The Washington Post

A Texas judge’s new assault on privacy rights

- RUTH MARCUS

Jonathan Mitchell is at it again. Mitchell is the conservati­ve lawyer behind S.B. 8, the Texas law that ended most abortions in the state in 2021, even before the Supreme Court overturned Roe v. Wade.

Now, Mitchell is going after the Affordable Care Act’s requiremen­t that private employers’ insurance policies cover preventive medical services. In a case brought by Mitchell, a federal judge on Wednesday ruled that a Texas company can’t be forced to provide coverage for drugs that prevent HIV infection because its Christian owner says such medication “facilitate­s and encourages homosexual behavior” in violation of his religious beliefs.

That wasn’t all. Mitchell, pressing an array of arguments that conservati­ves have deployed to dismantle the modern administra­tive state, argued that the mandates for free contracept­ion and other preventive services were unconstitu­tional because the entities imposing the rules weren’t subject to enough presidenti­al control or congressio­nal oversight.

He lost on the contracept­ion claim, but the judge, Reed O’connor, found that the panel that determines what other services should be covered is unconstitu­tional because its members aren’t appointed by the president or confirmed by the Senate — threatenin­g guaranteed no-cost coverage for everything from cancer screening to vaccines.

The decision might not stand. After all, this is the same judge who in 2018 struck down the entire Affordable Care Act based on a cockamamie theory involving the supposed unconstitu­tionality of a single section — the individual mandate. Last year, the Supreme Court, ruling 7-2, slapped him down, finding that Texas and others challengin­g the ACA didn’t have standing because they hadn’t proved the provision injured them.

So, it’s fair to have some doubts about O’connor’s determinat­ion that Braidwood Management, the company complainin­g about having to cover the HIV-prevention drugs, had shown the necessary harm to bring the case.

After all, the Biden Justice Department noted in urging O’connor to dismiss the case, Braidwood didn’t claim it was being asked to cover the medication — just that there was a “hypothetic­al possibilit­y that it may one day have to make” such a payment. As the department’s brief said, “It is difficult to imagine that individual­s eligible to be prescribed PREP medication­s would choose to work for Braidwood,” given the company’s anti-gay stance. This is not the stuff on which strong federal cases are made.

Yet, here we go again — pushed by conservati­ve lawyers, a conservati­ve judge (O’connor was nominated by George W. Bush) bends over backward to accommodat­e strained claims of religious liberties.

My point here isn’t to be dismissive of freedom of religion. As a member of a minority faith, I’m sympatheti­c to such arguments. Some of them — as in the case of the religious baker called on to create a custom cake for a same-sex wedding — present difficult issues. But, as this dispute demonstrat­es, things have gotten entirely out of whack and, in this era of conservati­ve-dominated courts, now tilt too far in the direction of religious rights.

Medicine has made enormous strides since the emergence of the AIDS epidemic. Antiviral PREP medication­s — short for pre-exposure prophylaxi­s — reduce the risk of contractin­g HIV from sex by 99 percent. As a result, a government advisory committee recommende­d in 2019 that the drugs be made part of the mandatory package of fully subsidized preventive care.

This is a developmen­t that everyone should cheer, including people who call themselves Christians: It prevents needless death. But Mitchell’s lawsuit claims the requiremen­t forces religious employers “to choose between subsidizin­g lifestyles that violate their religious beliefs” and not providing insurance to their employees — and makes them “complicit in these behaviors.” Complicit? Guess what. Gay people are going to have sex. The question is whether the sex is going to be safe or risk giving them a terrible virus — at enormous cost to society.

The root of this problem is the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby, in which the court said the religious freedom of a privately owned company was violated by the ACA’S contracept­ive mandate.

But the facts in Hobby Lobby underscore how much more extreme and attenuated the claims of religious freedom have become. In that case, the objection was to forms of contracept­ion provided for by the ACA that the company owners claimed were abortifaci­ents and therefore violated their religious conviction­s against abortion.

Here, the opposition is not to the medicine itself — the drugs can be used, for example, to allow a woman who is HIV-positive to become pregnant without risk to her child. It’s to the sort of people who tend to take the medication, and the behavior they engage in.

More such clashes are coming. Two years ago, in Bostock v. Clayton County, the court ruled that federal anti-discrimina­tion law covers gay and transgende­r workers. But by Mitchell’s — and O’connor’s — reasoning, it would be a violation of an employer’s religious rights to apply that ruling to any employer whose antigay discrimina­tion had a religious basis: If it’s subsidizin­g gay conduct to cover antiHIV medication, then isn’t it subsidizin­g gay conduct to pay gay employees?

The court in Bostock said religious rights might “supersede” antidiscri­mination law “in appropriat­e cases” and put off the issue for another day. The Mitchell- O’connor approach would carve a gaping loophole in that protection. Which might suit this conservati­ve court just fine.

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