The right-wing movement is really having a moment right now, from stripping the federal right to abortion to the prohibition of gender-affirming care in some states. Now, in the shadow of Roe v. Wade being overturned in June, the architect of a controversial Texas abortion law — a man who has already targeted marriage equality — is setting his sights on preventative HIV care. If he gets his way, Texans and other Americans could lose access to PrEP, leaving tens of thousands susceptible to a diagnosis and opening the door to the denial of HIV care.
After serving as Texas state solicitor general from 2010 to 2015, Jonathan Mitchell founded a Texas law firm in 2018 with the goal of challenging decades-old Supreme Court rulings. Mitchell helped draft Texas’s Senate Bill 8, the restrictive 2021 abortion law that made everyday people bounty hunters who could sue anybody they believed may have been involved with the procedure.
Mitchell now represents several clients who oppose the Affordable Care Act’s mandate that insurance companies cover PrEP medications, among other things, in Braidwood Management v. Becerra, filed in federal court in the northern district of Texas in 2020.
Mitchell aims his legal ire at Descovy and Truvada, two medications that are highly effective in preventing HIV transmission if taken as PrEP, or pre-exposure prophylaxis. The drugs are under attack because, as stated in the lawsuit, they “enable homosexual behavior.” Mitchell argues that covering the cost of PrEP drugs as part of insurance should not be mandatory for religious reasons.
Jonathan Mitchell argues his points against government-aided PrEP programs on conservative web series Washington Watch with Tony Perkins
Since the beginning of his career, Mitchell has been vocal about dismantling decisions that he believes depart from the Constitution’s language or recognizing constitutional rights that lack explicit foundations. Considering the Supreme Court’s continued shift in his direction, his cases will likely become a bellwether for the country’s laws.
For years, Mitchell, a former clerk under arch-conservative Justice Antonin Scalia, had advocated for the Supreme Court to reverse Roe v. Wade, all while designing Senate Bill 8 in Texas. Several of his legal theories and court cases laid the foundation for overturning the ruling. As part of establishing his one-person law firm in Austin four years ago, he has litigated issues like affirmative action, marriage equality, and contraception mandates.
“The PrEP mandate forces religious employers to provide coverage for drugs that facilitate and encourage homosexual behavior, prostitution, sexual promiscuity, and intravenous drug use,” the lawsuit says. Furthermore, the law requires religious employers and religious individuals who purchase health insurance to subsidize these behaviors to obtain health insurance, Mitchell argues.
Mitchell’s actions are part of a familiar tactic aimed at stripping LGBTQ+ people of their rights to appease special interest groups with deep pockets, says Alejandra Caraballo, a lawyer and clinical instructor at Harvard Law School’s Cyberlaw Clinic.
Even though viruses do not care about the sexual orientation of their hosts, Mitchell maintains that his clients or their families are not at risk for HIV infection. The lawsuit claims, regarding the plaintiffs, that “neither they nor any of their family members are engaged in behavior that transmits HIV.” He does not specify whether all of his clients refrain from sexual activity.
During a July hearing, Mitchell claimed on behalf of his clients that a mandate introduced last year requiring health insurance companies cover some preventive health care at no extra charge makes them complicit in “conduct that is contrary to their sincere religious beliefs.”
Caraballo warns that the circuit in which Mitchell filed the lawsuit and the case’s presiding judge, Reed O’Connor, — appointed by George W. Bush — are no friends of the LGBTQ+ community.
“When it comes to this kind of lawsuit, you have to know the context of where it’s filed,” Caraballo says. “[Conservative attorneys] know how to game the system to get particular judges like...Reed O’Connor.”
A coalition of conservative groups sued the Equal Employment Opportunity Commission to allow them to discriminate based on religious grounds, and O’Connor ruled in 2021 that they could proceed. This was despite the Supreme Court extending employment protections for LGBTQ+ people a year earlier. O’Connor struck down Obama-era health insurance protections for LGBTQ+ people and ruled the Affordable Care Act was unconstitutional (the Supreme Court later reversed O’Connor’s rulings).
