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The right-wing movement is really having a moment right now, from removing the federal abortion law to banning gender-affirming care in some states. Now in the shadow of Roe vs. Wade overthrown in June, the architect of a controversial Texas abortion law — a man who once targeted marriage equality — is turning his attention to preventive HIV care. If he has his way, Texans and other Americans could lose access to PrEP, leaving tens of thousands of people at risk of being diagnosed and opening the door to denial of HIV care.
After serving as Solicitor General for the State of Texas from 2010 to 2015, Jonathan Mitchell founded a law firm in Texas in 2018 to challenge decades-old Supreme Court decisions. Mitchell helped draft Texas Senate Bill 8, the restrictive abortion law of 2021 that made ordinary people bounty hunters who could sue anyone they believed was involved in the proceedings .
Mitchell now represents several clients who oppose the Affordable Care Act’s mandate that insurance companies cover PrEP and other drugs in Braidwood Management c. Becerra, filed in federal court in the Northern District of Texas in 2020.
Mitchell is directing his legal anger at Descovy and Truvada, two drugs that are highly effective in preventing HIV transmission if taken as PrEP or as pre-exposure prophylaxis. The drugs are attacked because, as stated in the lawsuit, they “enable homosexual behavior”. Mitchell argues that covering the cost of PrEP drugs through insurance should not be mandatory for religious reasons.
Jonathan Mitchell makes his points against government-assisted PrEP programs on conservative web series Watch Washington with Tony Perkins
Since the beginning of his career, Mitchell has spoken out on rolling back decisions that he believes deviate from the language of the Constitution or recognizing constitutional rights that lack explicit foundations. Given the Supreme Court’s continued shift in leadership, its cases will likely become a beacon for the laws of the land.
For years, Mitchell, a former clerk under arch-conservative Justice Antonin Scalia, had argued for the Supreme Court to overturn Roe v. Wade, while designing Senate Bill 8 in Texas. Several of his legal theories and court cases laid the groundwork for overturning the decision. As part of establishing his one-person law firm in Austin four years ago, he litigated issues such as affirmative action, marriage equality and birth control mandates.
“The PrEP mandate requires religious employers to cover drugs that facilitate and encourage homosexual behavior, prostitution, sexual promiscuity, and intravenous drug use,” the lawsuit states. In addition, the law requires religious employers and religious people who purchase health insurance to subsidize these behaviors to obtain health insurance, Mitchell says.
Mitchell’s actions are part of a familiar tactic to disenfranchise LGBTQ+ people to appease deep-pocketed special interest groups, says Alejandra Caraballolawyer and clinical instructor at Harvard Law School’s Cyberlaw Clinic.
Although viruses don’t care about the sexual orientation of their hosts, Mitchell maintains that her clients or their families are not at risk of HIV infection. The lawsuit claims, regarding the plaintiffs, that “neither they nor any of their family members engage in conduct that transmits HIV.” He does not specify whether all of his clients abstain from sexual activity.
At a hearing in July, Mitchell claimed on behalf of his clients that a mandate introduced last year requiring health insurance companies to cover certain preventative health care at no additional cost makes them complicit in “conduct contrary to their sincere religious beliefs”.
Caraballo warns that the circuit in which Mitchell filed the lawsuit and the presiding judge in the case, Reed O’Connor, — appointed by George W. Bush — are not friends of the LGBTQ+ community.
“When it comes to this type of lawsuit, you have to know the context in which it’s being filed,” Caraballo says. “[Conservative attorneys] know how to outsmart the system to get special judges like… Reed O’Connor.
A coalition of conservative groups sued the Equal Employment Opportunity Commission to allow them to discriminate on religious grounds, and O’Connor decided in 2021 that they could continue. This is despite the Supreme Court extending job protections to LGBTQ+ people a year earlier. O’Connor struck down Obama-era health insurance protections for LGBTQ+ people and ruled the Affordable Care Act unconstitutional (Supreme Court later overruled O’Connor’s rulings) .
