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Judge rules that companies are not required to provide coverage for HIV medication

ARI SHAPIRO, HOST:

A federal judge in Texas has ruled that one part of the Affordable Care Act is unconstitutional. The case centers on a rule that requires employers to provide coverage of PrEP drugs, which prevent transmission of HIV. One plaintiff is a Christian-owned business that argues this mandate violates religious freedom. Legal experts say the decision could have broad reach. NPR's Allison Aubrey has been reading the opinion. Hi, Allison.

ALLISON AUBREY, BYLINE: Hey, Ari.

SHAPIRO: Tell us more about where the case came from. Who brought it?

AUBREY: Well, there are a bunch of plaintiffs in the case, six individual people and two businesses. And what they have in common, Ari, is their opposition to one of the most popular provisions of the Affordable Care Act. The provision mandates free coverage of a wide range of preventive services, including birth control and HIV drugs known as PrEP taken to prevent HIV infections. And this means employer health plans must cover these services 100%. No co-pays. The plaintiffs in the case, including two Christian-owned businesses in Texas, Braidwood Management and Kelley Orthodontics, they don't agree with this. One plaintiff says he doesn't want to pay for drugs that encourage homosexual behavior. Some plaintiffs object for economic reasons. They argue the mandate to cover preventive services raises the price of insurance.

SHAPIRO: And what'd the judge say in the ruling?

AUBREY: Well, today, U.S. District Judge Reed O'Connor ruled in their favor. He's the same judge who in 2018 ruled that the Affordable Care Act was unconstitutional. And today's ruling partially resolves, Ari, this case, but it's not over. O'Connor has asked for more information from parties in the case before completing his decision. But bottom line, this is a big deal. A judge has declared that a key part of the Affordable Care Act's preventive services mandate is unconstitutional.

SHAPIRO: And so as things now stand, could companies that provide health insurance now just choose to stop covering preventive medication, including HIV prevention drugs?

AUBREY: Well, this is not clear yet. I spoke to Katie Keith. She's a health policy expert at Georgetown University Law Center. She says this is a broad ruling, but a lot depends on what Judge O'Connor says next.

KATIE KEITH: He can say, like, I think this is unconstitutional, but I'm not going to strike down this requirement. I'm going to let my ruling sit on ice until we work this out through the appeals courts, right? Like, while this is being litigated, the requirements will remain in place. That's what has happened in some of his prior rulings. So we don't know.

AUBREY: What is pretty likely is that the case will be appealed and could end up in the Supreme Court, making for what could be a long and dragged-out process.

SHAPIRO: And beyond PrEP - pre-exposure prophylaxis - for HIV, what else is at stake if this ruling stands?

AUBREY: Well, if the ruling stands, millions of Americans could lose access to free preventive services, everything from cancer screenings such as mammograms to counseling for people at high risk of heart disease and diabetes. Now, that's because Judge O'Connor has ruled that the U.S. Preventive Services Task Force, the members there - these are basically the experts who decide which services need to be covered. The judge has determined that they've all been unconstitutionally appointed. Basically, he says they're not empowered to mandate coverage.

KEITH: If the ruling stands, we could go back to a world where insurance companies and employers sort of pick and choose whether they cover preventive services at all, which services they cover and then whether, you know, you as the consumer has to pay out of pocket for that care.

SHAPIRO: Coverage of that court ruling from NPR's Allison Aubrey. Thank you, Allison.

AUBREY: Thank you, Ari. Transcript provided by NPR, Copyright NPR.

Allison Aubrey is a Washington-based correspondent for NPR News, where her stories can be heard on Morning Edition and All Things Considered. She has reported extensively on the coronavirus pandemic since it began, providing near-daily coverage of new developments and effects. She's also a contributor to the PBS NewsHour and is one of the hosts of NPR's Life Kit.