Sept. 13, 2022 – In a decision that could have ramifications for preventive care efforts across the United States, last week a ruling from Texas’ U.S. District Judge Reed O’Connor held that a provision of the Affordable Care Act (ACA) requiring most private health plans to cover specified preventive services and prescription drugs at no cost is unconstitutional.
O’Connor is the same judge who ruled in 2018 that the ACA itself was unconstitutional after Congress removed the law’s individual mandate (a decision that was overturned by the U.S. Supreme Court). In this Sept. 7 ruling, he agreed with the plaintiffs in Braidwood Management Inc. v. Xavier Becerra that ACA-mandated coverage for PrEP – a pre-exposure prophylaxis which helps to prevent HIV – violates the religious freedom rights of Braidwood Management Inc., a Christian for-profit corporation owned by Steven Hotze.
“While the specifics in this case deal with pre-exposure therapy for HIV, the decision has implications in potentially limiting the ACA mandate that most plans include coverage for a broad range of preventive care,” said Coalition for Healthcare Communication Executive Director Jon Bigelow. “Thus, it threatens to sharply curtail patient access to important preventive measures.”
Although the ACA stipulates that a number of preventive care services and treatments – those that have received an “A” or “B” rating from the U.S. Preventive Services Task Force (USPSTF), such as cancer screenings and vaccines – must be added to health insurers’ list of covered items, O’Connor stated that this determination is invalid because USPSTF members are “unconstitutionally appointed” and must be “appointed by the President and confirmed by the Senate.”
He also agreed with the plaintiff that a specific requirement to cover PrEP prescriptions violates religious freedom because covering these drugs, which is prescribed to men who have sex with men as well as people who inject drugs, “would make him complicit in those behaviors.”
As a side note, five Democratic Senators have asked AHIP CEO Matt Eyles to respond to their request regarding whether insurance companies are complying with the ACA’s PrEP coverage, because they have heard that some patients are being “wrongfully” charged for the treatments and associated lab work.
Following the ruling, Jesse Milan Jr., J.D., president and CEO of AIDS United, issued the following statement: “O’Connor’s ruling today is an attack on the health and well-being of millions of Americans and places our efforts to end the HIV epidemic in the U.S. in jeopardy. … PrEP provision is not a moral or religious issue, as the plaintiffs … have claimed. PrEP is a drug — and a life-saving one at that.”
O’Connor’s ruling is likely to be appealed by the U.S. Justice Department, but if it stands, other preventive care measures covered under the ACA could be struck down. The ruling “throws into jeopardy key preventive health services that reduce the incidence of HIV and other health conditions or disease,” according to Dr. Jack Resneck Jr., president of the American Medical Association.