A Texas district judge with a long record of extreme rulings against the Affordable Care Act (ACA) and against LGBTQ equality today succeeded in attacking them both at once, reversing a requirement of the ACA that insurance policies cover pre-exposure prophylaxis, or PrEP, which prevents transmission of the HIV virus.
Judge Reed O’Connor’s stupid and certainly overturned opinion is the cutting edge republicanism of 2022, overturning a science-based public health rule based on biased, implausible and simply misguided interpretations of law, policy and even of religion.
The case in question, Braidwood Management c. Becerra, is the latest brainchild of a late-day Roy Cohn, Jonathan Mitchell, who also invented the vigilante enforcement mechanism in Texas anti-abortion law, back when abortion was still marginally legal. in the Lone Star State. (By delegating law enforcement to citizens, like the Texas Rangers, this law managed to evade judicial review for several months – although in hindsight it is clear that the Supreme Court knew it would soon be canceled Roe vs. Wade entirely.)
Now Mitchell has concocted another scheme: letting gay people die by denying 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 PrEP. This is because all of these interventions have been shown to save lives. Each year, 35,000 people in the United States are infected with HIV, the virus that causes AIDS. If all of these people — gay, straight, everyone — took just one PrEP pill a day, that number could be close to zero. In short, PrEP saves lives.
But a collection of right-wing Christian fundamentalists are unwilling to save lives. They want to roll back 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 mandatory coverage of these services violates their religious beliefs by making them complicit in facilitating homosexual behavior, drug use and sexual activity outside of the marriage between a man and a woman”.
If that sounds familiar, that’s because it is.
In 2014, the Hobby Lobby, a company owned by conservative Christians, made a similar argument: paying for insurance covering contraception made them “accomplice” in the murder of unborn babies. A majority of the Supreme Court agreed, finding that the ACA’s contraception mandate violated the Restoration of Religious Freedom Act (RFRA).
But as problematic as it may seem, Hobby Lobby vs. Burwell was a very different case.
First, the Supreme Court based its opinion on the fact that the government conceded that it could itself complete the missing coverage. Second, unlike Braided wood, the Hobby Lobby plaintiffs concluded that the actual act of contraception violated their religious beliefs; it not only encouraged people to have sex, it actually killed a “baby”. (Indeed, there was a long part of this case about certain birth control methods acting as an “abortive,” i.e., a drug that causes an “abortion” of an embryo. This concept is actually imaginary, but it was essential to the outfit in the case.)
However, none of this mattered to Judge O’Connor.
First, you could tell where the deal was when he called an orthodontic practice a “Christian professional association” and a 70-person medical company a “Christian business for profit.” Just to be sure, I’m going to check my Bible here…no, there is no for-profit Christian society. Only people can be Christians. But once Judge O’Connor says there is no distinction between the economic activity of a corporation and the religious beliefs of the owners of that corporation, you know the game is stacked.
Indeed, Justice O’Connor could recall Jesus Christ’s exhortation that his followers “give back to 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 Employment Opportunity Commission in an attempt to allow any employer who objects to “homosexual or transgender behavior” to fire someone for being gay or trans.)
Second, paying for an insurance plan is not the same as “buying[ing] coverage for services to which he has 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 is no portion of the insurance cost attributable to someone’s future use of this coverage for a particular drug.
“According to Judge O’Connor, a Christian can believe whatever he [sic] wants the physical universe, and as long as he sincerely believes in it, the government must accommodate his beliefs.”
Nor is there a causal link between paying for insurance and hot gay sex someone might have later on because they use their insurance to pay for PrEP rather than risk to contract HIV. Many things can lead to passionate and forbidden homosexual sex. Rent a car to go to a dinner party. Watch Lea Michele in funny girl. Or even go to the Braidwood Management clinic for hormone treatments (“…we’re supporting you if you’ve decided not to take the experimental COVID-19 injection,” its website says).
In fact, this clinic specifically treats “low testosterone” – so if I get their treatment, I’m much more likely to get laid. Does that make it their responsibility? Is it on their conscience? Will Saint-Pierre judge them at the pearly gates for stimulating my manly hormones and encouraging me to fornicate?
It doesn’t even make sense religiously. If you are reading this article and, because of its godless hedonism, decide to donate money to a right-wing organization that discriminates against gay people, I am not “accomplicating” your decision. That’s why it’s called your decision. It is true that I may have had some role in a sequence of events that led to something that I find religiously offensive (i.e. funding homophobes). But I’m not the one with free will here; you are.
The government has indeed raised this point. They said “the claim that PrEP drugs facilitate various types of behavior is an empirical claim that requires evidence-based support.” But amazingly, Judge O’Connor said you can believe anything you want, no matter how false, as long as you sincerely believe it. “Defendants improperly challenge the accuracy of Hotze’s beliefs,” he wrote, “while the courts can only test the sincerity of those beliefs.”
Well, that’s interesting.
Let’s play this one. So now I’ve decided that the flu vaccine makes transphobic kids conservative, which is religiously offensive to me as a rabbi. Can I also exempt myself from paying for this insurance? Or how about if I believe the subways make people worship Baal (offensive to Jews) – can I avoid paying the NYC transit surcharge?
Besides, suppose it’s my sincere religious belief that when people like Judge O’Connor write such stupid things, it causes a disturbance in the Force, stirs the quantum field, and zapbangs the wiffle-woofer in the galaxy M. -14. Should I then avoid paying taxes that pay his salary?
It’s QAnon stuff, here. According to Judge O’Connor, a Christian can believe whatever he [sic] wants the physical universe, and as long as he sincerely believes in it, the government must accommodate his beliefs. Hell, if Braidwood Management owners believe driving a car causes masturbation, they can opt out of car insurance. Climate denial, COVID denial, the big lie – maybe all of these are sincere religious beliefs too. We are in 2022, indeed.
No one would seriously accept those kinds of claims, but nowadays it’s not the stupidity of your argument that counts, it’s the judge before whom you argue.
This is a case brought by an activist attorney and a company with a history of serial anti-LGBTQ litigation, argued before a notorious activist judge (appointed by President George W. Bush) who, in addition to claiming the “PrEP mandate” violated RFRA, also ruled that the entire scheme by which the Department of Health sets standards is unconstitutional.
The decision is manifestly wrong. But as long as you have power, freedom is slavery, war is peace, and saving gay lives violates religious freedom.