PrEPare to be Overturned: Why U.S. Courts Must Scrutinize Religious Freedom Claims More Closely

by Chris Colloton, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

In the aftermath of the United States Supreme Court’s staggering decision to overrule Roe v. Wade,1Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022). some legal scholars have warned that other fundamental constitutional protections – such as the right to contraception, the right to marry, and the right to engage in private, consensual sex – may soon come under attack.2Christopher Wiggins, Conservative Texas Lawyer Targets PrEP Access After Abortion Rights, Advocate (July 13, 2022, 4:42 PM), []. And while the conservative legal movement contends it merely wants to return issues such as these to the people of each state and their elected representatives, its actions indicate otherwise.3Id.; see also Bess Levin, Lindsey Graham, World-Renowned Hypocrite, Says He Looks Forward to Passing Nationwide Abortion Ban, Vanity Fair (Sept. 13, 2022), [] (pointing out that Senator Lindsey Graham, who, in the wake of the Dobbs decision overturning the right to abortion, said the issue should be left to the states, now advocates for a federal prohibition).

In September 2022, a group of plaintiffs notched one of the movement’s first post-Roe victories when a federal judge in Texas ruled that a provision of the Affordable Care Act (“ACA”) that requires insurers to provide preventative health services, including a lifesaving HIV prevention medication, unconstitutionally violates their religious beliefs.4Braidwood Mgmt., Inc. v. Becerra, No. 4:20-cv-00283-O, 2022 U.S. Dist. LEXIS 161052 (N.D. Tex. Sept. 7, 2022). In Braidwood Management Inc. v. Becerra, Judge Reed O’Connor not only chipped away at the ACA’s protections but also worked to elevate the right of religious freedom to an unsustainable level.5Id. The purpose of this article is to explain the recent decision in Braidwood and to argue why it represents such an egregious, unprincipled application of the law that must be overturned. The article begins by supplying a brief overview of the ACA’s preventative care provision, a summary of the Religious Freedom Restoration Act (“RFRA”), and an explanation of the plaintiff’s challenge in this case.  Next, it affirms the federal government’s interest in not only abetting the spread of HIV, but also eliminating it entirely. Finally, the article discusses the vast implications potentially stemming from this decision and concludes by advocating for its timely reversal by either the Fifth Circuit Court of Appeals or the Supreme Court.

II. Background

A. The ACA Preventative Care Requirement

The Patient Protection and Affordable Care Act, frequently referred to as “Obamacare” or the “ACA,” was enacted by Congress in an effort to reform the U.S. healthcare system by (1) increasing access to affordable healthcare for millions of uninsured Americans, (2) expanding the Medicaid program to cover more low-income adults, and (3) supporting a shift from treatment toward illness prevention and wellness.6See, e.g., The Affordable Care Act: A Brief Summary, Nat’l Conf. of State Legislatures (Mar. 2011), []; Health Care that Works for Americans, The White House, []. To accomplish its third objective, the ACA requires private health insurance issuers – i.e., employers –  to provide coverage for preventive health services, such as cancer screenings, vaccinations, tobacco cessation measures, and sexually transmitted infection testing, at no additional cost to the insured.7Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111-148, 124 Stat. 119, 42 U.S.C. § 300gg-13; see also Preventive Services Covered by Private Health Plans Under the Affordable Care Act, Kaiser Family Found. (Aug. 4, 2015), []. While the ACA does not explicitly state what types of preventive care must be covered, the law authorizes three expert medical agencies – the U.S. Preventive Services Task Force (“PSTF”), the Advisory Committee on Immunization Practices, and the Health Resources and Services Administration – to make recommendations about certain preventive health services that should be offered.8Preventive Services Covered by Private Health Plans Under the Affordable Care Act, supra note 6.

B. The Religious Freedom Restoration Act

In 1993, following the Supreme Court’s decision in Employment Division v. Smith, Congress made a concerted effort to fortify the right to religious exercise by passing the Religious Freedom Restoration Act.942 U.S.C.S. § 2000bb (LexisNexis 2022). The Court in Smith concluded that the First Amendment’s Free Exercise Clause does not guarantee an exemption from a neutral and generally applicable law.10Emp’t Div. v. Smith, 494 U.S. 872 (1990). Said differently, so long as a law applies to the general population and does not target a specific religion or religious practice, the fact that it may substantially burden one’s religious practice is of no consequence.11Id. Faced with vehement criticism, the Court’s decision in Smith ultimately led to the enactment of RFRA, which aimed at restoring the broad religious freedom protections adopted in Sherbert v. Verner.12Sherbert v. Verner, 374 U.S. 398 (1963). In Sherbert, the Court reasoned that the government could only justify a substantial religious burden on an individual by demonstrating that its action was necessary to further a compelling government interest.13Id.

