The PrEP decision is bad — but the question now is whether any judges will stop it

Far-right US District Judge Reed O'Connor ruled that requiring employers with religious objections to include the HIV-prevention drug in their insurance plans violates federal law.

The federal requirement that insurance plans cover medication that is 99% effective at preventing the sexual transmission of HIV to the person taking it — known as PrEP — violates the religious rights of objecting employers, US District Judge Reed O’Connor ruled Wednesday morning.¹ The ultra-conservative federal judge in Texas also ruled that the members of the task force that recommended the coverage were unconstitutionally appointed.

If the first ruling stands, one of the most effective ways of ensuring access to one of the most effective ways of fighting HIV could face significant challenges. The second ruling calls into question the legitimacy of all of the preventative care recommendations the federal task force made in the wake of the Affordable Care Act.

O’Connor did not issue any “remedy” yet in the case, the relief that he would order in light of his findings. Instead, he called for the parties by Friday to propose a timeline for another round of briefing on what relief he should grant, as well as a couple of other issues (that could themselves become more significant as the case proceeds).

Before the Trump era, O’Connor — appointed by former President George W. Bush — was clearly one of the most conservative district court judges in the nation. Even now, he’s likely still in the top 10 — at least in terms of output. He has has ruled repeatedly against both the Affordable Care Act and LGBTQ rights, relevant here. Conservative lawyers seek out his courthouse for an eagerly supportive ear and pen (or computer).

He is so far to the right, in fact, that many of his rulings have been reversed on appeal or overturned indirectly by conflicting US Supreme Court rulings. Yes, even by the Supreme Court after Justice Amy Coney Barrett took former Justice Ruth Bader Ginsburg’s seat.

But, that was before this past term, when the reactionary five-justice majority, sometimes joined by Chief Justice John Roberts, have taken the court in ever-more-objectionable, partisan directions. The problem with this ruling coming down at this time is that it’s impossible to say that any court above O’Connor — the US Court of Appeals for the 5th Circuit or the US Supreme Court — will stop him.

They should, to be clear. Opposition to the ruling came far and wide on Wednesday, from House Speaker Nancy Pelosi to the former surgeon general in the Trump administration, Jerome Adams.

The question is: Will they?

This particular challenge was brought in 2020 on behalf of a handful of employers by Jonathan Mitchell, the former top appellate lawyer for the state of Texas who more recently is known for being the lawyer behind Texas’s HB 8 vigilante enforcement six-week abortion ban. In the lawsuit, the individuals and companies have raised several objections to various preventative care requirements resulting from the ACA. In addition to the PrEP coverage requirement, the lawsuit takes aim at the HPV vaccine requirement, contraceptive coverage requirement, and youth health guidelines relating to drug and alcohol use and STI screening.

In today’s ruling, O’Connor sided with the plaintiffs on the PrEP coverage challenge and their challenge to the task force that made the PrEP recommendation. And while he ruled against the plaintiffs on several other grounds, he opened several doors and windows along the way that could expand this ruling as the case proceeds — or encourage new litigation on other fronts.

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The PrEP Part

After holding arguments in July, O’Connor ruled on Wednesday that requiring no-cost coverage for pre-exposure prophylaxis medication (or, PrEP) violated an employer’s religious rights under the Religious Freedom Restoration Act (or, RFRA).

In doing so, he credited explicitly anti-gay views expressed as religious beliefs as providing justification for their claim.

He then relied upon the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby to conclude that the government and the courts can’t “contest the correctness” of the plaintiffs’ beliefs.

Under RFRA, the government’s PrEP coverage requirement could stand without exemption if it meets a “compelling governmental interest” and is “the least restrictive means” of advancing that interest. O’Connor found that it does neither.

Specifically, while “reducing the spread of HIV” could be a compelling interest — technically, he didn’t even find that it is, he just noted that even the plaintiffs don’t challenge that — O’Connor found that that’s not enough for RFRA. Again turning to Hobby Lobby, he stated that the government needs to show a compelling state interest in enforcing the coverage requirement against the plaintiffs and others with similar religious objections. Under that narrow rule, he finds there is no compelling interest, in part because the government provided no evidence that religious objectors’ coverage is essential and in part because there are other, non-religious exemptions.

As the second part, O’Connor also found it isn’t the least restrictive means because the government could just provide PrEP to or pay for PrEP for anyone who needs it. (Reed “Single Payer” O’Connor? (No, but?))

With that, O’Connor ruled that the RFRA claim succeeds.

The logic of O’Connor’s expansion of the reasoning of Hobby Lobby here could seemingly lead to ever-more extreme results. Could an employer successfully oppose coverage for pregnancy-related care utilized by same-sex couples? Going further, could an employer refuse coverage for any pregnancy-related care other than for opposite-sex married couples? OK, let’s say those don’t work because RFRA’s a statute and those would violate the Equal Protection Clause of the Constitution. We can go even more broad. What about refusing to include health care coverage that an employer decides — again, remember that per O’Connor, we can’t look at the correctness of the belief — would make them complicit in gluttony or sloth?

