On the heels of dismantling the constitutional right to abortion, the Christian conservative legal movement has set its sights on opposing access to pre-exposure prophylaxis, more commonly known as PrEP, a daily medication that reduce a person’s chances of contracting HIV.
Jonathan Mitchell, the architect of Texas SB 8, represents two Christian businesses that oppose the Affordable Care Act’s preventive services provision, which requires insurance providers to include PrEP in their health-care plans. The plaintiffs in Braidwood Management v. Becerra allege that “the PrEP mandate forces religious employers to provide coverage for drugs that facilitate and encourage homosexual behavior,” which they argue violates the Religious Freedom Restoration Act. In September, U.S. District Judge Reed O’Connor, a federal judge in Texas with infamous ire for the Affordable Care Act, sided with the plaintiffs, writing in his decision that the PrEP mandate burdens the plaintiffs’ religious exercise and the government does not “show a compelling interest in forcing private, religious corporations to cover PrEP drugs.”
Braidwood v. Becerra is not the first time conservatives have weaponized stigmas around sexual and religious liberty to nullify people’s reproductive rights. In 2014, the Supreme Court ruled in Burwell v. Hobby Lobby that corporations don’t have to cover contraception in their insurance plans for employees if doing so violates their religious beliefs. The strategy to undermine both PrEP and contraception access underscores that HIV prevention and justice is reproductive justice.
“At the surface, it is another barrier for young people to get access to PrEP,” said Louie Ortiz-Fonseca, LBGTQ health and rights director at Advocates for Youth who founded the organization’s Engaging Communities around HIV Organizing (ECHO), a collective of young people living with HIV who organize to decriminalize HIV and create content around de-stigmatizing HIV. They said they’ve worked with organizations who thought young people “should not be having sex or worrying about PrEP.” The Braidwood ruling “further reinforces that and gives that position even more power to create challenges for young people, particularly young Black and brown people, to access PrEP,” Ortiz-Foseca said.
PrEP reduces a person’s risk of contracting HIV by around 99 percent. But without insurance, this vital medicine could cost more than $21,000 annually. Ortiz-Fonesca said societal power imbalances are also another roadblock to PrEP access.
“There are people in power that can decide no or yes that you have access to a pill that is backed by science,” Ortiz-Fonesca said. “I think that is what young people, particularly young people of color, face—an imbalance in power structure and this societal belief around who can and cannot have autonomy over their bodies.”
They also said paternalistic health-care providers will sometimes complicate PrEP access in an attempt to “help” their clients, i.e. unduly subvert a person’s sexual decisionmaking.
“There’s this notion that if you want PrEP, that means you’re having sex without a condom, which means you are going to get HIV and die,” Ortiz-Fonesca said. “We know that is not the case. Providers think that denying PrEP, getting a young person to change their mind about accessing PrEP, or creating more barriers to PrEP with the hopes that the young person would think, ‘Oh this is hard to get, let me reevaluate my sexual behavior’ is helpful. It’s fueled by, ‘Oh, I am helping, supporting, and caring for this young person.’ That kind of care has its implications.”
Ortiz-Fonesca also pointed out that barriers to PrEP that lack scientific basis and are instead based on homophobia, transphobia, and AIDSphobia are dangerous. This rings especially true given HIV criminalization in the United States. According to the Center for HIV Law and Policy, 25 states have HIV-specific criminal laws, six states may require people living with HIV who violated their state HIV laws to register as a sex offenders, and nine states enhance sentences if a person living with HIV commits a sex crime. This HIV punishment system is cyclical and harms families and communities, said Andrew Aleman, deputy director of people power and national partnerships at Black & Pink, a national abolitionist organization advocating for and supporting LGBTQ people and people living with HIV who are incarcerated.
“When we legislate people’s bodies, we don’t only create stigma, we also create shame,” Aleman said. “Someone may be at a place in their life where they need their families most, and for us to villainize their HIV status and an identity they hold just pushes them further from those people that they need and their own community. We have to think about families and circles of influence when we create these harmful policies.”
Aleman said the Braidwood decision will increase HIV criminalization by increasing stigma.
“Stigma leads into misinformation about HIV and then that turns into discrimination and fear and more legislation and more criminalization,” Aleman said. “It is unfortunate to see today that we are still having conversations around criminalizing HIV, knowing what we now know about HIV. It doesn’t even make logical sense. Medical providers have even shown that these bills are misinformed and are truly based in fear and misinformation.”
The Braidwood decision rejects the intersectionality of HIV status. Aleman pointed to a Williams Institute report on Louisiana’s criminal HIV laws that showed 91 percent of the people arrested for an HIV crime in the state were Black men.
“I just think that the framing when we think about PrEP, if we only say it’s for LGBTQ, we’re not allowing people in heterosexual or non-LGBTQ relationships to explore what PrEP could mean for their own lives, health, and relationships,” Aleman said.
Both Aleman and Ortiz-Fonesca strongly believe that HIV justice is reproductive justice.
“When we keep information from communities, when we only talk about PREP in relation to one experience, we don’t allow them the opportunity to make their own informed decision about their reproductive health and family,” Aleman said. “If we are incarcerating people and people are being charged with felonies, that is impacting their future, their family’s future, their economic future.”
During conversations with abortion rights activists and storytellers, Ortiz-Fonesca spoke about the intersection of pregnancy care and HIV care. They said people who received pregnancy care were seldom asked about their HIV status, and it was often assumed they were not HIV positive.
“The assumption is that this pregnant person is ‘innocent,’ and this is attached to stigmas that we consciously and unconsciously believe,” Ortiz-Fonesca said.
If a pregnant person with HIV declines to take HIV treatment while pregnant and refuses medical advice that would prevent transmission to their baby, this person’s consent could be overridden and the baby seized from their custody, involving them in the family policing system.
Ortiz-Fonesca said an intersectional and reproductive justice-based movement can stave off attacks on PrEP.
“The rise of the right wing in the early 1980s is when this clear attack on abortion rights becomes this divisive issue,” they said. “It happens at the same time that AIDS starts to become a pandemic. Part of the first decade of the AIDS pandemic, AIDS and reproductive justice activism were interlocked. If it’s only people living with HIV who are on the frontline of this issue, we’re never going to win.”
They believe public education is vital to protecting PrEP access. “Every time someone posts about PrEP access, they plant the seed and expand the conversation—that way, when PrEP comes up on the news or someone mentions it, you’ve gotten their attention,” Ortiz-Fonesca said.
“When we’re ready to do an action or demand something from our government, those are the people who are waiting to plug in,” they added. “I would invite people in all of the ways that they can, where and when they can, to do what they can to inform people about PrEP access and it being under attack.”