RFRA mimics Sherbert, dictating that the government cannot place a substantial burden on one’s exercise of religion even if that burden stems from a generally-applicable rule.1442 U.S.C.S. § 2000bb-1(b) (LexisNexis 2022). Moreover, the law provides a very narrow exception for the government to avoid violating RFRA’s mandate: the government may substantially burden a person’s religious exercise only if it demonstrates that the burden (1) furthers a compelling government interest and (2) is the least restrictive means of furthering that compelling government interest.15Id. This “compelling government interest” test, known commonly as “strict scrutiny,” places a weighty burden on the government to prove that the importance of its action supersedes that of fundamental religious liberty.16See David L. Hudson, Jr., Strict Scrutiny, The First Amend. Encyclopedia (Aug. 16, 2021), [].

C. Burwell v. Hobby Lobby

In 2014, the Supreme Court ruled in Burwell v. Hobby Lobby that under RFRA, certain for-profit companies are entitled to an exemption from the ACA’s requirement that health insurance issuers provide coverage for contraceptives.17Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014). The Court, however, limited its holding to only those for-profit businesses that are so “closely held” such that their ownership is comprised of a discrete group of individuals – often a single family – who share a set of sincere religious beliefs.18Id. at 702. Further, the decision marked an extraordinarily significant expansion of the concept of “corporate personhood.”19Id. at 706; see also Aaron James Spencer, Hobby Lobby is One of The Most Dangerous Supreme Court Decisions Ever, and Here’s Why, Pub. Broad. Serv. (July 17, 2014), [] (criticizing Alito’s opinion and arguing that while corporations may enjoy many of the legal benefits of a person, the right to a religious identity should not be one of them). Justice Alito, writing for the majority, concluded that Congress had intended to include corporations within RFRA’s definition of “persons.”20Id. Accordingly, the Court in Burwell recognized the right of companies to free exercise of religion under both RFRA and the First Amendment.21Id. at 707 (rejecting the Third Circuit’s determination that general business corporations “do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion.”); see also Katharine Suominen, Burwell v. Hobby Lobby: The Dangers of Protecting First Amendment Rights of Corporations and the Rapid Expansion of “Corporate Personhood”, Jurist (Feb. 17, 2016, 9:07 AM), [].

Justice Ruth Bader Ginsburg dissented, arguing that the majority’s decision represented an exceedingly broad interpretation of RFRA that would undoubtedly – and improperly – harm thousands of women who did not share their corporate leaders’ religious tenets.22See Burwell, 573 U.S. at 740; see also Spencer, supra note 18 (“[B]y allowing closely held corporations to take on religious identity, Alito has allowed their owners to impose many parts of their religions upon the people who work for them.”). Likewise, she scrutinized the Court’s baffling interpretation of “less restrictive alternative,” emphasizing that the majority seems to suggest that wherever there is an opportunity for the federal government to pay for something, there will always be such an alternative.23Id.

D. The Braidwood Plaintiffs’ Challenge

In Braidwood, the plaintiffs – comprised of six individuals and two businesses – objected to the ACA’s preventive care requirement under the Religious Freedom Restoration Act.24Braidwood Mgmt., Inc. v. Becerra, No. 4:20-cv-00283-O, 2022 U.S. Dist. LEXIS 161052 (N.D. Tex. Sep. 7, 2022). Specifically, the plaintiffs challenged the U.S. Preventive Services Task Force’s 2019 recommendation that pre-exposure prophylaxis (“PrEP”) medication be used to prevent human immunodeficiency virus (“HIV”) infection.25Id. at *3. Under the ACA, this recommendation obligated private health insurance issuers to cover PrEP drugs.26Id. As a result, the plaintiffs claimed that this compulsory PrEP coverage violated their religious beliefs by “making them complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage.”27Id. at *9. Steven Hotze, the owner of Braidwood Management, Inc., a Christian for-profit company, asserted that being required to cover PrEP amounted to a “tacit endorsement” of “behaviors that he believes the services encourage.”28Id. (emphasis added).

