Judge rules HIV prevention mandate violates ‘religious freedom’
A federal judge ruled yesterday that requiring insurance companies to cover medications for HIV pre-exposure prophylaxis, or PrEP, violates their rights on religious grounds.
The ruling from U.S. District Judge Reed O’Connor, a George W. Bush appointee, focuses on claims from a Christian for-profit corporation that the Affordable Care Act requirement to cover preventative care like PrEP drugs violates the Religious Freedom Restoration Act.
The company, Braidwood Management, is run by GOP megadonor Steven Hotze. He argued that the PrEP mandate substantially burdens his religious exercise because he believes that the Bible condemns homosexual conduct and coverage of PrEP drugs “facilitates and encourages homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman.”
Judge O’Connor found that Hoetze need not provide empirical evidence for his beliefs. Because Hoetze believes PrEP drugs “encourage homosexual behavior, drug use, and sexual activity,” the courts must accept it and cannot question its “correctness.”
Rather than disputing the law, Defendants dispute Hotze’s beliefs. They argue that Hotze’s claim that PrEP drugs facilitate various kinds of behavior is an empirical one that requires factual support. But Defendants inappropriately contest the correctness of Hotze’s beliefs, when courts may test only the sincerity of those beliefs. The Supreme Court has “made it abundantly clear that, under RFRA, [HHS] must accept the sincerely held complicity-based objections of religious entities.” Defendants may not “tell the plaintiffs that their beliefs are flawed” because the connection between the morally objectionable conduct and complicity in the conduct “is simply too attenuated.” In other words, “[i]f an employer has a religious objection to the use of a covered contraceptive, and if the employer has a sincere religious belief that compliance with the mandate makes it complicit in that conduct, then RFRA requires that the belief be honored.”
Hotze, described by Vice News as “a physician who got rich by hawking ‘alternative treatments’ for postpartum depression, aging, thyroid problems, and even COVID-19,” is a leading figure in Texas GOP politics with a long history of anti-LGBTQ+ rhetoric. He began his career as a coordinator of a Christian Reconstructionist group called the Coalition on Revival, which advocated for greater influence of Christianity upon government. It wasn’t long before he turned his Christian beliefs against the LGBTQ+ community:
In the early ’80s, he emerged on the Texas political landscape as a voice against homosexuality. “Once you allow them acceptability, then you allow them to proliferate,” he told the Third Coast magazine in 1982. “And they proliferate by one means, and one means only, and that’s recruiting. And they recruit the weak. They recruit children or young people in their formative years.”
Three years later, after overturning an anti-discrimination ordinance in Houston, Hotze organized a group of eight candidates he considered allies in the fight against homosexuality. He called them “the Straight Slate.” His preferred mayoral candidate said that the best way to fight AIDS was to “shoot the queers.” Hotze told a local newspaper reporter that he cased out restaurants before making reservations to make sure they didn’t have any gay employees and became such a divisive figure in local politics that for a brief period the Harris County Republican Party cleaved in two.
With the emergence of the Tea Party and a stronger conservative court, Hotze began filing lawsuits and submitting briefs that advance his far right beliefs. Most prominently, in 2013, Hotze brought suit against the Affordable Care Act, arguing that the law violated the U.S. Constitution’s origination and takings clauses. The Supreme Court ultimately declined to hear the case.
During the height of the pandemic, Hotze filed at least eight lawsuits against Texas, Harris County, and the City of Houston for adopting measures to prevent the spread of the virus. All were dismissed. He then faced significant criticism—even from his own party—for demanding that Texas Gov. Greg Abbott order the Texas National Guard “shoot to kill” racial justice protesters in the wake of the murder of George Floyd.
You may remember the air conditioner repairman who was assaulted in October 2020 because a former cop believed his truck carried 750,000 fraudulent ballots—Hotze was behind that fiasco, as well. In late August 2020, Hotze founded a nonprofit, Liberty Center for God and Country, to search for evidence of alleged fraud leading up to the 2020 election. The group’s lead investigator, Mark Anthony Aguirre, was hired by Hotze and paid a total of $266,400.
An ex-captain in the Houston Police Department was arrested Tuesday for allegedly running a man off the road and assaulting him in an attempt to prove a bizarre voter-fraud conspiracy pushed by a right-wing organization.
The suspect, Mark Anthony Aguirre, told police he was part of a group of private citizens investigating claims of the massive fraud allegedly funded by Facebook CEO Mark Zuckerberg and involving election ballots forged by Hispanic children. He said the plot was underway in Harris County, Texas, prior to the Nov. 3 election.
Aguirre said he was working for the group Liberty Center for God and Country when, on Oct. 19, he pulled a gun on a man who he believed was the mastermind of the scheme. His victim, identified as “DL” in the police affidavit, is an air-conditioner repairman. Authorities found no evidence that he was involved in any fraud scheme claimed by Aguirre.
The New York Times described O’Connor as “a favorite of Republican leaders in Texas, reliably tossing out Democratic policies they have challenged.” Texas officials regularly file lawsuits in O’Connor’s jurisdiction so he will hear them—and it has paid off.
In 2015, O’Connor declared unconstitutional a portion of the Gun Control Act of 1968 that prohibited Americans from buying handguns in any state that is not their own. The Fifth Circuit Court of Appeals reversed his ruling.
Months later, O’Connor issued an injunction against the U.S. Department of Labor for providing federal Family and Medical Leave Act for same-sex spouses. He was forced to vacate his ruling after the Supreme Court legalized same-sex marriage in Obergefell v. Hodges.
In 2016, O’Connor issued a nationwide injunction preventing the Obama administration’s Title IX guidance from taking effect. The rule would have required that schools receiving federal funding allow transgender students access to bathrooms based on their gender identity.
Between 2016 and 2018, O’Connor found the Affordable Care Act unconstitutional twice: once for allegedly violating the Religious Freedom Restoration Act by prohibiting sex discrimination and once for allegedly violating the nondelegation doctrine.
Later in 2018, O’Connor struck down portions of the Indian Child Welfare Act, finding that it violates the Fifth Amendment’s equal protection guarantee by mandating racial preferences.
In 2022, O’Connor issued an injunction preventing the Navy and Defense Department from punishing special forces members for refusing to get the COVID-19 vaccine.