The Advocate July/Aug 2022
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Conservative Texas Lawyer Targets PrEP Access After Abortion Rights

Texas lawyer Jonathan Mitchell next to a pill bottle of Truvada blue oblong tablets.

With the Supreme Court overturning Roe v. Wade last month, the architect of a controversial Texas abortion law has already aimed at marriage equality, and his next target could leave Texans without access to lifesaving preventive care.

Jonathan Mitchell, the former solicitor general who helped write Senate Bill 8, the restrictive abortion law, opened a private law firm in Texas in 2018 to go after decades of the High Court's rulings, according to The Dallas Morning News.

Since the beginning of his career, Mitchell has been vocal about his desire to dismantle decades of decisions he believes depart from the Constitution’s language or recognize constitutional rights that do not have a textual foundation. Due to the Supreme Court’s continued shift in his direction, his cases will likely serve as a bellwether of the country’s legal system.

As the architect of Senate Bill 8, which makes everyday Texas citizens abortion bounty hunters, Mitchell, who once clerked under Justice Antonin Scalia, has spent years advocating for the Supreme Court to reverse Roe vs. Wade. His legal theories and court cases laid the groundwork for the ruling to fall.

In the four years since opening a one-person firm in Austin, Mitchell has litigated on a wide range of issues, including affirmative action, marriage equality, and contraception mandates.

Mitchell now has set his sights on Descovy and Truvada, two medications that help prevent HIV transmission when taken as PrEP, or pre-exposure prophylaxis, because those medications enable homosexual behavior, the suit states.

In the case Kelley v. the United States of America, filed in federal court in 2020, Mitchell represents several clients who object to the Affordable Care Act’s mandate that insurance providers cover, among other things, preventive medications specifically for PrEP.

“The PrEP mandate forces religious employers to provide coverage for drugs that facilitate and encourage homosexual behavior, prostitution, sexual promiscuity, and intravenous drug use,” the lawsuit states. “It also compels religious employers and religious individuals who purchase health insurance to subsidize these behaviors as a condition of purchasing health insurance.”

Regarding the plaintiffs, the suit claims “neither they nor any of their family members are engaged in behavior that transmits HIV.”

University of Texas constitutional studies director Richard Albert warns that after the reversal of Roe, states are being encouraged to turn back the clock on individual rights, therefore posing a grave threat to intimate relationships. 

His concern is that abortion was just the first domino in a long chain of events.

“The PrEP cases recently filed should alarm us all,” Albert tells The Advocate. “They suggest that LGBTQ+ rights will come under more intense and more frequent attack now that the court has telegraphed its willingness to revisit hard-won constitutional protections against sexual orientation discrimination.”

At UT Southwestern Medical Center, Dr. M. Brett Cooper is an assistant professor specializing in young adult and adolescent medicine. Puberty consultations, LGBTQ+ health, menstrual management, anxiety and depression treatment, HIV pre-exposure prophylaxis, sexually transmitted infections care, and reproductive health care are among his specialties.

He prescribes PrEP medications to a wide range of patients, including straight women and girls as well as heterosexual boys and young men, he tells The Advocate, and a carve-out for men who have sex with men, he believes, would be unsound not only medically but also constitutionally.

But he warns that LGBTQ+ Americans and Texans, in particular, ought to pay attention to proposed laws.

In 2021, a physician in the Texas legislature introduced a bill that would give health care providers the right to refuse patients treatment based on their personal beliefs, Cooper notes.

Texas Republican state Rep. Tom Oliverson, an anesthesiologist, introduced House Bill 1424, which would make it legal for medical providers to refuse care based on sincerely held moral or religious beliefs.

“If my husband or I got in a car accident and needed EMT care,” Cooper theorizes, “because there were no exceptions for emergencies or anything, the EMT could come out on a local ambulance, realize that we are a gay couple, and refuse — at that moment — to touch or transport my bleeding husband for care.”

While the measure ended up not passing, he says the threat of such bills remains. A similar law recently went into effect in South Carolina.

“I could certainly see with an exception for emergency care or trauma care they could say if I’m a physician and I think having sex outside of marriage is immoral or unethical or whatever I choose, and I do not want to give you PrEP, even though you’re in my office and you’re asking for it, that I could see passing muster and making headway,” Cooper says.

This would include contraception or “fill in the blank” or whatever medical intervention someone disagreed with, he says.

The Supreme Court, has opened the way to measures such as these, Albert says. 

“When the Supreme Court erased the fundamental right to abortion from the Constitution, it put the country on notice that everything is on the table,” he says. “From the right to contraception to the right to be free from sexual orientation discrimination to the right to marry—each of these fundamental rights and so many others are under threat of erosion or outright evisceration by the court’s new conservative supermajority.”

As a result of the activist conservative justices initiating a constitutional revolution, he says the country and the Constitution are about to undergo a fundamental change.

Recently, Texas Attorney General Ken Paxton said that he was "willing and able" to defend a law outlawing same-sex intimacy in the state if such a law were passed.

“If you believe in equality, dignity, and humanity, you have a responsibility to do anything and everything within your lawful means to get the right people elected across the country — both in Congress and in state legislatures,” Albert says.

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