Several health advocacy and LGBTQ organizations are urging the United States Supreme Court to uphold coverage and zero cost-sharing for PrEP for HIV prevention.
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. Robert F. Kennedy Jr. (the defendant had been Xavier Becerra before the presidential transition) 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.
PrEP is considered preventative care under the Patient Protection and Affordable Care Act (Obamacare).
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 2023 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."
The U.S. Court of Appeals for the 5th Circuit last year issued a mixed ruling – the ACA's requirement to cover without cost-sharing those services recommended by the task force is unconstitutional – but only the plaintiffs who sued were permitted to exclude the recommended services from their plans.
Now that the Supreme Court has scheduled oral arguments for April 21, 2025, the HIV+Hepatitis Policy Institute and 19 other HIV organizations filed an amicus brief urging the court to uphold the preventative services requirement.
"Removing access to evidence-based preventive measures will have a devastating impact, not only on those at risk for acquiring HIV and hepatitis, but also the population at large," the brief states.
It comes as the Conference on Retroviruses and Opportunistic Infections, known as CROI 2025, kicks off in San Francisco Sunday, March 9, at the Moscone Convention Center in the city's South of Market district. The gathering runs through March 12, and HIV advocates are planning a protest Monday evening against the Trump administration and its moves to defund HIV service providers and end contracts for global AIDS programs.
Unlikely allies
Carl Schmid, a gay man who is the executive director of the institute, told the B.A.R. in a March 7 phone interview that the federal lawsuit has wide-ranging implications for PrEP access and HIV prevention nationwide.
"It's a mandate now, it's required. We would lose that requirement," Schmid said of PrEP coverage. "Even if the Supreme Court doesn't like the constitutionality of it, there's ways to correct things, too. It's not a done deal. Remember, we thought we'd lose in the lower [appellate] court and we actually did OK."
Losing would "strike it down, the power of the [task force]. We are trying to save that, the government is on our side, too."
The Trump administration "sided with us," Schmid said, when they issued a brief "defending the constitutionality of the coverage of preventative services."
"Obviously the Biden admin defended the preventative services. We were not sure if the Trump administration would defend the coverage in the ACA, and it would have been bad if they did not, but they did and it was very, very, very critical to the case and how the Supreme Court will address it," added Schmid. "That was a big deal, and so we talked before about PrEP and religious [freedom] but that's no longer the issue ... the Trump administration said the secretary has power over the task force members; they can make appointments, fire them, decide whether insurers should cover the preventive services that they recommend. We may not like that but they seem to be saying, 'We have power, the secretary has power, so it's OK.' That may save the preventive services at the Supreme Court, that brief."
Schmid stressed that "we don't know – we could win, we have a good possibility now because of the government's position and the Trump administration siding with us."
In the case of losing, Schmid said, "Our hope is insurers would continue to cover preventive services at no cost. Most decisions on insurance coverage is made by employers, so employers would have to make that decision, too. There's two things – it's coverage and it's zero-cost sharing. So I would presume most plans would cover ... and they'll negotiate with [manufacturer] Gilead on the pricing. But Gilead would have to negotiate with them about how much they'll get reimbursed for it."
The other organizations that signed onto the brief are ADAP Advocacy Association, AIDS Alabama, American Academy of HIV Medicine, Caring Ambassadors Program, Community Access National Network, Community Liver Alliance, Community Resource Initiative, Fast Track Cities Institute, Frannie Peabody Center, Georgia AIDS Coalition, Global Liver Institute, Hepatitis B Foundation, Hep B United, Housing Works, International Association of Providers of AIDS Care, Latino Commission on AIDS, NMAC, SIECUS, and Vivent Health.
Black health groups join fight
And this isn't the only brief being filed, either.
The Center for HIV Law and Policy (CHLP) and PrEP in Black America (PIBA) joined Afiya Center (Dallas), Women with a Vision (New Orleans), SisterLove (Atlanta), BlaqOut (Kansas City, Missouri), and Equality Federation in filing a brief February 25 on behalf of Black-led organizations. Black Americans are four times more likely to die from AIDS than any other racial or ethnic group, according to a news release.
"The outcome of this case will either be a turning point for health justice or a devastating setback that endangers more Black lives," Danielle M. Campbell, founding member of PrEP in Black America (PIBA), stated in the release. "As HIV-related health gaps widen between Black people and other communities, this decision will determine whether we dismantle barriers to PrEP access or allow them to persist–further deepening the crisis."
The brief states that, "While increased access to preventive care without cost-sharing has decreased the divide, Black Southerners, especially Black women and members of the LGBTQ+ community, remain particularly vulnerable to fully preventable conditions.
"Healthcare providers in Southern communities who wish to better serve their patients have access to important information on the efficacy of preventive care strategies," it continues. "Patients are provided the information they need to access the best care, without cost barriers and based on objective, evidence-based recommendations. This work is done by the Task Force under the supervision and at-will removal authority of the HHS Secretary, as Congress intended, and the Constitution allows."
Added S. Mandisa Moore-O'Neal, executive director of CHLP, "I'm incredibly honored to stand alongside these Black and LGBTQ+ organizations as we boldly demand the highest court reckon with the profound harm the loss of preventative healthcare would have on our communities. While some may decide this is the moment to make ourselves smaller and less susceptible to opposition - now is the time to make it clear that we will continue to unapologetically advocate for our lives and well-being."
LGBTQ Agenda is an online column that appears weekly. Got a tip on queer news? Contact John Ferrannini at [email protected]
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