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HIV Drug Mandate Is In Conflict With Religious Freedom, Says Texas Judge

The Affordable Care Act’s requirement for free coverage of ground-breaking HIV prevention medications developed by Gilead Sciences Inc. has been ruled to “substantially burden” the religious freedom of a Christian-owned business, according to a federal judge in Texas.

On Wednesday, Braidwood Management Inc. granted summary judgment from US District Judge Reed O’Connor in Fort Worth over its objection to the coverage of Gilead’s Truvada and Descovy. Hundreds of thousands of Americans take the two pre-exposure prophylactic medications, also known as PrEP, on a regular basis, especially males who have intercourse with men.

Attorney Jonathan Mitchell, a Republican and former Texas solicitor general who is well-known for his attempts to limit access to abortion in the state, is leading the lawsuit.

According to Mitchell, having to pay for PrEP forces Christians to support “homosexual behavior.”

The government, according to George W. Bush appointee O’Connor, failed to show a state interest in covering the drugs that overcame the plaintiffs’ religious objections.

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.

The decision is the most recent victory for conservatives who support a liberal interpretation of the Religious Freedom Restoration Act, a law from 1993 that has been used to restrict access to abortion and contraception as well as to prevent the LGBTQ community from receiving equal protection under the law.

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.

Speaking for the US Department of Health and Human Services, Rachel Seeger declined to make any comments or indicate if the administration will likely appeal the decision. In a statement, she stated that HHS “ccontinues to work to ensure that people can access health care, free from discrimination.”

It’s unclear what effect the decision will have on parties besides the plaintiff company, which employs roughly 70 people, as the judge reserved decision-making on the “appropriate remedy” for resolving the issue. According to him, there is no justification for the government not to cover the cost of distributing PrEP medications to those who cannot get them from employers who hold religious beliefs.

The decision states that the cost of PrEP drugs can reach $20,000 per year.

In yet another victory for the plaintiffs, O’Connor determined that the US Preventive Services Task Force, or PSTF, is unconstitutional because it “wields a power to compel private action that resembles legislative authority.” PSTF makes recommendations for what qualifies as a covered preventive measure under the ACA.

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 postponed making a decision regarding the best course of action for handling that claimed violation.

Although it’s unclear how the preventative mandate would be impacted by the rest of the decision, O’Connor rejected a claim that directly challenged the preventive mandate.

By contending that the federal employees in charge of the list have too much authority and should be confirmed by the Senate, Mitchell aims to invalidate the entire preventive services mandate under the Affordable Care Act. Depending on O’Connor’s decision in the case, that might have a significant national impact and jeopardize demands for free access to other services, such as care for pregnant mothers and infants.

O’Connor wasn’t fully on Mitchell’s side. The Health Resources and Care Administration and the Advisory Committee on Immunization Practices, two more organizations participating in ACA preventive services, were found by the judge to have valid constitutional authority. The Preventive Services Task Force is not in contravention of a different constitutional clause, the judge added.

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