Recent ruling undermines religious freedom and the ACA

TWH –  On September 7,  Judge Reed O’Connor in the U.S. District Court for the Northern District of Texas, ruled a key part of the Affordable Care Act (ACA) that involves the mandate to cover STD prevention drugs was unconstitutional. In particular, the ruling concerned PrEP (Pre-Exposure Prophylaxis). PrEP is a medication combination taken to prevent HIV infection. O’Connor ruled that the mandate violates the religious freedom of Christian business owners.

LGBTQ Nation succinctly summed up O’Connor’s ruling in its headline “Apparently, letting gay men die from HIV is a form of religious freedom.”

Under current law, all ACA enrollees have access to approved screenings, vaccines, and prevention medications without co-pays, co-insurance, or deductibles. The U.S. Department of Health and Human Services estimates that this provision provides coverage to 150 million people.

Pre-Exposure Prophylaxis (PrEP) drug Truvada – Image credit: NIAID – , CC BY 2.0,

O’Connor’s ruling also impacts coverage for the HPV (Human Papilloma Virus) vaccine, as well as screenings and behavioral counseling for STDs and drug use. HPV is known to cause cervical, anal, and throat cancers.

For now, the ruling only applies to those employees of the companies that brought the suit. An appeal is likely.

In O’Connor’s ruling in Braidwood Management, Inc. v. Xavier Becerra, the judge wrote that this mandate violated the Religious Freedom Act (RFRA). He said that the government failed to show “a compelling interest in forcing private, religious corporations to cover PrEP drugs with no cost-sharing and no religious exemption.”

O’Connor quoted the plaintiff’s complaint that “compulsory coverage for those services 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.”

O’Connor’s ruling has two parts. One part challenges the legality of the role of scientists in determining what medications and procedures health insurance must cover. The second part concerns “religious freedom,” a concept of great interest to Pagans. This article will focus on the “religious freedom” part of the ruling.

Reactions from HIV organizations

The Centers for Disease Control and Prevention (CDC) estimates that as of 2020 roughly 1.2 million Americans are eligible for PrEP. Unfortunately, only about 25% of those eligible are taking PrEP. The main barrier lies in cost and those who remain uninsured. There are also disparities among racial and ethnic groups that reflect unequal access.

The National Minority AIDS Council (NMAC) issued a statement by Executive Director Paul Kawata that highlighted the possible impacts of the ruling:

“While not a surprise, this decision is deeply disappointing and could cripple HIV prevention efforts, particularly among communities of color and communities of poverty. For many people at higher risk of HIV, employer-provided insurance is often their only way to access these vital medications. This decision has the potential to cut off millions of Americans from the life-protecting medications they need.

“This decision could also completely undermine the bipartisan effort to end the HIV epidemic by 2030 begun under former President Trump and continued under President Biden. Cutting off such a vital source of HIV-prevention medications will make it exceedingly difficult to end the epidemic by the end of the decade.

“Today’s decision is one more example of extremist judges denying science and endangering the health and lives of minority communities for political purposes. Leaders at the state and federal levels must take all necessary steps to protect access to these vital medications. NMAC will support all efforts to appeal this decision as soon as practicable”

Potential impact on Pagans

TWH recently spoke with HecateDemeter, a retired attorney about this case. Her response was:  “(1) a corporation can’t have religious beliefs and (2) even if it could, it shouldn’t be legal to discriminate when you employ people.”

She pointed out that the decision in Burwell v. Hobby Lobby Stores, Inc. forms the basis for this ruling which ruled that closely held corporations were recognized as having “religious beliefs.” She disagrees with that ruling and believes the Supreme Court wrongly decided the case.

HecateDemeter also warned that rulings like those in Burwell and Braidwood which elevate Christian interpretation of religious freedom could inevitably harm Pagans, as well as other minorities, religious or otherwise.

“The SCOTUS is dying to rule that Xians can refuse to hire, treat, sell to, etc. anyone who doesn’t fit their mold. Unless we all go out and vote blue this Fall, they’ll do it, too.”

Shopping for judges in religiously conservative cases

In some cases, attorneys can choose the court in which to file a case. Shopping for judges occurs when attorneys select a particular court seeking a judge favorable to their case.

Image credit: AnonMoos based on image by Darwinek – CC BY-SA 3.0 

The New York Times reported that when conservatives shop for a judge in Texas, they prefer O’Connor’s court. The Texas Tribune has also reported that shopping for judges appears to have occurred in O’Connor’s court. Texas Attorney General, Ken Paxton has filed almost half of all legal challenges to the federal government in that court since he was elected in 2015.

George W. Bush appointed O’Connor to the bench in 2007. After 2015, Texas’s challenges to federal authority began to flood his court. About 24 other federal judges in Texas have the same rank as O’Connor. O’Connor, however, is the only federal judge in his geographic district, Fort Worth. With just one judge in the Fort Worth Court, a ruling favorable to conservatives becomes almost certain.

O’Connor has a fairly well-established history of ruling against the federal government and social programs when it comes to cases like the Obama administration’s extension of family leave to married same-sex couples (2015); transgender students’ access to school bathrooms (2016); the law preventing doctors from discriminating against transgender patients (2017). In 2018, he struck down an adoption law that gave preference to Native American families when adopting Native American children, and then there was his ruling against the entire ACA as being unconstitutional.

The main plaintiff in the current ruling is Braidwood Management Inc. which is identified in court records as “a Christian for-profit corporation” that “provides health insurance to its approximately seventy employees through a self-insured plan.” Braidwood Management, Inc is owned by a Houston medical doctor, Steven Hotze.

In court filings, “Hotze wishes to provide health insurance for Braidwood’s employees that excludes coverage of preventive care such as contraceptives and PrEP drugs.” Along with the other plaintiffs in the case, Braidwood objects to the coverage of such preventative care on religious grounds.

While the legal concept of religious freedom could and should protect minority religions and individuals, the legal concept of “religious freedom” continues to evolve depending on how it is interpreted by judges. For example, as TWH has covered, the ongoing challenge against opening mining at Chi’chil Bildagoteel/Oak Flat is expanding how religious freedom is understood and applied.  Ultimately, the Supreme Court will likely have the last say.

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