U.S. judge cites religious freedoms in striking down insurance coverage for HIV drugs

PrEP-pills-150x150While increasing numbers of Americans tell pollsters that they are forgoing religion and seeing its practice diminish in importance in their lives, those with religious fervor are finding a federal judiciary willing to delve into the complexity of faith and medicine in deeply polarizing ways.

The looming midterm elections, pollsters say, already have been upended by the U.S. Supreme Court’s overturning of a half-century of settled law in turning back to the states critical decisions about women’s reproductive health and the allowance of abortions, including in cases involving rape and incest.

A federal judge in Texas with demonstrated extreme views has further stoked the increasing fires over religion and health care by ruling unconstitutional the process by which Obamacare decides what kinds of preventive health care must be covered by private health insurance, as the New York Times and other media outlets have reported.

U.S. District Judge Reed O’Connor — who previously has been reversed by higher courts in his efforts to strike down the entirety of the landmark Affordable Care Act that has provided health coverage to tens of millions of poor, working poor, and middle-class Americans — specifically sought to shield a Christian-owned company from having to pay for HIV drugs for its employees, saying to do so violated the owners’ religious freedoms.

Critics assailed the decision, pointing out to start that the firm, Braidwood Management, and its owner, Dr. Steven F. Hotze, described the New York Times as a well-known Republican donor and doctor from Houston, has not been compelled to make any payments for the drugs in question. He simply asserted that the potential demand to do so would force him to condone homosexuality, which he says his Christian faith rejects.

Another problem that critics see with this case and its fundamentals: It is a falsehood that HIV prevention and treatment affects only gay men, as the federal Centers for Disease Control and Prevention has reported that 1 out of 5 new infections in 2020 involved heterosexual women and 1 in 10 such cases involved intravenous drug users (who may or may not also have engaged in same sex relations).

O’Connor’s ruling has a further, significant, collateral consequence, as he also rejected the federal government’s reliance on the expert counsel on health matters provided by the independent, nonpartisan experts who voluntarily serve on the U.S. Preventive Services Task Force.

The task force, which solicits public comment and scrutinizes available data on an array of medical services, publishing its rigorous findings in detailed fashion in leading medical journals, has won high praise for providing clear, useful guidance on contentious health concerns, including mammograms, prostate tests, vitamin consumption to prevent cancer, and daily low-dose aspirin use to avert heart conditions.

O’Connor, however, said the panel is unconstitutional in its action because its recommendations are binding while its members are not appointed by the president and confirmed by the Senate.

The American Medical Association and other medical groups denounced O’Connor’s decision, which the judge has asked affected parties to provide further briefs on and likely will be appealed when final.

Ruth Marcus, a Washington Post columnist and deputy editor of the newspaper’s Editorial Pages, wrote of the challenges posed by a growing battery of cases involving religion and health care. She traces the current upsets, in part, not only to the high court’s recent abortion decision but also to an earlier ruling in Burwell v. Hobby Lobby, in which “the court said the religious freedom of a privately owned company was violated by the ACA’s contraceptive mandate.” She argues this::

“My point here isn’t to be dismissive of freedom of religion. As a member of a minority faith, I’m sympathetic to such arguments. Some of them — as in the case of the religious baker called on to create a custom cake for a same-sex wedding — present difficult issues. But, as this dispute [on HIV drugs] demonstrates, things have gotten entirely out of whack and, in this era of conservative-dominated courts, now tilt too far in the direction of religious rights. Medicine has made enormous strides since the emergence of the AIDs epidemic. Antiviral PrEP medications — short for pre-exposure prophylaxis — reduce the risk of contracting HIV from sex by 99%. As a result, a government advisory committee recommended in 2019 that the drugs be made part of the mandatory package of fully subsidized preventive care. This is a development that everyone should cheer, including people who call themselves Christians: It prevents needless death.”

In my practice, I see not only the harms that patients suffer while seeking medical services, but also their struggles to access and afford safe, efficient, and excellent health care. This has become an ordeal with the skyrocketing cost, complexity, and uncertainty of treatments and prescription medications, too many of which turn out to be dangerous drugs.

In a world of rapid, shocking changes, the practice of medicine has become legend for its conservatism. It can take years for widely reported results from rigorous clinical trials to turn into accepted bedside treatments. Sure, it’s great when medical-scientific advances are so overpowering that they transform aspects of medical treatment.

But when patients’ lives are at stake, it makes sense that medicine hews to careful, evidence-based care, rejecting fads and seeming flashes of improvements that, alas, can turn out to be harms. These are not rare, alas, and the news columns carry reports of surgical “breakthroughs” that end up debilitating or killing patients (think of the cancer-spreading “morcellator” used on women) or of prescription medications promoted as wonder drugs that aren’t (think of thalidomide).

Uncertainty is not a happy characteristic in either financial markets or medical treatment. Clear, carefully established standards for doctors, nurses, and hospitals have helped to improve modern health care — significantly.

The courts should take huge care in becoming an external, disruptive force, particularly if the public standing of the judiciary is put at risk by even the appearance of political partisanship. Most health workers and institutions across the country are struggling to give the best available medical treatment to patients, even while the highest court in the land seemingly erased standards of care developed over decades for a basic of medicine such as when life begins, much less when a woman’s life is in enough peril, legally speaking, for medical intervention.

We are a nation that has flourished by accommodation and acceptance of many points of view. We have much work to ensure that this democratic ideal sustains, and that caution, nuance, compassion, and common sense do not get overwhelmed by extremists

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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