Obamacare can’t order employers to cover HIV drugs, rules rule

On the same day that former President Barack Obama returned to the White House to witness the unveiling of the new presidential portraits, a Texas federal judge ruled against provisions of his Affordable Care Act, also known as of Obamacare.

U.S. District Judge Reed O’Connor ruled on Wednesday on the side of plaintiffs, businesses and individuals, who wanted to deny free coverage for the HIV drug PrEP on religious grounds.

ABC News Washington senior reporter Devin Dwyer sat down with the “Start Here” podcast to explain Obamacare’s legacy, the recent legal challenge and where the implications could go.

START HERE: Devin, I think health insurance enrollment season starts in a few months, what was that decision?

DWYER: Yeah, and one of the most popular provisions that we’re all concerned about when we look at health care plans for our employers to choose from Brad are the free preventive care services and drugs that insurers are now required to cover because of Obamacare.

Things like cancer screenings and colonoscopies, vaccines, those things covered at no cost, no co-pay, of course. Well, a Texas federal judge, Reed O’Connor, the same one who once took aim at Obamacare, issued a disqualifying opinion, threatening key parts of the preventive services mandate.

He said this council of US health officials, which decides what insurance companies should cover for free, is unconstitutional. They are not properly appointed and confirmed by the Senate, in his opinion, which perhaps invalidates them in all the work they do, we will see. He held back on the exact scope of his decision, that will come a little later. But he was also targeting, Brad, and you mentioned, this very popular pre-exposure prophylaxis called PrEP. It is an HIV prevention drug.

He said asking companies, certain companies, to cover up this drug could violate their religious freedom. And he sided with a company, Briarwood is his name. It’s a small company, 70 employees. They had challenged this saying they believed that by having to cover it up they were endorsing the sexual activity, [and] that they cannot support sexual activity, outside of marriage, among homosexual people, and that they wanted to withdraw. Judge Reed O’Connor said that at least in their case they were not obliged to comply.

Illustration of PrEP (pre-exposure prophylaxis) drugs.

Thom Leach/Science Photo Libra/AP, FILE

START HERE: And I know this decision could potentially apply to many drugs, but while we’re at it, could you just talk about what PrEP is? Because I feel like we don’t spend enough time wondering, there is no cure for HIV. It has actually made it possible for people to live with this disease that we thought was incurable in a more normal way than we ever thought possible.

Dwyer: Yeah. PReP Brad was, in the eyes of the CDC, a game-changer. I mean, it has dramatically slowed the spread of HIV since it was launched about a decade ago. And it is 90% effective when taken in advance to prevent HIV infection from any kind of activity. Sexual activity, drug use, blood transfusion. You can’t, virtually, get it if you’re on it. And if you get infected and start preparing after the fact, that’s also very effective, experts say.

So it’s a drug that the CDC says it wants more people to take. And in fact, the latest numbers, only about a quarter of the people at risk, of the millions of Americans at risk who should be taking it, are doing it right now. The numbers are up, but they need to, you know, expand.

And the CDC says access to this drug is key. Allowing more people to get it cheaply, completely free under Obamacare’s mandate would help. And so they’re trying to erase HIV and AIDS in this country using this drug, but potentially now a setback with this decision, if it stands, and if it’s as broad as some fear.

START HERE: Well, that’s the problem, you had this company that said “we don’t want to endorse homosexual activity, that’s our, sort of, freedom of religion.” So we don’t think that should be covered by our plan. Of course, we should say that it’s not just homosexuals who get HIV, it’s not just men who get HIV. But if this decision is upheld by future courts, who will see what might happen then even beyond HIV? What happens to preventive care in this country?

DWYER: Well, there are two problems in this case. If the readiness ruling stands, obviously a setback, but it’s unclear whether the judge would say the government should just provide an exemption mechanism for religious businesses or religiously-minded people who don’t want it all simply not buy insurance for projects like this.

Remember, there was a similar challenge on the law’s mandate in contraception and similar grounds that have been challenged over the years. So maybe there will be some kind of exception. Maybe he knocks it down completely. We will have to see. But it could also have a much wider impact. 140 million Americans count and have come to take advantage, according to surveys, of free preventive services, not just drugs and vaccines, but, you know, your annual medical exam which is supposed to be covered at no cost, no co- payment, once a year. It is an advantage of Obamacare. If this working group, the one that sets these standards, is invalidated, all of this could disappear.

START HERE: Because they’re the ones who kind of do the calling, here’s what a regular person should have access to. OK. Fascinating stuff. Devin Dwyer, thank you.

DWYER: Thank you Brad.

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