A federal judge in Texas ruled last month that employers may refuse to provide health insurance that covers potentially life-saving drugs if they say doing so would violate their religious freedom.
The drugs in question, known as pre-exposure prophylaxis (PReP), are used to prevent HIV infection. Under the terms of the Affordable Care Act (ACA), PReP and a host of other drugs and preventative care services, such as screenings for breast cancer, must be included in employee health care plans at no cost to workers.
U.S. District Judge Reed O’Connor sided with a far-right legal group called America First Legal Foundation that was created by Stephen Miller, a former adviser to President Donald Trump, and ruled that mandating coverage of the drugs violates the Religious Freedom Restoration Act, a 1993 federal law that was designed to protect the religious expression of minority faith groups.
America First represented business owners who argued that requiring them to include PReP in health care plans would “encourage homosexual behavior, prostitution, sexual promiscuity and intravenous drug use.” Among the group’s plaintiffs is Steven F. Hotze, a longtime Christian nationalist advocate in Texas who most recently made headlines for promoting a bizarre conspiracy theory about alleged fake ballots being stuffed into boxes during the 2020 election.
O’Connor also ruled that an advisory body known as the Preventive Services Task Force, which is run by the U.S. Department of Health and Human Services and charged with recommending which services and drugs the ACA should cover, is unconstitutional. This puts millions of Americans at risk of losing access to preventative screenings for cancer and other serious illnesses.
O’Connor, who was appointed to the bench by President George W. Bush, is known for his extreme rulings. In 2018, he ruled that the entire ACA is unconstitutional, a decision that was later overturned by the Supreme Court. Given the nature the PReP ruling, it will almost certainly be appealed to the 5th U.S. Circuit Court of Appeals.
But the ruling could very well survive before that judicial panel, which is stacked with conservatives.
“In a legally sane world, this would be quickly overturned, but that’s not the world that we live in,” Ira Lupu, professor emeritus at George Washington University Law School, told The Washington Post.