September 7, 2022

BREAKING: Judge Rules that PrEP Coverage Violates Religious Freedom Clause

This morning, a Texas judge ruled that PrEP coverage under the ACA provision that requires certain preventive medications to be covered without cost-sharing violates the Religious Freedom Restoration Act (RFRA). Readers will recall that we wrote about this issue last month – a challenge to the Affordable Care Act (ACA) provision first filed in 2020 by former Trump administration officials with the intent of using the Religious Freedom Restoration Act to block coverage of STI screenings and HIV prevention that plaintiffs claim, “facilitate and encourage homosexual behavior, prostitution, sexual promiscuity, and intravenous drug use.” In late July, the case finally came before a Texas judge who already has ruled against the ACA several times and was expected to again do so in this case. The Biden Administration requested that the judge reject this case and block it from moving forward, but instead, the judge ruled today that requiring employers to provide coverage for PrEP violates their religious freedom.

The plaintiffs’ foundational argument is, “The government cannot possibly show that forcing private insurers to provide PrEP drugs, the HPV vaccine, and screenings and behavioral counseling for STDs and drug use free of charge is a policy of such overriding importance that it can trump religious-freedom objections.” Aside from this statement being antithetical to the purpose of the ACA in that insurers should actually cover more rather than less; this case also endangers progress the U.S. has made in expanding protections for communities who sit outside those the religious right think is deserving.

This lawsuit also comes at a time when STI rates continue to skyrocket across the country and as we’ve seen an erosion of HIV testing resulting from the COVID-19 pandemic. Without ensuring coverage, we know there will be millions of people left behind – without access to prevention, testing, or treatment. By overturning Roe v. Wade, the Supreme Court sent a message that it would be willing to hear other cases in which fundamental, long-accepted rights were questioned. As such, we should expect more efforts to erode fundamental rights, particularly access to any services related to sexual health care. The judge in this case, Judge Reed O’Connor has a history of anti-LGBTQ rulings, both to marriage equality and to Title IX’s ban on discrimination based on sex. The Biden administration is sure to appeal this decision, so it will continue to work its way through the courts. The ruling can be viewed here.