A federal judge in Texas on Wednesday ruled that requiring employers to provide the HIV prevention drug PrEP violates their religious freedom.
The judge, Reed O’Connor of Fort Worth, also called into question mandatory coverage of all preventive health care services — a stance that could have a wide-ranging impact on the future of the 2010 health care law.
That law requires employers to provide preventative care, and Reed’s ruling is not the first time the Texas judge has issued a decision to chip away at the law. In 2018, O’Connor ruled the entire health law was unconstitutional, a ruling the Supreme Court overturned in 2021.
In the case at hand, Braidwood Management Inc. et al. v. Becerra, six individuals and two businesses challenged the legality of the preventive care mandates under the Constitution and Religious Freedom Restoration Act. The latter prohibits any government agency from substantially burdening an individual’s religious practice.
Braidwood provides health insurance to employees but objected to coverage for PrEP because the plaintiff believes the Bible is “the authoritative and inerrant word of God.” The company argued that providing coverage of PrEP drugs “facilitates and encourages homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman.”
Braidwood Management is owned by Steven Hotze, a conservative activist who was recently indicted for actions in connection to the 2020 elections; Hotze faced felony charges of unlawful restraint and aggravated assault with a deadly weapon related to his involvement in a fruitless search for thousands of fraudulent mail ballots.
Hotze’s lawyer, Jonathan Mitchell, is the former solicitor general of Texas and has been credited with crafting the Texas abortion law SB 8.
In 2019, the Department of and Human Services recommended preexposure prophylaxis, commonly known as PrEP, to help prevent HIV infection for those at high risk, meaning health insurance plans must cover the drug.
The drug reduces the risk of contracting HIV from sex by roughly 99 percent and from drug injection by about 74 percent. The drug is taken primarily by men who have sex with men but also by heterosexual individuals who may be at high risk for the disease. Survivors of sexual assaults are often prescribed PrEP as well.
O’Connor said that the defendants — the Biden administration — did not show a compelling interest in forcing private, religious corporations to cover PrEP with no cost-sharing or religious exemptions, despite the drug’s benefits at curbing the infectious disease.
“Braidwood has shown that the PrEP mandate substantially burdens its religious exercise,” he wrote. “The burden thus shifts to Defendants to to show that the PrEP mandate furthers a compelling governmental interest and is the least restrictive means of furthering that interest. Defendants have not carried that burden.”
O’Connor also took issue with the 2010 health care law’s preventive service mandate, which allows a task force to determine which drugs should be covered as preventive under the law. He argued the task force has too much power and is not confirmed by Congress. He argued that members of the preventative service task force are “unconstitutionally appointed.”
Katie Keith, a health law expert with Georgetown University Center on Health Insurance Reforms, cautioned that this case could put coverage of other preventative services at risk, such as cancer screenings or tobacco cessation programs.
Carl Schmid, executive director of the HIV+Hepatitis Policy Institute said he expects the case will soon be appealed.
“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,” he 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.”
It’s unclear how broadly the ruling will apply. O’Connor has asked for briefs to be filed by the end of the week, and then he will decide whether this applies to just the parties in question or a broader group.
O’Connor also wrote in his ruling that he will soon issue another briefing addressing whether private businesses must cover contraceptive services —an issue other plaintiffs raised in the case.