A federal judge in Texas ruled that requiring insurance to cover PrEP is unconstitutional

District Judge Reed O’Connor sided with an employer who argued that having his company’s insurance cover the HIV drug violated his religious freedom.

SOWETO, SOUTH AFRICA  NOVEMBER 30:(SOUTH AFRICA OUT): The Pre-Exposure Prophylaxis (PrEP), HIV preve...
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A federal judge in Texas has ruled that an Obamacare provision mandating employer-run insurance cover the cost of certain preventative HIV medication is unconstitutional, in what has become the latest front of a longstanding conservative effort to pare back key societal protections under the guise of religious freedom.

In their initial complaint, filed in the spring of 2020, attorneys representing a group of plaintiffs argued that the Affordable Care Act rule requiring coverage for pre-exposure prophylaxis (“PrEP”) drugs intended to mitigate the HIV virus was unconstitutional, as it “forces religious employers to provide coverage for drugs that facilitate and encourage homosexual behavior, prostitution, sexual promiscuity, and intravenous drug use.”

“It also compels religious employers and religious individuals who purchase health insurance to subsidize these behaviors as a condition of purchasing health insurance,” the complaint continued. “This substantially burdens the exercise of religion.”

In his ruling Wednesday, Reed O’Connor, district judge for the Northern District of Texas, seemingly agreed, writing: “The mandates force Braidwood [Management Inc, one of the plaintiffs to the case] to underwrite coverage for services to which it holds sincere religious objections. This injury is distinct from the pocketbook injury Braidwood would incur in paying for the objectionable services. Because Braidwood self-insures, [owner Steven] Hotze believes that offering coverage is itself a tacit endorsement of the behaviors that he believes the services encourage.”

O’Connor, who previously ruled that Obamacare itself was unconstitutional (his decision was rejected by the Supreme Court in 2021), predicated his decision on the legality of the United States Preventive Services Task Force — a “body of volunteers ‘with appropriate expertise’ to make health care recommendations” — who helped determine the scope of the medications included under the ACA rule. Per O’Connor’s reasoning, the members of the PSTF are “officers” of the United States, and, accordingly, need to have been nominated by the president and confirmed by the Senate, which they were not.

“This ruling is shocking on every level,” Mitchell Warren, the executive director of HIV nonprofit AVAC, told NBC. “It defies evidence, logic, public health, and human rights, and sets back enormous progress in the fight to end the HIV epidemic.”

However, as CNN noted, O’Connor’s ruling as it currently stands is ambiguous as to whether it will ultimately only apply to the specific plaintiffs in this case, or if he will seek to give it a national reach. Both the plaintiffs and defendants in the case have been asked to submit further statements in the coming days to inform that forthcoming decision.