Members Only | September 19, 2022 | Reading Time: 4 minutes
The Supreme Court’s dangerous abuse of religious exemptions
How far are the rightwing justices willing to go?
Another week, another totally bonkers ruling out of a federal court in Texas. Earlier this month, Judge Reed O’Connor (the same judge who tried overturning the entire Affordable Care Act in 2018 before we being overruled by the US Supreme Court) decided that employers do not have to offer insurance plans that cover PrEP (drugs that prevent the spread of HIV) if they have religious objections.
Apparently providing healthcare to the poor, the sick and the vulnerable can be anti-Christian. Who knew? Kidding – those of us who need reproductive healthcare have known for a while.
Republicans have been trying to dismantle Obamacare since 2010 with all kinds of bogus challenges. They have failed in Congress multiple times. The Supreme Court upheld its constitutionality (obviously that could change with the current court, but Roberts sided with the liberal wing to uphold the ACA in 2012). Unfortunately Republicans keep chugging like the evil engine that could and the ACA has been challenged almost 2,000 times through litigation.
After the Supreme Court upholding, Republicans changed tactics.
In 2014, the Supreme Court ruled that privately held companies could be exempted from the mandate to provide no-cost birth control, in accordance with the Religious Freedom Restoration Act.
Churches had already been exempted from the birth control mandate. Hobby Lobby expanded these exemptions. However, since the ruling only expanded the kinds of organizations exempted, it did not rule that the mandate itself was unconstitutional. It required that privately held companies submit a form to be exempted.
In 2017, the Trump administration issued new guidelines about the birth control mandate. All churches – and pretty much any “morally objecting” nonprofit organization or privately held company – were exempted. These new rules were of course upheld by the Supreme Court in 2020 in Little Sisters of the Poor v. Pennsylvania.
While birth control and abortion incite a special kind of fury in Republicans, they were not going to stop there. Once the door was opened to exempting any medical care based on moral objections, there’s no telling what bizarre justifications Republicans could think of for refusing mandated coverage. The latest – and totally not surprising – target is PrEP because it helps stop the spread of HIV.
The recent Braidwood decision gets at the bizarre treatment of preventative care by insurance companies, public health policy and moralizing Republicans. Federal entities have included about 80 healthcare measures on the list of preventative care that health insurers must cover under the ACA. This includes birth control, pap smears, cancer and STD screenings, prenatal care, immunizations (including HPV) and pre-exposure prophylaxis, or PrEP.
In the Cornell Law Review, Doron Dorfman offers three examples: PrEP, mental health and Naloxone, a drug that rapidly reverses opioid overdose. Two examples are clearly linked to behaviors many object to. Fully covering PrEP and supporting increased access to Naloxone would not only save countless lives but also likely a lot of money. Yet both are demonized for their association with drug use and sex.
The plaintiffs in this case objected to being forced to cover preventative care on the basis of their religious beliefs. (They claim there are non-religious reasons as well but then the list would probably include something unrelated to sexual activity).
The plaintiffs specifically object to being forced to cover birth control, the HPV vaccine, PrEP and STD screenings. (You probably could have guessed the list of things they objected to.) Multiple plaintiffs don’t want to pay for care that they are sure their family members don’t need. (There are so many jokes I could make here about STDs and Republicans but I’m going to control myself).
While the plaintiffs are citing religious objections to covering PrEP (the main focus of the litigation), the opinion mostly deals with the regulatory power of federal entities. The Supreme Court has been signaling their interest in limiting the power of the administrative state. It’s possible they will find Judge O’Connor’s opinion persuasive.
However, Judge O’Connor also validates the religious objections to covering PrEP on the supposed grounds that it encourages premarital sex and homosexual behavior. (Married heterosexual couples can also spread HIV, but I guess plaintiffs and Judge O’Connor need a sex-ed class). Judge O’Connor also questions the compelling government interest in preventing the spread of an infectious disease (HIV) because they framed their interest too broadly … or something. It’s honestly hard to say.
The decision only applies to PrEP drugs, but the ramifications could extend much further. The HPV vaccine has long been controversial for supposedly encouraging risky sexual behavior even though it’s given to teenagers before many engage in sexual activity.
The HPV vaccine also prevents cervical cancer in women that can result from the STD HPV. If the government’s interest isn’t compelling enough to overcome a religious objection to insurance coverage to prevent HIV, is it more compelling to prevent cancer?
In this case the list of objected treatments all concerned sexual activity in some form but we’ve already seen people try to use religious beliefs to avoid the covid vaccine.
Will employers try to use religion as a reason not to cover covid vaccines and tests? Anti-vaxxers are growing in numbers. Could they argue against covering all immunizations? What about lung cancer screenings? Cirrhosis treatment? Will people argue against screenings for people who are considered overweight?
While no one should be forced to undergo medical treatment they disagree with, moralizing the funding of medical treatment for others is abhorrent and extremely dangerous. Behavior should be irrelevant to access to medical treatment – and that includes anyone who argues anti-vaxxers shouldn’t get treatment for covid.
Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.