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Anti-Obamacare judge takes latest swipe at ACA, rules that employers don’t have to provide access to screenings, anti-HIV medication

Judge Reed O'Connor speaks during a Federalist Society panel

Judge Reed O’Connor speaks during a Federalist Society panel

A stalwart conservative federal judge in Texas has again blocked a key component of former President Barack Obama’s landmark health care legislation in a move that could ultimately cut millions off from free access to preventive measures such as cancer screenings and anti-HIV drugs.

U.S. District Judge Reed O’Connor, a George W. Bush appointee in the Northern District of Texas, doubled down on his anti-Obamacare position Thursday in a ruling that prohibits enforcement of an Affordable Care Act (ACA) requirement that health insurers cover certain types of preventive care.

“[T]he ACA forces these Plaintiffs to choose between purchasing health insurance that violates their religious beliefs and foregoing conventional health insurance altogether,” O’Connor wrote in his ruling, echoing the same finding he made in September.

The case involves six individual plaintiffs and three businesses. They argued that they should not be required to fund a plan that provides access to certain screenings, treatments, and medications — including the anti-HIV treatment known as PrEP — because they offend the plaintiffs’ religious beliefs.

Plaintiffs John Kelley, Joel Starnes, Zach Maxwell, and Ashley Maxwell, provide health coverage for themselves and their families and oppose requirements that they obtain insurance that covers PrEP drugs, contraception, the HPV vaccine, drug and STD screenings, and behavioral counseling for STDs and drug use. They say their families do not require preventative care and that any compulsory coverage offends their religious beliefs by making them “complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman.”

Plaintiff Joel Miller also provides health coverage for himself and his family and argues that because his wife is “past her childbearing years,” and that his family does not “engage in the behaviors that makes [sic] preventive treatment necessary,” he should not be required to pay for such coverage.

Plaintiffs Gregory Scheideman, Kelley Orthodontics, and Braidwood Management Inc., object to providing the same kind of coverage for their employees on the grounds that to do so would offend their Christian faith and therefore violates the Religious Freedom Restoration Act (RFRA).

Braidwood, the lead plaintiff in the case, is a corporation owned by conservative activist and GOP megadonor Steven Hotze.

Part of O’Connor’s decision hinged on the nature of the U.S. Preventive Services Task Force (PSTF), which recommends requirements for coverage of preventive measures such as mammograms, colonoscopies and mental health screenings. The plaintiffs argued — and O’Connor agreed — that recommendations for screenings made by the PSTF violate the Constitution’s Appointments Clause because its members are private medical experts and not government employees. As a result, O’Connor reasoned, the government is not entitled to base its requirements on the USPT’s recommendations.

In his ruling, O’Connor used one of the most powerful judicial tools available: he vacated “any and all agency actions taken to implement or enforce the preventive care coverage requirements” on or after March 23, 2010 and issued a nationwide injunction.

Notably, coverage for contraception is not directly affected by the ruling. O’Connor was of a different mind with respect to the plaintiffs’ claims about the contraception mandate, and struck down plaintiffs’ challenges to those provisions.

The Biden administration has not made an official announcement, but is expected to appeal the ruling.

Thursday’s ruling marks the fourth time O’Connor has found that the ACA offends the Constitution. In 2018, he issued a ruling that the entire act itself was unconstitutional — a decision that was ultimately overturned in 2021 by the Supreme Court in a 7-2 ruling that kept the ACA intact.

In 2016, O’Connor issued a nationwide preliminary injunction against the Obama administration’s directive that instructed public schools to allow students to use bathrooms that correspond with their gender identities.

Colin Kalmbacher contributed to this report.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos