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 women, according to the CDC. But, of course, people of all genders and sexualities contract HIV, and PrEP can be prescribed to anyone at risk. Rates of HIV infection plummet when access to PrEP is consistent and affordable. 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 today, Friday, on how it should be enforced, and how broadly the religious litmus case ought to apply. The implications are profound: Among the issues under discussion in the hearing Friday will be whether insurers have to 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:

Neither the impact of the ruling nor its timing is clear. 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. The list of benefits that could be affected is extensive.

All told, CDC recommendations suggest 1.2 million Americans ought to be taking PrEP; though currently, despite huge increases in usage since 2015 (the drugs were approved in 2012), only about one-quarter of those who would benefit from PrEP are taking it. Among Black people who qualify for PrEP in the U.S. (those who are HIV-negative but who are at higher risk of being exposed to HIV through sex or drug use), the percentage prescribed the drugs is under 10 percent; prescriptions for PrEP are also very low among Latinx people in this country. Take away the requirement that insurance companies cover this, and those numbers could further plummet.

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, of course, ignores the fact that PrEP does not, for example, facilitate injection drug use; it simply makes it less life-threatening. It also ignores the fact that people of all genders, sexualities, sexual practices and drug use behaviors are vulnerable to HIV. And most dangerously, it enshrines a homophobic, transphobic and bigoted standard into medical care that could cost people 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, an absurdity and an act of cruelty.

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? Could employers who are 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 a Jehovah’s Witness argue that his company’s insurance shouldn’t cover workers’ blood transfusions? Could a religious zealot of one persuasion or another argue against covering Pap smears, since cervical cancer is often triggered by HPV, and HPV is acquired during sexual intercourse?

Moreover, could a religious employer refuse to pay for 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 about as counterproductive a decision as any imaginable 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., allowing insurance companies of all stripes to refuse to cover basic screenings for diseases as varied as diabetes, hepatitis and arterial blockages, 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 month, although insurers pay less than this. Either way, the total is far less than the more than $1 million in lifetime medical bills that the CDC estimates a person who is diagnosed with HIV more than three years after infection will accrue, either for themselves or for their insurer.

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. And, because of that, it will ultimately lead to more costs accruing to insurance companies and to patients.

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.