Texas District Court Allows Employers to Deny HIV PrEP Coverage

Liz Scherer

September 07, 2022

Fort Worth, TX — A case decision made earlier today by Texas US District Judge Reed Charles O'Connor that will allow employers to deny healthcare insurance coverage for HIV preexposure prophylaxis(PrEP) is already ratting the cages of HIV activists, medical associations, nonprofits, and patients.

As Medscape Medical News first reported in August, the class action suit (Kelly vs Azar ) has a broader goal — to dismantle the Affordable Care Act using the argument that many of the preventive services it covers, including PrEP, violate the Religious Freedom Restoration Act

"Judge O'Connor has a long history of issuing rulings against the Affordable Care Act and LGBT individuals, and we expect the case to be successfully appealed as has been the case with his previous discriminatory decisions," said Carl Schmid, executive director of the HIV+Hepatitis Policy Institute in Washington, DC, in a prepared statement issued shortly after the ruling.

"To single out PrEP, which are FDA approved drugs that effectively prevent HIV, and conclude that its coverage violates the religious freedom of certain individuals, is plain wrong, highly discriminatory, and impedes the public health of our nation," he said. 

PrEP is not just for men who have sex with men. According to the Centers for Disease Control and Prevention, more than one million Americans could benefit from PrEP, and roughly 20% are heterosexual women — a fact both Schmid and the HIV Medicine Association pointed out in response to Justice O'Connor's ruling.

"Denying access to PrEP threatens the health of more than 1.2 million Americans who could benefit from this potentially life saving intervention," stated Marwan Haddad, MD, MPH, chair of the HIV Medicine Association, in a press release issued by the organization.

"This ruling is yet one more instance of unacceptable interference in scientific, evidence-based healthcare practices that must remain within the sanctity of the provider-patient relationship," she said.

The ruling is also outside what is normally considered religious "conscientious objection."

While the American Medical Association supports the rights of physicians to act in accordance with conscience, medical ethicists like Abram Brummett, PhD, assistant professor, Department of Foundational Medical Studies, Oakland University William Beaumont School of Medicine, Rochester, Michigan, previously told Medscape Medical News that today's ruling actually reflects a phenomenon known as "conscience creep," ie, the way conscientious objection creeps outside traditional contexts — like abortion, sterilization, and organ transplantation.

Incidentally, the case is not yet completed; O'Connor still has to decide on challenges to contraceptives and HPV mandates. He has requested that defendants and plaintiffs file a supplemental briefing by Friday before making a final decision.

Regardless of how it plays out, it is unclear whether the US Department of Health and Human Services will appeal.

Liz Scherer is an independent journalist specializing in infectious and emerging diseases, cannabinoid therapeutics, neurology, oncology, and women's health.

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