Two right-wing Supreme Court justices signal they may uphold access to PrEP and more

Editor's Note: This article was originally published on our sister site, Advocate.com.

Two of the U.S. Supreme Court’s Trump-appointed justices may hold the key to preserving one of the Affordable Care Act’s most life-saving protections: free access to preventive health care services, including HIV prevention medication.

During oral arguments last week in the Kennedy v. Braidwood Management case, Justices Brett Kavanaugh and Amy Coney Barrett signaled skepticism of a legal challenge that threatens to gut no-cost insurance coverage for preventive services like PrEP, cancer screenings, and contraception. Though the lawsuit began under the Biden administration, it’s now being defended in court by the Trump administration — an unusual twist in a case with significant implications for LGBTQ+ health and public health overall.

Related: What to know about the Supreme Court case that could take away your access to PrEP and other care

At the center of the case is the U.S. Preventive Services Task Force, a panel of independent medical experts whose recommendations help determine what insurers must cover at no cost to patients under the ACA. Conservative Christian business owners represented by attorney Jonathan Mitchell, who has worked for President Donald Trump, argue that the Task Force’s power is unconstitutional because the Senate didn’t confirm its members and are not adequately supervised.

But in court on April 21, both Kavanaugh and Barrett appeared unconvinced.

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Trump administration attorney Hashim Mooppan defended the ACA’s structure and emphasized that the Secretary of Health and Human Services has broad supervisory authority.

“At-will removal gives the Secretary the power to influence the content of recommendations before they’re made,” Kavanaugh said, appearing to agree.

Barrett criticized Mitchell’s claim that the word “independent” in the statute means the Task Force must be free of oversight. Calling his argument “maximalist,” she pointed to her own experience on the bench: “I could give my law clerk some advance direction. I could say: I want you to make an independent judgment… but I might not mean for it to be apart from me.”

Justice Sonia Sotomayor drew a similar distinction. “Some advice you’ll accept, some you won’t,” she said, reinforcing the idea that independence in analysis does not negate ultimate authority.

The case began as a religious objection to PrEP and has expanded into a full-blown assault on the ACA’s preventive care guarantees. LGBTQ+ and public health advocates warn that a ruling in favor of the plaintiffs would allow insurers to begin denying or charging for services currently guaranteed to be free — like STI testing, diabetes screening, contraception, and maternal care.

Related: Appeals court maintains PrEP coverage under Obamacare in win for HIV prevention

Though Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch seemed sympathetic to Mitchell’s arguments, Barrett and Kavanaugh’s questions suggest a possible five-justice majority — alongside the Court’s three liberals — to preserve preventive care coverage.

Mitchell, best known for crafting Texas’s 2021 abortion bounty law, has made no secret of his broader goal: dismantling LGBTQ+ protections and ACA mandates alike. In this case, his clients have explicitly claimed that covering PrEP “encourages homosexual behavior.”

A ruling in the case is expected by late June.