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Denver Newsroom, Aug 11, 2022 / 13:39 pm (CNA).

Religious freedom violations are among the claims of a federal lawsuit challenging mandatory “preventive care” coverage in employee health plans. But the lawsuit’s other challenges to federal rule-making could have far-reaching consequences.

Though the Texas-based plaintiffs echo previous challengers in objecting to abortifacient contraceptives as mandatory “preventive care,” they also object to mandatory no-cost coverage of Pre-Exposure Prophylaxis (PrEP), a drug regimen intended to reduce the risk of HIV infection; STD tests and STD counseling; and drug use counseling.

“The government cannot possibly show that forcing private insurers to provide PrEP drugs, the HPV vaccine, and screenings and behavioral counseling for STDs and drug use free of charge is a policy of such overriding importance that it can trump religious-freedom objections,” said the lawsuit in Kelley v. Becerra.

The lawsuit was filed in 2020, but argued only last month before U.S. District Judge Reed O’Connor.

John A. Di Camillo, an ethicist and director of personal consultations with the National Catholic Bioethics Center, told CNA that the objections raise valid moral questions.

“It certainly is an important moral consideration to know whether or not funding this kind of drug or this kind of procedure may actually incentivize or encourage or enable your employees to engage in immoral behaviors,” he said Aug. 9.

Alleged religious freedom violations constitute one of the eight claims made in the lawsuit. This claim charges violations of the Religious Freedom Restoration Act, which requires that the federal government may not “substantially burden” the free exercise of religion, unless there is a “compelling government interest” in doing so, and it is carried out in the “least-restrictive” manner possible.

A narrow court ruling on the issue of religious freedom could avoid a broader ruling about administrative law. A broad court ruling, however, could eliminate all requirements that insurers provide preventive care coverage at no cost, Bloomberg Law reported in April.

The lawsuit describes one plaintiff, orthodontist John Kelley of Tarrant County, Texas, as a Christian with religious objections to purchasing some health plans that subsidize abortifacient contraception or PrEP drugs that “encourage homosexual behavior and intravenous drug use.” He does not need or want health insurance that covers Truvada or PrEP drugs “because neither he nor any of his family members is engaged in behavior that transmits HIV.” He has no desire for contraceptive coverage “because his wife is past her child-bearing years.”

The other plaintiffs are Kelley Orthodontics, Joel Starnes, and Braidwood Management, Inc. Some plaintiffs, like Braidwood owner Steven F. Hotze, also object to mandatory coverage of STD screenings and counseling for those engaged in non-marital sexual behavior.

The plaintiffs claim a grounds for class action because the mandates still limit their options for health insurance that excludes or limits coverage as they desire.

Di Camillo, who has worked on ethics reviews of Catholic health insurance programs, told CNA that self-insured plans mean the employer is “actually directly paying out of pocket for the medical expenses.” This is in contrast to standard insurance programs where a large outside company pays for expenses.

“There’s a more direct relationship, and so there’s a heightened level of moral concern or responsibility for the employer in those situations,” he said.

Other claims in the lawsuit involve aspects of administrative law known as the non-delegation doctrine, which requires Congress to provide agencies with sufficient principles, policy, and standards to guide their action. The Supreme Court has not sided with claims of excessive delegation since two cases in 1935. The lawsuit charges that Congress wrongly delegated the definition of “preventive care” to regulators under the 2010 Affordable Care Act.

The U.S. Department of Health and Human Services had ruled that mandatory preventive care in employee health plans must include contraception, including drugs that can cause abortion. It did not provide exemptions for those with objections to the coverage. In 2014, the Supreme Court ruled against this mandate in favor of Hobby Lobby, a closely-held company whose Christian owners had a religious objection to abortifacients. In 2020, the high court ruled in favor of the Little Sisters of the Poor, who objected to providing contraceptive coverage in their employee health plans.

If the Kelley v. Becerra case results in a broad ruling against the regulatory mandates, it would eliminate mandatory no-cost coverage of cancer screenings, vaccines, counseling for alcohol abuse, diet counseling for those at risk of chronic disease, and other preventive services, National Public Radio reports.  The American Medical Association has led a coalition of more than 60 medical organizations in warning against a broad ruling.

Di Camillo considered the ethical questions involved in health care plan coverage and employers’ moral objections.

“We don’t want to be forcing a company to have to subsidize all of the consequences of immoral behaviors,” he said. “On the other hand, we can take the approach of a Christian mercy that sees we’re all sinners and sometimes people make bad decisions.”

“Certainly, in a Catholic perspective, we often look not to just whether something is tied to immoral behavior, but whether there are grounds for helping an individual in need, even if that need arises from immoral choices,” he said.

There are questions about whether the exclusions in the case would mean no coverage for those at risk of disease, such as a dependent minor, or no coverage for an employee at risk of disease because of an adulterous spouse.

There are also questions about whether a moral objection is too rigorous, but Di Camillo cautioned that objections should be taken seriously.

“I think there is a tendency to quickly assume someone else is misapplying or misunderstanding (ethics), (but) sometimes we ourselves may be the ones who are misapplying or misunderstanding.” 

Di Camillo emphasized that employers do have a duty to make clear to prospective and current employees any conscientious objection exclusions in their health coverage so that “this is not sprung on them as a surprise.”