To describe what is problematic about permitting this kind of claim to prop open the courthouse door, I’ll quote a widely circulated blog post by Adam Unikowsky. As a former law clerk to Justice Antonin Scalia who now practices before the Supreme Court, his credentials for raising the alarm are no doubt better than mine:
I’d think that most doctors — even staunchly pro-life doctors — wouldn’t think it’s a “conscience violation” if they had to save the life of a woman who showed up in the emergency room. Emergency room doctors have to help patients who have been in lots of different life situations, including life situations that the doctors might not approve of. If treating a patient makes you feel “complicit” in whatever the patient did to come to the emergency room, being an emergency room doctor is not the job for you. I find it remarkable that these physicians seek to police the activities of all women and all doctors based on these idiosyncratic convictions.
And, I’ll add, it’s remarkable that three federal appellate judges gave these plaintiffs a green light. (Judge Haynes would have stayed the district court’s entire order for “a brief period” and left that issue “to the oral argument merits panel which receives this case” on appeal. But she agreed with her two colleagues to deny the motion to dismiss the case.)
This latest abortion case is not the only recent decision to raise the question of whether, in the eyes of the group now ascendant on the federal bench, there can ever be a religious claim that goes too far. Last month, another federal judge in Texas, one with a long history of antipathy toward the Affordable Care Act, invalidated many of the preventive health care measures that the law has required private insurance policies to cover at no cost to patients. The principal basis for Judge Reed O’Connor’s ruling, which the Biden administration is appealing, was his conclusion that the expert advisory panel that devised the list of covered services was not constitutionally appointed. That portion of the opinion applies across the board, eradicating some of Obamacare’s most important benefits just as the law is gaining popular and political support in red states.
But another portion of the opinion is a specific and special gift to employers who claim that their opposition to Obamacare’s mandatory coverage provision is motivated by religion. The case, Braidwood Management v. Becerra, was filed in 2020 by a group of plaintiffs led by Steven Hotze, a physician and prominent Texas Republican donor who described himself in the complaint as a Christian who “operates his business according to Christian principles and teaching.”
At that time, the H.I.V. prevention drug regimen known as PrEP was about to be added to the list of medications that insurers had to cover. Dr. Hotze’s company, Braidwood Management Inc., was self-insured, and he asserted that he could not permit his insurance plan to cover the PrEP drugs for his approximately 70 employees “because these drugs facilitate behavior such as homosexual sodomy, prostitution and intravenous drug use,” all of which, he said, were contrary to his “sincere religious beliefs.” He was unwilling “to allow his health plan to encourage these behaviors by paying for preventive care needed by those who choose to engage in this conduct.”
Judge O’Connor bought the argument, first in a ruling last September and then in the decision last month that amplified his discussion of the religious claim. The Affordable Care Act “forces these plaintiffs to choose between purchasing health insurance that violates their religious beliefs and foregoing conventional health insurance altogether,” he wrote. Relying on the Religious Freedom Restoration Act, the federal law that the Supreme Court invoked nine years ago to undercut the Affordable Care Act’s original contraceptive mandate, the judge said the government had failed to show why requiring coverage of the PrEP drugs served the public’s “compelling interest.”