Judge Reed O’Connor’s decision on Wednesday allowing religious employers to exclude HIV prevention drugs from their insurance plans is obscene. Not only because it rests on an offensive stereotype of gay men as promiscuous disease vectors, or because it elevates the rights of bigoted employers over the lives of their workers. These aspects of the ruling are so morally and intellectually repulsive that they obscure the other frightening facet of the decision: O’Connor has taken direct aim at the federal laws that guarantee coverage for “preventive care,” including vaccines, cancer screenings, domestic violence counseling, maternal health, and children’s wellness. He is, in short, preparing to destroy crucial provisions of the Affordable Care Act that save lives every day.
Wednesday’s ruling is not the first time that O’Connor has attempted to shred the ACA. In 2018, he tried to abolish the entire law in a ludicrous decision that the Supreme Court reversed 7–2 in 2021. Whenever Republicans decide to attack the ACA, they know to file in O’Connor’s court, where they are guaranteed to win. So when Jonathan Mitchell, the architect of Texas’ vigilante abortion ban, took aim at the law, he brought his lawsuit straight to O’Connor’s Texas courtroom. Mitchell represented a group of plaintiffs who provide health insurance to their families and their employees. (One plaintiff, Steven Hotze, is a notorious anti-gay activist who once compared gay people to termites.)
The plaintiffs contested, on religious grounds, the Trump administration’s recent decision directing most insurers to cover PrEP, a drug that prevents HIV transmission. They also objected to federal regulations mandating coverage of STI counseling as well as the HPV vaccine, which reduces the risk of cervical and anal cancer. These services, the plaintiffs asserted, violate their rights under the Religious Freedom Restoration Act, or RFRA, because they “facilitate and encourage homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman.” They also argued that these federal mandates (along with a host of others) are unconstitutional, because the agencies that issue them are illegal.
It was inevitable that O’Connor would side with the plaintiffs on the RFRA claim against PrEP. He purported to follow the Supreme Court’s decision in Hobby Lobby, which let employers exclude contraceptive coverage from workers’ health insurance due to religious objections. O’Connor held that the PrEP mandate—which simply allows workers to access HIV prevention medicine through their insurance—imposes a “substantial burden” on employers’ religious beliefs by facilitating gay sex. He then declared that protecting the plaintiffs’ employees against HIV transmission was not a “compelling government interest” as required by RFRA. In addition, he asserted, the mandate was not the “least restrictive means” to promote that interest, since the government can just pick up the tab.
There’s a major difference between this case and Hobby Lobby that O’Connor ignores, and which renders his analysis deeply suspect. In Hobby Lobby, the employer objected to contraception itself, because, they believed, it destroys an embryo. (It actually doesn’t.) In this case, the employers do not object to the way PrEP works. They don’t care that PrEP blocks the enzyme that HIV needs to replicate; they do not believe this mechanism is immoral. Rather, these employers think that letting their workers access PrEP will “facilitate and encourage” gay sex, and that complicity burdens their religion.
This attenuated connection between the employer and the allegedly immoral conduct takes the case beyond Hobby Lobby. Religion and secular society routinely clash over life-saving medicine, a problem highlighted by faith-based objections to the COVID vaccine. By its nature, health care “facilitates” a range of activities that employers might find sinful. Could an employer refuse to cover emphysema treatment because it “facilitates” smoking, which they deem a sin? Could an employer deny coverage of type 2 diabetes treatment because it “facilitates” the sin of gluttony? These hypotheticals might sound extreme, but they’re no more outlandish than the PrEP example. Allowing a boss to veto their workers’ health care hands employers extraordinary control over employees’ lives. It strips patients of autonomy on the basis of the fiction that their employer is somehow complicit in their own decisions.
In short, O’Connor’s decision creates a roadmap for employers to shred their workers’ health insurance—and subvert the ACA—by selectively excluding critical coverage on the basis of religious objections. That is a feature, not a bug: Four years after he tried and failed to kill the ACA, O’Connor is launching another attack on the law. It includes these religious exemptions, but goes much further.
Buried in O’Connor’s decision are several bombs designed to blow up the government’s authority to mandate almost any preventive care. First, he found that members of one key health agency—the Preventive Services Task Force (PSTF)—were appointed illegally. Then he strongly suggested that two similarly important agencies—the Advisory Committee on Immunization Practices (ACIP) and Health Resources and Services Administration (HRSA)—are acting illegally.
Under the Affordable Care Act, these agencies force insurance companies to cover care that detects or prevents serious medical problems. The PSTF is a group of experts that recommends such treatments. Through the ACA, Congress directed most insurance companies to follow its guidance. These experts are unpaid volunteers who meet three times a year for two days. Yet O’Connor ruled that they are constitutional “officers” who must be nominated by the president and confirmed by the Senate, like cabinet secretaries. (As legal expert Chris Geidner noted, this label is a huge stretch, because constitutional officers must hold a “continuing position,” and part-time volunteers do not seem to fit the bill.) O’Connor called for further briefing on the “remedy” for this alleged flaw; based on his past extremism, it’s reasonable to assume that he’ll declare the agency and its work unlawful.
O’Connor then suggested that ACIP and HRSA are also unconstitutional because they violate the “non-delegation doctrine”—an ahistorical theory that bars Congress from delegating policy decisions to executive agencies. Circuit precedent prevented O’Connor from using the doctrine to limit these agencies’ power. But the judge noted, correctly, that the Supreme Court has suggested the HRSA exercises authority through an unconstitutional delegation of power. His decision gives SCOTUS the opportunity it craves to hobble the agency, potentially invalidating much of its work mandating preventive care for mothers and children.
If the higher courts accept O’Connor’s invitation to destroy these agencies, here’s a partial list of the preventive care that insurers will no longer be required to cover: genetic testing for women with a family history of breast and ovarian cancer; medication to reduce risk of breast cancer; breast cancer screening; breastfeeding support; cervical cancer screenings; STI screening; colorectal cancer screening; HIV tests; domestic violence screening; medication for heart disease; a vast range of screenings for children and pregnant women; and, of course, PrEP.
This case began with the kind of routine gay-bashing we’ve come to expect from the conservative legal movement. And it has the real potential to end with grievous harm to millions of Americans.
