Texas Judge Says HIV Mandate Violates Religious Freedom (2)

A Texas federal judge has ruled that the Affordable Care Act’s mandate for free coverage of breakthrough HIV prevention drugs made by Gilead Sciences Inc. “considerably weighs” on the religious freedom of a Christian-owned business.

U.S. District Judge Reed O’Connor in Fort Worth on Wednesday granted summary judgment to Braidwood Management Inc. in his challenge to the cover of Truvada and Descovy from Gilead. The two pre-exposure prophylaxis drugs, commonly referred to as PrEP, are taken daily by hundreds of thousands of Americans, especially men who have sex with men.

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

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

Read more: Texas lawyer behind abortion ban targets HIV prevention

“The government defendants in the trial ‘describe a general policy of combating the spread of HIV, but they provide no evidence linking that policy to employers such as Braidwood,’ the judge wrote. “Thus, the defendants do not have not borne their burden to show that the PrEP mandate serves a compelling government interest.”

The ruling is the latest victory 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 protection equal for the LGBTQ community.

“This decision is intended to enforce extreme religious beliefs — not, as it claims, to protect religious freedom,” said Ivy Hill, director of the Southern Equality Campaign’s community health program. “Far-right judges attack privacy and access to health care.”

The US Department of Health and Human Services did not immediately respond to a request for comment.

The judge reserved for himself to decide the “appropriate remedy” to resolve the claim, and it is unclear what impact the decision will have beyond the complaining company, which employs around 70 people. He said there was no evidence the government could not afford the cost of providing PrEP drugs to people who cannot get them from religious employers.

PrEP drugs can cost up to $20,000 a year, depending on the ruling.

Unconstitutional Task Force

In another victory for the plaintiffs, O’Connor ruled that the US Preventive Services Task Force, or PSTF, which makes recommendations on what qualifies as a preventive measure covered by the ACA, is unconstitutional because it ‘holds the power to compel private action which resembles legislative power.’

“Because PSTF members are senior officers, they must be nominated by the president and confirmed by the Senate,” O’Connor said. “The members of the PSTF are unquestionably failing in this constitutional requirement.”

The judge also reserved his decision on the appropriate remedy to deal with this alleged violation.

The judge dismissed a complaint that challenged the preventive warrant itself, though it’s unclear how the provision might be affected by the rest of the ruling.

Mitchell is seeking to block the entire Preventive Services mandate under the ACA, arguing that it is invalid because the government employees who manage the list have too much power not to be confirmed by the Senate. According to O’Connor’s appeal in the case, this could have a huge impact nationwide, jeopardizing demands for free access to other services, such as care for pregnant women and infants.

O’Connor was not entirely on Mitchell’s side. The judge ruled that two other agencies involved in the ACA’s preventive services, the Health Resources and Services Administration and the Immunization Practices Advisory Committee, were duly empowered under the constitution. The judge also ruled that the Preventive Services Task Force does not 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).

(Updates with details on the judge’s findings regarding PrEP)

To contact the reporter on this story:
Erik Larson in New York at [email protected]

To contact the editors responsible for this story:
Katia Porzecanski to [email protected]

Anthony Lin, Erik Larson

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