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Judge sides with far-right activist challenging HIV drug coverage mandate

The ruling, if upheld, could curb access to contraceptives and drugs that limit the spread of HIV.

(CN) — A federal judge in Texas dealt a blow to employee health insurance on Wednesday by ruling that employers can limit insurance services based on their personal beliefs.

U.S. District Judge Reed O’Connor, a George W. Bush appointee, sided with conservative business owners who argued that covering certain insurance costs went against their religious convictions. If upheld, the ruling could reduce access to services like contraceptives and PrEP (pre-exposure prophylaxis) drugs that limit the spread of HIV.

The ruling, though a temporary blow to employee health insurance, will likely be appealed. O'Connor is the same judge who previously found that the entire Affordable Care Act was unconstitutional — a ruling that the U.S. Supreme Court later reversed by a wide margin.

Also involved in the case is Steve Hotze, a controversial far-right activist who runs an alternative wellness center in Houston. Hotze is currently facing felony charges in Houston over his role in a plan to investigate purported election fraud. Those efforts culminated in an incident in October 2020, in which a group of far-right activists led by a former Houston police captain pulled a gun on an air-conditioner repairman and briefly stole his truck.

Under the Affordable Care Act, commonly known as Obamacare, most employers must provide workers with insurance that covers preventative care. The ruling on Wednesday focused on what exactly qualifies as preventative care — and on who gets to decide.

O’Connor found that the U.S. Preventative Services Task Force, an expert panel under the U.S. Department of Health and Human Services, had been “unconstitutionally appointed” and therefore did not have the authority to make healthcare recommendations.

The task force, O’Connor wrote, “is not even part of HHS, or any other agency.”

More broadly, O’Connor also agreed with the business owners and activists that certain insurance mandates violated their rights under the Religious Freedom Restoration Act. Such mandates imposed a “substantial burden” on employers if they had religious objections to parts of the coverage, O’Connor ruled.

In order to limit coverage for PrEP drugs and other services, the federal government argued that employers and activists in the case had to prove that use of the drugs facilitated “various kinds of behavior” like gay or premarital sex. O’Connor disagreed, writing that these arguments “inappropriately contest the correctness” of plaintiff’s religious beliefs.

The order quoted from Justice Samuel Alito’s concurring opinion in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, a Supreme Court decision that allowed for-profit religious groups to exempt themselves from contraceptive insurance requirements.

“If an employer has a religious objection to the use of a covered contraceptive, and if the employer has a sincere religious belief that compliance with the mandate makes it complicit in that conduct, then RFRA requires that the belief be honored,” Alito wrote in that case.

The U.S. Department of Health and Human Services did not respond by press time when asked if it planned to appeal O'Connor's ruling. Braidwood Management, a plaintiff in the case, also did not immediately respond to a request for comment.

The case started in March 2020, when Braidwood and another business sued over the insurance mandates from HHS. The mandates required employers to cover contraceptive and PrEP drugs.

The business owners in the case said they were Christian and therefore “unwilling to purchase health insurance that subsidizes abortifacient contraception" or drugs that "encourage homosexual behavior or intravenous drug use.” They asked the court to prevent the feds from forcing them to purchase such “unwanted coverage” for their workplace insurance plans.

Hotze, who runs Braidwood, has promoted false medical claims, including about the Covid-19 vaccine. He opposes equal rights for gay and transgender people, whom he calls "homofascists."

The U.S. Food and Drug Administration sent Hotze a warning letter in 2020 for promoting unapproved coronavirus treatments. In a separate case out of California, a public-health group sued Hotze and his company, alleging that some of his vitamin supplements contained lead. A judge ultimately ruled against him.

In Texas, Hotze has earned a reputation for bankrolling far-right causes, including efforts to undermine the 2020 elections.

He fought against face-mask mandates and contact tracing during the height of the coronavirus pandemic and led an unsuccessful effort to throw out more than 100,000 mail-in ballots in Houston. He urged Texas Governor Greg Abbott to kill Black Lives Matter protesters, according to a voicemail obtained by the Texas Tribune.

O'Connor has ruled against the Affordable Care Act before. In 2018, after Congress removed the individual mandate requiring people to buy insurance, O'Connor declared that the entire law was unconstitutional.

The ruling was panned was experts, including those who oppose the ACA. Nicholas Bagley, a University of Michigan professor and a member of the Federalist Society focused on health law, called it "about as naked a piece of judicial activism as I have ever seen." The U.S. Supreme Court ultimately threw out that decision.

Follow @stephentpaulsen
Categories / Civil Rights, Health, Law, National

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