Dalila Ali Rajah
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Breaking: Texas Judge Rules PrEP Coverage Violates Religious Freedom

Jonathan Mitchell and PrEP

A federal judge in Texas has ruled partially in favor of plaintiffs who argued that requiring insurance companies to cover medications for HIV pre-exposure prophylaxis, or PrEP, violates their rights on religious grounds. 

Jonathan Mitchell, who founded a one-person law firm in 2018 intending to challenge decades-old Supreme Court rulings, brought the case Braidwood Management Inc. v. Xavier Becerra in the Northern District of Texas. Becerra is the secretary of Health and Human Services.

In that court, U.S. District Judge Reed O’Conner ruled in favor of plaintiffs who argued that paying for insurance that covers PrEP violates their religious beliefs because PrEP “enable[s and encourages] homosexual behavior.”

In the 42-page ruling, O’Connor writes, “The PrEP mandate violates Braidwood’s rights under [Religious Freedom Restoration Act].”

Mitchell helped draft Texas’s Senate Bill 8, the restrictive 2021 abortion law that made everyday people bounty hunters who could sue anybody they believed may have been involved with the procedure.

O’Connor writes in the ruling that the federal government “outline[s] a generalized policy to combat the spread of HIV, but they provide no evidence connecting that policy to employers such as Braidwood.”

He continues, “Thus, defendants have not carried their burden to show that the PrEP mandate furthers a compelling governmental interest.”

A spokesperson for the Department of Health and Human Services tells The Advocate that “HHS continues to work to ensure that people can access health care, free from discrimination. If individuals feel that they have been denied care, we would encourage them to file a complaint with the Office for Civil Rights.”

George W. Bush appointed O’Connor in 2007. He is no stranger to controversial rulings.

“When it comes to this kind of lawsuit, you have to know the context of where it’s filed,” Harvard Cyber Law Clinic instructor Alejandra Caraballo told The Advocate’s sibling publication Plus recently. “[Conservative attorneys] know how to game the system to get particular judges like ... Reed O’Connor.”

O’Connor also ruled in favor of the plaintiffs’ argument that the U.S. Preventive Services Task Force, or PSTF, which recommends what qualifies as preventative medical care under the Affordable Care Act, is unconstitutional because it “wields a power to compel private action that resembles legislative authority.”

As principal officers, PSTF members must be appointed by the president and confirmed by the Senate, according to O’Connor.

“The PSTF members indisputably fail that constitutional requirement,” he writes.

The ruling dismissed a claim that challenged the preventive mandate outright.

O’Connor’s solution could potentially jeopardize free access to other services, including cancer screenings, medical screenings for pregnant women, and some counseling services across the country. 

Under the constitution, he found the Health Resources and Services Administration and the Advisory Committee on Immunization Practices to be empowered appropriately to address preventive services under the ACA. 

O'Connor's ruling is not surprising to seasoned observers.

A coalition of conservative groups sued the Equal Employment Opportunity Commission to allow them to discriminate based on religious grounds, and O’Connor ruled in 2021 that they could proceed. This was despite the Supreme Court extending employment protections for LGBTQ+ people a year earlier. In addition, O’Connor struck down Obama-era health insurance protections for LGBTQ+ people and ruled the Affordable Care Act was unconstitutional (the Supreme Court later reversed O’Connor’s rulings). 

“You can file in a certain office, and you can get guaranteed a judge — and those judges have been stacked — that isn’t just conservative; these judges are reactionary,” Caraballo said. “So [lawyers] can be explicitly homophobic in their complaint and say, ‘Hey, this is our religious belief.’”

In August, O’Connor granted Mitchell’s motion to rename the case from Kelley v. Xavier Becerra to Braidwood Managment Inc. v. Xavier Becerra because of bad publicity the case had received after The Advocate reported news of the matter in July.

Legal experts have expressed outrage at the ruling.

Political scientist and Georgia State Law School professor Anthony Michael Kreis warns that this is the opening salvo in a mission to remove LGBTQ+ rights.

Kreis 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.”

New York University Law School professor and Supreme Court expert Melissa Murray repeated her ongoing alerts since the Dobbs decision overturned Roe v. Wade.

Murray wrote, "Your weekly reminder that the conservative legal movement has no plans to stop at abortion."

Caraballo put a finer point on Wednesday’s decision on Twitter. She wrote, “For context, the plaintiff Braidwood management is run by Steven Hotze who believes ‘shoot[ing] the queers’ is the best way to fight AIDS. A judge has just sided with him to deny PrEP and HIV medication.”

Late Wednesday afternoon, Speaker of the House Nanci Pelosi reacted to the decision with outrage, composing several tweets calling out the anti-LGBTQ+ ruling.

"Today, a radical, Republican-appointed federal judge ruled that employers can deny coverage for PrEP: a drug proven to save lives from HIV/AIDS and a key strategy for ending the epidemic," Pelosi wrote. "As extreme MAGA Republicans work to rip away life-saving drugs, Democrats are fiercely defending health freedom, protecting access to health care and lowering the cost of prescription drugs. Every day, Democrats are putting #PeopleOverPolitics."

Wednesday evening, White House press secretary Karine Jean-Pierre indicated the Biden administration's intention to review the blow to the 10-year-old law.

"In addition to making affordable health insurance available to millions of Americans, the ACA has guaranteed free access to critical preventive medical services — from cancer screenings to HIV prevention drugs like PrEP," Jean-Pierre wrote. "That guarantee is critical to the health and wellbeing of millions of Americans, particularly LGBTQI+ Americans, people of color, pregnant women, and others."

She concluded, "The Administration is committed to protecting Americans’ access to free preventive health care and building upon the successes of the Affordable Care Act."

A Department of Justice spokesperson told The Advocate that "the department declines to comment."

This developing story was updated to reflect comments from White House press secretary Karine Jean-Pierre on behalf of President Biden as well as comment from Speaker of the House Nancy Pelosi.

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