Religious Employers Don’t Have To Provide PrEP

A federal judge ruled Wednesday that requiring employers to provide coverage for PrEP drugs that prevent HIV transmission violates their religious rights.

US District Judge Reed O’Connor in the northern district of Texas ruled that a mandate to provide PrEP, or Pre-exposure prophylaxis, “substantially burdens the religious exercise” of litigants under the Religious Freedom Restoration Act (RFRA) of 1993.

The case was brought by multiple plaintiffs, including Braidwood Management Inc., a for-profit corporation based in Texas and run by Steven Hotze, a Christian who provides health insurance to his roughly 70 employees under a self-insured plan. However, he wanted to exclude PrEP.

Hotze’s attorneys argued that he believed PrEp “facilitates and encourages homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman,” and that providing such preventive medicine would make him complicit in that behavior

O’Connor agreed with that argument and found the Department of Health and Human Services had failed, under the provisions of the RFRA, to show they had a compelling governmental interest to substantially burden Braidwood’s religious beliefs, and that this was the least restrictive means for doing so.

In response to government arguments that there was no factual support for Hotze’s beliefs that PrEP facilitates anti-Christian behaviors, O’Connor ruled the courts were required only to test the sincerity of these beliefs, not their correctness.

The immediate impact of the ruling was not clear, as O’Connor said he would allow the parties to submit further briefings by Friday before he decides what to do next.

O’Connor also ruled that the US Preventive Services Task Force, which recommended PrEP be added to the list of preventive measures covered under the Affordable Care Act, was constitutionally empowered to make such an authorization.

Officials at the Departments of Justice and Health and Human Services did not immediately respond to a request for comment.

O’Connor, who was nominated to the federal bench by George W. Bush in 2007, has a history of conservative rulings that are later reversed on appeal.

In 2018, he decided in a shock ruling that the entirety of the Affordable Care Act, or Obamacare, was unconstitutional. That ruling was later overturned by the Supreme Court.

In 2014, the Supreme Court ruled that privately-held corporations were exempt from Obamacare’s contraceptive insurance mandate if it violated their religious beliefs.