The Real War On Drugs: The United States’ Perpetration of Human Rights Violations by Denying PrEP Drugs to At-Risk Individuals
While the HIV/AIDS crisis is currently out of the news cycle, there are still approximately 38,000 new cases and 15,000 deaths in the United States each year. The only known way to prevent the spread of HIV is pre-exposure prophylaxis (“PrEP”), a daily preventative pill taken by individuals who are at risk of contracting HIV. Currently, Truvada is one of two FDA-approved PrEP drugs and the only heavily researched drug preventing the transmission of HIV in the United States. The drug is sold to patients for up to $1,500 per month, but the cost of making PrEP for one month is only about $6. Additionally, only about 10% of the 1.14 million individuals who need PrEP currently take Truvada. Due to their strict patents, Gilead Science holds a monopoly on the PrEP market, forcing at-risk individuals to choose between paying absurd prices for medicine or forgoing the drug entirely. The United States’ failure to disband Gilead’s monopoly over PrEP contributes to the loss of thousands of American lives to HIV and AIDS each year.
There are a number of human rights instruments which outline the broader rights that imply a right to affordable PrEP. The most well-known is the 1976 International Covenant on Economic, Social and Cultural Rights (“ICESCR”), which has been signed (but not ratified) by the United States. By signing this covenant, the United States vowed to uphold its principles, which include nations’ responsibility to aid in “the prevention, treatment and control of epidemic, endemic, occupational and other diseases.” The United States has failed to uphold this commitment, as the government has not taken any measures to make PrEP more accessible to the millions of people who need it, which would control the rapid spread of HIV.
ICESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12) affirms that: “health facilities, goods and services have to be accessible to everyone without discrimination.”  Common forms of discrimination include price gouging and covertly denying services to minority groups. These discriminatory practices are impacting the distribution of PrEP medication, as PrEP use in minority populations is only a fraction of the percentage of white individuals who take it, and PrEP usage in the American Northeast is double the usage in the South. These disparities clearly indicate that the ICESCR standard of equitable access to health is not being upheld.
The arbitrary or even malicious barriers preventing disenfranchised groups from receiving Truvada constitute another human rights concern. “Most of the people who need [PrEP] are poor, gay, black, and Hispanic men who are not very well connected to the medical care system” and 52% of people contracting the virus live in the southern United States. Additionally, ethnic minorities and individuals living in the South are significantly more likely to be uninsured, adding an additional barrier to receiving PrEP. As an example, both Alabama and Louisiana only have one location that will provide PrEP to uninsured individuals.
Another significant document affirming the human right to healthcare and the distribution of medicine is the World Health Organization’s Declaration of Alma-Ata. Article V of this declaration states that “Governments have a responsibility for the health of their people which can be fulfilled only by the provision of adequate health and social measures… Primary health care is the key to attaining this target as part of development in the spirit of social justice.” The Alma-Ata declaration defines this responsibility as applying to “immunization against the major infectious diseases; prevention and control of locally endemic diseases; appropriate treatment of common diseases and injuries; and provision of essential drugs” and the WHO has made clear that these are human rights that must be immediately upheld by governmental organizations. Denying widespread PrEP access directly violates these human rights highlighted by the WHO, a leading global healthcare organization.
The United States is also currently a signatory to the Trade Related Aspects of Intellectual Property Rights Agreement (“TRIPS”) under the World Trade Organization (“WTO”). TRIPS places pressure on WHO member governments to ensure that patents are benefitting citizens rather than companies. Article 31 of TRIPS outlines the concept of compulsory licensing, where the government has the right to allow or mandate manufacturing of patented pharmaceuticals by companies other than the patent holder, given that the government’s decision is made in good faith to protect public health. The fact that the United States could very reasonably take action under compulsory licensing rules, but has done nothing to stifle the monopolistic power of Gilead marks the nation as, at best, complacent in thousands of HIV-related deaths every year.
Gilead Sciences holding multiple restrictive patents on Truvada and its chemical components is a disconcertingly clear example of greed in the U.S. healthcare system: these restrictive patents ensure that Gilead Sciences will be the only company to distribute PrEP drugs in the United States for the foreseeable future. If a similarly developed nation like Australia was able pass the Pharmaceutical Benefits Scheme to ensure generic and affordable PrEP to those who need it, why can’t one of the wealthiest nations in the world do the same?
Denying PrEP to those who need it most is not only killing American citizens, but perpetuating the racist and homophobic beliefs surrounding the AIDS hysteria. As of 2016, gay Latino and Black men had the highest rates of contracting HIV, with Black men who have sex with men accounting for 25% of new diagnoses in America, yet both groups are often underserved in the response to this public health crisis. When the HIV/AIDS crisis was at its media peak, the disease was portrayed as an issue only pertinent to gay men or people of color. While the narrative has shifted over time, the lack of resources provided to predominately queer communities or communities of color reinforces the idea that these groups harbor the disease.
Due to the severity of the situation, the UN General Assembly should release a resolution condemning the United States’ lack of effort to end the AIDS crisis. Because the United States shows no internal effort to expand the availability of PrEP, it is possible that a condemnation from such a public and influential intergovernmental organization will incite action, or at least draw attention to this issue. The United Nations would be able to cite multiple resolutions that the United States is violating by ignoring the deadly effects of restricting life-saving drugs. Notably, UN Security Council Resolution 1983, passed in 2011, “encourages the incorporation, as appropriate, of HIV prevention, treatment, care, and support” from member states. Excluding over a million at-risk individuals from receiving Truvada is not, under any circumstances, sufficiently preventing or treating HIV. This is a blatant human rights violation, and no company should be allowed to capitalize off of an illness, especially one that predominately impacts already marginalized groups.
 ICESCR, Article 12. https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx
 Though the United States very recently announced its intention to leave the WHO entirely, the PrEP crisis has been ongoing for years. Moreover, the human rights discussed by the WHO are not created by this organization or declaration, but merely explained or codified in a more detailed manner.