Obamacare can't require coverage for certain HIV prevention drugs, federal judge rules

On September 7, a federal judge in Texas struck down an Affordable Care Act requirement that insurers and employers offer plans that cover HIV-prevention drugs.

By Tami Luhby and Tierney Sneed, CNN

(CNN) -- A federal judge in Texas on Wednesday declared unconstitutional an Affordable Care Act requirement that insurers and employers offer plans that cover HIV-prevention drugs for free, saying it violates the religious freedom of a Christian-owned company.

The ruling came as part of a broader decision that was a partial victory to Obamacare opponents who challenged the Affordable Care Act mandate for coverage of preventive services without charge.

US District Judge Reed O'Connor ruled that the requirement that employers offer insurance plans that cover HIV-prevention pills, known as PrEP drugs, violates the Religious Freedom Restoration Act.

Braidwood Management, a Texas-based company that employs 70 people, argued that the mandate facilitated behavior to which it has religious objections.

The mandate, the plaintiffs argued in its initial complaint, "forces religious employers to provide coverage for drugs that facilitate and encourage homosexual behavior, prostitution, sexual promiscuity, and intravenous drug use."

It remains unclear whether the ruling will apply only to Braidwood Management or will affect Americans nationwide. O'Connor did not issue a nationwide injunction or vacate the rule. He has requested both sides file additional briefs relating to the scope of relief by Friday.

"What happens next remains a wide open question as to whom it affects," said Tim Jost, emeritus professor at the Washington and Lee University School of Law.

The decision could "cripple" HIV prevention efforts, particularly among communities of color and Americans in poverty, said Paul Kawata, executive director of NMAC, a national organization that works for health equity and racial justice to end the HIV epidemic. It could also set back the bipartisan effort to end the HIV epidemic by 2030.

"For many people at higher risk of HIV, employer-provided insurance is often their only way to access these vital medications," he said. "This decision has the potential to cut off millions of Americans from the life-protecting medications they need."

O'Connor also asked both parties to file supplemental briefs on claims related to the Affordable Care Act's contraceptive mandate, a longstanding target of conservatives. The Trump administration expanded exemptions for employers who have religious or moral objections to the mandate, which the Supreme Court upheld in 2020. The Biden administration has indicated it would amend the rule.

The Department of Health and Human Services is reviewing the opinion, a spokesperson said. Since a national injunction was not issued, the Affordable Care Act provisions remain in effect for now.

Free preventive services at risk

As part of the ruling, O'Connor declared unconstitutional part of the broader preventive services mandate, which requires insurers and employers to cover at no charge screenings for cancer and heart disease, as well as programs for smoking cessation, among many others.

However, the judge upheld certain free preventive services for children, such as autism and vision screenings and well-baby visits, and for women, such as mammograms, well-woman visits and breastfeeding support programs.

O'Connor also upheld the mandate that provides immunizations at no charge for the flu, hepatitis, measles, shingles and chickenpox.

At issue is whether the United States Preventive Services Task Force, an independent, volunteer panel of national experts in disease prevention and evidence-based medicine, could determine what general preventive services would be covered for adults under the mandate.

The judge ruled that task force violates the Appointments Clause of the US Constitution because its members are not appointed by the president and that the HHS secretary does not have any control over its recommendations.

It remains to be seen whether O'Connor will seek to enforce his ruling nationwide, but if he does, it could have a major impact on the ability of Americans to receive important health services at no charge.

"If this stands, it will be devastating for preventive care," said Katie Keith, director of the health policy and the law initiative at the O'Neill Institute for National and Global Health Law at Georgetown.

More than 150 million people with private insurance can receive preventive services without cost-sharing under the Affordable Care Act, according to a report published earlier this year by HHS.

"The free preventive care guaranteed by the ACA for over 150 million Americans has become a bedrock of the American health care system, improving health outcomes, reducing disparities in care, and cutting consumer health care costs," said Leslie Dach, chair of Protect Our Care, an advocacy group.

O'Connor did not extend his decision to services covered for women and children, as well as immunizations, because they are determined by other federal agencies.

This story has been updated with additional details.

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