The Patient Protection and Affordable Care Act has come under fire once more. And yet again Judge Reed O’Connor in Texas is at the center of the debate.
O’Connor is most known for his 2018 ruling in Texas v Azar where he attempted to invalidate the ACA, even after the individual mandate was removed.
His Sept. 6, 2022, ruling in Braidwood Management v. Becerra challenges the ACA on the bases of religious freedom and argues that the process for determining which medical preventions must be offered without copay is unconstitutional.
The Braidwood case centers around the ACA’s requirement to provide, without copays, preventative diagnostic testing and medications that have been recommended by the U.S. Preventive Service Task Force. These include common immunizations, health screenings, HIV prevention medications, some heart attack and stroke prevention medications, and birth control.
The plaintiffs in Braidwood argue that they should not be required to purchase or maintain coverage that requires HIV prevention medications, contraception, HPV vaccinations, screenings for sexual transmitted diseases and mental health services, like drug and alcohol abuse prevention, as it is a violation of their religious convictions.
Most of the controversy is centered around the requirement to offer coverage for PrEP, a pre-exposure prophylaxis for HIV. The most well-known version is Truvada.
PrEP is recommended for people who are HIV negative, but who have been sexually active with a partner who is HIV positive, and it has been 99% effective at preventing the transmission of HIV from sexual activity. Its success is encouraging in the fight against the HIV epidemic, but the cost of about $2,000 a month out of pocket is prohibitive for most.
While the plaintiffs oppose same-sex sexual activity on the basis of their religious beliefs, PrEP is not exclusively prescribed to homosexual patients. The National Institute for Health’s recommendations would also apply to a heteronormative married couple where one partner acquired HIV due to non-sexual or drug-related activities.
While the primary focus of Braidwood is upon PrEP, concern for required medical preventions do not stop there. Groups have been protesting birth control and human papillomavirus vaccinations for years because both pregnancy and HPV are linked to sexual activity, and they assume that these drugs encourage activities that the plantiffs see as immoral.
O’Connor’s ruling in Braidwood should cause us to ask several questions about the relationship between federal regulations and religious faith such as, “What are the limits to religious objections?”
Many people would defend a faith-based health system’s right to refuse to provide services that it had a moral objection to, like abortion or gender transitioning services, even if they disagreed with the health system’s views.
However, the religious objection argument used in Braidwood is more about rejecting preventative medications that are frequently associated with activities of which the plantiffs disapprove. This would expand religious objection accommodations in health care provision significantly.
Religious exemptions and objections are tricky. The burden of proof is on the faith group to demonstrate how they are being forced to actively violate their right of conscious.
To illustrate, the common religious objection to abortion is the destruction of a fetus, not that abortion might encourage a patient to have more sex. In like manner, the traditional objection to birth control is that it prevents the primary purpose of sexual intercourse: procreation.
How drugs are functioning needs to be considered, because birth control pills are frequently used to regulate hormone levels not solely to prevent pregnancy. If the primary purpose for the prescription is not related to sexual activity, then many who oppose abortion and birth control would affirm this use of the drug.
Drugs like PrEP and HPV vaccines, on the other hand, simply provide protection. They do not destroy a fetus or prevent pregnancy. The drugs themselves do not create the same type of moral violation for conservative groups, so the alleged moral violations happen after the patient receives the intervention.
As such, the religious objection argument may not necessarily apply because the faith group is not being forced to comply with actions and behaviors that they find objectionable.
Even if the religious group is opposed to activities commonly associated with patients who receive these preventions, the moral argument within the religious objection must be directly linked to what the drugs are doing and what the faith group is forced to pay for.
The limitation here is that the objection needs to focus on the drug or preventative measure, not how individuals behave after taking the medication or receiving the vaccination.
While O’Connor is in agreement with the religious objection argument, he also affirmed the plaintiff’s argument challenging how the government’s list of required preventions is determined.
Specifically, he argued that preventions proposed by the United States Preventive Services Task Force are not valid because the members of the task force are not appointed by a constitutional officer or confirmed by the Senate but are appointed by the director of the Agency for Healthcare Research and Quality. Thus, the recommendations are not subject to congressional oversight.
The lawsuit represents a growing challenge to almost all the required preventions in the ACA.
O’Connor’s ruling will most certainly trigger an appeal, but it asks some important questions about the limits of the religious objection argument, how new health care requirements are enacted, and who has oversight of the preventions.
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Senior Staff Chaplain and Clinical Ethicist at the Baptist Health Medical Center in Little Rock, Arkansas.
