History at a glance
- Under the Affordable Care Act of 2010, employers are required to provide full coverage for certain preventive services.
- However, a new Texas ruling found that coverage of certain services, such as pre-exposure prophylaxis (PrEP), violates employers’ rights under the Religious Freedom Restoration Act.
- If the decision is upheld, experts say it would undermine efforts to prevent a myriad of diseases and conditions, including HIV.
Affordable health care in the United States lags far behind other developed nations and is particularly out of reach for certain racial minorities and low-income Americans. A new ruling from Texas could make matters even worse.
Federal Judge Reed O’Connor on Wednesday struck down a key provision of the Affordable Care Act (ACA) that requires employer-sponsored insurance to cover certain preventive services — including pre-exposure prophylaxis (PrEP), a drug that dramatically reduces the chance of contracting HIV — to ensure patients have no out-of-pocket costs.
The judge ruled that the provision violates the Religious Freedom Restoration Act by requiring people to provide coverage that conflicts with their faith or personal beliefs. The ruling, which is expected to be challenged, threatens individual health care decisions for more than 13 million Texans and a total of 150 million Americans who have employer-sponsored health insurance.
Taller costs and additional barriers for patients
Even before Wednesday’s ruling, most Americans vulnerable to HIV infection were using PrEP at disproportionately low rates. Overall, 25 percent of the 1.2 million people recommended PrEP received it in 2020 — up from 3 percent in 2015. And coverage isn’t even, according to the Centers for Disease Control and Prevention (CDC).
White Americans accounted for 66 percent of PrEP coverage, while black Americans accounted for 6 percent of coverage and Hispanics accounted for 16 percent of coverage. This is despite the fact that blacks and Hispanics account for 42 and 27 percent of new HIV diagnoses in 2021. White Americans account for 26 percent of new HIV diagnoses.
Gay, bisexual, and other men who have sex with men are at the greatest risk of HIV, and this is especially true in black and Latino communities. HIV also particularly affects black women, transgender women, and people who inject drugs.
Heterosexual men accounted for 7 percent of new HIV diagnoses and heterosexual women accounted for 16 percent in 2019.
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New HIV infections are also concentrated in the South, where Americans generally lack affordable access to reproductive health care for HIV and sexually transmitted diseases, birth control, abortion, and gender-affirming care. In Texas, more than 22,000 people were prescribed PrEP and more than 123,000 people were at high risk for HIV in 2020.
A monthly supply of branded PrEP is about $2,000 without insurance, while the generic version costs $30 to $60 per month. Most insurance packages offer the drugs free of charge.
If the decision is upheld, communities most vulnerable to HIV infections—many of which already face discrimination and stigma—will be tasked with overcoming another financial barrier to obtaining preventive treatment, Perry N. Halkitis, dean and professor at Rutgers School of Public Health, told Changing America.
Halkitis is a public health psychologist who has focused most of his work on infectious diseases and is the founder and director of the Center for Research on Health, Identity, Behavior, and Prevention at Rutgers University.
“The last thing you want to do is put in another hurdle, and if that other hurdle is now financial, then there’s going to be an even greater likelihood that uptake will be reduced,” Halkitis said.
Financial burden on jobs etce economy
The new ruling could make medical costs more expensive for workers, employers and the economy, Halkitis says.
This is because it is ultimately cheaper to prevent HIV than to treat it, and chronic disease management is more expensive for employers than preventive services. A company would spend more to cover chronic diseases like HIV than if it also covered preventive care—something it is incentivized to do not only to cut costs but also to keep its employees healthy.
“If you take PrEP away, what will happen is some of your workplace will become infected with HIV,” Halkitis said. “So in turn, you’re going to be paying for drugs for the rest of your life.” The burden on the economy and the company is much greater in HIV treatment than in HIV prevention, and that’s such a clear argument for PrEP, and such a clear argument that would encourage this organization and this judge to support access to PrEP.”
The Texas decision also risks opening the door for employers to deny coverage for any preventive service they believe violates their religious beliefs, risking affordable access to screenings for cancer and heart disease, for example.
“To me, this speaks to the need for a more universal health care system in our country,” Halkitis said. “Where these kinds of decisions are not made by employers, where my health decisions are made by me and not by the person I work for, where people who need work can take a job without fear of the consequences that their employers they will have tell them who to have sex with, how to have sex, and what to do with their bodies.
The future of HIV and preventive care
While it’s unclear whether the ruling will be enforced outside of Texas or employers challenging the ACA provision, it would have serious implications for any type of preventive care.
In his ruling, O’Connor ruled against requiring coverage for other preventive services such as screenings for colorectal and other cancers, depression and hypertension — arguing that the U.S. Preventive Services Task Force’s system for deciding which services should be fully covered is unconstitutional.
In addition to affecting the ACA, the Texas decision could also affect the country’s goal of eliminating new HIV infections by the end of the decade.
In the lawsuit, the Texas employers argued that paying for health plans that cover PrEP could “facilitate or encourage homosexual behavior,” adding that they themselves do not want or need the coverage because they “are in monogamous relationships with their respective spouses’ and ‘neither they nor any of their family members are engaged in behavior that transmits HIV.
But access to PrEP does not lead to homosexual behavior, Halkitis noted, comparing the argument to those made in the 1990s who argued that putting condoms in schools would encourage sex with teenagers.
“The idea that we somehow make someone gay because we give them a drug that protects them from a disease is probably the most ridiculous, anachronistic, homophobic and completely theocratic way of thinking about sexual identity,” he said.
HIV can also be transmitted from positive mothers to their children and by sharing needles.
Notably, since the introduction of PrEP and other virus-suppressing drugs that make patients unable to transmit the virus, rates of new HIV infections have declined, especially in high-prevalence areas like New York.
In 2019, former President Trump’s administration unveiled a plan to eliminate HIV transmission in the United States by 2030.
But that decision, if upheld, could undermine that mission, until “the goal of no new HIV infections by 2030 will be completely, utterly unreal,” Halkitis said. “This is the last thing we need to get this virus under control.”