It also found that the governmental body recommending the preventive coverage violates the Appointments Clause of Article II of the U.S. Constitution.
Braidwood Management, located in Houston and owned by Steven Hotze, filed suit against the U.S. Health and Human Services Secretary Xavier Becerra along with several other cabinet members for violating the U.S. Constitution and the federal Religious Freedom Restoration Act (RFRA), which became law in 1993 under President Bill Clinton.
U.S. District Court Judge for the Northern District of Texas Reed O’Connor granted Braidwood’s motion for summary judgment on the religious freedom issue and violation of the Appointments Clause.
Under the ACA, health insurance plans must cover pre-exposure prophylaxis (PrEP) drugs to prevent HIV infection.
As the owner of a corporation with approximately 70 employees, Hotze wishes to provide a self-insured plan that excludes coverage of PrEP drugs.
His objection to the coverage is based on his religious belief that providing such coverage “facilitates and encourages homosexual behavior, intravenous drug use, and sexual activity outside of marriage” and would make him complicit in such behaviors, which violate his biblically-based beliefs.
As O’Connor pointed out in his opinion, RFRA prohibits the government from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability.”
O’Connor noted that if Hotze does not provide PrEP coverage, he “faces a substantial monetary penalty” which is a “substantial burden of his religious exercise.”
In response to Hotze’s religious objection, the government defendants questioned whether Hotze’s beliefs were correct, but the judge noted that courts “may test only the sincerity of those beliefs.”
Once plaintiff Hotze demonstrated that his religious beliefs were substantially burdened, the government must demonstrate a compelling interest furthered by the least restrictive means available.
However, O’Connor found the government argued its compelling interest too broadly, claiming the interest is to reduce the spread of HIV.
“Defendants do not show a compelling interest in forcing private, religious corporations to cover PrEP drugs with no cost-sharing and no religious exemptions,” O’Connor wrote of the more narrow interest that he said must be examined.
He pointed out that the ACA already allows some exemptions for “grandfathered” plans and employers with fewer than 50 employees. The government did not show why these exemptions are acceptable, but Hotze’s religious exemption would not be.
Article II Appointments Clause
Also of significance was O’Connor’s decision in favor of the plaintiffs that the members of the U.S. Preventive Services Task Force (PSTF), which has been given the “authority to determine what preventive-care services private insurers must cover,” are unconstitutionally appointed under Article II of the U.S. Constitution.
The so-called Appointments Clause requires that principal officers of the United States must be “appointed by the President and confirmed by the Senate.”
PSTF members “indisputably fail that constitutional requirement,” O’Connor wrote, because they are not presidentially appointed.
Citing a 1997 U.S. Supreme Court decision which noted that “[t]he Appointments Clause of Article II is more than a matter of ‘etiquette or protocol’; it is among the significant structural safeguards of the constitutional scheme,” O’Connor granted the plaintiffs’ summary judgment on the issue.
The scope of the remedy that the judge will grant for the Appointments Clause issue has not yet been decided, but it could have national implications.
Because the PSTF is unconstitutionally appointed, the court must decide whether to grant relief only to this set of plaintiffs with regard to the PSTF’s preventive mandates or invalidate the PSTF’s authority to prescribe preventive care nationwide.
O’Connor has asked for further briefing from the parties about the scope of relief he should grant.
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Kim Roberts
Kim Roberts is a regional reporter for the Texan in the DFW metroplex area where she has lived for over twenty years. She has a Juris Doctor from Baylor University Law School and a Bachelor's in government from Angelo State University. In her free time, Kim home schools her daughter and coaches high school extemporaneous speaking and apologetics. She has been happily married to her husband for 23 years, has three wonderful children, and two dogs.
