Judge rules federal law requiring employers to cover PrEP violates “religious freedom”

Judge rules federal law requiring employers to cover PrEP violates “religious freedom”

A federal judge in Texas has ruled that a national law requiring employers to cover HIV-prevention medications violates Christian business owners’ religious freedom.

Judge Reed O’Connor issued a summary judgment in favor of Texans who filed a 2020 lawsuit opposing a provision in the 2010 Affordable Care Act (ACA, also known as Obamacare). The provision requires employee health insurance plans to provide full coverage of HIV-prevention drugs (commonly known as pre-exposure prophylactics or PrEP). PrEP is taken by hundreds of thousands of U.S. men who have sex with other men.

The 2020 lawsuit — filed by Jonathan Mitchell, a former Texas solicitor general and conservative activist, on behalf of Braidwood Management Inc. and other self-described Christian employers — said that the ACA provision makes the employers “complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman,” NBC News reported.

The plaintiffs said that the 1993 Religious Freedom Restoration Act protects them from following laws that conflict with their faith and personal values.

In his ruling, O’Connor wrote, “[The U.S. Dept. of Health and Human Services (HHS) did] not show a compelling interest in forcing private, religious corporations to cover PrEP drugs with no cost-sharing and no religious exemptions.”

O’Connor’s ruling also said the U.S. Preventive Services Task Force (USPSTF), the body that specifies which drugs and services must be covered by employers, was “unconstitutional” because the USPSTF’s members are not elected officials. O’Connor said the body’s members must be appointed by the president and confirmed by the Senate in order to have true legal authority.

The plaintiff’s lawsuit also opposed the ACA’s free coverage requirements for contraceptives and the human papillomavirus (HPV) vaccine, stating that the requirements force business owners to pay for services that “encourage homosexual behavior, prostitution, sexual promiscuity, and intravenous drug use,” Reuters reported.

However, O’Connor’s ruling only applies to the plaintiff’s companies as of yet. If his ruling stands nationwide, it would allow insurers to charge U.S. citizens for numerous no-cost preventative screenings, mental health treatments, as well as care for infants and pregnant women.

HHS spokeswoman Rachel Seeger didn’t say whether the government will appeal O’Connor’ ruling. White House Press Secretary Karine Jean-Pierre wrote in a Wednesday evening tweet that administration officials are “reviewing” O’Connor’s ruling.

The Administration is reviewing today’s decision by the Northern District of Texas. The Affordable Care Act has been the law of the land for over 10 years.

— Karine Jean-Pierre (@PressSec) September 7, 2022

HIV-prevention advocates call the ruling a “shocking” attack on health care access

HIV prevention advocates balked at O’Connor’s statement that the government has “no compelling interest” in preventing the transmission of HIV (especially considering that Texas has the seventh highest rate of new diagnoses among U.S. states).

Mitchell Warren, executive director of the HIV nonprofit AVAC, told NBC News, “This ruling is shocking on every level. It defies evidence, logic, public health, and human rights and sets back enormous progress in the fight to end the HIV epidemic.”

In a statement, House Speaker Nancy Pelosi (D) said, “Today, a radical, Republican-appointed federal judge ruled that employers can deny coverage for PrEP: a drug proven to save lives from HIV/AIDS and a key strategy for ending the epidemic. This disturbing decision amounts to open homophobia: unleashing unthinkable suffering and death specifically among the LGBTQ community.”

Ivy Hill Community Health Program Director of the Campaign for Southern Equality, said in a statement, “This ruling is about imposing extreme religious beliefs – not, as it purports, about protecting religious freedom: Far right extremist judges are attacking privacy and access to health care.”

“We must be increasing access to life-saving medications like PrEP, not using it as the latest political wedge to attack LGBTQ people in the South,” Hill added. “Whether it’s access to abortion, trans-affirming care, birth control, or PrEP, we are seeing dangerous action from activist courts intervening in Americans’ healthcare decisions, and we must push back.”

The judge and plaintiffs have a long history of anti-LGBTQ sentiments

The aforementioned news outlet called O’Connor “the go-to judge for conservatives seeking to challenge Obamacare provisions and measures aimed at protecting transgender students.” In 2018, O’Connor issued a ruling striking down the entire ACA. The U.S. Supreme Court reversed his ruling, stating that the parties involved in the case lacked legal standing to oppose the ACA.

O’Connor has also issued numerous anti-LGBTQ rulings, including one that said that same-sex couples aren’t eligible for family and medical leave benefits, a 2021 ruling stating that religious business owners should be allowed to discriminate against LGBTQ employees, a 2019 ruling against the ACA’s protections for transgender people, and a 2016 ruling stating that religious physicians should be allowed to refuse medical care to transgender people.

O’Connor was appointed by former President George W. Bush (R).

Mitchell, who filed the lawsuit, is the mastermind of Texas’s abortion law that offers a $10,000 bounty to anyone who successfully sues an abortion provider, The Hill noted.

Braidwood Management Inc. appears to be a shell corporation owned by Steven Hotze, a right-wing supporter of former President Donald Trump, according to queer journalist Zachary Sire.

Hotze has long opposed LGBTQ civil rights protections. He has compared LGBTQ people to Nazis and termites. Hotze led the Conservative Republicans of Texas, an Southern Poverty Law Center-certified hate group. He has also claimed that queer activists want to teach anal sex to kindergartners.

Hotze once called the office of Texas Gov. Gregg Abbott to demand that Texas Army National Guard soldiers be sent to Houston to kill racial justice protesters if they began rioting.

“Shoot to kill the son of a bitches,” Hotze said, according to the Texas Tribune. “That’s the only way you restore order. Kill ’em.”

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