The legal threat facing PrEP, free preventive care, & Obamacare

Millions of people could lose access to free preventive services.

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Myles Ma, CPFCSenior ReporterMyles Ma, CPFC, is a certified personal finance counselor and former senior reporter at Policygenius, where he covered insurance and personal finance. His expertise has been featured in The Washington Post, PBS, CNBC, CBS News, USA Today, HuffPost, Salon, Inc. Magazine, MarketWatch, and elsewhere.

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A Texas lawsuit challenging a rule requiring health plans to cover an HIV prevention medication could threaten access to many kinds of preventive care. U.S. District Judge Reed O’Connor, a federal judge in Texas, ruled in September that employers can refuse to cover PrEP, the anti-HIV drug, on religious grounds.  O’Connor’s ruling also said that a task force that recommends which preventive services must be covered with no cost-sharing under the Affordable Care Act is unconstitutional.

The federal government is likely to appeal the ruling, but if it stands, it could “cause millions of Americans to lose access to preventive services,” according to the American Medical Association.

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How the lawsuit could affect PrEP users

The plaintiffs in the lawsuit are a group of business owners and employees in Texas who say covering PrEP, which stands for preexposure prophylaxis and includes anti-HIV drugs like Truvada and Descovy, “violates their religious beliefs by making them complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman.” O’Connor agreed, saying that requiring coverage violates their rights under the Religious Freedoms Restoration Act.

This is homophobic, says Christian Grov, a professor of public health at the CUNY Graduate School of Public Health & Health Policy. PrEP is not a “gay drug,” and it doesn’t promote drug use or non-monomagous relationships, he says.

“Anybody can be susceptible to HIV,” Grov says. “People that are taking PrEP are taking initiative to prevent the spread of HIV, and we should remind ourselves that preventing the spread of a virus is a good thing.”

While the decision doesn’t immediately end coverage for PrEP, it could hamper gains in its use. The use of the drug has become more common, but the majority of people who are eligible for PrEP have not been prescribed it. [1] One obstacle could be that taking PrEP requires you to see your health provider regularly for follow-ups and HIV tests, which could be costly for some people, Grov says.

Plus, not everyone may realize they’re a good candidate for PrEP, he adds. 

“You have stigma around it as well,” Grov says. Some life and long-term care insurance companies have denied coverage to people who used PrEP. [2] “The initial branding of PrEP was that it’s for risky people, which was probably not the wisest idea.” 

One worry for PrEP users is that religious objections have been successful in other areas of health care. In 2014, in a case involving the arts and crafts chain Hobby Lobby, the Supreme Court ruled that the Religious Freedom Restoration Act allows for-profit companies to deny coverage of contraceptives to employees based on religious objections. [3]

How the lawsuit could affect preventive care

The Affordable Care Act requires most health insurance plans to cover various forms of preventive care without cost-sharing, meaning no copay, coinsurance, or any other out-of-pocket charges. The U.S. Preventive Service Task Force, a group of medical experts, recommends which preventive services are required. The lawsuit says this is unconstitutional under the Appointments Clause of the Constitution, which says “Officers of the United States” have to be appointed by the president and confirmed by the senate. 

The government argues that the task force is overseen by the director of the Agency of Healthcare Research and Quality, who is appointed by the president, and would allow for a more lenient process for appointing measures. But O’Connor says the AHRQ does not actually have oversight over the task force, and that its recommendations have as much power as laws.

If the lawsuit is successful, it could threaten all the task force’s recommendations for which preventive care to cover, not just PrEP, says Allison Hoffman, a professor of law at the University of Pennsylvania’s Carey Law School. That could include breast cancer screenings, vision tests for children, smoking cessation programs, and dozens of other services.

These issues will likely get appealed to the Supreme Court while the original lawsuit continues in Texas, Hoffman says. “There’s not going to be anything definitive for a while,” she says, but if you’re on PrEP, you may want to consider whether your employer is likely to stop covering the drug on religious grounds — if it’s stopped covering contraceptives on religious grounds, PrEP may also fall under those objections. If you’re worried about maintaining coverage for PrEP, you may want to look at other employers. 

A ruling in favor of the Texas plaintiffs could open the door for religious arguments against other types of health care.

“I don’t think this is the end of this,” Hoffman says. “If this challenge is successful, we’re going to see religious objections to more things.”

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