Last week, Judge Reed O’Connor of the District Court for the Northern District of Texas struck down key provisions of the Affordable Care Act (ACA) that require private insurance plans to cover certain preventive screenings and services without cost-sharing. As many commentators have already noted, if allowed to stand, this decision will devastate millions of Americans, many of whom will be forced to forgo crucial healthcare in the face of insurmountable cost. In the widespread coverage of this decision, however, one aspect has gone without as much comment—that is, Judge O’Connor’s determination that it violates the Religious Freedom Restoration Act (RFRA) to require insurance plans to cover the HIV prevention drug PrEP.
In the patriotic imagination, America is a pluralist nation, comprised of a diverse citizenship with varying belief systems, all living together in harmony. To the extent that ideal has ever been a reality, it was made possible by a legal doctrine that gave latitude to religious adherents to live according to their faith, but that limited claims to religious freedom when necessary to uphold the rule of law and to prevent the imposition of one group’s beliefs on others. For decades, legal claims to religious exemptions were analyzed in the backdrop of two interrelated doctrines: the “rule of law” approach, and the “third-party harm” principle.
The rule of law approach was based on a simple idea: that even religious adherents are subject to the rule of law. In general, religious exemptions were seen as anathema to America’s pluralist vision, in which everyone was bound by the same set of rules and no group was above the law. As the Supreme Court explained in the 1878 case Reynolds v. United States, to allow a party’s religious belief to be accepted as a justification for breaking the law “would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”
Over time, and particularly with the dawning of the “rights revolution,” the rule of law approach began to soften into a more progressive, tolerant doctrine guided by a “third-party harm” principle. As Justice Ginsburg put it, third-party harm embodies the idea that “[a]ccommodations to religious beliefs or observances . . . must not significantly impinge on the interests of third parties.” Thus, religious adherents in some cases won the right to act in contravention of the law—but only on the premise that the desired exemption would “interfere with no rights or interests of others.”
Even in more recent years, notwithstanding the advent of RFRA and the increased traction of a more expansive vision of religious liberty, courts continued to place meaningful limits on religious exemption claims by ensuring that religious exemptions did not impose costs on unwitting third parties. In Burwell v. Hobby Lobby Stores, for example, the Supreme Court held that, under RFRA, closely held corporations are entitled to a religious accommodation to the contraceptive mandate of the ACA. But, in writing for the Court, Justice Alito made sure to emphasize that “the effect of the . . . accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero.”
Now, however, seemingly emboldened by the extreme rightward shift at the Supreme Court, courts across the country have begun writing rule of law and third-party harm out of the religious exemption equation, permitting religious adherents to impose their beliefs, and the attendant costs, on others.
Last week, Judge O’Connor continued this alarming trend, holding that religious employers are entitled to flout antidiscrimination law and impose their homophobic beliefs on employees. The case, Braidwood Management Inc. v. Becerra, was brought in part by religious individuals and business owners to challenge the ACA’s requirement that insurance plans cover PrEP, an HIV-prevention medication, without cost-sharing. The plaintiffs asserted that they should be allowed to provide less-than-comprehensive insurance plans to their families and employees because the PrEP mandate violates their religious beliefs by making them “complicit” in “homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman.”
Among the disturbing features of Braidwood Management, one thing stands out as especially troubling: the implication that religious adherents are no longer subject to the rule of law, no matter the harm imposed on third parties. Without a guarantee of insurance coverage without cost-sharing, for example, PrEP can cost up to $20,000 per year, in addition to lab and provider charges. Yet in evaluating the religious claims at issue, Judge O’Connor did not even mention the impact of the religious exemptions on the dignity, health, and finances of the plaintiffs’ family members or employees. In the case of the employer-plaintiffs, Judge O’Connor also did not consider the fact that the exclusion of PrEP from employees’ insurance plans punishes the employees who rely on the medication—and he certainly did not address the possibility that this punishment constitutes employment discrimination. Instead, Judge O’Connor used the existence of minor exceptions to the PrEP mandate—such as for plans “grandfathered in” under the ACA—as proof that even the government does not view PrEP coverage as a compelling interest worthy of protection from religious exemptions.
Commentators are right to view Braidwood Management as an existential threat to the ACA and the broader administrative state. But it is also important to recognize the dangers of Judge O’Connor’s religious freedom ruling. If this legal trend continues, there are few areas of American life that will, with any certainty, remain shielded from being undermined through claims to religious freedom. It is not an exaggeration to say that, by the reasoning articulated in Braidwood Management and like cases, religious adherents would be entitled to violate any law, no matter the consequences.
Take, for example, the Fair Housing Act (FHA), which prohibits discrimination in housing. Imagine a case arising in which a racist landlord argues that he should be allowed to exclude Black people from living in his properties on the ground that his racism is the product of sincerely held religious belief. Following the reasoning of Braidwood Management and unbounded by the limitations of rule of law and third-party harm, there would be nothing stopping a court from ruling in favor of the racist landlord. Just as in Braidwood Management, a court could simply overlook the harms of racial discrimination entirely. And any existent exception to the FHA—such as the so-called “Mrs. Murphy” exception—could be employed by that court to discount the government’s compelling interest in enforcing antidiscrimination protections—in essence, the compelling interest in upholding the rule of law.
This may sound like a far-fetched hypothetical, but it was not so long ago that segregationist business owners were seeking religious exemptions to the Civil Rights Act on the this very basis. Back then, however, religious belief, no matter how sincerely held, was not treated as an unqualified license to discriminate. Indeed, in 1968, with the underlying authority of the rule of law approach and the third-party harm principle, the Supreme Court dismissed this kind of religiously motived racial discrimination argument as “patently frivolous.” Today, there is no guarantee that this outcome would prevail.
The frightening truth is that religious freedom jurisprudence is developing in a way that puts even the most basic protections in jeopardy. The dedication to pluralism and equality that characterized the very best of the American experiment is steadily being chipped away at in favor of a narrowly Christian, conservative view of public life in which religious belief justifies any and all conduct. This new worldview was sanctioned in Braidwood Management, further legitimizing the legal argument that religious adherents have a free pass: to decide what medications their employees can or cannot take, to pay people less or more according to their sexual preferences, to discriminate, and, indeed, to do seemingly anything at all.
* J.D., Harvard Law School, 2021.