Regular readers of this blog will have noticed that–ever since the Supreme Court’s decision in Dobbs—I’ve been harping on the evisceration of a doctrine called “Substantive Due Process,” also known as the right to privacy. Without going back through the jurisprudence that established that doctrine, let me just paraphrase it: government must respect citizens’ right to make our own decisions about how to live our lives, so long as those decisions aren’t harming others.
Decisions about procreation are hardly the only areas protected from government overreach by the Bill of Rights. Your choice of religious conviction and my choice not to be a believer are both protected–mostly by the religion clauses of the First Amendment, but also by a right to privacy that keeps government from dictating so personal a choice. Religious liberty is based upon that same respect for the integrity of the individual conscience.
However, the current Court seems intent upon elevating the rights of believers over the rights of the rest of us.
Just this last term, the Justices permitted a theatrically pious coach to pray on his school’s fifty yard line, and ruled in favor of a Christian group wanting to raise its flag at Boston’s City Hall.
A Texas lawsuit that hopes to eliminate mandated health insurance coverage of birth control, HIV medication, sexually transmitted disease (STD) testing and more has quietly been pushing forward through the court system and could eventually end up in front of the U.S. Supreme Court.
In the case of Kelley v. Becerra, two plaintiffs from Texas argue that the current structure of the Affordable Care Act (ACA) mandates health insurance providers to cover certain preventative care they argue they do not need and that conflict with their religious beliefs — specifically, contraceptive coverage, STD testing and HIV medications Truvada or PrEP.
One of the lawsuit’s arguments leans on the Religious Freedom Restoration Act, which states governments should not substantially burden religious exercise without a compelling justification. Plaintiffs argue this right has been violated as both are Christian and unwilling to buy health insurance that subsidizes, “abortifacient contraception or PrEP drugs that encourage homosexual behavior and intravenous drug use.”
The lawsuit also takes issue with how the ACA defines preventative care, a decision-making process that has been assigned to various groups, including the Advisory Committee on Immunization Practices, the Preventative Services Task Force and the Health Resources and Services Administration.
If these religious zealots prevail–and they probably will at the District Court level, since they’ve filed the case in the courtroom of the radical Texas judge who previously ruled that the ACA was unconstitutional–health insurers would no longer be required to cover preventive care with no copay. They could either opt out of offering those services altogether, or begin charging for them.
Currently,most health insurance plans include coverage of preventative care like birth control and HIV medicines. Plaintiffs complain that their options for plans without those elements are few and far between, denying them freedom to exercise their religious beliefs.
Health care providers have raised alarm bells over Kelley v. Becerra, like the American Medical Association (AMA), alongside 20 other medical trade groups, which stressed how popular the preventative care measure of the ACA has been — with an estimated 151.6 million people receiving free preventative care in 2020 alone.
An adverse ruling would mean millions of Americans would lose access to “vital preventive health care services, such as screening for breast cancer, colorectal cancer, cervical cancer, heart disease, obesity, diabetes, preeclampsia, and hearing, as well as well child visits and access to immunizations critical to maintaining a healthy population,” wrote the AMA.
A coalition of 20 attorneys general has also filed an amicus brief in Kelley v. Becerra arguing–among other things– that public health outcomes have significantly improved since the ACA’s preventative services provision was implemented.
Let’s give the plaintiffs the benefit of the doubt, and accept that these provisions–provisions that have improved the health of millions of Americans– are contrary to their “sincerely held” religious beliefs. Do they not have options other than denying critical health care to Americans who are currently benefitting from access to preventative care? Couldn’t they establish a “faith-based” insurance company that would cater to their needs? (Such a company would have a strong argument for being exempted from the federal requirements they insist are inconsistent with their religious doctrines.) Or they could opt to self-insure.
Instead, they argue that their religious “rights” trump the health of millions of Americans who currently have free access to cancer screenings, birth control and childhood vaccinations. (Google chutzpah.)
If they prevail, thank the current “Christians” on the Supreme Court.