Judge Said Religious Employers Can Deny Preventive Care — a Dizzying Precedent

Whenever I think that the hyper-politicized judiciary in the U.S. can’t do anything more destructive than what it has already done in recent years, yet another far right judge quickly proves me wrong.

This occurred yet again last week, when Judge Reed O’Connor, a notorious former Republican staffer who now serves on a federal district court in Texas, went to war on preventative treatment against HIV/AIDS. O’Connor is the same federal judge who in 2018 ruled that the entire Affordable Care Act (ACA) was unconstitutional — a ruling that was, thankfully, overturned in 2021 before it could go into effect.

O’Connor issued his ruling last week, in response to arguments in Braidwood Management Inc. et al. v. Becerra, in which lawyers for several company owners in Texas argued that ACA provisions requiring that employers’ health insurance for employees cover PrEP, a drug that prevents HIV infection, violated their religious freedom under the terms of the Religious Freedom Restoration Act.

The rationale was that PrEP is only needed by people engaging in “high risk” sexual or drug use behaviors — behaviors that particularly offend those of a fundamentalist religious persuasion. The employers argued that people prescribed PrEP are disproportionately likely to be gay and/or transgender, and also to have multiple partners, and that therefore, as employers of a religious bent, they shouldn’t have to pay for these people’s PrEP medical coverage. Just over one-third of gay and bisexual men in the U.S. now use the preventative medicine, as do nearly one-third of HIV-negative transgender womenAccording to the CDC, it is estimated that about 80% of people infected are women. However, HIV can be contracted by people of all sexes and genders. PrEP can be given to anyone at risk. Access to PrEP is consistent, affordable and reduces HIV infection rates. Even by the bigoted “moral” metric argued by the lawyers in court, the rationale for allowing insurers not to cover PrEP ought to have failed. But instead, O’Connor bought into it lock, stock and barrel.

The ruling hasn’t yet taken effect; Judge O’Connor will be holding a hearing todayFriday, the hearing will discuss how it should be enforced and how wide the religious litmus case should be applied. These implications are huge: Friday’s hearing will discuss whether insurance companies must cover contraception. But even if contraception escapes O’Connor’s axe on Friday, the ruling on PrEP coverage — if broadly applied to other patients in a similar situation — could translate to a death sentence for people whose insurance chooses to stop providing them with PrEP medications.

However, it’s not yet clear how broadly the ruling will be applied. According to Shefali Luthra of The 19th:

It is unclear what the ruling will do and when it will be implemented. Following Friday’s briefing, O’Connor could limit his ruling only to affect the plaintiffs so that only they, and anyone else who files similar lawsuits, would be exempt from the ACA requirements. He could issue a nationwide injunction, blocking the affected ACA requirements for health plans more broadly…. It is not clear how long after Friday’s hearing O’Connor will issue a decision, or what the next steps might be. There are many benefits that could be affected.

CDC recommendations state that PrEP should be taken by 1.2 Million Americans. This is despite the fact that PrEP usage has increased dramatically since 2015.the drugs were approved in 2012PrEP is being used by only 25% of those who would benefit. PrEP in the U.S. is available to Blacks who are HIV-negative and are at greater risk of being exposed through sex or drug abuse. the percentage prescribed the drugs is under 10 percentPrEP prescriptions in this country are also very low among Latinx citizens. These numbers could fall further if insurance companies no longer cover the cost of PrEP.

O’Connor ruled that since the employers in question felt that gay sex, sex with multiple partners and drug use were sins, they oughtn’t to have to pay for medicines that supposedly facilitated such activity. This verdict ignores the fact PrEP does not facilitate injection drug use, but it makes it less dangerous. It also ignores the fact HIV is a risk for all genders, sexualities and drug-using behaviors. It also enshrines a homophobic-transphobic and bigoted standard in medical care that could lead to people losing their lives.

What on Earth gives O’Connor the right to rule that some sexual behaviors are a “sin” and thus that insurance companies shouldn’t have to pay to stop those who practice such activities from being infected with a deadly disease?

The ruling is an obscenity. It is absurd. It is also a cruel act.

Even more broadly, the courts going to war against preventative care — and giving religious institutions carte blanche to decide what medications they cover and what they don’t — opening the door to a terrifying range of life-threatening developments.

What’s next? Are employers capable of recognizing the need for change? Christian Scientists — members of a religion that believes in the power of faith rather than the power of medicine, and which posits that all diseases are a sign of mental weakness — argue that the insurance they provides their workers oughtn’t to cover any medical treatment? Could they argue that, instead, it should cover Christian Science conversion sessions, so as to strengthen patients’ mental fiber and thus protect them from succumbing to disease? Could it be that a Jehovah’s Witness argue that his company’s insurance shouldn’t cover workers’ blood transfusions? Can a religious zealot, of any persuasion, argue against Pap smears because cervical cancer is often triggered or HPV. HPV is also acquired during sexual intercourse.

Furthermore, could a religious employer refuse insurance that covers vaccinations Could somebody set up a new religion that, entirely randomly, views cholera or tuberculosis as “fake diseases” that secular doctors use as a way to sow fear and channel money to Big Pharma, or has a particular problem with giving young children asthma treatments? Could someone set up a religion that worships little white pills stamped with Merck’s trademark but believes pills stamped with another biotech company’s logo are the mark of the devil? It sounds absurd, but by the logic of O’Connor’s ruling, it appears that all of these scenarios could withstand the religious smell test.

It is almost as counterproductive as any decision in the medical field.

Indeed, O’Connor’s ruling is broad enough that legal experts worry it could undermine the entire edifice of preventative care in the U.S.This allows insurance companies of all stripes, to refuse coverage for basic screenings for diseases such as diabetes and hepatitis. as well as services such as contraception and STI screening. All of these diseases are treatable at a relatively low cost if caught early, but if left to fester they can cause massive and sometimes fatal health complications — and they cost far more to treat down the line than they do if identified early.

Yes, PrEP is expensive — for an uninsured patient the bill can run to as much as $2,000 a monthAlthough insurers pay less, it is still a significant amount. The total is far lower than the greater than $1 million in lifetime medical billsThe CDC estimates that a person with HIV diagnosed more than three years after the infection will be eligible for benefits, either for themselves or their insurance.

It’s hard to think of a disease for which prevention isn’t more cost-effective than treatment-after-infection. But the logic of O’Connor’s extremist ruling will, if it stands, result in fewer people accessing preventative care and, as a result, more people getting sick. It will also result in higher costs for patients and insurance companies.

O’Connor claims he’s only protecting religious freedom, but in reality he’s doing nothing of the sort — he’s weakening an already troubled health care system, rendering already vulnerable people even more medically and financially at risk, and empowering the worst sorts of discrimination and bigotry.