Fort Worth judge says Obamacare’s requirement of free HIV drugs violates religious freedom
A federal judge has sided with a Fort Worth orthodontist who argued that requiring health insurance to pay for HIV prevention drugs was a violation of his religious freedom.
John Kelley, a local orthodontist, sued the federal government in 2020, arguing that as a Christian, he was unwilling to purchase health insurance that paid for HIV prevention drugs “that encourage homosexual behavior and intravenous drug use,” according to the lawsuit.
U.S. District Judge Reed O’Connor, of the Northern District of Texas, issued a ruling in the case Wednesday.
Technically, O’Connor’s ruling focused on one plaintiff in the case: Braidwood Management Inc., a company based in the Houston area. But in principle, his decision supports the reasoning of Kelley’s argument. Kelley joined other North Texas Christians and Braidwood in filing the lawsuit. The plaintiffs include Fort Worth oral surgeon Gregory Scheideman, as well as Kelley and his company Kelley Orthodontics.
The plaintiffs opposed a core component of the Affordable Care Act, often known as Obamacare. The law requires that health insurance plans pay for preventive health care in full, with no charge to the insured patients. There are three groups that determine what counts as preventive health care: the U.S. Preventive Services Task Force, the Advisory Committee on Immunization Practices, and the Health Resources and Services Administration. These three groups meet regularly to determine whether things like the seasonal flu shot or screenings for high blood pressure are considered preventive care.
The plaintiffs argued that these three groups don’t have the authority to determine what preventive health care is. They also oppose certain types of care, like the HIV drugs, on religious grounds.
In his ruling Wednesday, O’Connor focused on Braidwood Management Inc., a for-profit company owned by QAnon conspiracy theorist Dr. Steven Hotze. Because Braidwood employs more than 50 people, it is required by law to offer health insurance to all of its full-time employees. For his part, Hotze argued that offering his employees insurance plans that would pay for drugs like PrEP would violate his religious beliefs.
O’Connor agreed, saying Braidwood “has shown that the PrEP mandate substantially burdens its religious exercise,” he wrote in the ruling.
In addition to siding with Hotze’s claim, O’Connor also agreed with all the plaintiffs who argued that the U.S. Preventive Services Task Force did not have the authority to determine preventive health care.
“What Judge Reed O’Connor said was that the he accepted the plaintiffs’ argument with regard to the U.S. Preventive Services Task Force, that they weren’t properly appointed,” said Laurie Sobel, an expert on women’s health policy.
Attorneys for the plaintiffs did not respond to an email asking for comment on Thursday. The Star-Telegram will update this article online if they respond.
What happens next?
The ruling will not have any immediate effect on people with private health insurance, or people who take drugs like Truvada or Descovy to reduce their chances of contracting HIV.
In the past, O’Connor has ruled nationwide injunctions with his rulings. But that’s not what happened Wednesday, Sobel said.
O’Connor has scheduled a hearing in the case on Friday.
Once a final decision is issued in the case, one or both parties could file an appeal.
“Everyone’s going to appeal,” said Sobel, who is the associate director of women’s health policy at the Kaiser Family Foundation. “No one got what they wanted. Everyone got a piece of what they wanted, and a piece of what they didn’t want.”
Ultimately, the case could make its way to the U.S. Supreme Court. Public health experts have said they are worried that if the Supreme Court agrees with Kelly, Hotze, and the other plaintiffs, the case could end access to free preventive health care.
The plaintiffs also oppose insurance coverage of certain types of birth control and testing for sexually transmitted infections. O’Connor’s Wednesday ruling only addressed the PrEP drugs, but the case could affect access to other services as well.
What is PrEP?
PrEP is widely recognized as a game-changing drug in the effort to stop the AIDS epidemic. When taken daily as prescribed, PrEP can reduce the risk of getting HIV through sex by about 99%, according to the U.S. Centers for Disease Control and Prevention.
The drug is recommended not just for men who have sex with men or for people who inject drugs intravenously, which the plaintiffs say they oppose on religious grounds.
PrEP can be prescribed to women who are at higher risk of contracting HIV, including women who have a partner with HIV or women who already have another sexually transmitted infection.
In 2020, more than 30,000 people were diagnosed with HIV in the U.S.
Key players in the case
Kelley joined five other people, along with his business and Braidwood Management Inc. in suing the government. Originally, Kelley was the first-listed plaintiff in the case, but his attorneys successfully requested a change in suit’s name in August because media coverage of the case “has triggered a wave of threats and cyberbullying directed” at Kelley, his business, and his family, according to a legal filing.
Braidwood is in the Houston area, where Hotze has long promoted and sold supplements like colloidal silver, which is used in jewelry and dental fillings, as a diet supplement. (Health experts and drug regulators including the Food and Drug Administration have long said that humans should not ingest any products containing colloidal silver, as they can have dangerous side effects.) Hotze has promoted the QAnon conspiracy theory, a belief that an anonymous government insider named “Q” posts messages online. Hotze has also supported baseless claims about the 2020 election and repeated violent, homophobic threats.
One of the attorneys representing the plaintiffs, Jonathan Mitchell, has also been credited with designing the unusual enforcement mechanism behind Senate Bill 8, the law that outlawed all abortions after about six weeks of pregnancy. That law, which remains in effect in Texas, allows anyone, even those with no connection to the pregnancy, to seek civil damages for an abortion they believe is illegal.
The case was filed in Fort Worth and assigned to O’Connor, who was appointed to the position by President George Bush. O’Connor has previously ruled against and issued injunctions against the Affordable Care Act.
The defendants are leaders in the U.S. federal government, including Xavier Becerra, the Secretary of the Department of Health and Human Services.
This story was originally published September 7, 2022 at 2:01 PM.
