For Kenyon Farrow and Jeremiah Johnson of PrEP4All—and the hundreds of thousands of Americans who rely on the HIV prevention pill—last week’s ruling by a federal judge in Texas that employers are not required to provide health insurance plans that cover preventive services like PrEP was dismaying—although not entirely surprising.
Since the nonprofit was founded in 2018, PrEP4All has been advocating for increased access to pre-exposure prophylaxis medications that can reduce the risk of HIV infection by 99%. Johnson, the organization’s PrEP program manager, and Kenyon, its managing director for advocacy and organizing, say they had been anticipating Judge Reed O’Conner’s decision with what Johnson described as “depressed resignation.”
On September 7, Judge O’Connor of the United States District Court for the Northern District of Texas ruled in favor of a group of Christian business owners that the Affordable Care Act (ACA)’s requirement that health insurance plans must cover PrEP, free of charge, as preventive care violates their constitutional right to religious freedom. One of the plaintiffs in the case, Dr. Steven Hotze, said in the complaint that providing a health insurance plan to employees that covers PrEP goes against his sincere religious beliefs because it would “encourage homosexual behavior.”
“Unfortunately, I’ve been following the case for a while and this particular judge is known for being quite an outlier on anything related to, certainly, the ACA,” says Johnson. Most recently, in 2018, he ruled that by zeroing out the 2010 law’s individual mandate penalty, lawmakers had rendered the ACA unconstitutional, a decision the Supreme Court later overturned.
His latest opinion also takes aim at the ACA’s process for determining what kinds of preventive care must be fully covered by private health insurance, ruling that the U.S. Preventive Services Task Force violates the Appointments Clause of the U.S. Constitution.
Last week, White House Press Secretary Karine Jean-Pierre tweeted that the Biden administration is reviewing O’Connor’s decision, and legal experts expect the administration to challenge it.
“[O’Connor is] also very much an outlier in terms of our approach to HIV as a nation, in terms of trying to scale up access to PrEP,” says Johnson. “That is a bipartisan issue in America.” He cites former President Donald Trump’s 2019 “Ending the HIV Epidemic Initiative,” which included increased access to PrEP, and Rick Scott’s support of the “Ryan White PrEP Availability Act.”
And, as both Farrow and Johnson note, providing health plans that cover preventive care like PrEP is also a cost-saving measure for employers. With the introduction last year of generic alternatives to brand name medications like Truvada and Descovy, the cost of PrEP can be less than $20 a month, according to Johnson. Compare that with the CDC’s estimate for the lifetime costs associated with new HIV infections: upwards of $500,000.
“We pay a lot of money in the U.S. into our healthcare system to have worse results in terms of healthcare outcomes compared to comparable nations worldwide,” he explains. “It’s ultimately going to be so much better for all of us if people [can] prevent healthcare outcomes before they become more expensive and more costly to the system overall.”
Farrow and Johnson were hesitant to speculate about how the employers would greet O’Connor’s decision. “There is really no cost-savings argument by not providing health plans that cover PrEP,” says Farrow. “But people sometimes don’t make decisions based on their wallets, they sometimes make decisions—even if it costs them—on their own personal bigotry and biases. So, it’s yet to be seen how this is going to play out with employers and their health plans.”
But Johnson notes that providing less comprehensive healthcare plans goes against the trend of employers investing in workers’ overall well-being.
“We’re seeing this around mental health issues, we’re seeing this in terms of providing more flexibility for individuals in the work environment. Certainly, in the time of COVID-19, we’ve become more aware of employee health and how important that is,” Johnson says. “It certainly does seem to go in an opposite direction of where we’re heading as a nation in terms of talking about employee safety and ensuring that they have reasonable accommodations to prevent any complicated outcomes with their health.”
But the current situation shows the problem with relying so heavily on employer-provided health insurance, he says.
“This is literally a case where a small subset of individuals are saying that we should not cover a cost-saving intervention and that society should pick up the excess cost through the healthcare system because they have a very confusing belief about what PrEP means in terms of what they’re covering,” Johnson says. “Really, we shouldn’t be allowing individual employers, based on perhaps arbitrarily held beliefs, to be making that judgment for all of society and for their employees. That’s just too much power to give to those individuals.”
Following O’Connor’s ruling, PrEP4All will continue to advocate for a national PrEP delivery program for uninsured Americans. In his fiscal year 2023 budget proposal, President Biden pledged $9.8 billion to establish such a program.
“We’re really redoubling our efforts,” Johnson says in an email, “to address these kinds of interruptions in PrEP service and to continue to build broad, bipartisan support for PrEP scale up as a cost saving intervention for the American healthcare system.”
Recognize your brand's excellence by applying to this year's Brands That Matters Awards before the early-rate deadline, May 3.