In Braidwood, Judge O’Connor explained that because the ACA requires the plaintiffs to cover PrEP – and imposes a monetary penalty if they do not – the requirement substantially burdened the plaintiffs’ religious exercise in violation of RFRA.29Id. at *37. Consequently, it became incumbent upon the government to show the statute’s preventive care provision advanced a compelling governmental interest and was narrowly tailored to do so.30Id. at *38. Ultimately, O’Connor determined the government did not meet its burden, finding that it did not demonstrate that the PrEP requirement furthered a compelling governmental interest nor was the requirement the least restrictive means of achieving its asserted interest.31Id. at *40.

III. Discussion

A. Strict Scrutiny Analysis

The Braidwood decision is at odds with both reality and the facts of the case. The federal government arguably has no interest more compelling than to ensure the health and safety of its citizens.32See U.S. Const. art. I, § 8, cl. 1 (“The Congress shall have Power to . . . provide for the . . . general Welfare of the United States.”); see also Kathleen S. Swendiman, Health Care: Constitutional Rights and Legislative Powers, Cong. Rsch. Serv. (Apr. 5, 2010), [] (arguing that the power to spend for the general welfare is one of the broadest grants of authority to Congress in the U.S. Constitution). Efforts to promote the common welfare and mitigate disease find jurisprudential support dating back to the early twentieth century, when the Supreme Court held that the State of Massachusetts had the authority to mandate smallpox vaccinations.33Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905) (Justice Harlan held that in the United States, there are certain “manifold restraints to which every person is necessarily subject for the common good.”) Id. at 26. And more recently, in the nearly three years since the COVID-19 pandemic began, various federal courts throughout the United States – including the Supreme Court itself – have recognized the government’s legitimate, compelling interest in preventing the spread of a highly transmittable, potentially deadly virus.34See, e.g., S. Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716, 718 (2021) (“And no one need doubt that the State has a compelling interest in reducing that risk [of transmitting COVID-19].”); Roman Catholic Diocese v. Cuomo, 141 S. Ct. 63, 67 (2020) (acknowledging that “[S]temming the spread of COVID-19 is unquestionably a compelling interest” on behalf of the State); Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610, 613 (6th Cir. 2020) (recognizing that the Governor of Kentucky’s order prohibiting mass gatherings was done to advance his “compelling interest in preventing the spread of a . . . highly contagious, sometimes fatal virus.”).

Notably, the mortality rate of the COVID-19 virus in the United States stands at roughly one percent.35COVID-19 Dashboard, Johns Hopkins Univ. & Medicine Coronavirus Rsch. Ctr., []. By contrast, data from the Centers for Disease Control (“CDC”) indicates that the mortality rate for persons diagnosed with HIV in the United States is nearly five percent.36Karin Bosh, et al., Vital Signs: Deaths Among Persons with Diagnosed HIV Infection, United States, 2010 – 2018, Ctrs. for Disease Control and Prevention (Nov. 20, 2020), []. Surely, the government’s attempt to reduce the transmission of HIV, which leads to the chronic, fatal disease known as acquired immunodeficiency syndrome or “AIDS,” would qualify as a compelling governmental interest within the Supreme Court’s understanding of such an interest. Not only does HIV have a higher death rate than COVID-19, but it also has the potential to affect the entire U.S. population due to its contagious nature, just like the coronavirus.37See HIV Incidence, Ctrs. for Disease Control and Prevention, [] (stating that in 2019, of the 34,800 new HIV infections in the United States, 70% were among men who reported male-to-male sexual contact, 22% were among persons who reported heterosexual contact, and 7% were among individuals who inject drugs). Braidwood plaintiff Joel Miller asserts neither he nor his family members “engage in the behaviors that make this preventive treatment necessary.”38Braidwood Mgmt., Inc. v. Becerra, No. 4:20-cv-00283-O, 2022 U.S. Dist. LEXIS 161052, at *5 (N.D. Tex. Sep. 7, 2022). Miller appears to subtly suggest heterosexual couples are incapable of acquiring HIV, a fairly presumptuous statement that shows a fundamental misunderstanding of how contagious diseases operate.39Id. And although HIV disproportionately affects gay men, the notion that the infection is solely confined to this group of people – as the Braidwood plaintiffs suggest – is rooted not in science, but instead in an outdated, discriminatory perception of the LGBTQ community.40See Debunking Common Myths About HIV, Hum. Rts. Campaign, (last visited Sept. 22, 2022) (“Anyone – regardless of sexual orientation, gender identity, gender expression, or other factors – can acquire HIV”); see also Global HIV & Aids Statistics – Facts Sheet, UNAIDS (2022), [] (stating that in 2021, 54% of people living with HIV worldwide were women and girls). Hence, the benefits of PrEP treatment are not limited to protecting those who take it.41Defendants’ Brief in Support of Response to Plaintiffs’ Motion for Summary Judgment and Cross-Motion for Summary Judgment at 58, Braidwood, 2002 U.S. Dist. LEXIS 161052 (No. 4:20-cv-00283-O). Each person who does not become infected with HIV necessarily cannot transmit the virus to others, who in turn cannot pass it on to others, and so on.42Id. Thus, PrEP protects the public at-large by reducing the likelihood that each person who takes it will infect others with HIV.43Id. (noting the ACA’s PrEP requirement encompasses coverage for monogamous married couples trying to conceive a baby in which one of the partners is HIV positive).