Alejandra Caraballo, lawyer and Harvard professor, warns of the dangers of limiting access to PrEP and other sexual health services
“You can file in a certain office, and you can get a guarantee from a judge – and these judges have been stacked – who is not just conservative; these judges are reactionary,” says Caraballo. “So [lawyers] may be explicitly homophobic in their complaint and say, “Hey, that’s our religious belief.”
Caraballo notes that because PrEP is not just for LGBTQ+ people but for anyone at risk of contracting HIV, the arguments “obviously fail.”
“If this were a functioning justice system, these kinds of claims would simply be dismissed by the courts, but that is not the case. [It’s] has just been politicized to such an extent. She adds that the problem is not only the district court in which there could always be an “outside the wall” judge, but it is also a problem with the United States Court of Appeals for the Fifth Circuit. .
“So you see these really, really crazy chases coming out of Texas, sometimes Mississippi or Louisiana,” she said, “because they’re in the Fifth Circuit and are able to get those kinds of results. “
Caraballo also says Americans cannot accept the momentum of the conservative movement.
“Create a precedent that [insurance companies] not having to cover PrEP is borderline genocidal because it literally prevents people from protecting themselves against HIV,” warns Caraballo. “And if they don’t cover PEP or actual HIV treatment either, it gives the employer the option to say, ‘Hey, you have HIV, I don’t approve, you should die.
Without explicitly commenting on Mitchell’s lawsuit, Admiral Rachel Levine, the first Senate-confirmed transgender person as the U.S. Department of Health and Human Services’ assistant secretary for health, says access to PrEP is crucial for anyone who needs and wants it. HIV has been an essential part of her career, explains the pediatrician.
“I was there when the HIV epidemic started, and I’m determined to be there when the HIV epidemic ends,” says Levine.
She describes those early days as dark. At first, the drug AZT didn’t deliver what it promised, Levine says. She credits the work of scientists around the world, including Dr. Anthony Fauci and CDC Director Dr. Rochelle Walensky, and “many, many, many others,” for the many medical miracles associated with HIV, such as antiretroviral therapy. PrEP, she says, is one of the most important of these advances.
“We have medicine that you can take once a day where [undetectable] equals [untransmittable],” she says. “We have medication that you can take once a day, and now an injection once a month, possibly less often…. If you are at risk, you will not get HIV.
Of course, in the communities that need these drugs the most, access remains difficult. Additionally, scientists and activists at this summer’s International AIDS Conference 2022 in Montreal warned that stigma is driving backsliding when it comes to HIV testing and treatment and the prescription of PrEP.
For this reason, Levine says health equity considerations guide her work and that of HHS Secretary Xavier Bacerra: “We need to get medical prevention and treatment to the people who need it most. Prevention equals treatment; treatment equals prevention.
Teacher Anthony Michel Kreis teaches at the Georgia State University College of Law and is an expert on LGBTQ legal issues. Kreis asserts that the right to privacy and the freedom to organize one’s family and life are all central to the rights of women and LGBTQ+ people.
“And so, with the victory which the conservative legal movement has won in Dobbs, the next natural thing for them is to target sexual privacy more broadly,” he says. “It involves the right to have intimate relationships as much as the right to marry or to have gender-affirming health care.”
Efforts like Mitchell’s are a sneaky way to wage war on sexual minorities, sex workers, drug addicts and others regularly targeted by the far-right conservative movement.
“It’s a way of attacking sexual intimacy without again calling for the criminalization of same-sex relationships,” he says. “It’s an attempt not to re-criminalize but to re-stigmatize.”
UPDATE: As we were printing this issue (September/October 2022), Mitchell received a petition to change the name of the case from Kelley v. Becerra at Braidwood Management c. Becerra because the first plaintiff named in the case, John Kelley, had received threats since the story broke in July (in Morethe sister publication of, the lawyer).