U.S. District Judge Reed O’Connor ruled that requiring employers to offer insurance plans that cover HIV prevention pills, known as PrEP drugs, violates the Religious Freedom Restoration Act. Braidwood Management, a Texas-based company that employs 70 people, argued that the order facilitated conduct to which it has religious objections. The order, the plaintiffs argued in their original complaint, “forces religious employers to provide drug coverage that facilitates and encourages homosexual behavior, prostitution, sexual promiscuity and intravenous drug use.” It remains unclear whether the ruling will only apply to Braidwood Management or affect Americans nationwide. O’Connor did not issue a national order or withdraw the rule. He asked both sides to submit additional information on the scope of the relief by Friday. “What happens next remains an open question as to who it affects,” said Tim Jost, professor emeritus at Washington and Lee University School of Law. O’Connor also asked both parties to submit additional information on claims related to the Affordable Care Act’s contraceptive mandate, a longtime goal of conservatives. The Trump administration expanded exemptions for employers who have religious or moral objections to the order, which the Supreme Court upheld in 2020. The Biden administration has said it will modify the rule.
Free preventive services at risk
As part of the ruling, O’Connor declared unconstitutional part of the broader preventive services mandate, which requires insurers and employers to cover free screenings for cancer and heart disease, as well as smoking cessation programs, among many others. But the judge upheld some free preventive services for children, such as autism and vision screenings and well-baby visits, as well as for women, such as mammograms, women’s visits and breastfeeding support programs. O’Connor also supported the mandate that provides free vaccines for influenza, hepatitis, measles, shingles and chicken pox. At issue is whether the United States Preventive Services Task Force, an independent, volunteer group of national experts in disease prevention and evidence-based medicine, could determine what general preventive services would be covered for adults under the mandate. The judge ruled that the task force violates the Appointments Clause of the US Constitution because its members are not appointed by the president and that the secretary of Health and Human Services has no control over its recommendations. It remains to be seen whether O’Connor will seek to enforce his decision nationally, but if he does, it could have a significant impact on Americans’ ability to receive important health services at no charge. “If this is true, it will be devastating for preventive care,” said Katie Keith, director of the health policy and legal initiative at Georgetown’s O’Neill Institute for National and Global Health Law. More than 150 million people with private insurance can get preventive services without cost-sharing under the Affordable Care Act, according to a report released earlier this year by HHS. “The free preventive care guaranteed by the ACA for more than 150 million Americans has become the foundation of the American health care system, improving health outcomes, reducing disparities in care, and lowering consumer health care costs,” said Leslie Dach, president of Protect Our. Care, an advocacy group. O’Connor did not extend his ruling to covered services for women and children, as well as immunizations, because they are determined by other federal agencies. This story has been updated with additional details.
