How a Christian fundamentalist lawsuit threatens 'everything from cancer screening to vaccines': columnist

09 September 2022

In Texas, Jonathan Mitchell — the far-right attorney who was behind Texas’ draconian anti-abortion law — has also declared war on a part of the Affordable Care Act of 2010, a.k.a. Obamacare, that he claims is discriminating against Christians. Mitchell has filed a lawsuit challenging the ACA’s requirement that a private company’s health care plan cover preventative services, including anti-HIV drugs, which some far-right Christian fundamentalists view as pro-gay. And on Wednesday, September 7, Judge Reed O’Connor, a hard-right appointee of President George W. Bush, agreed with Mitchell’s lawsuit and the claim that anti-HIV medication “facilitates and encourages homosexual behavior.”

The Washington Post’s Ruth Marcus is vehemently critical of Reed’s ruling and Mitchell’s lawsuit in her September 8 column, arguing that both of them are willing to endanger the health and wellbeing of Americans in order to pander to Christianity’s lunatic fringe. The company that Mitchell is representing in the lawsuit is Braidwood Management.

“Mitchell, pressing an array of arguments that conservatives have deployed to dismantle the modern administrative state, argued that the mandates for free contraception and other preventive services were unconstitutional because the entities imposing the rules weren’t subject to enough presidential control or congressional oversight,” Marcus explains. “He lost on the contraception claim, but the judge, Reed O’Connor, found that the panel that determines what other services should be covered is unconstitutional because its members aren’t appointed by the president or confirmed by the Senate — threatening guaranteed no-cost coverage for everything from cancer screening to vaccines.”

The Post columnist continues, “The decision might not stand. After all, this is the same judge who, in 2018, struck down the entire Affordable Care Act based on a cockamamie theory involving the supposed unconstitutionality of a single section — the individual mandate. Last year, the Supreme Court, ruling 7-2, slapped him down, finding that Texas and others challenging the ACA didn’t have standing because they hadn’t proved the provision injured them…. Yet, here we go again; pushed by conservative lawyers, a conservative judge — O’Connor was nominated by George W. Bush — bends over backward to accommodate strained claims of religious liberties.”

The 64-year-old Marcus, who is Jewish, stresses that she isn’t trying to be “dismissive of freedom of religion.”

“As a member of a minority faith,” Marcus writes, “I’m sympathetic to such arguments…. But, as this dispute 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.”

Marcus continues, “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 percent. 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.”

The columnist argues that it is twisted logic to claim that coverage of anti-HIV drugs is “subsidizing gay conduct.”

“If it’s subsidizing gay conduct to cover anti-HIV medication,” Marcus writes, “then isn’t it subsidizing gay conduct to pay gay employees? The court in Bostock (v. Clayton) said religious rights might ‘supersede’ anti-discrimination law ‘in appropriate cases’ and put off the issue for another day. The Mitchell-O’Connor approach would carve a gaping loophole in that protection, which might suit this conservative court just fine.”

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