A federal judge in Texas has ruled that a provision of the Affordable Care Act requiring employer-provided insurance plans to cover drugs that prevent HIV infection at no cost to patients is unconstitutional and infringes upon the religious beliefs of employers who have personal objections to homosexuality.

On Wednesday, Aug. 7, U.S. District Judge Reed O’Connor found in his ruling that the mandate requiring employers to cover the cost of drugs like Truvada and Descovy — which are taken as pre-exposure prophylaxis, or PrEP, to prevent HIV infection — overly burdens employers, in violation the Religious Freedom Restoration Act.

He also ruled that the mandate was created in response to a recommendation from an advisory body that had been formed in violation of constitutional requirements.

The lawsuit was filed by eight individuals, including five who are self-employed, and two businesses, including the Christian for-profit corporation Braidwood Management Inc., the lead plaintiff in the case.

The plaintiffs argued that the requirement that they provide insurance coverage for PrEP, as well as for contraceptives and a vaccine that prevents cancers caused by human papillomavirus (HPV), requires business owners to pay for services that “encourage homosexual behavior, prostitution, sexual promiscuity and intravenous drug use,” all of which their personal religious beliefs condemn.

O’Connor rejected the challenge to the HPV vaccine mandate, and delayed ruling on the contraceptives mandate, reports Reuters.

While O’Connor has not specified how the ruling will be enforced, he did rule that members of the Preventive Services Task Force — an independent, volunteer panel of experts that makes recommendations about which preventive services should be covered under the Affordable Care Act — must be appointed directly by the president.

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Currently, members of the task force are appointed to 4-year terms by the director of the Agency for Healthcare Research and Quality, a division of the U.S. Department of Health and Human Services.

In his ruling, O’Connor wrote that the government had not shown a “compelling interest in forcing private, religious corporations to cover PrEP drugs with no cost-sharing and no religious exemptions.”

The judge also claimed that even if the government had proven it had a compelling interest in requiring insurance coverage or PrEP, they failed to show that the provision within the ACA providing free-cost PrEP was the “least restrictive means” of furthering that interest.

Quoting from a similar case involving ACA-mandated contraceptive coverage, O’Connor suggested that the “most straightforward way” of ensuring access to PrEP, in this case, might be to have the government “assume the cost of providing PrEP drugs to those who are unable to obtain them due to their employers’ religious objections.”

O’Connor has become infamous for his rulings seeking to strike down any and all parts of the Affordable Care Act.

In 2018, he ruled the entire Affordable Care Act to be unconstitutional, a decision that was turned back by the U.S. Supreme court in 2021.

In a separate case in 2016, he issued an order blocking the Obama administration from seeking to enforce provisions within the ACA that would have prevented providers and insurers from discriminating against LGBTQ people.

The American Cancer Society Cancer Action Network said in a statement that O’Connor’s ruling could threaten free preventive care more broadly, including routine cancer screenings. 

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The federal government is expected to appeal the decision.

HHS said in a statement that it “continues to work to ensure that people can access healthcare, free from discrimination.”

HIV prevention advocates blasted the ruling, saying it would restrict access to drugs that otherwise help people avoid life-threatening conditions and the health and financial burdens that HIV, in particular, imposes on those living with the disease.

“This shocking ruling defies evidence, logic, public health and human rights and sets back enormous progress made in the fight to end the HIV epidemic in the US and globally,” Mitchell Warren, executive director of AVAC, a global HIV prevention advocacy organization, said in a statement. “It is a blatantly homophobic and misogynistic ruling that will endanger the lives of many gay men and others who rely on PrEP to protect themselves from HIV.”

House Speaker Nancy Pelosi condemned O’Connor’s decision as a conservative form of judicial activism.

“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 said in a statement. “This disturbing decision amounts to open homophobia: unleashing unthinkable suffering and death specifically among the LGBTQ community. This decision also threatens vital preventative health services guaranteed under the Affordable Care Act, including birth control, vaccinations and routine health screenings,”

“This extreme MAGA ruling comes just months after the Republican-controlled Supreme Court discarded precedent and privacy in overturning Roe v. Wade. Since then, House Republicans have plotted an unhinged, dangerous campaign to punish our most personal decisions, from abortion care to birth control and more. With the GOP’s utter disdain for our health, safety and freedom, it is only a matter of time that another drug, treatment, vaccine or health service becomes the next target of their extremism.”

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Carl Schmid, the executive director of the HIV+Hepatitis Policy Institute, said the organization was not surprised by O’Connor’s decision, giving his past rulings, not only against the Affordable Care Act, but LGBTQ rights in general. 

“Preventive services covered by private insurance plans without cost-sharing, such as HIV testing, hepatitis B and C testing, and PrEP, are all critical and well-established public health preventive services that must continue,” Schmid said in a statement. “To single out PrEP, which are FDA-approved drugs that effectively prevent HIV, and conclude that its coverage violates the religious freedom of certain individuals, is plain wrong, highly discriminatory, and impedes the public health of our nation.

“PrEP is not just for gay men, but for anyone who may be at risk of HIV. In fact, according to the CDC, of the 1.2 million people who might benefit from PrEP, over half are heterosexual. We as a nation must do all we can to prevent HIV, no matter whom it may impact. We look forward to a successful appeal of this decision.”