Sex Just Got More Dangerous Thanks to This Texas Judge

In his ruling in Braidwood v. Becerra, U.S. District Judge Reed O'Connor ended the ACA rule requiring employers and insurers to provide PrEP coverage.

photo of Braidwood v. Becerra decision with PrEP pills on top
The Braidwood v. Becerra decision—which no longer makes coverage for PrEP, pictured above, a requirement for employers and insurers to provide—is a devastating blow to decades of work by queer elders. Austen Risolvato/Rewire News Group illustration

In the last several years, U.S. District Judge Reed O’Connor has made a cottage industry of gutting the Affordable Care Act. His latest decision in Braidwood v. Becerra, which mostly applies nationwide, eliminates the requirement that insurers cover a wide swath of vital preventative care. The decision also contains a big win to conservative Christians, continuing their ability to cement their worldview as the only one that matters and eliminating decades of work from queer activists all the way back to the 1980s.

O’Connor’s decision gets rid of some preventative care that most people will likely be angry about once they realize it, like giving statins to people over 40 at high risk of heart attacks and making colorectal cancer screening free. But the decision also eliminates many things related to sex, which conservatives will celebrate.

Nationwide, free STI screenings—including screenings for chlamydia, gonorrhea, hepatitis B and C, syphilis, and HIV—are gone. As to the actual plaintiffs in the case, they secured a holding that they are not required to purchase insurance plans that cover pre-exposure prophylaxis, or PrEP. PrEP is so effective at stopping the transmission of HIV that it’s like a literal miracle. When used as prescribed, it reduces the risk of getting HIV by 99 percent. It’s also incredibly expensive if insurance doesn’t pay for it—about $14,000 per year.

Getting rid of this coverage only makes sense if you want people to die for having sex. If that feels like it is dragging us back decades, that’s because it is.

Several of the plaintiffs in Braidwood v. Becerra didn’t want to pay for insurance plans that cover STI screening and coverage of PrEP. They say it violates their religious beliefs “by making them complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman.”

Thanks to O’Connor’s decision, those plaintiffs are no longer required to purchase insurance that includes PrEP because to do so would “substantially burden” their religious freedom. This holding only applies to the people who sued, but it sets a precedent for other courts to do the same thing. And given that the federal courts are captured by conservatives, this possibility is all too likely.

Losing progress on these issues is heartbreaking. It is undoing the legacy of an entire generation of queer activists who have fought tooth and nail to destigmatize being gay, to destigmatize having sex, and to destigmatize HIV and AIDS.

Over time, we’ve forgotten how deadly HIV/AIDS was at the outset. From 1981 to 1987, it killed 95 percent of the people diagnosed with it. From 1988 to 1992, it was still a near-certain death sentence, with 89 percent of everyone who contracted it dying. By 1996, though, that figure fell off a cliff, thanks to the “cocktail” treatment—a combination of antiretroviral drugs that decreased the viral load in HIV-positive patients. And things only continued to improve, resulting in PrEP being approved for use in 2012 and added to the list of required preventative coverage in 2021, making the drug free for nearly everyone.

None of that came easy, because for years no one in power cared if HIV-positive people lived or died. But queer elders, like those who founded the grassroots group ACT UP, forced people to pay attention while simultaneously forging an entire ecosystem of queers caring for each other.

Larry Kramer, a gay playwright, used his art to call attention to AIDS with his play, “The Normal Heart,” which premiered off-Broadway in 1985. Years before that, though, he helped found the first AIDS support clinic. In 1987, some of the most robust early research into tracking the transmission of AIDS was done by gay men, many of whom were already infected. In 1988, ACT UP shut down the FDA’s Washington, D.C. offices, blocking the roads to enter the complex and staging a die-in in front of the building to demand access to experimental drugs. But ACT UP also deployed what it called an “inside-outside” strategy: anger and protests to get in the door of places like the FDA and the National Institutes of Health. Once in the door, they shifted to partnering with the very organizations they had targeted.

Now, so much of that progress is threatened. Getting rid of insurance coverage for PrEP will result in greater HIV infections, period. A 2022 study from the Yale School of Public Health found that eliminating insurance coverage for PrEP could result in over 2,000 cases of HIV in the next year alone. Only 28 percent of people who are eligible for PreP actually receive it. Take away insurance coverage, and you’ll see a precipitous drop—Yale estimates that 28 percent would drop to 10 percent. The 2,000 new cases figure is much more alarming when you realize it doesn’t address any infections past one year, and it only considers initial infections, not subsequent transmissions to others.

These cases are entirely preventable with PrEP coverage. So many more cases would be preventable if PrEP were expanded. There’s literally no downside to making PrEP accessible and free save that conservatives desperately want to punish people for having sex, period, and they really, really want to punish people for having gay sex.

Queers have in no way become complacent, and activism remains strong. But there’s one big, horrible difference between then and now. Queer elders agitated against government agencies and the medical establishment, particularly the FDA and the Centers for Disease Control and Prevention, as intersections between the two.

Now, however, the biggest threat to queer safety and queer flourishing is coming from the federal courts, now stacked with conservatives who have been very open about using their power to harm LGBTQ people. Federal courts don’t have the same pressure points as government agencies or medical researchers. These conservative judges are appointed for life and are steadfastly, smugly resistant to arguments about research, modernity, or kindness. And even if one were to succeed in somehow persuading a lower court judge, eventually, cases run headlong into a hyper-conservative Supreme Court

David Wojnarowicz, one of his generation’s brightest artists, famously wore a jacket with this on the back, “IF I DIE OF AIDS – FORGET BURIAL – JUST DROP MY BODY ON THE STEPS OF THE FDA.” Wojnarowicz also described, in brutal, unblinking fashion, what it was like to be gay and dying of HIV in the 1980s, but his words are sadly relevant again:

It is easy for some in this country to be vicious and murderous when they have the support of rich white men and women in power. Those people consistently abstract human life and treat minorities as nothing more than clay pigeons at a skeet-shooting range. They toss up a fake moral screen, nail it to the wall of a tv and newscaster’s set and unfurl it like a movie screen.