—is unconstitutional because it "wields a power to compel private action that resembles legislative authority."

O'Connor was appointed by then-President George W. Bush in 2007 and has authored numerous anti-ACA rulings, including one in 2018 that called the popular healthcare law, commonly known as Obamacare, "unconstitutional."

O'Connor asked both sides to submit supplemental briefings by Friday so he can determine whether the ACA requirement violates the RFRA more broadly.

According to Christopher Wiggins, the senior national reporter at the LGBTQ+ news site The Advocate, O'Connor's ruling "could potentially jeopardize free access to other services, including cancer screenings, medical screenings for pregnant women, and some counseling services across the country."

New York University Law School professor Melissa Murray called the decision "your weekly reminder that the conservative legal movement has no plans to stop at abortion" in the wake of the U.S. Supreme Court's Dobbs v. Jackson Women's Health Organization ruling, which voided half a century of federally guaranteed reproductive freedom.

The Movement for Black Lives asserted that "this ruling directly impacts Black lives and our ability to access lifesaving healthcare. Furthermore, PrEP and other health benefits and services should be free for all and not tied to our labor."

Georgetown Law professor Anthony Michael Kreiss tweeted, "Let us be clear: PrEP is essential to combating the transmission of HIV and keeping the public healthy."

"Today's ruling from Texas is an example of every person becoming a law unto themself in the name of religion but for the sole purpose of subordinating gay men and trans women," he added.

Former Ohio state Sen. Nina Turner, a progressive Democrat, asked, "Which religion bars you from preventing HIV?"

An HHS spokesperson told The Advocate that the agency "continues to work to ensure that people can access healthcare, free from discrimination."

"If individuals feel that they have been denied care," they added, "we would encourage them to file a complaint with the Office for Civil Rights."

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