U.S. District Judge Reed O'Connor ruled Wednesday that requiring insurance companies to cover medications to prevent HIV transmission violates plaintiffs' rights on religious grounds.
By Christopher Wiggins
A federal judge in Texas has ruled partially in favor of plaintiffs who argued that requiring insurance companies to cover medications for HIV pre-exposure prophylaxis, or PrEP, violates their rights on religious grounds.
Jonathan Mitchell, who founded a one-person law firm in 2018 intending to challenge decades-old Supreme Court rulings, brought the case Braidwood Management Inc. v. Xavier Becerra in the Northern District of Texas. Becerra is the secretary of Health and Human Services.
In that court, U.S. District Judge Reed O’Conner ruled in favor of plaintiffs who argued that paying for insurance that covers PrEP violates their religious beliefs because PrEP “enable[s and encourages] homosexual behavior.”
In the 42-page ruling, O’Connor writes, “The PrEP mandate violates Braidwood’s rights under [Religious Freedom Restoration Act].”
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.
O’Connor writes in the ruling that the federal government “outline[s] a generalized policy to combat the spread of HIV, but they provide no evidence connecting that policy to employers such as Braidwood.”
He continues, “Thus, defendants have not carried their burden to show that the PrEP mandate furthers a compelling governmental interest.”
A spokesperson for the Department of Health and Human Services tells The Advocate that “HHS continues to work to ensure that people can access health care, free from discrimination. If individuals feel that they have been denied care, we would encourage them to file a complaint with the Office for Civil Rights.”
George W. Bush appointed O’Connor in 2007. He is no stranger to controversial rulings.
“When it comes to this kind of lawsuit, you have to know the context of where it’s filed,” Harvard Cyber Law Clinic instructor Alejandra Caraballo told The Advocate’s sibling publication Plus recently. “[Conservative attorneys] know how to game the system to get particular judges like ... Reed O’Connor.”
O’Connor also ruled in favor of the plaintiffs’ argument that the U.S. Preventive Services Task Force, or PSTF, which recommends what qualifies as preventative medical care under the Affordable Care Act, is unconstitutional because it “wields a power to compel private action that resembles legislative authority.”
As principal officers, PSTF members must be appointed by the president and confirmed by the Senate, according to O’Connor.
“The PSTF members indisputably fail that constitutional requirement,” he writes.
The ruling dismissed a claim that challenged the preventive mandate outright.
O’Connor’s solution could potentially jeopardize free access to other services, including cancer screenings, medical screenings for pregnant women, and some counseling services across the country.
Under the constitution, he found the Health Resources and Services Administration and the Advisory Committee on Immunization Practices to be empowered appropriately to address preventive services under the ACA.
O'Connor's ruling is not surprising to seasoned observers.
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. In addition, 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).
“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 said. “So [lawyers] can be explicitly homophobic in their complaint and say, ‘Hey, this is our religious belief.’”
In August, O’Connor granted Mitchell’s motion to rename the case from Kelley v. Xavier Becerra to Braidwood Managment Inc. v. Xavier Becerra because of bad publicity the case had received after The Advocate reported news of the matter in July.
Legal experts have expressed outrage at the ruling.
Political scientist and Georgia State Law School professor Anthony Michael Kreis warns that this is the opening salvo in a mission to remove LGBTQ+ rights. –Advocate
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