A Texas judge ruled this morning that free coverage of PrEP drugs to prevent HIV infection, as required by the Affordable Care Act, is unconstitutional because it violates the religious freedom of Christian-owned companies.
If the ruling is upheld, it would be another victory for religious business owners who claim their faith requires them to make other people suffer if those people might be gay.
Last year, the government began requiring insurance providers to fully cover HIV prevention drugs known as PrEP (Pre-exposure Prophylaxis). These drugs, like Descovy and Truvada, are nearly 99% effective at preventing the transmission of HIV. They’re modern miracles, really. Before generic versions of these drugs became available last year, one month’s worth of PrEP drugs might have cost someone $1,700. They’re much cheaper now, and the new ACA provision requires insurers to cover them fully.
But because HIV has a higher rate of transmission among men who have sex with men—not just gay people, mind you—there’s a widespread and false belief among conservative Christians that these drugs somehow contribute to homosexual behavior. The same people are ignorant of the fact that nearly one in five new HIV cases involve women.
That’s why, in March of 2020, a group of Christians represented by anti-abortion zealot Jonathan Mitchell filed a lawsuit against the government to block the ACA provision requiring these drugs to be provided by insurers. They argued that it violated their religious freedom and that the process by which the ACA approved this coverage was itself illegal.
One of the plaintiffs, John Kelley, said he didn’t want to pay for insurance that includes this coverage because he’s Christian and straight and insisted no one in his family would ever get HIV:
Mr. Kelley has no desire to purchase health insurance that includes contraceptive coverage because his wife is past her child-bearing years. He does not want or need STD testing covered by his health insurance because he and his wife are monogamous. And he does not want or need health insurance that covers Truvada or PrEP drugs because neither he nor any of his family members is engaged in behavior that transmits HIV.
He also claimed, without evidence, that PrEP drugs “encourage homosexual behavior and intravenous drug use.”
(It should go without saying that plenty of people who have gay sex don’t talk about it with their conservative Christian family members. So Kelley’s claim that no one in his family is “engaged in behavior that transmits HIV” is a bold assumption at best.)
Another plaintiff, Joel Starnes, made virtually identical statements.
Another company, Braidwood Management, also said it didn’t want to cover these drugs in an insurance package, but that it was forced to purchase ACA-complaint insurance because of its size. The company’s owner, Dr. Steven F. Hotze, is a Christian who believes (again without evidence) that PrEP drugs “facilitate behaviors such as homosexual sodomy, prostitution, and intravenous drug use.”
Their claims were, and remain, pure bullshit. But Mitchell knew that using a religious freedom argument could be successful, and today, he was proven right. The judge said that the PrEP mandate violated the company’s rights under the Religious Freedom Restoration Act (RFRA) and that the agencies that recommended PrEP drugs be made available through the ACA may not have had the authority to do so.
O’Connor reserved deciding the “appropriate remedy” for the resolving the claim, and it’s unclear what impact the ruling will have beyond the plaintiff company, which employs about 70 people.
The judge, a George W. Bush appointee, also ruled the US Preventive Services Task Force, which recommended PrEP be added to the ACA’s list of covered preventive measures, was not constitutionally empowered to authorize the drug’s inclusion. O’Connor also reserved ruling on the appropriate remedy for dealing with the alleged violation.
In English, O’Connor suggested the “religious freedom” arguments had merit because it was the government’s duty to prove these drugs weren’t an unnecessary burden on Christians:
… Defendants do not show a compelling interest in forcing private, religious corporations to cover PrEP drugs with no cost-sharing and no religious exemptions. Defendants provide no evidence of the scope of religious exemptions, the effect such exemptions would have on the insurance market or PrEP coverage, the prevalence of HIV in those communities, or any other evidence relevant “to the marginal interest” in enforcing the PrEP mandate in these cases…
He added that the government also needed to show it was unable to cover the costs for people who needed the drugs even if their employers had religious objections.
The bottom line here is that a religious argument to prevent people from accessing PrEP drugs, or at least creating another hurdle to them receiving it, was found to have merit. And the entire offering could be declared unconstitutional.
Christians who want gay people to suffer won this battle because a right-wing judge took their bullshit religious claims seriously.
If all of this holds up, and PrEP drugs become harder to access, it would have disastrous consequences:
Dr. John Carlo, the former medical director for Dallas County, said although not specifically objected to by the plaintiffs, the lawsuit could put other popular preventive care services like cancer screenings at risk.
He also estimated PrEP usage could be cut in half if Mitchell’s clients win.
This could cause HIV cases to tick up, especially in places like Dallas that the federal government prioritized to lower virus rates. Higher HIV rates not only means more virus in the population, Carlo explained, but also more patients with high medical bills who would eventually pass on this cost to the entire health care system.
“You’d definitely see a resurgence in cases,” said Carlo, who is the CEO of the HIV/AIDS nonprofit Prism Health North Texas. “It would be a huge step in the wrong direction for this country’s health.”
Conservative Christians don’t give a shit about that. The same arguments they used to oppose vaccine mandates and COVID restrictions—as if those things were an attack on their religion— are now being used to help HIV spread more easily through the population.
Their Christian faith is grounded on the belief that others should suffer if the solution even slightly inconveniences their religious sensibilities. In this case, it’s mostly gay people. In other cases, it’s those who want the power to make their own reproductive decisions.
If this lawsuit ends up blocking government-appointed experts from deciding what must be covered under certain insurance plans, the effects would be far-reaching and awful for society.
“We’re talking about vaccines, we’re talking about mammograms, we’re talking about basic preventative health care that was being fully covered,” [law professor Allison Hoffman] said. “This is opening the doors to things that the ACA tried to eliminate, in terms of health plans that got to pick and choose what of these services they fully covered.”
The American Medical Association, along with 60 leading medical organizations, issued a statement condemning the lawsuit.
“With an adverse ruling, patients would lose access to vital preventive health care services, such as screening for breast cancer, colorectal cancer, cervical cancer, heart disease, diabetes, preeclampsia, and hearing, as well as access to immunizations critical to maintaining a healthy population,” the organizations wrote.
Anti-gay Christians want to make it harder for people to get cancer screenings. And with the help of a Republican judge, they’re on their way to getting their wish. “Religious freedom” should never be an acceptable excuse to deny someone else access to health care. The very people who claim to be “pro-life” are doing everything in their power to send people they hate to an earlier death. They wrongly believe that health coverage they don’t use somehow makes them “complicit” in behavior they don’t like.
How many decent Christians will dare to condemn what the most conservative leaders in their religion are doing to hurt the rest of the country?