The ruling is the latest in a series of challenges to the health-care law. O’Connor himself ruled the entire law unconstitutional in late 2018 — a decision that did not stand after the Supreme Court upheld the law 7-2 last year, the third time the body had considered such a challenge.
The challenge this time centered on several issues, including whether requiring certain preventive services violated the Religious Freedom Restoration Act, passed by Congress in 1993, and also the authority of the government’s Preventive Services Task Force to determine what preventive services employers must cover.
Steve Hotze, one of the plaintiffs and owner of the Christian for-profit corporation Braidwood Management Inc., objected to providing coverage for HIV-prevention drugs, called PrEP, saying they “facilitate and encourage homosexual behavior and sexual activity outside of marriage between one man and one woman.”
The ruling followed up on the 2014 Hobby Lobby case, in which the Supreme Court ruled 5-4 that a company could not be required to provide its employees with coverage for contraception, a mandate that the company argued would make it complicit in what it considered sinful behavior.
PrEP, which stands for pre-exposure prophylaxis, was first approved by the U.S. Food and Drug Administration in 2012 and recommended in 2019 by the U.S. Preventive Services Task Force.
O’Connor’s ruling met with swift opposition from consumer advocacy groups and many Democrats, who said they expected it to be appealed.
A Biden administration official said the decision was under review. Since the judge did not issue an injunction laying out the scope of his decision, “it’s too soon to know really what this means,” said the official, who spoke on the condition of anonymity because they were not authorized to discuss the case.
Consumer organization Protect Our Care said the ruling “threatens the Affordable Care Act preventive services requirement that guarantees free access to over 100 preventive health services, including health screenings, routine vaccinations, well baby and child visits, prenatal care, contraception, and more,” services used by 150 million Americans, according to the group.
“In a legally sane world, this would be quickly overturned, but that’s not the world that we live in” said Ira Lupu, professor emeritus at George Washington University Law School who has specialized in the study of religious freedom.
Lupu said that the new ruling extended the high court’s Hobby Lobby decision.
“It’s not the drug that’s sinful,” he said. “They’re saying many of the people who will want to use this drug will have committed a sin.”
Lupu said the ruling relies on the Religious Freedom Restoration Act, enacted in response to an earlier Supreme Court ruling that was viewed as hostile to religion. The 1990 case ruled against a Native American group that wanted to use peyote in its services. The court ruled that the law against use of peyote applied to all, religions groups and nonreligious groups alike.