April 5, 2023

Judge Issues Final Opinion Against PrEP, Preventive Services in Braidwood Case

Late last week, Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas issued his much-anticipated final opinion in Braidwood v. Becerra. The judge ruled that the U.S. Preventive Services Task Force (USPSTF) is not (in layman’s terms) a legal body because it violates the appointments clause. Thereby, all USPSTF recommendations made after March 23, 2010, and graded A or B, are vacated and the Department of Health and Human Services is barred from implementing or enforcing them. Of special note, this does not necessarily mean that access to PrEP will be eliminated overnight since insurers will make company-specific decisions on whether to cover these preventive services. Though, it does mean PrEP coverage is at risk.

The judge also ruled that the plaintiffs, Braidwood Management and Kelley Orthodontics, do not have to provide insurance coverage to their employees that covers PrEP because doing so would violate the plaintiffs’ rights under the Religious Freedom Restoration Act. However, this finding only applies to the plaintiffs and is not applied nationwide. The Biden Administration has already appealed the case to the Fifth Circuit Court of Appeals, though that particular circuit is known to be very conservative and is frequently seen to make its rulings from that conservative political lens. Regardless of the appellate court decision, this case very well could go to the U.S. Supreme Court, either for an emergency stay or for full case review. The HIV community is organizing a response and preparing for the long legal battle ahead.

To learn more about what’s at stake, we recommend reviewing: “Braidwood Misreads the Science: the PrEP Mandate Promotes Public Health for the Entire Community,” as well as “Increased HIV Transmissions With Reduced Insurance Coverage for HIV Preexposure Prophylaxis: Potential Consequences of Braidwood Management v. Becerra“