On September 7, U.S. District Judge Reed O’Connor of Fort Worth advanced his fight to upend the Affordable Care Act when he sided with anti-LGBTQ employers seeking to eliminate coverage for the HIV prevention drug known as PrEP.
PrEP, short for pre-exposure prophylaxis, is a highly effective antiviral medication used to prevent HIV in people who have not been exposed to the disease. PrEP is covered by most insurance plans and was mandated free under the Affordable Care Act in 2020. It has also been a large part of managing the spread of the deadly virus.
The issue was brought to the public forum by attorney Jonathan Mitchell, who helped architect the restrictive abortion ban in Texas that empowered citizens to conduct arrests for people and medical providers who sought/provided abortions. On behalf of several Christian plaintiffs, Mitchell argued that employers providing insurance for PrEP would violate religious rights because it “enable[s and encourages] homosexual behavior.”
This type of attack on the Affordable Care Act is not unprecedented. In 2014, Burwell v. Hobby Lobby Stores, Inc was a landmark case where privately held companies were supported by the Supreme Court in being exempt from covering contraceptives based on religious grounds. The case was cited many times in the recent Braidwood Management v. Becerra case decided by O’Connor last week.
“The big issue falls in the category of cases dealing with anti-discrimination, says Houston attorney and family law specialist Chase Gregory Jones. “The government is trying to ensure everyone gets treated equally and these people feel like their religious beliefs give them a right to treat other people differently. I don't think that our law would uphold that.” On the larger implications of this Fort Worth-based ruling, Jones says the public need not worry (right now). “Any provision in the ACA that can be classified as going against someone’s sincerely held religious beliefs will likely be covered under [Burwell v. Hobby Lobby Stores].”
The health and well-being of women and queer citizens have been the target of Texas lawmakers for the past few years. Despite O’Connor’s efforts to upend, PrEP remains free and covered under the Affordable Care Act. In 2018, O’Connor was struck down by the U.S. Supreme Court when he ruled the ACA unconstitutional. So, there is a possibility that his current ruling will be appealed. However, after an earth-shattering decision by SCOTUS to dissolve Roe v. Wade this summer, the future of sexual and reproductive health remains in limbo. Jones concludes assuringly, “There have been many cases that challenged the ACA from every position you can think of. I just don’t think this is the golden case to make that happen.”