Fort Worth judge rules HIV drug mandate violates religious freedom – The Dallas Morning News

A federal judge in Fort Worth ruled Wednesday that the Affordable Care Act’s mandate for free coverage of groundbreaking HIV prevention drugs violates the religious freedom of the owner of a Texas company, undercutting the broader system that determines which preventive drugs are covered in the U.S.

U.S. District Judge Reed O’Connor granted summary judgment to Braidwood Management Inc. in its challenge to coverage of Gilead Science’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 ruling does not have any immediate effect on people with private health insurance, or people who take drugs like Truvada to reduce their chances of contracting HIV.

O’Connor has scheduled a hearing in the case for Friday.

Braidwood and the other plaintiffs opposed a core feature of the ACA, often known as Obamacare, that requires private health insurance plans pay for preventive health care in full, with no charge to the insured. The plaintiffs disagreed with the groups that determine what kind of health care is preventive, and also opposed insurance coverage of services like birth control, testing for sexually transmitted infections, and PrEP drugs on religious grounds.

The suit is being led by attorney Jonathan Mitchell, the Republican former solicitor general of Texas known for helping write the Texas abortion law that empowers everyday citizens to sue people they believe have helped others get an abortion. Mitchell, who has led several lawsuits with potential to affect the rights of LGBT Americans, has argued that mandatory PrEP coverage forces Christians to subsidize “homosexual behavior.”

O’Connor, an appointee of former President George W. Bush, said the government failed to demonstrate a state interest in providing coverage of the drugs that overcame the plaintiffs’ religious objections. In 2018, O’Connor ruled that the entire ACA is invalid. The U.S. Supreme Court ultimately overturned that decision.

“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.”

This recent challenge was brought by a company owned by Steven Hotze, a conservative activist and QAnon conspiracy theorist who is described in the lawsuit as operating Braidwood Management “according to Christian principles and teaching.” Plaintiffs also include Tarrant County residents Joel Starnes and John Kelley, who runs Kelley Orthodontics and Fort Worth oral surgeon Gregory Scheideman.

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 LGBT community.

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

The Biden administration is likely to appeal. The U.S. Department of Health and Human Services did not immediately respond a requests for comment.

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.

Preventive services task force ruled unconstitutional

In another win for the plaintiffs, O’Connor ruled the U.S. 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.

The judge 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 American Medical Association and dozens of other health care organizations attacked the lawsuit in July, saying that more than access to PrEP was at stake.

“With an adverse ruling, patients would lose access to vital preventive health care services, such as screening for breast cancer, colorectal cancer, cervical cancer, heart disease, obesity, diabetes, preeclampsia, and hearing, as well as well-child visits and access to immunizations critical to maintaining a healthy population,” their statement read.

The American Public Health Association and Association of American Medical Colleges also filed an amicus brief supporting the government.

“Preventive screenings and interventions such as those covered by the ACA are critical to keeping patients healthy and improving long-term health outcomes,” they wrote.

Bloomberg News, The Associated Press, Fort Worth Star-Telegram, and staff writer Lauren McGaughy contributed to this report.