Last week, Federal District Judge Reed O’Connor ruled that a for-profit corporation with 70 employees was entitled to an exception from a legal obligation to provide those employees with health insurance covering PrEP—which protects against infection with HIV/AIDS. Why? Because the owner of the company does not wish to be complicit in facilitating or encouraging “homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman,” which he believes are immoral on religious grounds.
The decision in Braidwood Management Inc. v. Becerra is not Judge O’Connor’s first effort to undermine implementation of the Affordable Care Act. He previously held the Act entirely unconstitutional on the ground that when Congress eliminated the tax penalty for failing to obtain health insurance, it retroactively lost the power to enact the coverage mandate—and every other provision of the Act. Even the very conservative Supreme Court reversed that decision, albeit on the ground that the state of Texas lacked legal standing to bring the case.
Judge O’Connor does not appear at all chastened. The Braidwood decision does not simply provide an exception to the PrEP insurance requirement. It also finds that a federal health advisory panel violates the Constitution’s Appointments Clause and hints at still more mischief to come.
For now, however, I shall focus on the PrEP ruling. As I shall explain, that aspect of Braidwood finds support in the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby. However, that fact is more damning of the Supreme Court than it is a defense of Judge O’Connor’s Braidwood decision.
RFRA and Hobby Lobby
In the 1990 case of Employment Division v. Smith, the Supreme Court held that the Free Exercise Clause of the First Amendment does not entitle anyone to a religion-based exception from a general law. Congress responded by enacting the Religious Freedom Restoration Act (RFRA), which does provide for such exceptions from federal law. (As enacted, RFRA also provides religious exceptions from state and local laws, but the Supreme Court held that aspect of RFRA unconstitutional in 1997 in City of Boerne v. Flores.)
The original impetus for RFRA was protection for members of minority religions whose interests legislators might easily overlook. The Smith case itself was the paradigm. It involved a peyote prohibition as applied to two Native Americans.
However, RFRA extends protection to practitioners of all faiths, and in recent years conservative Christians have increasingly relied on it to obtain exceptions from laws involving insurance coverage for contraception and abortion as well as laws forbidding discrimination against LGBTQ+ persons. The Supreme Court has blessed these efforts in a number of cases, the most salient of which was Hobby Lobby. There the Court held that RFRA entitled a for-profit corporation owned by a religious Christian family to an exception from the obligation to pay for health insurance for their employees covering forms of contraception that the owners regarded as tantamount to abortion.
As Justice Ruth Bader Ginsburg noted in dissent, Hobby Lobby was “a decision of startling breadth,” holding that “commercial enterprises, including corporations . . . can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs” unless there is no “less restrictive alternative.” The term “least restrictive means” appears in RFRA itself, but as Justice Ginsburg explained, the Hobby Lobby majority’s interpretation of that term was expansive. Under it, “there always will be” a less restrictive alternative to burdening a company’s asserted religious freedom whenever “the government, i.e., the general public, can pick up the tab.”
Application and Extension
Judge O’Connor’s Braidwood ruling applies and arguably extends the dubious logic of Hobby Lobby. Despite centuries of law treating the corporate form as distinct from its human owners, both cases treat a profit-making corporation as a bearer of the religious views of its owners.
Moreover, both cases apply a version of the least restrictive means test that is nearly impossible for the government to meet. Following the lead of the Supreme Court in Hobby Lobby, in Braidwood Judge O’Connor says that the government could directly pay for PrEP, rather than requiring employer-provided health insurance to cover it—despite the enormous burden that would be placed on the government and individuals subject to their employers’ potentially limitless variety of religious views. Even as the COVID-19 pandemic persists, Congress has lately failed to provide needed funding for vaccination and testing. It is unrealistic to expect the government to roll out free standalone vaccination and other health care programs for every imaginable circumstance in which someone raises a religious objection to the ordinary mechanism of employer-provided health insurance.
In one respect, Braidwood is even more extravagant in accommodating religious views than was Hobby Lobby. The owners of Hobby Lobby objected to paying for health insurance that would cover what they regarded as abortions. That’s already an attenuated notion of complicity, but at least Hobby Lobby’s owners were complaining that they would be indirectly funding activity (abortifacient contraception) that they thought immoral on religious grounds. The Braidwood claim is a further leap.
Braidwood’s owner does not regard PrEP itself as immoral. Rather, he worries that by paying for health insurance that covers PrEP he becomes complicit in people taking PrEP, which in turn makes him complicit in their having gay sex or sex outside of marriage, because people who take PrEP greatly reduce the risk of contracting HIV/AIDS and thus are willing to engage in such activity.
That objection is callous and cruel. As Justice John Paul Stevens wrote in a concurrence in a 1977 case involving restrictions on access to contraception, banning preventative measures to condemn activity they make safer is akin to expressing “disapproval of motorcycles by forbidding the use of safety helmets.”
Meanwhile, the logic of the religious exception allowed by Judge O’Connor has no clear stopping point.
Gluttony is one of the seven deadly sins. Can an employer now remove coverage for insulin from the health insurance provided employees on the ground that insulin facilitates survival with Type II diabetes, which in turn removes a disincentive to overeating and thus the sin of gluttony?
Can employers who object to sloth—another deadly sin—escape their obligation to comply with the minimum wage and maximum hours provisions of the Fair Labor Standards Act on the ground that paying employees as little as possible and working them as long as possible keeps them busy? In each such case, it seems that the government will fail the least-restrictive-means test, because, as Justice Ginsburg observed in her Hobby Lobby dissent, the government could directly foot the bill to make up any difference.
In any event, it is unnecessary to invent hypothetical examples that demonstrate the absurdity of Judge O’Connor’s conclusion. The actual case itself is more absurd than almost any hypothetical: Braidwood holds that a religiously motivated homophobic owner of a corporation has a right under RFRA to deny the corporation’s employees health insurance covering potentially lifesaving medicine because the owner does not want to be associated in even the most indirect way with the employees’ sexual activities in their private lives. The mere statement of that holding should suffice to indict the courts’ expansive interpretation of RFRA.
