Texans Challenge Health Coverage of Birth Control, HPV Vaccine, and Anything Related to Sex

For the approximately 472nd time, a judge will hear a lawsuit from conservatives who are very mad about The Affordable Care Act, aka Obamacare. A group of Texans is challenging the law’s requirement that health insurers cover preventive care on the grounds that it violates their religious freedom. If you’re wondering what health insurance has to do with religion, the answer is sex—specifically, non-procreative sex.

The plaintiffs, Texas residents and employers, say that Obamacare violates their religious beliefs because they either have to buy or provide health insurance that covers services like PrEP to prevent HIV, STD screenings, and preventative care including the HPV vaccine. They do not like these services for disgusting, bigoted reasons (see below) and are mad that they can’t buy health insurance plans that don’t require such coverage—as if health insurance were some sort of buffet where you can pick and choose what you want!

The judge hearing the case on Tuesday, George W. Bush appointee Reed O’Connor, has ruled against Obamacare several times. The plaintiffs’ lawyer is none other than Jonathan Mitchell, the architect of the Texas bounty-hunter abortion ban, and a raging homophobe.

Scarily, the case could end up affecting people nationwide: Politico said it “could determine whether insurance companies are allowed to deny coverage or charge sky-high copays for common preventive care going forward.” An analysis from the Urban Institute and the Robert Wood Johnson Foundation found that a ruling for the Texas plaintiffs could threaten the coverage of preventive care for 168 million people who get their insurance through an employer or on the Obamacare marketplace.

So why are the plaintiffs so mad? Well, they’re in monogamous, heterosexual marriages and they don’t want their monthly health insurance premiums to “subsidize” care for other people’s sex lives. Here are a few key passages from a November 2021 court filing:

Plaintiffs Kelley, Starnes, and Mr. and Mrs. Maxwell also object on religious grounds to the compulsory coverage of PrEP drugs, contraception, the HPV vaccine, and the screenings and behavioral counseling for STDs and drug use, because this coverage facilitates and encourages homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman.

…Under the current regime, every individual who purchases health insurance will pay premiums that subsidize the provision of PrEP drugs, the HPV vaccine, and the screenings and behavioral counseling for STDs and drug use.

…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.”

The filing also says that some FDA-approved methods of birth control that Obamacare is required to cover “operate as abortifacients,” which is false—pregnancy begins when a fertilized egg implants in the uterus. No birth control method causes an abortion.

But as Mitchell wrote in the original complaint, women don’t need birth control anyway, since they can simply be celibate if they don’t want children:

Some women are understandably reluctant to rely on abstinence as a birth-control strategy, but an unwillingness to practice abstinence does not create a medical condition that needs to be remedied with “preventive care.” Contraception and sterilization are simply devices that enable women who do not wish to become pregnant—but who are unwilling to refrain from sexual intercourse—to engage in sexual intercourse while greatly reducing their risk of pregnancy. That is not “preventive care” of any sort.

The Texas suit was filed in March 2020, long before the Supreme Court overturned Roe v. Wade, but it shows that religious conservatives have many other targets. Yes, conservatives are coming for birth control, and also the rights of LGBTQ people to live healthy lives and get married if they choose.

Since the case is filed in Texas, an appeal to any verdict would land in the lap of the 5th Circuit Court of Appeals, the same venue that upheld the Texas abortion ban last September. Next stop after that? The 6-3 conservative supermajority Supreme Court which hasn’t considered an Obamacare challenge since Justice Amy Coney Barrett joined. I predict a big ole mess.