A Federal Judge Ruled Religious Employers Shouldn't Have To Provide HIV Prevention Medicine

The Texas judge, who has a history of conservative rulings that are later overturned on appeal, ruled that mandating employers to provide PrEP violated their federal religious protections.

A federal judge ruled Wednesday that requiring employers to provide coverage for PrEP drugs that prevent HIV transmission violates their religious rights.

US District Judge Reed O’Connor in the northern district of Texas ruled that a mandate to provide PrEP, or pre-exposure prophylaxis, "substantially burdens the religious exercise" of litigants under the Religious Freedom Restoration Act (RFRA) of 1993.

The case was brought by multiple plaintiffs, including Braidwood Management Inc., a for-profit corporation based in Texas and run by Steven Hotze, a Christian who provides health insurance to his roughly 70 employees under a self-insured plan. However, he wanted to exclude PrEP.

Hotze's attorneys argued that he believed PrEp "facilitates and encourages homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman," and that providing such preventive medicine would make him complicit in that behavior

O'Connor agreed with that argument and found the Department of Health and Human Services had failed, under the provisions of the RFRA, to show it had a compelling governmental interest to substantially burden Braidwood's religious beliefs, and that this was the least restrictive means for doing so.

In response to government arguments that there was no factual support for Hotze's beliefs that PrEP facilitates anti-Christian behaviors, O'Connor ruled the courts were required only to test the sincerity of these beliefs, not their correctness.

The immediate impact of the ruling was not clear, as O'Connor said he would allow the parties to submit further briefings by Friday before he decides what to do next.

O'Connor also ruled that the US Preventive Services Task Force, which recommended PrEP be added to the list of preventive measures covered under the Affordable Care Act, was constitutionally empowered to make such an authorization.

"HHS continues to work to ensure that people can access health care, free from discrimination," Rachel Seeger with the HHS Office for Civil Rights told BuzzFeed News. "If individuals feel that they have been denied care, we would encourage them to file a complaint with the Office for Civil Rights."

Shelly Skeen, a senior attorney with the LGBTQ civil rights group Lambda Legal, told BuzzFeed News, the potential implications of the decision could be broad.

"It's really going to hurt health outcomes, not just for the folks that Lambda serves, which is the LGBTQ+ community and people who are living with HIV, but this also can have a direct impact on everyone else," Eskeen said. "Because folks have been able to access preventative care for things like cancer screenings, mammograms, and so forth, and so this opinion arguably calls into question whether or not that type of care can be sought by anyone."

"At what point do our moral beliefs, conflict with what is basic health care for folks?"

The ACLU also condemned the decision as a "direct attempt to weaken civil rights laws and harm the health of LGBTQ workers."

This is a direct attempt to weaken civil rights laws and harm the health of LGBTQ workers. No employer has the right to harm employees in the name of their religion. https://t.co/Zfnoq9voWF

Twitter: @ACLU

Judge O'Connor, who was nominated to the federal bench by George W. Bush in 2007, has a history of conservative rulings that are later reversed on appeal.

In 2018, he decided in a shock ruling that the entirety of the Affordable Care Act, or Obamacare, was unconstitutional. That ruling was later overturned by the Supreme Court.

In 2014, the Supreme Court ruled that privately held corporations were exempt from Obamacare's contraceptive insurance mandate if it violated their religious beliefs.

UPDATE

This story has been updated with comment from HHS and Lambda Legal.