TWH – The Wild Hunt has previously reported on legal rulings regarding the religious liberties of corporations. In that story, HecateDemeter, a retired attorney said “(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 disagreeds with that ruling and believes the Supreme Court wrongly decided the case.
HecateDemeter then 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. Her predictions are now unfolding.
Single pills (brand name Truvada) containing two antiretroviral drugs, emtricitabine and tenofovir disoproxyl fumarate. Truvada is used for pre-exposure prophylaxis, or PrEP, a strategy in which healthy people routinely take antiretrovirals to reduce the risk of becoming infected with HIV. Credit: NIAID [CCA by 2.0]
For the sake of brevity, this article will focus on the second, “religious freedom” argument.
O’Connor accepted two of the plaintiff’s arguments. One argument challenged the authority of the body mandating services for prevention. The second argument is built on Burwell vs. Hobby Lobby (2014). That case expanded the power of employers. An employer’s moral values can now restrict an employee’s access to HIV prevention.
Rather than religious freedom, this expansion exempts a class of people from following the law. Before O’Connor’s ruling, this legal religious exemption had focused only on contraception and abortion. With this ruling, it has expanded to include HIV prevention. For Pagans to use this option, courts or legislatures would have to recognize Pagans as the legal equivalent of Christians. Atheists and “Nones,” (people with no religious affiliation) would be unable to use this option.
Prior to this ruling, all health insurance plans had to provide PrEP and other prevention services at no cost. Co-pays and deductibles will cause low-income people to delay or forgo prevention services.
Kaiser Family Foundation reported that the Biden Administration has filed an appeal. On May 15, the Fifth Circuit Court of Appeals issued an administrative stay of O’Connor’s ruling. That stay delays enforcement of O’Connor’s ruling until the Court rules on the appeal.
What services other than PrEP are at risk?
The religious exemption only applies to PrEP. Because of a technicality, access to contraception is safe in this litigation.
Forbes estimated the number of people that this ruling could affect. O’Connor’s ruling affects about 150 million people with commercial health insurance and 80 million with Medicare or Medicaid.
What is PrEP?
The CDC defines PrEP as “medicine that reduces your chances of getting HIV from sex or injection drug use.” PrEP involves both a pharmaceutical treatment and a regimen of lab and other tests. Each of which presents another potential co-pay. The CDC estimates that PrEP has a 99% effectiveness in reducing HIV transmission through sex. It has a 74% effectiveness in reducing HIV transmission through needle sharing.
Six individuals and two Christian-owned businesses brought the suit against coverage. Dr. Stephen Hotze owns one of the businesses, Braidwood Management. Forbes reported on a statement made by Dr. Stephen Hotze. He said that PrEP “facilitates behaviors such as homosexual sodomy, prostitution, and intravenous drug use.” Hotze argued that paying for PrEP would violate his “sincere religious beliefs.”
Gay flag on sky background
Reaction to O’Connor’s Ruling
On March 30, Lambda Legal issued a press release. In that release, they denounced O’Connor’s ruling. Lambda Legal has as its focus those legal issues that impact the LGBT+ communities.
Lambda argued that “Contrary to the decision’s underlying assumptions, PrEP is a neutral medication used by everyone to prevent HIV. The ruling takes the outdated understanding that HIV is a gay epidemic rather than a global one. It is used by heterosexual women who want to safely conceive and others who might not identify as LGBTQ+ but are at risk of contracting HIV. PrEP has benefitted the entire nation in fighting the HIV epidemic and it must continue to be covered.”
O’Connor has ruled on this case once before. His prior ruling only applied to the plaintiff’s insurance options. This second ruling extends that prior ruling to apply to all health insurance plans tied to the ACA.
Kaiser Health News reported that “nothing much is likely to change for enrollees in the short term.” The ruling is complex, leaving a great deal uncertain.
No one knows the full impact of O’Connor’s ruling. It privileges Christian business owners’ religious beliefs over employees’ access to healthcare. It also provides a dangerous exemption for conservative Christians from complying with laws relating to HIV prevention and birth control.
Legislative expansion of the religious exemption
The Pensacola News Journal reported that on May 11, Florida Governor Ron DeSantis signed SB 1580 into law. That bill exempts medical providers from providing those medical services to which they had ethical, moral, or religious objections. The bill explicitly states that these ethical, moral, or religious objections cannot allow discrimination based on race, color, religion, or sex. Attempts in the legislature to extend those protections to LGBT+ people failed, however.
According to the ACLU, this bill includes among healthcare workers “doctors, nurses, pharmacies, hospitals, mental health providers, medical transport services, clinical lab personnel, nursing homes, and more.”
The bill defines medical services as “including, but not limited to, medical research, medical procedures, testing, diagnosis, referral, dispensing medications, therapy, recordkeeping, and “any other care or service.” This broad category includes the activities of health insurance companies.
The Braidwood ruling restricts employee access to HIV prevention for businesses that conservative Christians own. Laws like Florida’s SB 1580 threaten chaos in the healthcare delivery system. The result is not only religious justification for discrimination but also the denial of healthcare services to women and minority groups like the LGBTQ+ community.
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