The Washington Post
A Texas judge’s new assault on privacy rights
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.