Lawyer and Harvard instructor Alejandra Caraballo warns of the dangers of limiting access to PrEP and other sexual health services
“You can file in a certain office, and you can get guaranteed a judge — and those judges have been stacked — that isn’t just conservative; these judges are reactionary,” Caraballo says. “So [lawyers] can be explicitly homophobic in their complaint and say, ‘Hey, this is our religious belief.’”
Caraballo notes that because PrEP isn’t just for LGBTQ+ people but for anyone at risk of HIV, the arguments “plainly fail.”
“If this was a functioning judiciary, these kinds of claims would just be tossed out of court, but it’s not. [It’s] just been politicized to such an extent.” She adds that the problem isn’t just the district court in which there could always be an “off the wall” judge, but it’s also a problem with the U.S. Court of Appeals for the Fifth Circuit.
“So you see these really, really insane lawsuits coming out of Texas, sometimes Mississippi or Louisiana,” she says, “because they’re in the Fifth Circuit and are able to get these kinds of outcomes.”
Caraballo also says Americans cannot accept the conservative movement’s momentum.
“Setting a precedent that [insurance companies] don’t have to cover PrEP is borderline genocidal because it’s literally preventing people from protecting themselves from getting HIV,” Caraballo warns. “And if they’re also not covering PEP or actual treatment of HIV, then that’s giving the employer the ability to say, ‘Hey, you got HIV, I don’t approve, you should die.’”
People gather in NYC in May to protest the overturning of Roe v. Wade (photo by Stephanie Keith/Getty Images).
Without explicitly commenting on Mitchell’s lawsuit, Admiral Rachel Levine, the first transgender person confirmed by the Senate as U.S. Department of Health and Human Services assistant secretary for health, says PrEP access is crucial for anyone who needs and wants it. HIV has been an essential part of her career, the pediatrician explains.
“I was there at the beginning of the HIV epidemic, and I am committed to being there at the end of the HIV epidemic,” says Levine.
She describes those early days as bleak. In the beginning, the drug AZT failed to live up to its promise, Levine says. She credits the work of scientists worldwide, including Dr. Anthony Fauci and Dr. Rochelle Walensky, director of the CDC, and “many, many, many others,” with the many medical miracles associated with HIV, like antiretroviral treatment. PrEP, she says, is among the greatest of these advances.
“We have medication that you can take once a day where [undetectable] equals [untransmittable],” she says. “We have medicine you can take once a day, and now a shot once a month, hopefully eventually less often…. If you’re at risk, you will not contract HIV.”
Of course, in communities with the greatest need for these medications, access remains challenging. Additionally, scientists and activists at this summer’s International AIDS Conference 2022 in Montréal warned that stigma is leading to backsliding regarding testing for and treating HIV and prescribing PrEP.
For that reason, Levine says health equity considerations guide her work and that of HHS secretary Xavier Bacerra: “We have to get medical prevention and treatment to people that need it most. Prevention equals treatment; treatment equals prevention.”
Professor Anthony Michael Kreis teaches at the Georgia State University College of Law and is an expert in LGBTQ-related legal issues. Kreis says the right to privacy and the freedom to organize one’s family and life are all central to the rights of women and LGBTQ+ people.
“And so, with the victory that the conservative legal movement has gained in Dobbs, the next natural thing is for them to move to target sexual privacy more broadly,” he says. “That implicates the right to have intimate relationships as much as it does the right to marry or have gender-affirming health care.”
Efforts like Mitchell’s are a sneaky way to wage war against sexual minorities, sex workers, drug users, and others routinely targeted by the far-right conservative movement.
“It’s a way to attack sexual intimacy without calling for the criminalization of same-sex relations again,” he says. “It’s an attempt not to re-criminalize but to re-stigmatize.”
UPDATE: As we went to press on this issue (Sept/Oct 2022), Mitchell was granted a petition to change the name of the case from Kelley v. Becerra to Braidwood Management v. Becerra because the first-named plaintiff in the case, John Kelley, had been receiving threats since the story broke in July (in Plus's sister publication, The Advocate).