Tablets of Truvada, a tenofovir/emtricitabine combination used for HIV pre-exposure prophylaxisThis might be a controversial take, but I believe in ghosts.
I think a lot of people who spend time in LGBTQIA-plus spaces do to some extent because behind the joy and rainbows and disco pop, there is often a heaviness in these spaces. You can tell there are people missing who should be there with their friends and family. Particularly at events focused on intergenerational community building, you will look around and notice just how few older people there are. You start to do some math, and realize who those missing people are.
They’re just some of the hundreds of thousands of gay and trans people lost to the AIDS epidemic.
My generation is lucky. I was a first-year student in high school when the FDA approved a drug called Truvada, also commonly known as Pre-exposure Prophylaxis (PrEP). Two years later a second form of PrEP, Descovy, was approved, and later Apretude came as an injectable option. Since then, PrEP has become a recommended medication for gay men and trans people, along with others who are at high risk for HIV exposure. These medications drastically changed the course of HIV/AIDS prevention. PrEP works by preventing the HIV virus from taking hold in the bloodstream, and oral PrEP is 99 percent effective at preventing the sexual transmission of HIV/AIDS and 74 percent effective at preventing drug based transmission. PrEP is a fairly normal part of sexual health conversations for LGBTQIA-plus people my age. Many of my friends and I discuss it as casually as we would discuss picking up a box of condoms or our prescription birth control. Within four years of Truvada’s approval, I saw posters for it all over my college campus, and it’s been a regular subject of discussion for me with my doctor for years now. Most people my age have no real memory of the height of the AIDS crisis, when the two generations before us were watching their friends die en masse. In the United States, AIDS is no longer the death sentence it once was (and still is in some other parts of the world).
But the ghosts still remain.
Most of us, even having never experienced the crisis at its worst, are still taking testing and prevention incredibly seriously. None of us wants to go back to those days. For quite some time now, the federal government was in agreement with the idea that increasing access to PrEP is a matter of national importance, which led to the Affordable Care Act requiring health insurance providers to cover PrEP without cost-sharing mechanisms like co-pays or deductibles.
Unfortunately, it seems that there are others who are not haunted by the tremendous loss of life during the AIDS crisis, including many Christian business owners, who feel that this medication enables “immoral behavior” that they would be endorsing by having it included in their employee health insurance. This has led to a lawsuit that has now made its way to the U.S. Supreme Court to be argued next month, now named Kennedy v. Braidwood Management Inc. (formerly Becerra v. Braidwood Management, the name changed to reflect the appointment of Robert F. Kennedy Jr. as Secretary of Health and Human Services). The business owners in this case presented three main arguments at the outset.
First, that the coverage mandate violates the “Appointments Clause” of the Constitution, which states that the president has the power to appoint certain government officials with the advice and approval of two-thirds of the Senate, but that certain “inferior officers” may be appointed by the president, the courts or department heads without congressional approval. The business owners in this case claim that the members of the Preventive Services Task Force, which makes recommendations on which forms of preventive health care should be covered under the ACA, are not “inferior officers” and therefore were appointed unconstitutionally without the approval of the Senate. Therefore, their determinations are legally invalid.
Second, they argue that the mandate violates something called the “Nondelegation Doctrine,” which is the idea that Congress cannot legislate away its responsibilities to nonlegislative bodies. According to the business owners, delegating which types of preventive services are a part of the coverage mandate is too close to “legislating” for constitutional comfort, and this should have been left to Congress to decide.
Lastly, the Christian business owners argued that requiring them to provide their employees with coverage for PrEP is a violation of the First Amendment’s Free Exercise Clause and the Religious Freedom Restoration Act (RFRA), since in their minds it would require them to subsidize employee behavior that is contrary to their religious beliefs, such as same-sex intercourse and sex outside of the confines of heterosexual marriage. We’ve seen this argument before, early on in the life of the Affordable Care Act with the infamous Hobby Lobby case, in which Hobby Lobby successfully argued that it could not be required to provide coverage for birth control on religious grounds.
