A number of courts have released decisions in the first months of 2023 that attack evidence-based health care.
These decisions have ignored public health experts and legal precedent. They’ve also hurt already marginalized communities the worst, removing access and creating barriers, particularly for Black, Indigenous and other communities of color.
Braidwood v. Becerra
The first case, Braidwood v. Becarra, limits many preventative services that insurance is required to cover because of the Affordable Care Act. These include things like cancer screenings, HIV prevention, contraception, and harm reduction services. The decision also pits preexposure prophylaxis, or PrEP, a medicine that prevents HIV, against religious objections raised through the Religious Freedom Restoration Act.
Many organizations across the country are doing amazing work providing education and service related to sexually transmitted infections, including the many that are focused on HIV. But this decision puts much of this work at grave risk.
Several states, including Michigan, have taken steps to protect their populations from the damaging effects of this decision. Several insurance companies have pledged to continue to provide preventative care. Despite this, there will be many people who lose coverage because they live in a state that hasn’t stepped in or because their insurance drops preventative care.
Mifepristone rulings
Federal judges in Texas and Washington state have issued contradictory rulings about whether or not mifepristone can be legally distributed.
Mifepristone is one of two medications that make up the medication abortion regimen most commonly used in the United States and accounts for more than half of all abortions. The Food and Drug Administration first approved the drug in 2000. It has since been used safely and effectively by millions and has been heavily researched and regulated.
Despite this, the judge in Texas reversed the FDA’s approval.
The FDA appealed, and the Fifth Circuit Court of Appeals issued a decision that effectively keeps mifepristone’s approval in place, but stays changes the FDA made to the pill’s safety program since 2016. This means only certain physicians can dispense the medication, it can only be obtained in-person, the generic version’s approval has been suspended, and the expanded approval to 10 weeks has been returned to 7 weeks.
Then on Friday, the Supreme Court issued a five-day hold on any changes to allow the court more time to decide how to handle the Biden administration’s request for a longer delay.
While all of this was happening with the case from Texas, a federal court in Washington state issued a conflicting decision in a completely separate case that was brought by the attorneys general of 17 states and Washington, D.C. The Washington state decision — which was released on the same day as the Texas decision — blocks the FDA from “altering the status quo and rights as it relates to the availability of Mifepristone” in the jurisdictions that sued.
The court issued another order Thursday, clarifying that the ruling blocks the FDA from altering mifepristone’s availability, regardless of the Texas court and the Fifth Circuit.
What’s next?
While we don’t yet know the full effect the Braidwood decision will have on coverage, we are confident that any reduction in access to preventative care like PrEP will inevitably increase the number of people who contract HIV and other STIs. And the people who will be impacted the worst come from communities that already have the highest barriers to health care.
The drastically different mifepristone rulings set up these cases to head quickly to the Supreme Court. The current conservative majority on the Supreme Court has shown a willingness to put politics above precedent. A Supreme Court ruling in favor of banning mifepristone would have devastating implications for abortion rights and access nationwide.
AIDS United remains committed to securing access to sexual and reproductive health for all. Each of us deserve to make our own medical decisions, whether that’s about PrEP, HIV treatment or abortion. We are working closely with advocates, both on the state and federal levels, to respond to these attacks, and make sure that each of us can access the care that we need.