Finally, PSTF’s recommendation that PrEP be used to decrease the spread of HIV is backed by remarkably strong data; according to the CDC, the two FDA-approved PrEP drugs – Truvada and Descovy44About PrEP, Centers for Disease Control and Prevention, [] (providing that there are currently two pills approved for pre-exposure prophylaxis or “PrEP”). – are up to ninety-nine percent effective at reducing HIV transmission from sex and seventy-four percent effective at reducing HIV transmission from intravenous drug use.45PrEP Effectiveness, Centers for Disease Control and Prevention, []. Taken together, these facts overwhelmingly demonstrate that the ACA’s preventive care provision is supported by a compelling governmental interest on the part of the United States government.

Regarding the requirement that ACA’s preventive care provision be the least restrictive means of furthering the government’s stated interest, Judge O’Connor inaccurately declared that it is not. He writes that the provision fails the least restrictive means test under RFRA because the government could pay for PrEP directly rather than requiring private health insurers to cover it.46Braidwood Mgmt., Inc. v. Becerra, No. 4:20-cv-00283-O, 2022 U.S. Dist. LEXIS 161052 (N.D. Tex. Sep. 7, 2022). Yet, this argument could be said about nearly any healthcare service. As Justice Ginsburg aptly explained in her Hobby Lobby dissent, the U.S. government, in theory, could always “pick up the tab.” Accordingly, simply pointing out the invariable possibility of the government assuming the cost of PrEP treatment as means to invalidate the ACA’s statutory scheme is, at best, intellectually lazy. At worst, the decision ignores the realities of the American employer-based healthcare system in which the majority of the insured population receives coverage privately through their workplace.47U.S. Health Care Coverage and Spending, Cong. Rsch. Serv. (Apr. 1, 2022), [] (showing that 54.4% of the insured U.S. population receives coverage through employer-sponsored health insurance). And though the United States does not have a universal healthcare system – sometimes referred to as single-payer coverage – to date, the ACA represents the most significant expansion of the government’s role in the administration and regulation of healthcare.48Roosa Tikkanen, et al., International Health Care System Profiles United States, The Commonwealth Fund (June 5, 2020), []. It is especially ironic, then, that Judge O’Connor himself appears to make an argument for government-run healthcare when just four years ago, he concluded the entire ACA was unconstitutional.49Paul J. Weber, Judge Rules Against Required Coverage for HIV Prevention Drug, Associated Press (Sept. 7, 2022), []. Furthermore, O’Connor fails to offer any practical alternative to the government’s chosen method to inhibit the spread of HIV.50Braidwood, 2022 U.S. Dist. LEXIS 161052, at *40-41. Perhaps the federal government could arrange for PrEP to be distributed at post offices across the country – that would hypothetically relieve the plaintiffs of their alleged burden – but at what cost? Health care must be delivered in a safe, competent manner so as to not compromise the efficacy of the service itself. Thus, at least within the existing health care arrangement in the United States, the ACA’s preventive care provision does employ the least restrictive method of furthering the government’s asserted interest of abetting the HIV epidemic.

B. The Necessity of a New Standard

Judge O’Connor wrote in Braidwood that the government improperly contested the “correctness” of the plaintiff’s beliefs, as courts may test only the “sincerity” of those beliefs.51Id. at *38. What O’Connor is essentially saying is that it does not matter if requiring PrEP coverage actually “facilitates and encourages homosexual behavior, intravenous drug use, and sexual activity outside the marriage of one man and one woman,” it matters only that a plaintiff believes it does.52Noah Feldman, A Texas Judge Just Took Religious ‘Freedom’ Too Far, Bloomberg (Sept. 14, 2022, 8:30 AM), []. This contention not only belies sound judicial reasoning, but it also opens the doors of the American court system to insincere claims made by plaintiffs under the seemingly impenetrable guise of “religious freedom.” O’Connor’s analysis is fundamentally broken. In religious freedom cases, there must be a new standard – one that employs a threshold inquiry that examines the actual belief claimed to have been burdened by governmental action.