As this case has made its way to the Supreme Court by way of the 5th U.S. Circuit Court of Appeals, the government has declined to appeal the lower court’s decision that the PrEP coverage mandate did, in fact, violate the First Amendment and RFRA. Instead, it has chosen to focus on the first two arguments, noting that the members of the Preventive Service’s Task Force and their decisions are subject to review by the secretary of Health and Human Services, making them “inferior officers,” and that any constitutional flaw in the power structure of the Task Force can be solved by severing its ability to make binding recommendations, rather than doing away with its role altogether.
Unfortunately, the refusal to tackle the religious aspect of the suit makes sense on a strategic level, as demonstrated by the fact that this approach has been consistent between the Biden and Trump administrations. The first two arguments of the business owners require significant attention because they go beyond just religious employers, and could potentially make any recommendations for health care coverage by the Task Force unconstitutional, having an impact on access to cancer screenings, tobacco cessation services, vaccines and contraception provided by secular employers who might choose not to cover them as a cost-saving measure in the absence of a legal mandate. The Hobby Lobby case, meanwhile, is an incredibly difficult piece of precedent to get past — especially in a case like this where so many of the facts neatly map onto it. Given the makeup of the current Supreme Court and the extraordinary amount of privilege it gives to religion in its decisions (check out the 303 Creative and Coach Kennedy decisions for just two recent examples), the odds of successfully appealing the RFRA aspect of this case are low. This means that even if the Supreme Court rules that the Task Force is well within its rights to make determinations as to which types of preventive health care should be included under the ACA’s coverage mandate, religious employers will still be able to refuse coverage for PrEP.
That does not mean that the ghost of religious extremism is absent in this case. I’ve been writing for quite some time now that this case is undoubtedly a part of a proxy to open the door to every aspect of Christo-fascism. This case didn’t come up because these business owners had complex knowledge of the constitutional details of the Appointments Clause and Nondelegation Doctrine. It came up because they wanted to make sure they did not have to potentially cover medication for an illness that some Christians believe is a “punishment from God” for homosexuality. They likely could have won on the RFRA argument alone, but a good lawyer in any case is going to try to have multiple arguments in place to get the same result.
It goes beyond that, however.
The current Christian nationalist movement is on a deregulation warpath. From dismantling the Department of Education to mass federal layoffs unlike ever seen before, every single government entity that seeks to protect Americans from harm is being destroyed at a breakneck pace. This is a key step in the Christo-fascist movement, because in order to institute a social order that requires everyone in the United States to conform to its ideology, it must first destroy anything that would stop it from imposing its will. I firmly believe that the Trump administration is only taking the position that the Task Force’s role is constitutional because it keeps it under executive control. If it wins this case, that means it will still keep control of the mandate process, even if the balance of Congress shifts in the midterm election next year. There is, unfortunately, not a good outcome for this case at this point that does not further aid the current extremist project, at least in the short term. This is where legal theory and the current political reality split — the same legal argument can have drastically different political consequences depending on the ideology of the group empowered by it.
If there is anything close to a modern “miracle,” PrEP might be it. It has saved the lives of thousands of people, not just in LGBTQIA-plus communities, but also among other high-risk populations. We are haunted by our past because of the sheer necessity of remembering it.
Moving forward, we are going to need to push our legislators to mandate this type of preventive health coverage as far as the law allows. And in an era in which we can no longer trust the government to make anything resembling reasonable health care policy, we are going to have to find other solutions to public health crises. We are going to have to pressure individual employers to choose public health over profits and provide insurance that covers preventive health without the government requiring them to. We are going to have to be more mindful than ever of where we spend our money. We are going to have to come together within our individual communities to help people access the health care they need.
If the Christian nationalist movement wants us dead, we have no choice but to do all this to survive.
Disclaimer: The views in this column are of the author and do not necessarily reflect those of the Freedom From Religion Foundation.
