Texas judge nixes ACA coverage of HIV drug

A federal judge in Texas ruled that the Affordable Care Act’s mandate for free coverage of groundbreaking HIV prevention drugs made by Gilead Sciences Inc. “substantially burdens” the religious freedom of a Christian-owned company.

US District Judge Reed O’Connor in Fort Worth on Wednesday granted summary judgment to Braidwood Management Inc. in its challenge to coverage of Gilead’s Truvada and Descovy. The two pre-exposure prophylactic drugs, commonly known as PrEP, are taken daily by hundreds of thousands of Americans, particularly men who have sex with men.

The suit is being led by attorney Jonathan Mitchell, the Republican former solicitor general of Texas known for his efforts to restrict abortion access in the state. Mitchell argues that mandatory PrEP coverage forces Christians to subsidize “homosexual behavior.”

O’Connor, a George W. Bush appointee, said the government failed to demonstrate a state interest in providing coverage of the drugs that overcame the plaintiffs’ religious objections.

Related: Texas Lawyer Behind Abortion Ban Takes Aim at HIV Prevention

“The government defendants in the suit “outline a generalized policy to combat the spread of HIV, but they provide no evidence connecting that policy to employers such as Braidwood,” the judge wrote. “Thus, defendants have not carried their burden to show that the PrEP mandate furthers a compelling governmental interest.”

The ruling is the latest win for conservatives who support a broad interpretation of the Religious Freedom Restoration Act, a 1993 law that has been used to challenge access to abortion and contraception and to block equal protection for the LGBTQ community.

“This ruling is about imposing extreme religious beliefs – not, as it purports, about protecting religious freedom,” says Ivy Hill, community health program director of the Campaign for Southern Equality. “Far-right extremist judges are attacking privacy and access to health care.”

US Department of Health and Human Services spokeswoman Rachel Seeger declined to comment or say whether the government might appeal the ruling. HHS “continues to work to ensure that people can access health care, free from discrimination,” she said in a statement.

Related: State sues FDA over drug importation records

The judge reserved deciding the “appropriate remedy” for resolving the claim, and it’s unclear what impact the ruling will have beyond the plaintiff company, which employs about 70 people. He said there was no evidence that the government couldn’t assume the cost of providing PrEP drugs to people who are unable to obtain them from religious employers.

PrEP drugs can cost as much as $20,000 a year, according to the ruling.

Task Force unconstitutional

In another win for the plaintiffs, O’Connor ruled the US Preventive Services Task Force, or PSTF, which makes recommendations for what qualifies as a covered preventive measure under the ACA, is unconstitutional because it “wields a power to compel private action that resembles legislative authority.”

“Because PSTF members are principal officers, they must be appointed by the President and confirmed by the Senate,” O’Connor said. “The PSTF members indisputably fail that constitutional requirement.”

The judge also reserved ruling on the appropriate remedy for dealing with that alleged violation.

O’Connor dismissed a claim that challenged the preventive mandate itself, though it’s unclear how the provision might be affected by the rest of the ruling.

Mitchell seeks to block the entire preventive services mandate under the ACA, arguing it’s invalid because the government employees who manage the list have too much power to not be confirmed by the Senate. Depending on O’Connor’s remedy in the case, that could have a far-reaching impact nationwide, putting at risk requirements for no-cost access to other services, like care for pregnant women and infants.

O’Connor didn’t entirely side with Mitchell. The judge ruled that two other bodies involved in ACA preventive services, the Health Resources and Services Administration and the Advisory Committee on Immunization Practices, were properly empowered under the constitution. The judge also ruled that the Preventive Services Task Force doesn’t violate a separate provision of the constitution.

The case is Braidwood Management Inc. v. Becerra, 4:20-cv-00283, US District Court, Northern District of Texas (Fort Worth).

Copyright 2022 Bloomberg. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.