Notwithstanding the earlier strict scrutiny analysis, the facts of Braidwood indicate that such an analysis need not even be used in this case. In other words, Judge O’Connor incorrectly and unnecessarily subjected the ACA’s PrEP requirement to this standard by misinterpreting the plaintiffs’ asserted religious belief. They do not claim that preventing transmission of HIV – which, of course, is precisely what using PrEP medication does – is incompatible with their religion. Instead, the plaintiffs contend that the ACA’s provision burdens them because providing insurance for the medication would “enable” sexual behavior apart from the marriage of one man and one woman.53See Braidwood, 2022 U.S. Dist. LEXIS 161052, at *37. This is an extravagantly broad factual assertion, one that reflects a perverse line of reasoning. Seeking to ban preventive measures in order to condemn activity those measures make safer is analogous to expressing “disapproval of motorcycles by forbidding the use of safety helmets.”54Michael C. Dorf, Federal Judge Accepts Extravagant Complicity Claim to Exempt Company from Obligation to Provide Lifesaving Medicine, Verdict (Sept. 13, 2022), []. Thus, the plaintiff’s claim is too attenuated from what their actual religious belief is – an objection to homosexual conduct. And as the government rightfully argued in the case, there is no empirical data that demonstrate a causal link between PrEP intake and the increased frequency of homosexual intercourse.55Defendants’ Brief in Support of Response to Plaintiffs’ Motion for Summary Judgment and Cross-Motion for Summary Judgment at 55, Braidwood, 2022 U.S. Dist. LEXIS 161052 (No. 4:20-cv-00283-O); see also Eleanor Klibanoff & Karen Brooks Harper, Religious Employers Need Not Cover PrEP in Their Health Plans, Federal Judge Rules, The Texas Trib. (Sept. 7, 2022, 12:31 PM), [] (referencing CDC data showing that in 2019, 20% of new HIV cases occurred in women, not men who have sex with men). Just because something makes conduct safer does not necessarily mean that it also makes it occur more often. As a result, the plaintiffs’ sincerely held religious belief – that sexual conduct between two same-sex individuals is wrong – is not hampered by the ACA requiring private health insurers to cover anti-HIV medication.

Although courts need not evaluate the legitimacy of a plaintiff’s actual religious belief, they should have discretion to review claims that purport to establish a link between the discrete religious belief and conduct wholly detached from that religious belief. Without some baseline query into the accuracy of claims brought in religious freedom cases, courts will be susceptible to honoring patently false – even medically incorrect – claims shrouded in the protection of one’s “religion.” For example, a party could bring suit claiming that paying taxes violates their religious freedom because the White House chooses to illuminate its grounds with rainbow color every June in celebration of LGTBQ Pride month. That party would likely be hard-pressed to show how the use of different color light bulbs somehow leads to an uptick in homosexual intercourse.

The overwhelming deference to religious “sincerity” by courts is ultimately untenable; the right to free exercise cannot become a means to promote any personal or political belief in the name of strict religious observance. In the absence of any limiting principle, such as the aforementioned suggestion, there is no logical endpoint to what a plaintiff may claim violates their religion.56See Feldman, supra note 51.

IV. Conclusion

Judge O’Connor’s ruling in Braidwood exemplifies the risk of religious beliefs being privileged in a way that actively harms others.57Ryan Thoreson (@ryanthoreson), Twitter (Sept. 7, 2022, 10:56 AM), []. Not only does this case threaten the availability of life-saving PrEP treatment for millions of Americans, but if read to its fullest extent, it also endangers multiple other free preventive health care services currently being offered under the ACA.58United States of Care Statement: District Court Decision in Braidwood Management v. Becerra, United States of Care (Sept. 8, 2022), []. And while the right to religious freedom need not be displaced as one of the Constitution’s most fundamental guarantees, the American judiciary must resolve to discern between legitimate religious objections and disingenuous claims that can be refuted with a cursory review of science or research.

Cover Photo by Michał Parzuchowski on Unsplash


  • Chris Colloton is a native of Cincinnati and received his B.A. in Spanish Language from The Ohio State University in Columbus, Ohio. Prior to law school, Chris worked in the corporate retail industry as a merchandise planner for five years. He is especially interested in legal issues affecting the LGBTQ+ community, constitutional law, and the intersection of law and business.


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