Radical Federal Judges Pose a Threat from Within

This week we saw more striking examples of how a radicalized, federal judiciary, who are plucked from the ranks or otherwise are big supporters of the Federalist Society, can create uncertainty, sow mistrust, and even create havoc within our legal system.

On Monday, as I wrote about earlier this week, Trump-appointed Judge Aileen Cannon of the Southern District of Florida issued a ruling in a civil action that reached deep into a federal criminal investigation and halted a portion of it, based in part upon her apparent desire to protect the reputation of the former president. Further, her take on executive privilege appeared to fly in the face of long-standing precedent and even recent Supreme Court rulings that the right to assert such claims belongs to the current and not the former executive, and in any event shouldn’t be used to short circuit an investigation of such national importance. 

Subsequent reporting by the Washington Post that the documents seized from the former president included information about another nation’s defensive capabilities—including its nuclear weapons—underscored the stakes for our national security. It also shined a spotlight on the damage a single federal judge can do through twisted and nonsensical legal reasoning that appears grounded far more in political loyalty than in legal precedent.

To add to concerns about a judiciary run amok, yesterday in Texas another radical federal court judge delivered a startling and potentially far-reaching opinion that managed to both elevate the right of private companies to discriminate against LGBTQ+ employees in their health benefits based solely upon their subjective religious beliefs and to once again call into question the legality of portions of the Affordable Care Act, despite it having been upheld by the Supreme Court only a few years ago. 

Judge Reed O’Connor, known to be one of the most extreme “conservatives” among the district court judges of the Fifth Circuit, ruled that under the Religious Freedom Restoration Act (RFRA), a Texas employer cannot be required to provide coverage for the life saving anti-HIV drug PrEP. The grounds asserted are worth laying out in full. The plaintiff believes that

(1) the Bible is “the authoritative and inerrant word of God”

(2) the “Bible condemns sexual activity outside of marriage between one man and one woman, including homosexual conduct,”

(3) providing coverage of PrEP drugs “facilitates and encourages homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman,” and 

(4) providing coverage of PrEP drugs in [the employer’s] self-insurance plan would make him complicit in those behaviors.

Judge O’Connor concluded that, under RFRA as interpreted by the Supreme Court’s 2014 Hobby Lobby case, the government cannot “contest the correctness” of the employer’s beliefs. This means ultimately that the subjective beliefs of the employer, even if factually incorrect, must control. But as the Texas Tribune noted, the focus on homosexual behavior and HIV transmission is erroneous. According to the CDC, that 1 in 5 new HIV cases are in women, not men who have sex with men. “The virus doesn’t choose who to infect, it can infect anyone,” said Dr. Satish Mocherla, an infectious disease specialist based in Houston. “So why a particular demographic is being targeted is a mystery to us.”

But the targeting is no mystery to those following the escalation of attacks on the LGBTQ+ community in Texas and other states. Nor does it take much to see where this could quickly lead with respect to all manner of other health subject matters, from contraception to vaccines, which are currently part of the ACA’s coverage requirements.

The ruling went even beyond the question of PrEP, however. Judge O’Connor also took direct aim at the legality of big portions of the ACA itself by agreeing with the plaintiff that the members of the Preventive Services Task Force, which requires insurers to cover preventative care, were appointed illegally. This raises the very real possibility that the court will destroy the Task Force’s authority completely. If Judge O’Connor does so as part of his ultimate remedy, which he has asked the parties to brief before he issues it, private insurers could refuse to cover many aspects of preventative care. Think prenatal check-ups, common health screenings, STI and other lab tests—matters far beyond the question of PrEP coverage. 

This has very worrisome real world consequences. A bad ruling, if it stands, ultimately could force consumers to pay out of pocket for things like cancer screenings that would otherwise would have been covered by their insurer, with the result that some will put off those screenings until it is too late.

Notably, O’Connor is the same judge whose attempt to strike down the entire ACA in 2018 was reversed by the Supreme Court by a 7-2 vote, but apparently he’s willing to give it another go, though this time in a somewhat more nuanced and therefore more dangerous way. The Court of Appeals that oversees O’Connor is itself quite radical and lately has been serving up some of the most egregious rulings which then receive a nod from the 6-3 Supreme Court. Most recently, the Texas law, S.B. 8, which provides vigilante cash bounties to those who successfully report illegal abortions in the state, was greenlit by the Fifth Circuit and left to stand by the Supreme Court while it was being challenged, in effect successfully implementing its intended consequence of halting all abortions within the state by making the monetary risk too great for any abortion providers. Notably, the appellate lawyer who was behind that suit, Jonathan Mitchell, is the same attorney who is driving this challenge to PrEP and other preventative care requirements under the guise of protecting employers’ religious beliefs.

Mitchell and Judge O’Connor are no doubt hoping that shifts in the current SCOTUS make-up will favor their arguments, particularly those made under “religious liberty” where Justices Alito, Thomas and Barrett certainly will provide receptive ears. While they’re at it, they can take aim once again at the ACA, given that established precedent holds so little value with this new conservative majority. They are no doubt hoping this time around that the swing vote on the ACA before, Chief Justice John Roberts, will soon find himself in a 5-4 minority.