U.S. District Judge Reed O’Connor’s twin obsessions—dismantling the Affordable Care Act and over-regulating the sexual behavior of people he doesn’t like—came together in his latest decision this month.
He ruled that requiring insurers to cover pre-exposure prophylaxis, or PrEP, runs afoul of (conservative Christian) religious freedoms. Never mind that PrEP is a life-saving medication that’s effective at preventing and transmitting HIV.
O’Connor is no stranger to issuing sweeping rulings that impose a narrow set of religious beliefs on the country. He gets the opportunity to do these things largely because Texas keeps bringing lawsuits to enforce its worldview—one that looks to eradicate LGBTQ people in the name of religious freedom.
In August 2016, O’Connor blocked the Obama administration from enforcing a rule that would have allowed transgender students to use the bathrooms and locker rooms that conform with their gender identity.
Around four months later, O’Connor issued a nationwide injunction preventing the federal government from enforcing a requirement that health-care providers cannot discriminate against someone because they are trans. O’Connor held that such a regulation would violate the religious freedoms of conservative providers who either do not wish to treat trans people at all or wish to discriminate in that treatment.
For his most recent performance, O’Connor teamed up with Jonathan Mitchell, best known as the architect of Texas SB 8, the six-week ban with a bounty hunter-style private enforcement mechanism allowing private citizens to sue anyone who aids or abets an abortion.
Under the Affordable Care Act, PrEP usage is considered “preventive” health care and therefore must be included in all insurance coverage. When it comes to preventing HIV, PrEP is a superstar. The Centers for Disease Control and Prevention estimate that PrEP can reduce the chance of getting HIV from sex by 99 percent and 74 percent from the use of intravenous drugs.
Mitchell represented a group of conservative business owners who did not wish to provide any such coverage because it runs afoul of their religious beliefs. In the lawsuit, the plaintiffs contended that PrEP “facilitate[s] and encourage[s] homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman.” That idea is grounded in the long-debunked notion that only gay men get HIV. In reality, cisgender women who have sex with men represent 19 percent of new HIV infections per year but remain much less aware of the medication than men who have sex with men.
But, as O’Connor explains in his ruling, facts don’t actually matter—that Braidwood and the other conservative business owners are not obliged to prove, or even remotely explore, that PrEP facilitates men having sex with men, people having extramarital sex, and IV drug use. Braidwood wouldn’t be able to prove that using PrEP increases any of those behaviors. A George Washington University study published in 2017 interviewed practitioners who prescribe PrEP and found they did not see a corresponding increase in risky sexual behavior from their patients. Further, the prescription of PrEP is done in conjunction with other risk mitigation behaviors, such as practicing safer sex or ensuring sterile needles for intravenous drug use.
But what really matters, O’Connor writes, is that the plaintiffs sincerely believe these notions—not whether they are actually true. Regrettably, in this instance, O’Connor is only following existing Supreme Court precedent: When plaintiffs bring a claim under the Religious Freedom and Restoration Act, as plaintiffs did here, the government must uncritically “accept the sincerely held complicity-based objections of religious entities.” There’s no test to prove those religious beliefs are sincere, nor does it matter when scientific facts fly in the face of those beliefs, such as Hobby Lobby’s incorrect belief that IUDs and Plan B cause abortions.
Indeed, the decision in favor of Mitchell’s conservative religious clients was almost inevitable in light of Burwell v. Hobby Lobby. In the 2014 decision, the Supreme Court agreed with a conservative religious business that it could control their employees’ health-care access, which opened the door for businesses to simply refuse covering anything they found morally objectionable.
Mitchell’s—and O’Connor’s—behavior isn’t just that of conservative Christians seeking to impose their theistic worldview on everyone. It’s also a distinct refusal to acknowledge that the federal government—if that federal government happens to be controlled by Democrats—is allowed to issue regulations and pass laws. Notably, Mitchell’s clients didn’t just want to block insurance coverage for things they deemed morally questionable. They also initially wanted the right to impose copays and deductibles for preventive care, which flies in the face of the ACA’s core values and goals.
As long as Texas is controlled by people like Gov. Greg Abbott and Attorney General Ken Paxton, the state will continue to bring these lawsuits. As long as there are judges like O’Connor, the state will continue to win. And, as long as that continues to be the case, conservatives will inflict a narrow, cramped set of religious beliefs on the rest of us.