Mark D. Hochberg, BridgeTower Media Newswires
A federal judge in Texas recently issued an order that likely will make it harder for individuals to obtain PrEP. (See Braidwood Mgmt. v. Becerra, No. 4:20cv00283 (N.D. Tx. Sept. 7, 2022).)
Pre-exposure prophylaxis — or PrEP — is a highly effective drug used in preventing HIV. Although not exclusively reserved for the gay community, PrEP is often taken by men who have sex with other men.
Under the Affordable Care Act, health insurance plans must cover medication with an “A” or “B” rating by the U.S. Preventive Services Task Force. In 2019, this independent agency under the U.S. Department of Health and Human Services gave PrEP an “A” rating. Accordingly, health insurance plans must now cover PrEP.
A team of plaintiffs, comprised of six individuals and two businesses, challenged the law. The challengers “want the option to purchase health insurance that excludes or limits coverage of PrEP drugs, contraception, the HPV vaccine, and the screenings and behavioral counseling for STDs and drug use.”
With respect to the PrEP requirement, they argue that it “violates their religious beliefs by making them complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman.”
The plaintiffs filed the lawsuit and moved for summary judgment, arguing their theories are correct as a matter of law.
U.S. District Court Judge Reed O’Connor of the Northern District of Texas considered the challenge. O’Connor gained notoriety in 2018 when he held that the ACA was unconstitutional. (See Texas v. United States, 340 F.Supp.3d 579 (N.D. Tx. 2018).) However, his decision was later reversed by the Supreme Court. (See California v. Texas, 141 S.Ct. 2104 (2021).)
In this case, Judge O’Connor agreed with the plaintiffs that health insurers cannot be required to cover PrEP. He offered two bases for his decision.
The first reason is procedural. Under the Constitution’s Appointments Clause, principal officers — as opposed to inferior officers — of the executive branch need Senate confirmation to hold their position.
Members of the Preventive Services Task Force were long regarded as inferior officers because they are unpaid and meet only three times annually. But O’Connor held that the members are principal officers who needed Senate confirmation, which they lack. Therefore, the Preventive Services Task Force cannot rate medication because its members were “unconstitutionally appointed.”
The second basis is substantive. Under the Religious Freedom Restoration Act, the government must “show that the PrEP mandate furthers a compelling governmental interest and is the least restrictive means of furthering that interest.” According to O’Connor, the government failed to satisfy this burden.
He analogized the circumstances to Burwell v. Hobby Lobby, 573 U.S. 682 (2014), in which the Supreme Court held that the ACA’s requirement that employers cover contraception was an unconstitutional burden on employers whose religious beliefs contradicted the requirement. Here, too, the PrEP requirement “substantially burdens the religious exercise of” the plaintiffs.
Thus, health insurance plans need not cover PrEP if doing so violates an employer’s religious beliefs.
The decision is deeply flawed. It neglects decades of precedent concerning the Preventive Services Task Force and fundamentally alters the ways in which the government can require health insurers to cover preventative medication.
Moreover, the court’s holding that the PrEP requirement violates the Religious Freedom Restoration Act is misguided. Contrary to the ruling, providing coverage for PrEP does not “facilitate[] and encourage[] homosexual behavior[.]”
Indeed, employees do not magically become gay because their employer offers a health insurance plan that covers HIV preventative medication; employees are gay because people are just sometimes gay.
Moving forward, O’Connor ordered the parties to brief the court about the appropriate relief. In other words, the lawyers have to file more documents before the PrEP mandate can be officially struck down.
Before then, the government may try to appeal the decision, which would be heard by the 5th U.S. Circuit Court of Appeals. But for now, the threat to health insurance coverage of PrEP remains.
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Mark D. Hochberg is a lawyer at Hinckley, Allen & Snyder, where he specializes in intellectual property litigation and complex commercial litigation.
