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A case currently before the Fifth Circuit Court of Appeals could lead to tens of thousands of new and preventable HIV cases.

photo of white prescription bottle and several blue pills on an aqua background

HIV PrEP (Pre-Exposure Prophylaxis) is an extraordinary medical breakthrough that reduces the risk of HIV transmission by close to one hundred percent. Under the Affordable Care Act (ACA), insurers are required to cover PrEP and other critical preventive care services without charging copays or deductibles, referred to as cost sharing. Last spring, however, a federal district judge in Texas issued a ruling in Braidwood v. Becerra blocking that requirement.

GLAD, with law firm Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo, P.C., filed a friend-of-the-court brief in the appeal of the Braidwood ruling at the Fifth Circuit on behalf of HIV Medicine Association (HMA) and the National Alliance of State and Territorial AIDS Directors (NASTAD).

HMA and NASTAD represent thousands of healthcare providers, public officials responsible for stopping the epidemic from every state, and policy experts with expertise in the treatment and prevention of HIV and the demographics and dynamics of the epidemic.

In their brief the organizations issue a dire warning: reinstating cost sharing for PrEP will significantly decrease utilization of PrEP, cause tens of thousands of new and preventable HIV cases, with billions of dollars in associated healthcare costs, and reverse the progress our nation has made towards curbing, and ultimately ending, the HIV epidemic.

“As an organization representing thousands of physicians and other health care professionals working on the frontlines of the HIV epidemic in communities across the country, we are deeply concerned about the harmful and far-reaching impacts this decision will have if allowed to stand,” said Michelle Cespedes, MD, MS, Chair, HIVMA. 

The brief analyzes the consequences of a recent epidemiological analysis conducted by experts at Harvard and Yale predicting, under the most cautious and conservative estimates, that blocking the ACA’s no cost sharing provision for PrEP will result in an additional 2,057 HIV infections in the first year alone.

Playing out the study’s straightforward assessment of additional first-year HIV diagnoses,  an additional predicted 1,892 secondary infections bring that number to 3,949 people with HIV in just the first year, which will cost the healthcare system a staggering $1.66 billion.

Extending that conservative model just five years into the future predicts approximately an additional 20,000 people with HIV and costs to the United States healthcare system of over $8 billion as a result of the reimposition of barriers to accessing PrEP.

The brief also provides the Court of Appeals with important historical and current-day information about the tremendous toll the HIV epidemic has had on millions of lives, as well as the role discrimination and stigma have played in preventing Americans from accessing highly effective prevention and treatment. While the ruling from the Texas court broadly enjoined the cost-sharing mandate for all recommended preventive services, the case began as a challenge specifically to the requirement to cover PrEP without copays or deductibles.

“The Braidwood decision is rooted in stigma and bigotry towards the LGBTQ+ community and people vulnerable to HIV,” said Dr. Stephen Lee, NASTAD Executive Director. “It will cause incalculable harm to our efforts to end the HIV epidemic.” 

Urging the Court of Appeals to understand the devastating consequences for HIV prevention if the District Court’s decision stands, the brief also describes the sobering and unacceptable racial/ethnic and geographic disparities in both the epidemic’s impact and access to PrEP. The most recent CDC estimates from 2021 are that only 11% of Black people and 20% of Hispanic/Latino people who could benefit from PrEP were prescribed it, as opposed to 78% of White people.

“Copays and deductibles deter people from accessing healthcare,” said Ben Klein, Senior Director of Litigation and HIV Law at GLBTQ Legal Advocates & Defenders. “PrEP is nearly 100% effective at preventing transmission of HIV, but it is already underutilized, particularly among Black and Latino communities. Allowing the lower court’s ruling in Braidwood v. Becerra to stand will exacerbate racial health disparities, needlessly increase HIV diagnoses, and cost American lives.”

As we await a ruling from the Fifth Circuit Court of Appeals, GLAD is advocating for other approaches to protect and expand access to PrEP. State legislatures have the power to not only codify the ACA’s no cost-sharing requirement under state law, but to go further by ensuring all forms of PrEP, including long-acting injectables, are available to all who can benefit from them. Barriers like co-pays, deductibles, and insurance pre-authorization requirements mean delays in access to PrEP that can lead to avoidable HIV infections with serious health consequences and even death.  

PrEP offers us a powerful path to finally end the HIV epidemic. We only need the will, and good health policy, to embrace it.

This story was originally published in the Fall 2023 GLAD Briefs Newsletter. Read more.

Learn more about GLAD’s work to expand access to PrEP.

Pidgeon v. Turner

Update December 4, 2017:  Today the U.S. Supreme Court denied the petition for review, and the case will continue through the Texas court.

Update October 20, 2017: GLAD and NCLR submitted an amicus brief requesting the Court grant cert in this case.

