Can a Business Eliminate PrEP Coverage in Health Insurance?

The Advocate asks a very interesting question in light of the Hobby Lobby case. That case said that a closely-held company could do away with contraception coverage in their health insurance if they have religious objections to it. But could they also eliminate coverage of preventive anti-retroviral drugs that protect gay men from getting HIV?

Last June the Supreme Court ruled that religious-minded business owners could essentially line-item veto some forms of birth control out of their employees’ health care plans. Does that mean that antigay bosses can target queer employees by doing the same with HIV prevention pills?

The Hobby Lobby decision was a major victory for religious conservatives, who in recent years have increasingly sought exemptions from laws designed to protect LGBT people. And while the case focused on birth control, the decision could have significant implications when it comes to health care for workers who are at elevated risk of acquiring HIV, such as sexually active gay men.

PrEP is a daily regimen of the drug Truvada, which when taken daily as prescribed can reduce the risk of transmission by 99 percent, according to studies. Although Truvada has been approved as HIV treatment for more than a decade, it’s only relatively recently that it’s been adapted as a preventive measure. And the number of prescriptions is still small.

There are some differences between this and the Hobby Lobby case, most obviously that Hobby Lobby was challenging a rule in the Affordable Care Act requiring that contraception be covered in all insurance policies at no cost to the insured. But PrEP is preventive care, which is also required in all insurance policies, just not specifically that type. And there’s another question:

Although both the use of Truvada as PrEP and the Hobby Lobby decision are recent developments, LGBT nonprofits are prepared to defend access to health care.

“We’ve heard about some doctors who are reluctant to prescribe PrEP,” says Schoettes. “I think that’s problematic and something that will need to be addressed,” potentially through litigation. “A person’s health care should not be dependent on their doctor’s viewpoints on their sex lives.”

And of course, a refusal to cover treatment or preventive measures would have significant public health consequences.

“Any type of barrier to treatment runs counter to very sound public health policies,” says Espinosa-Madrigal. “If an employer is using moral or religious beliefs to deny people access to health care … it would contribute to the epidemic.”

Fortunately, there have been, so far, no documented cases of antigay employers trying to use the Hobby Lobby decision as a weapon against queer health care. But the possibility still exists.

Can doctors invoke Hobby Lobby to justify denying PrEP coverage to patients on religious grounds? It’s an unsettled question, which is itself rather unsettling. Lives are literally at stake here.

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  • Gregory in Seattle

    Can a “closely held company” owned by Jehovah’s Witnesses refuse to cover blood transfusions? Can a “closely held company” owned by Christian Scientists refuse to cover everything other than faith healing?

    I am not looking forward to how this will inevitably play out.

  • John Pieret

    Another difference with the Hobby Lobby case is that the Court put considerable weight on the fact that the ACA already had in it an exception for religious employers having to pay for contraceptive coverage. In essence, the Court found that a closely held corporation where the owners had religious objections was “close enough” to get one too. I don’t believe there is any such exception for PrEP.

    Another possible distinction was the use of contraception was the “sin” involved, while there is no particular sin in taking PrEP, it’s the behavior that makes it advisable to take it that is the “sin.”

    Can doctors invoke Hobby Lobby to justify denying PrEP coverage to patients on religious grounds?

    The local medical boards might have something to say about that. Just because it might be legal to do that doesn’t make it ethical.

  • Chiroptera

    Gregory in Seattle, #1:

    I only briefly glanced through the Hobby Lobby decision, but I seem to recall that the majority of the Supreme Court were trying to carefully explain why their decision wouldn’t prevent, say, a wealthy,elderly Catholic male from getting the health care he might need.

  • eric

    With HL, I think nobody questioned that it was the owner’s sincere religious belief that people not use contraception (and not use abortifacents, which the pill isn’t, but I digress). After all, that has been the publicly stated belief of the RCC for hundreds of years. Even if the owners aren’t Catholic, the history of this particular religious proscription is much much older than the HL case.

    However, I think some owner claiming that it was their sincerely held religious belief that we not treat this one disease discovered in the 1980s, and that we not do a practice of preventative care that the government proposed in 2014, the courts are going to question that as a possible sham belief. Such a belief has no history, and it seems very arbitrarily specific. It sure looks like a personal animus someone wants to pass off as religious in order to evoke the first amendment. I can see the courts ruling that way, anyway.

  • kantalope

    ‘cept the court was also clear that they were in no position to judge what is and isn’t a legit religious belief. Which is why the birth control is/isn’t abortifacient was not discussed.

    What hobby lobby really comes down to is religions get a free pass on any law they don’t like if there is some kind of workaround although what i really think it amounts to is a get out of law free on anything that Scalia already dislikes (like women and gay folks).

  • D. C. Sessions

    Bear in mind that HL was decided on the grounds of a HHS regulation that conflicted with the statutory law of the Religious Freedom Restoration Act. Not on any sort of Constitutional pretext. In fact, RFRA was specifically enacted to provide cover that the Supreme Court ruled was not provided by the Constitution.

    Going beyond that aspect, the Court is going to have to stretch the Constitution some more. Which, manifestly, the Roberts Court is not at loathe to do. However, Roberts in particular tries to lay the groundwork sneaking up on a change to the Constitution in previous cases. In this one, that groundwork isn’t at present apparent.

    I’d suggest keeping an eye out for dicta in other cases that might be setting up something like HL but with a Constitutional slant.

  • eric

    ‘cept the court was also clear that they were in no position to judge what is and isn’t a legit religious belief. Which is why the birth control is/isn’t abortifacient was not discussed.

    They didn’t, but that does not mean they can’t. Courts assess sham vs. legit religious beliefs every time some Hovind claims his con operation is a religious charity. In the future, if conservative corporations start claiming all sorts of benefits are against their religious beliefs, I very much bet the courts will respond by saying they are exactly the people to judge whether these beliefs are legit (in the sense of sincere and religious) or not.

    Secondly, AIUI review courts don’t generally dispute facts that weren’t disputed by the parties in the original case; it makes perfect sense to me that SCOTUS would not address the plaintiff’s abortifacent claim if the government didn’t contest that claim in the original case. That’s not SCOTUS’ job…and it’s a very little fish compared to the big fish issues SCOTUS likes to rule on.

  • Crimson Clupeidae

    Can a closely held company run by an anti-vaxxer refuse to pay for vaccinations?

    They can always claim it’s a religious position (although we’ve seen Scalia, at least, being honest that other religious beliefs are ‘absurd’).

  • jefferylanam

    “Can doctors invoke Hobby Lobby to justify denying PrEP coverage to patients on religious grounds? ”

    I don’t think it would be the doctors doing that, it would be the accountants.

  • Michael Heath

    I wonder how many Christians who follow these controversies are beginning to see these controversies as evidence their religion is immoral and not fit for civilization.

    I realize the demagogues and strident fundies are having a field day. But in the long run as non-believers increase; the devout will have an increasingly difficult time avoiding cognitive dissonance between what is good and the harm their religion promotes.