Opinion | Will Our Judiciary Elevate Religious Freedoms Above Public Health?

Braidwood Management v. Becerra, decided last Wednesday, is the latest in a series of attacks on the Affordable Care Act (ACA).

Federal district court judge Reed O’Connor in Texas ruled that U.S. Preventive Services Task Force (USPSTF) members were appointed in violation of the Constitution’s Appointments Clause. This has immense implications for the ACA, which requires most health plans cover USPSTF “A” or “B” recommendations without cost sharing — clinical prevention services with a high certainty of substantial or moderate net benefit.

The ruling places at risk crucial primary care services, ranging from screenings for cervical, lung, and colorectal cancers, heart disease, and hepatitis, to tobacco cessation services and sexually transmitted infection counseling. The ACA’s preventive service protections benefit more than 150 million privately insured Americans, including many receiving coverage through the healthcare exchanges — a huge step for public health and equity. Access to these services now hangs in the balance.

Judge O’Connor also found that the ACA requirement to cover pre-exposure prophylaxis (PrEP) — an extremely effective lifesaving HIV prevention medication — violated the Religious Freedom Restoration Act (RFRA). Judge O’Connor’s opinion is even more troubling for the doors it opens to discrimination in healthcare under the guise of religious belief and for its broader implications for the government’s ability to protect public health.

ACA’s Preventive Services Mandate and the Appointments Clause

Judge O’Connor found USPSTF members were appointed in violation of the Constitution’s Appointments Clause, which requires that “officers” of the U.S. be properly appointed — for “principal officers,” by nomination of the President and confirmation by the Senate, and for “inferior officers,” by appointment of the President, courts, or cabinet secretaries. Judge O’Connor held that USPSTF members were officers of the U.S. because their recommendations have significant implications for health coverage. He ruled they are principal officers, yet not nominated by the President nor Senate confirmed. Consequently, their selection was unconstitutional, as they were appointed by the Director of the Agency for Healthcare Research and Quality.

Judge O’Connor’s determination is legally flawed because USPSTF members are unpaid national experts in prevention and evidence-based medicine. Remuneration is a necessary component of any formalized employment relationship. It was Congress itself, moreover, that determined the legal impact of USPSTF’s “A” and “B” recommendations.

Judge O’Connor is impinging on Congress’s authority to insulate decision-making from politics. The USPSTF takes the form it does precisely because it is so important to insulate independent experts from political interference.

Judge O’Connor — who previously struck down the entire ACA only to be overruled by the Supreme Court — seems determined to upend the ACA’s coverage mandate. He has already rejected an HHS compromise to allow the Secretary to ratify USPSTF recommendations. The impact could be sweeping.

If USPSTF-recommended services (more than 50) were eliminated, insurers could stop covering or charge patients for key prevention services, affecting population health and burdening lower-income people who, aside from suffering greater exposure to health risks and poorer health outcomes, would also have to spend a larger percentage of their paychecks on preventive healthcare. Many would forgo preventive services entirely, failing to identify early-stage disease and generating far graver and costlier health problems down the road.

Ironically, this could drive up the cost of insurance, despite the fact that plaintiffs in Braidwood Management were motivated by economic considerations.

Religious Freedom and PrEP

Judge O’Connor held that mandated PrEP coverage “substantially burdened” the religious freedom of a Christian for-profit corporation in violation of the RFRA. RFRA protects the free exercise of religion, unless the restriction is narrowly tailored to advance a compelling interest.

The Supreme Court in 1997 ruled that RFRA was unconstitutional as applied to the states, but it still applies to the federal government. In Hobby Lobby (2014), the Court struck down HHS’s contraception coverage mandate under the ACA as applied to closely held corporations. Judge O’Connor asserted PrEP coverage infringed on the plaintiffs’ sincere religious beliefs against homosexuality.

Yet, far from advancing religious freedom, Judge O’Connor turned RFRA into a sword anyone can wield to further discriminatory religious beliefs. He is wrong on the law, and his harmful mixing of religion with healthcare is a dangerous precedent as a matter of health policy and everyone’s right to health without discrimination.

There is no evidence that PrEP encourages homosexual behavior, as the plaintiffs in the case claim. Judge O’Connor confuses sincerely held religious beliefs with acting on those beliefs. There is no factual test of the sincerity of a religious belief. But it is something else entirely to accept at face value the link between homosexual behavior and the provision of PrEP — a factual assertion that is patently false and hateful.

The reliance on Hobby Lobby, moreover, is misplaced. Hobby Lobby found that covering contraception would “enable or facilitate the commission of an immoral act by another.”

We believe Hobby Lobby was wrongly decided and permitted discrimination against women of childbearing age. But in Braidwood Management, rather than facilitating homosexual behavior, all that PrEP facilitates is the prevention of disease.

More disturbing still is the judge’s finding that the government lacked a compelling interest. The life-saving potential of PrEP is indisputable, supported by reams of empirical evidence. In this respect the ruling is heartless, elevating Braidwood’s owner’s religious beliefs over Braidwood’s employees’ lives.

While Hobby Lobby was a somewhat narrow ruling, Braidwood Management would open the door to RFRA exceptions based not on certain healthcare procedures, but on certain people’s right to receive equal health services. Freedom of religion does not supersede universal principles of nondiscrimination, including for people of different sexual orientations or gender identities. Attacks on gender-affirming care are already happening. Citing RFRA, the Fifth Circuit (on appeal from O’Connor) enjoined enforcement against certain religious entities under the ACA’s nondiscrimination requirement.

The most invidious discrimination in healthcare — devaluing the lives of people based on religious objections to their basic dignity — might be possible should this ruling become broadly applicable. Could a health worker deny care to LGBTQ patients under the guise that it would encourage objectionable behaviors? Sadly, this perverse view just might find an ally in a conservative Supreme Court super-majority. That would give credence from the highest levels that one’s sincerely held religious beliefs can be wielded to prevent already marginalized populations from accessing healthcare in violation of the most basic principle of equality before the law.

Braidwood Management demonstrates the absurdity of “forum shopping” for judges sympathetic to reactionary interpretations of the law. And forum shopping for conservative judges has become far easier with former President Trump appointing 226 judges — more than one-third of all federal judges, including 54 federal appellate judges (flipping several Courts of Appeal) and three highly conservative Justices (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett), all 55 years of age or younger.

The sad truth is that even the most flawed and discriminatory rulings by lower federal court judges could find a friendly reception in the nation’s highest court, and for many decades to come.

Lawrence O. Gostin, JD, is university professor, Georgetown University’s highest academic rank, where he directs the O’Neill Institute for National & Global Health Law. He is also director of the World Health Organization Collaborating Center on National & Global Health Law, and the author of Global Health Security: A Blueprint for the Future. Eric A. Friedman, JD, is Global Health Justice Scholar at the O’Neill Institute for National and Global Health Law at Georgetown University Law Center. Alexandra Finch, LLM, is a fellow at the O’Neill Institute for National and Global Health Law.