A district judge in Texas with a long record of extreme rulings against the Affordable Care Act (ACA) and against LGBTQ equality today managed to attack both of them at once, striking down an ACA requirement that insurance policies cover pre-exposure prophylaxis, or PrEP, which prevents the transmission of the HIV virus.
Judge Reed O’Connor’s asinine and sure-to-be-overturned opinion is peak 2022 Republicanism, striking down a scientifically grounded public health rule on the basis of tendentious, implausible, and simply wrong readings of law, politics, and even religion.
The case in question, Braidwood Management v. Becerra, is the latest brainchild of a latter-day Roy Cohn, Jonathan Mitchell, who also invented the vigilante enforcement mechanism in Texas’ anti-abortion law, back when abortion was still slightly legal in the Lone Star State. (By delegating law enforcement to citizens, Texas Ranger style, that law managed to evade judicial review for several months—though in hindsight, it’s obvious that the Supreme Court knew it would soon be overturning Roe v. Wade entirely.)
Now, Mitchell has cooked up another scheme: letting gay men die by refusing them health coverage. Because religion.
Under the ACA, insurance plans must cover thousands of forms of medical care from nicotine gum to breastfeeding supplies to, yes, PrEP. That’s because all of these interventions have been shown to save lives. Each year, 35,000 people in the United States become infected with HIV, the virus that causes AIDS. If all those people—gay, straight, everyone—took just one PrEP pill a day, that number could go to near zero. In short, PrEP saves lives.
But a collection of right-wing Christian fundamentalists doesn’t want to save lives. They want to turn back the clock on LGBTQ progress and make us second-class citizens whose rights—like those of women—are subject to the whims of religious fundamentalists. They say, in the words of O’Connor’s opinion, “that compulsory coverage for those services violates their religious beliefs by making them complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman.”
If this sounds familiar, it’s because it is.
Back in 2014, the conservative-Christian-owned corporation Hobby Lobby made a similar argument: that paying for insurance that covered contraception made them “complicit” in killing unborn babies. A majority of the Supreme Court agreed, finding that the contraception mandate of the ACA violated the Religious Freedom Restoration Act (RFRA).
But as problematic as it was, Hobby Lobby v. Burwell was a very different case.
First, the Supreme Court premised its opinion on the fact that the government conceded it could supplement the missing coverage itself. Second, unlike Braidwood, the Hobby Lobby plaintiffs found the actual act of contraception to violate their religious beliefs; it didn’t just encourage people to have sex, it actually killed a “baby.” (Indeed, there was a long part of that case about some contraception methods acting as an “abortifacient,” meaning a drug that causes an “abortion” of an embryo. That concept is actually make-believe, but it was essential to the holding in the case.)
None of that mattered to Judge O’Connor, though.
First, you could tell where the case was going when he referred to an orthodontics practice as “a Christian professional association” and a 70-person medical company as “a Christian for-profit corporation.” Just to be sure, I’ll check my Bible here…nope, there’s no such thing as a Christian for-profit corporation. Only people can be Christians. But once Judge O’Connor says that there’s no distinction between a corporate entity’s economic activity and the religious beliefs of the owners of that corporate entity, you know the deck is stacked.
Indeed, Judge O’Connor might recall Jesus Christ’s admonition that his followers “render unto Caesar what is Caesar’s” in their economic activities.
(A sidenote: The medical company in question, Braidwood Management, previously filed a class-action lawsuit against the Equal Opportunity Employment Commission to try to allow any employer that opposes “homosexual or transgender behavior” to fire someone for being gay or trans.)
Second, paying for an insurance plan is not equivalent to “underwrit[ing] coverage for services to which it holds sincere religious objections.” For one thing, insurance plans don’t work that way; there’s not, like, a ten cent charge for PrEP coverage and five cents for flu shots. There’s no sliver of the insurance charge that is attributable to someone’s future use of that coverage for a particular medication.
Nor is there any causality between paying for an insurance plan and the hot gay sex that someone might later have because they’re using their insurance to pay for PrEP rather than risk getting HIV. A lot of things can lead to passionate, forbidden homosexual sex. Renting a car to drive to a dinner date. Watching Lea Michele in Funny Girl. Or even going to Braidwood Management’s clinic for hormone treatments (“...we support you if you have decided not to take the experimental COVID-19 injection,” its website says).
In fact, that clinic specifically treats “low testosterone”—so, if I get their treatment, I’m a lot more likely to get laid. Does that make it their responsibility? Is it on their conscience? Will St. Peter judge them at the pearly gates for boosting my manly hormones and encouraging me to fornicate?
This doesn’t even make sense religiously. If you read this article and, because of its godless hedonism, decide to donate money a right-wing organization that discriminates against gay people, I am not “complicit” in your decision. That’s why it’s called your decision. True, I may have played some role in a sequence of events that led to something I find religiously offensive (i.e., funding homophobes). But I’m not the one with moral agency here; you are.
The government actually raised this point. They said that the “claim that PrEP drugs facilitate various kinds of behavior is an empirical one that requires factual support.” But amazingly, Judge O’Connor said you can believe anything you want, no matter how wrong, as long as you believe it sincerely. “Defendants inappropriately contest the correctness of Hotze’s beliefs,” he wrote, “when courts may test only the sincerity of those beliefs.”
Well, that’s interesting.
Let’s game this one out. So now I’ve decided that the flu vaccine causes children to be conservative transphobes, which is religiously offensive to me as a rabbi. Can I exempt myself from paying for that insurance coverage too? Or how about if I believe that subways cause people to worship Baal (offensive to Jews)—can I get out of paying New York’s mass transit surcharge?
For that matter, suppose it is my sincere religious belief that when people like Judge O’Connor write such stupid things, it causes a disturbance in the Force, wiggles the quantum field, and zapbangs the wiffle-woofer in the galaxy M-14. Do I then get to weasel out of paying taxes that pay his salary?
This is QAnon stuff, right here. According to Judge O’Connor, a Christian can believe anything he [sic] wants about the physical universe, and as long as he believes it sincerely, the government has to accommodate his beliefs. Hell, if the owners of Braidwood Management believe that driving a car causes masturbation, they can opt out of auto insurance. Climate denial, COVID denial, the Big Lie—maybe all of those are sincere religious beliefs as well. It’s 2022, indeed.
No one would seriously entertain these kinds of claims, but these days it’s not how stupid your argument is, it’s what judge you argue in front of.
This is a case brought by an activist lawyer and a business with a history of serial anti-LGBTQ litigation, argued in front of a notorious activist judge (appointed by President George W. Bush) who, in addition to claiming the “PrEP mandate” violated RFRA, also held that the entire scheme by which the Department of Health sets standards is unconstitutional.
The decision is transparently wrong. But as long as you’ve got the power, freedom is slavery, war is peace, and saving gay lives violates religious freedom.