Compromise may keep PrEP covered, for now, as federal court case proceeds

  • by John Ferrannini, Assistant Editor
  • Wednesday June 14, 2023
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A federal appeals court has temporarily reinstated a rule that PrEP and other preventive services be covered by insurers.
A federal appeals court has temporarily reinstated a rule that PrEP and other preventive services be covered by insurers.

A potential compromise would keep PrEP covered by insurers and employers as a case that would overrule federal protection for HIV preventative care moves through the courts. The agreement has been reached by the parties but must be approved by the federal judges overseeing the case.

As the Bay Area Reporter previously reported, a group of business owners is suing the federal government on account of the United States Preventive Services Task Force's requirements that preventative services such as sexually transmitted disease screenings, depression, and PrEP be covered.

In the case of Braidwood Management v. Xavier Becerra, the plaintiffs are arguing that covering PrEP makes them "complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman."

PrEP, or pre-exposure prophylaxis, refers to the use of antiviral drugs to prevent people exposed to HIV from becoming infected. The pill Truvada was first approved for PrEP use in 2012 by the federal Food and Drug Administration; since then the FDA has also approved the pill Descovy for some groups, and the drug Apretude as an injectable treatment. According to federal Centers for Disease Control and Prevention statistics, only 25% of the approximately 1.2 million Americans who could benefit from PrEP had prescriptions in 2020.

U.S. District Judge Reed O'Connor of the Northern District of Texas, appointed by then-President George W. Bush, agreed with the plaintiffs, and in a March 30 judgment that shocked HIV advocates and others, blocked the requirement to cover preventative services nationwide.

O'Conner wrote that the "defendants have not shown that the PrEP mandate furthers a compelling governmental interest."

"Braidwood is not merely alleging a traditional 'pocketbook injury,'" the judge ruled. "Distinct from his risk of pecuniary harm, [Braidwood Management owner Steven] Hotze asserts an ongoing dignitary harm, claiming that merely 'providing this coverage in Braidwood's self-insured plan would make [him] complicit' in behaviors that violate his religious beliefs."

The U.S. government appealed the decision to the 5th U.S. Circuit Court of Appeals.

The requirement to cover PrEP and other preventive services was temporarily reinstated by the appellate court May 15 while the court considered whether to issue a stay on O'Connor's ruling for a longer period of time.

"They came up with this stay while the case is being litigated," Lambda Legal Defense and Education Fund HIV Project Director Jose Abrigo told the B.A.R. on June 14.

The deal, agreed to by the parties, has not yet been consented to by the court.

"In agreeing to this partial stay of the final judgment pending appeal, the plaintiffs are not conceding or acknowledging that the defendants are likely to succeed on the merits of their appeal," the deal states, in part.

In addition to their First Amendment challenge on PrEP in particular, the plaintiffs are seeking to strike down the task force — which was created as part of the Affordable Care Act — entirely, as they argue it is unconstitutional.

Abrigo said that the plaintiffs deliberately chose the 5th Circuit to file their lawsuit.

"The 5th Circuit is the most conservative, unfriendly circuit in the nation," Abrigo said. "That's the reason why it was filed there."

Abrigo said that for that reason, Lambda Legal's input may not be appreciated or helpful. Nonetheless, he said the agency is helping "more neutral parties" stay on message in crafting their own amicus briefs, and helping them write in a way that won't undermine the government's own briefs.

Abrigo said, "we expect a final decision from the 5th Circuit at the end of the year, or the beginning of next year." The U.S. Supreme Court is the next court of appeal.

Braidwood Management's attorney did not return a request for comment as of press time.

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