A long-awaited court decision has finally arrived, with disturbing health implications: The ruling exempts select employers from fully covering a daily pill that can prevent a person’s chances of getting HIV by up to 99 percent.
But the effects of the Braidwood Management v. Becerra case extend beyond HIV care. The case could invalidate a startling range of free preventative services, and lead to a big jump in patient’s payments for cancer screenings, preventive drugs for heart disease, depression screenings, crucial prenatal care and much more.
Here’s how preventive care has suddenly become vulnerable.
Braidwood Management, a Christian-owned business, and six individuals in Texas argued that requirements for free preventive care are unconstitutional and that requiring coverage for drugs that prevent HIV — called Pre-Exposure Prophylaxis, or PrEP — violated their religious rights.
In September 2022, a federal judge in Texas sided with Braidwood, and struck down the coverage mandate. But the federal government appealed the ruling in 2023 to the Fifth Circuit of Appeals in New Orleans, which allowed the coverage mandate to stand during its deliberations. On appeal, Braidwood’s primary challenge changed to assert that the U.S. Preventive Services Task Force, which recommends preventative services based on clinical evidence, was not a constitutionally appointed body and that policies stemming from their recommendations should not be required of anyone.
On June 21, the Fifth Circuit of Appeals agreed with Braidwood that the task force was not constitutionally appointed, but limited the ruling to the plaintiffs in the case because they had brought arguments for a nationwide remedy too late in the process.
So while free PrEP is mostly safe for now, the Braidwood case opens the door for others to seek future exemptions — not just for PrEP but for other recommended preventive services.
The court has “put down a ticking timebomb,” wrote Jose Abrigo, HIV Project Director of Lambda Legal Defense and Education Fund in New York. Their “erroneous conclusion that the task force is unconstitutional lays the groundwork for other courts to reach the same conclusion.”
Such a change would be devastating for the 1.2 million people who need access to HIV PrEP medications.
While the FDA approved the first PrEP drug in 2012, only a few people could get it for years due to its high out-of-pocket costs. Even with insurance, a 30-day supply of PrEP could run several hundred dollars. Patients also bore the costs of HIV testing and visit deductibles and co-pays. It was part of an unjust system where only the privileged could buy freedom from HIV.
In 2020, a remedy emerged. The U.S. Preventive Services Task Force gave oral HIV PrEP an “A” rating, meaning that, starting in 2021, most private insurers had to comply with the Affordable Care Act’s requirement for $0 cost sharing for preventive services, including the PrEP medication and required visits and tests.
This meant that Americans with private insurance — the vast majority — could access PrEP at no cost.
Re-introducing costs for PrEP will have harsh consequences. In our recent study in the journal Health Affairs, even a small increase from $0 to $10 doubled the risk that patients will not pick up their PrEP prescriptions, substantially raising their chances for getting HIV over the next year.
If PrEP’s out-of-pocket costs jumped from $0 to $100 or more, abandonment rates would likely be six to eight times higher, with over one-third of patients not picking up their prescriptions. Our study simulated just the effects of PrEP prescription costs rising — there would likely be even more drop-offs if costly visits and HIV tests are included.
Patients often stress the importance of no-cost PrEP. When our team interviewed those at high risk for HIV, they described how free PrEP would virtually ensure they would take it. One interviewee stated, “I’d go on [PrEP] immediately. Great. Sign me up. Please and thank you.”
By limiting access to PrEP, Braidwood and cases like it could upend the progress the U.S. has made in eliminating HIV. No patient should have to choose between their health and financial well-being, especially in a society as wealthy as the United States.
While the Braidwood decision could set a dangerous precedent, there is promising news for people on Medicare. The Biden administration has recommended that PrEP be covered at no cost for those folks. A final decision is in the works.
All preventive care should be free, including PrEP. Policymakers need to take an important first step by reintroducing and passing the PrEP Access and Coverage Act, which would require all private and public plans to cover PrEP with no out-of-pocket costs, and create a national PrEP program to bridge gaps for those without insurance. Critically, the law would also cover lab tests and include enforcement provisions to ensure plans comply with the law.
If federal lawmakers fail to pass this, state representatives could step up by passing bills that require no-cost coverage of preventive services — at least 15 states and DC have such provisions — along with expanding drug assistance programs.
Broader efforts will be needed to protect other types of preventive care. Cases like Braidwood hold the power to degrade other achievements, such as reductions in cancer mortality rates through early detection and care.
Those who are least equipped to bear the costs stand to lose the most. We need our legislators to recognize the value of preventive care and make it all as accessible as possible. Preventive care is too valuable to be a privilege. It should be a right.
Lorraine T. Dean, ScD, is an associate professor of epidemiology and health policy & management at the Johns Hopkins Bloomberg School of Public Health.
Jalpa Doshi, Ph.D., is a senior fellow of the Leonard Davis Institute of Health Economics and a professor at the University of Pennsylvania, where she is director of Value-based Insurance Design Initiatives at the Center for Health Incentives and Behavioral Economics.