The Texas State Supreme Court issued its ruling June 30, 2017, in Pidgeon v. Turner, in which petitioners have challenged the City of Houston’s provision of benefits to the same-sex spouses of city employees. The court vacated a trial court injunction which would have barred the City from providing the benefits. But the court also sent the case – which dates to before the 2015 U.S. Supreme Court marriage equality ruling in Obergefell v. Hodges – back to the trial court to consider whether Obergefell settles the question of the City’s power to issue the benefits. This overly cautious, technical approach ignores the obvious and only correct result of this litigation.

Mary L. Bonauto, Civil Rights Project Director for GLBTQ Legal Advocates & Defenders (GLAD), who argued Obergefell before the U.S. Supreme Court, issued the following statement:

“While the immediate and, I am confident, eventual final result here is that married same-sex couples in Houston and throughout Texas will continue to receive the equal treatment – including equal access to spousal benefits – the U.S. Constitution guarantees them, I am profoundly disappointed that the Texas Supreme Court did not take the opportunity it had today to resolve this case once and for all.

“The U.S. Supreme Court in Obergefell unambiguously recognized the fundamental and equal right to marry for same-sex couples nationwide, together with access to all the same legal rights, benefits and responsibilities associated with marriage without discrimination – a recognition the Court, in fact, just re-affirmed this week in Pavan v. Smith. For the Texas court to leave open the possibility that Obergefell could be read otherwise is, plainly, wrong.”

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Background

GLAD, Lambda Legal, the National Center for Lesbian Rights, the ACLU of Texas and the ACLU foundation  submitted an amicus brief in Pidgeon v. Turner, a case that went before the Texas Supreme Court challenging the City of Houston’s provision of benefits to married same-sex couples.

The brief argues that this matter was settled by the U.S. Supreme Court in its 2015 ruling in Obergefell, which clearly stated that same-sex couples must be granted access to marriage on the same terms as different-sex couples, including the same legal rights, benefits and responsibilities.

Whole Women’s Health v. Cole

On June 27, 2016 the U.S. Supreme Court struck down the draconian restrictions that the state of Texas had imposed on abortion providers in 2013.

GLAD and a coalition of 13 other LGBT, racial justice, and health equity organizations filed an amicus brief in Whole Woman’s Health v. Cole asking the U.S. Supreme Court to strike down draconian restrictions on abortion providers enacted by the State of Texas in 2013. If upheld, the restrictions would have led to the closing of most abortion clinics in the state.

The brief urged the Court to carefully scrutinize the state’s asserted justification for the law, as the Court has done with other laws that infringe upon fundamental freedoms. The State of Texas has argued that the law protects the health of women seeking abortion, but the evidence at trial showed just the opposite. Medical organizations such as the American College of Obstetricians and Gynecologists, the American Medical Association, and the American Public Health Association have explained that the restrictions imposed by the new law are medically unnecessary and endanger, rather than advance, women’s health.

Pseudo-science has been used throughout American history to exclude individuals and groups from the full protection of essential constitutional liberties, including laws barring interracial marriage, excluding women from certain professions, permitting the forced sterilization of those deemed “inferior,” and criminalizing and discriminating against LGBT people. GLAD and its fellow amici urge the Court to look to this history and fulfill its constitutional obligation to examine carefully the State’s asserted justifications for restricting women’s fundamental right to reproductive autonomy.

In addition to GLAD, the organizations filing the brief are the National Center for Lesbian Rights, the Equal Justice Society, the National Black Justice Coalition, the Family Equality Council, the Human Rights Campaign, the National LGBTQ Task Force, GLMA: Health Professionals Advancing LGBT Equality, Equality Federation, the Sexuality Information and Education Council of the United States, Immigration Equality, the National Health Law Program, Movement Advancement Project, and Bay Area Lawyers for Individual Freedom.

Fisher v. University of Texas at Austin et al

June 23, 2016: Victory! The Supreme Court has ruled 4-3 that the UT Austin race-conscious admissions program in question is lawful under the Equal Protection Clause.

GLAD joined the National Women’s Law Center, Lambda Legal and allied organizations in filing a friend-of-the-court brief in this case before the U.S. Supreme Court concerning the consideration of race in undergraduate admissions decisions.

The brief argues that racial and ethnic disparities can be diminished when stereotypes are confronted by reality – the daily contacts and differing perspectives offered by students of varying backgrounds. The brief focuses on women and LGBT persons of color, asserting that the cause of eradicating discrimination on the basis of sex, gender, sexual orientation and gender identity “is closely aligned with the interest in eliminating race discrimination” and that “successfully breaking down one form of discrimination tends to reduce others as well.”

Read more

Mayer Brown LLP is lead counsel on the brief.

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