Is there any end to this logic?

And would a Supreme Court so focused on religious supremacy even oppose the logic?

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(Un)Constitutional Officers

As I wrote above, though, that wasn’t all that O’Connor did. In a part of the ruling that could lead to significant fallout in other areas if it stands, O’Connor ruled that the members of the U.S. Preventive Services Task Force (or, PSTF) are unconstitutionally appointed.

Pulling on a line of Supreme Court cases interpreting the Constitution’s Appointments Clause, O’Connor found that the volunteer, part-time members of the task force are “Officers of the United States” under the Constitution. This is based on a decision that they are in a “continuing position” and exercise “significant authority.” If they are officers, that would mean that they would have to be appointed in one of two particular ways.

This determination that they are constitutional “Officers” because they are in a “continuing position” is the weakest part of this section of O’Connor’s ruling, as even he seems to acknowledge. He dismissed the part-time nature of the positions as not controlling the decision because, in his view, they require significant (about five weeks a year) of work, in addition to three in-person meetings a year. He also dismissed the volunteer nature of the appointment by saying that pay is a part of the analysis — but just “one aspect among many relevant” to the decision.

On the second question in determining whether someone is an “officer,” O’Connor finds that Congress, in passing the ACA, might have changed their status by formalizing some of the effects of their recommendations. The task force had already been around for more than two decades when the ACA was passed — so, more than three decades now. O’Connor found, though, that the ACA’s decision to give the task force recommendations “the force and effect of law” when it came to required preventative care coverage had the additional effect of making the task force members constitutional “officers.”

O’Connor then quickly determined that the members were unconstitutionally appointed because officers must be appointed in one of two ways. A principal officer — which he found the task force members to be — must be nominated by the president and confirmed by the Senate. Which, admittedly, they weren’t. Even if they were inferior officers, O’Connor added, their appointment would still be unconstitutional because the director who appoints them is not one of the people constitutionally permitted to appoint inferior officers.

While the PrEP ruling has a more tangible effect in the immediate reading of the opinion, the PSTF ruling could have far-reaching effects — up to and including invalidation of all of their actions — due to the range of recommendations made by the task force. (This is something still to be determined during this upcoming “remedies” timeline discussed above.)²

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Nondelegation Matters

As noted, O’Connor rejected some of the plaintiffs’ claims on Wednesday — but he also opened the door to other religious exemption claims going forward and even suggested that the US Supreme Court should take up a case that could upend the modern executive branch.

First, O’Connor didn’t even consider the Appointments Clause arguments as to the Advisory Committee on Immunization Practices (or, ACIP) — which recommended the HPV vaccine — and the Health Resources and Services Administration (or, HRSA) — which recommended the contraceptive coverage requirement and the youth screenings — because he found that the HHS secretary was able to and did ratify their actions.

In many circumstances, if an unauthorized government employee takes an action, the person who is authorized to do so can ratify the act — protecting it from challenge on those grounds. Here, O’Connor found that Secretary Xavier Becerra did properly ratify ACIP and HRSA’s acts. (At the same time, however, he found that the independence of the PSTF’s recommendations meant that Becerra couldn’t ratify them. That’s why he went through the Appointments Clause discussion as to the task force.)

Second, in addition to the ruling leading to more RFRA challenges to ACA requirements if it stands, O’Connor specifically left open — and asked for further briefing in this case on — a question about RFRA-based objections to the contraceptive coverage requirement in light of the recent dismissal of another RFRA case about contraceptive coverage involving the same plaintiffs.

Finally, O’Connor rejected the plaintiffs’ nondelegation argument — essentially a project of some on the right to give the courts significant ability to more easily strike down executive agency action by limiting what Congress can delegate to the executive brach in legislation. O’Connor relied upon a 5th Circuit decision to reject their argument here, but also quoted from a part of that 5th Circuit decision that stated that the Supreme Court “perhaps soon” could “revive” the nondelegation doctrine.

Such a move would, in some ways, be an expansion of the “major questions” doctrine that has come up several times recently, an idea which itself is providing the Supreme Court with an excuse to strike down “big” things that the executive branch attempts.

The nondelegation doctrine goes much further, limiting not just the executive branch but also Congress’s ability to give power to the executive branch. Specifically, a revived nondelegation doctrine would limit the ability of executive agencies to determine how to best implement the goals and purposes of laws — determinations Congress regularly delegates to agencies due to agency expertise about complex, technical matters.

1. The effectiveness of PrEP, discussed in this sentence, was clarified in a 9:00a Sept 8, 2022, update.

2. This paragraph was updated at 8:40a Sept. 8, 2022, to expand on the implications of the ruling.