Judge: Employers Don't Have To Cover HIV Meds If They Oppose 'Homosexual Behavior'

A federal judge who frequently sides with conservatives just handed anti-LGBTQ Christian employers a big win.

A federal judge in Texas ruled Wednesday that requiring employers to provide coverage for PrEP medications ― which prevent the transmission of HIV ― violates the religious rights of employers under federal law.

U.S. District Judge Reed O’Connor said that the Religious Freedom Restoration Act provides a religious exemption from purchasing health insurance that complies with the Department of Health and Human Services’ preventive care mandate under the Affordable Care Act, which requires PrEP coverage.

O’Connor said the government must provide this religious exemption to eight defendants ― six individuals and two businesses ― who claim that being required to provide such insurance coverage violates their “sincerely held” Christian and “non-religious” beliefs rejecting “homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman.”

By requiring them to provide insurance that covers PrEP, as well as the HPV vaccine and sex education, the government “would make [them] complicit in those behaviors,” O’Connor concluded.

Here’s a copy of O’Connor’s 42-page decision in the lawsuit, Kelley v. Becerra.

The Texas judge went on to say that courts must support religious exemptions from federal policy mandates if a person’s religious belief is “sincerely held,” citing Supreme Court precedents in its 2014 Hobby Lobby decision and its 2020 decision in Little Sisters of the Poor. Both of those decisions authorized religious exemptions to contraception mandates in the Affordable Care Act.

For this reason, O’Connor determined, the government may not question whether it is factually correct that paying for coverage that includes PrEP subsidizes “homosexual conduct.”

The government “may not ‘tell the plaintiffs that their beliefs are flawed’ because the connection between the morally objectionable conduct and complicity in the conduct ‘is simply too attenuated,’” he wrote, citing the Hobby Lobby decision.

Beyond that, O’Connor declared the Preventive Services Task Force ― the government body that recommended the preventive care mandate rules for PrEP coverage ― an illegally appointed body in violation of the Appointments Clause.

House Speaker Nancy Pelosi (D-Calif.) denounced O’Connor’s decision, saying it puts people’s lives at risk.

“Today, a radical, Republican-appointed federal judge ruled that employers can deny coverage for PrEP: a drug proven to save lives from HIV/AIDS and a key strategy for ending the epidemic,” Pelosi said in a statement Wednesday.

“This disturbing decision amounts to open homophobia: unleashing unthinkable suffering and death specifically among the LGBTQ community,” she said. “This decision also threatens vital preventative health services guaranteed under the Affordable Care Act, including birth control, vaccinations and routine health screenings.”

Dr. Marwan Haddad, chair of the HIV Medicine Association, which represents medical professionals who practice HIV medicine, said his organization is “deeply disturbed” by O’Connor’s ruling.

“This ruling is yet one more instance of unacceptable interference in scientific, evidence-based health care practices that must remain within the sanctity of the provider-patient relationship,” Haddad said in a statement. “Religious refusal laws allowing the personal beliefs of employers or health care providers to dictate access to prevention, care and treatment services are discriminatory and dangerous.”

“This disturbing decision amounts to ... unleashing unthinkable suffering and death specifically among the LGBTQ community.”

- House Speaker Nancy Pelosi (D-Calif.)

O’Connor, an appointee of former President George W. Bush, is known as a favorite among conservative lawyers because he tends to rule against Democratic policies. Attorneys general in Texas appear to strategically file key lawsuits in his jurisdiction so he’ll hear them.

A number of his rulings have been reversed on appeal.

In 2018, O’Connor ruled that the entire Affordable Care Act was unconstitutional, a decision that one legal expert described at the time as “insanity in print.” His decision was reversed on appeal in 2020, and the Supreme Court upheld the law a year later.

In 2015, O’Connor barred the Department of Labor from immediately enforcing a new rule granting Family and Medical Leave Act benefits to same-sex couples. He argued that the public had “an abiding interest” in protecting state laws from “federal encroachment.” But he soon dissolved his injunction after the Supreme Court’s ruling in Obergefell v. Hodges, which cemented the fundamental right to marry for same-sex couples.

O’Connor’s other decisions of note include his 2015 ruling that part of the federal Gun Control Act of 1968 was unconstitutional (this was reversed on appeal); his 2018 ruling that the Indian Child Welfare Act was unconstitutional (the Supreme Court is revisiting this law in November); and his 2021 ruling that the First Amendment and the Religious Freedom Restoration Act offer an exemption to employers from the Civil Rights Act’s ban on sex discrimination.

Earlier this year, O’Connor temporarily blocked the Pentagon from enforcing a COVID-19 vaccine requirement for Navy SEALs, claiming the federal government has “no license” to infringe on the freedoms of SEALs. His preliminary injunction was partially upheld by the Supreme Court in March.

CORRECTION: A previous version of this story misstated the date of O’Connor’s ruling.

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