Health Care

Yep, Forcing Employers To Pay for Drugs That Violate Their Consciences Is Still Prohibited by Federal Law

A judge sided with a plaintiff who objects to procuring coverage for HIV-prevention medications. Rightly so.


A provision of the Affordable Care Act, a.k.a. Obamacare, requiring private employers to cover the cost of controversial drugs was struck down by a federal judge today. 

Before you start checking the year on your calendar, note that it isn't contraception at the heart of the dispute this time, as it was in 2014, when the Supreme Court found that family-owned companies such as Hobby Lobby couldn't be forced to pay for abortifacients, and in 2016, when the Supreme Court ruled in a similar case regarding religious entities such as the Little Sisters of the Poor. But the facts of the current case are parallel, so the outcome should probably not be a source of great surprise.

"US District Judge Reed O'Connor ruled that the requirement that employers offer insurance plans that cover HIV-prevention pills, known as PrEP drugs, violates the Religious Freedom Restoration Act" (RFRA), reported CNN. "The requirement's challengers, employers in Texas, argued that the mandate facilitated behavior to which they have religious objections."

RFRA, which was signed into law to great and bipartisan fanfare by then-President Bill Clinton, creates a multipronged standard for when the federal government may coerce Americans into violating their consciences: For such a regulation to pass muster, it has to further a "compelling governmental interest" and to be the "least restrictive means" of doing so.

Courts are often loath to interfere when it comes to that first prong. In the Obamacare contraception cases, for example, the justices accepted (dubiously, in my opinion, but we'll set that aside for now) that lawmakers have a compelling interest in ensuring women's access to free birth control. It was the second prong, they said, where the mandate went awry. 

As the state was eventually forced to admit, demanding that employers be the ones to pay for women's birth control is not the only means to lawmakers' stated end. Other, less restrictive methods—direct provision through a federally funded program, say—could achieve the same thing. Heck, such an alternative would arguably be more efficient, given that not everyone has employer-provided health insurance (or, for that matter, an employer) at all.

In any case, the "least restrictive means" prong of RFRA's test has for years now been understood to shield many Americans from requirements to pay for drugs to which they have religious objections. The employers in today's PrEP drugs case voiced such objections to being "complicit" in what they view has an immoral sexual lifestyle. (Abiding by the mandate, they said, would amount to "facilitating homosexual behavior, drug use, and sexual activity outside of marriage.")

Whatever you think of the substance of that conviction, the underlying principle remains valid and worth defending: "The government should be held to a very high level of proof before it interferes with someone's free exercise of religion," as Clinton put it back in 1993. "We can never be too vigilant in this work."