Judge finds employers not required to cover HIV drug, preventive service task force unconstitutional

A federal judge has ruled that employers are not required to cover an HIV prevention drug without any cost-sharing and found a key part of the Affordable Care Act’s (ACA's) preventive services clause is unconstitutional.

Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas delivered an opinion Wednesday that found the requirement for employers to cover HIV prevention drug preexposure prophylaxis (PrEP) violates their religious freedom. The ruling also found that the U.S. Preventive Services Task Force is unconstitutional because of how members are appointed to the panel.

The ACA’s preventive services requirement mandates that all insurers offer 100 preventive services without any cost-sharing to plan members. The law relies on recommendations from the U.S. Preventive Services Task Force, the Advisory Council on Immunization Practices (ACIP) and the Health Resources and Services Administration (HRSA) to determine the affected services. 

Two Texas businesses and several residents sued in federal court against the requirement that plans offer birth control and the HIV prevention PrEP without any cost-sharing obligations. The residents argued that the requirements violated their religious beliefs. 

O’Connor found that eliminating cost-sharing for PrEP did violate the Religious Freedom Restoration Act.

The judge also shot down arguments from the Biden administration that PrEP represents a “compelling government interest” in forcing private plans to cover the drugs at no cost-sharing or with any religious exemptions. 

He wrote the government didn’t offer any evidence on the scope of religious exemptions, including the “effect such exemptions would have on the insurance market or PrEP coverage, the prevalence of HIV in those communities or any other evidence related ‘to the marginal interest’ in enforcing the PrEP mandate in these cases.”

O’Connor also found that the task force violates the Constitution’s Appointments Clause, which lays out how officials may be appointed as officers of the U.S. 

The plaintiffs argued that the members of the task force must be appointed by the president and confirmed by the Senate. 

O’Connor agreed that the task force members are “unconstitutionally appointed” because they have significant authority under the ACA and are appointed to four-year terms as opposed to a more casual or temporary assignment. 

He didn’t agree with the Biden administration’s argument that the members are not government officers. 

“The Constitution says that individuals exercising that kind of power must be appointed by politically accountable officers,” the ruling said. 

O’Connor also found that members of the task force can be removed at will by the president or the secretary of the Department of Health and Human Services (HHS), meaning the members are not as insulated from political actions as federal civil servants are.

However, he found that HRSA and ACIP didn’t violate the Appointments Clause as Congress better outlined their authority and boundaries. 

HHS did not immediately return a request for comment on whether it will appeal the ruling. 

The ruling drew swift condemnation from several patient advocacy groups. 

"If today’s ruling stands, Americans will again be at the mercy of insurance companies and employers, who could eliminate the benefits or start charging for them," said Leslie Dach, chair of the advocacy group Protect Our Care, in a statement.

O’Connor is the same judge who ruled the entire ACA was unconstitutional back in 2018, a decision later overturned by the Supreme Court.