#jonathan mitchell

The Supreme Court said Friday it will review the constitutionality of the Affordable Care Act’s no-cost coverage mandates for certain preventive care services, putting the landmark health care law in front of the justices again just as President-elect Donald Trump – who tried to repeal the law during his first presidency – returns to the White House.

While not an existential threat to Obamacare, the case could imperil access Americans have to cost-free preventive treatments and services, including HIV prevention medications, heart statins and various screenings for cancers and other diseases.

The cost of some of these preventive services can be substantial, which would deter some people – particularly those with lower incomes – from accessing the care and slow the early detection of potentially deadly illnesses.

The 5th US Circuit Court of Appeals ruled that the mandates in question, based on the recommendations of the US Preventive Services Task Force, violated the Appointments Clause of the Constitution because its members are not appointed by the president with Senate confirmation. The 5th Circuit’s ruling was directed at no-cost coverage requirements implemented after Obamacare’s enactment in March 2010.

The appellate ruling only blocked the mandates as applied to the challengers of the specific case, a Texas business and several individuals. But both the Biden administration and the challengers agreed that the 5th Circuit’s precedent set the stage for another party to sue to block the mandates nationwide, and both sides had asked the Supreme Court to take up the case.

Among the other no-cost coverage mandates that are put at risk by the 5th Circuit ruling are prenatal nutritional supplements, physical therapy for older Americans to prevent falls and lung cancer screenings that, according to the Biden administration, could save the lives of 10,000 to 20,000 Americans a year.

A variety of other no-cost preventive services – such as well-baby visits and autism screenings for children, cervical cancer screenings and breastfeeding support programs for women, and flu, measles and chickenpox vaccines – are not at issue in the case.

Studies have shown the Obamacare mandate prompted an uptake in preventive services and narrowed care disparities in communities of color.

“Even modest out of pocket costs mean that people don’t end up seeking out these services,” Zachary Baron, a director of the O’Neill Institute’s Center for Health Policy and the Law at Georgetown University, told CNN. “They end up pushing things off as they’re trying to juggle various bills.”

A federal judge in Texas ruled that the Affordable Care Act’s mandate for free coverage of groundbreaking HIV prevention drugs made by Gilead Sciences Inc. “substantially burdens” the religious freedom of a Christian-owned company.

US District Judge Reed O’Connor in Fort Worth on Wednesday granted summary judgment to Braidwood Management Inc. in its challenge to coverage of Gilead’s Truvada and Descovy. The two pre-exposure prophylactic drugs, commonly known as PrEP, are taken daily by hundreds of thousands of Americans, particularly men who have sex with men.

The suit is being led by attorney Jonathan Mitchell, the Republican former solicitor general of Texas known for his efforts to restrict abortion access in the state. Mitchell argues that mandatory PrEP coverage forces Christians to subsidize “homosexual behavior”

O’Connor, a George W. Bush appointee, said the government failed to demonstrate a state interest in providing coverage of the drugs that overcame the plaintiffs’ religious objections.

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Sam Levin at The Guardian:

Steven Hotze, a Republican donor from Texas, has spent decades fighting against LGBTQ+ rights, with campaigns seeking to roll back protections for people he has deemed “termites”, “morally degenerate” and “satanic”. The Houston-area physician is not well-known in mainstream politics, and his efforts targeting queer and trans people have generally been local, with limited impact. His latest cause could be different. Hotze, 74, has sued the federal government to roll back healthcare coverage for pre-exposure prophylaxis (PrEP), the HIV prevention medication. The case is now before the US supreme court, which is expected to rule in the coming weeks. A decision in his favor could upend healthcare access for LGBTQ+ people across the country – and derail a wide array of preventive treatments for tens of millions in the process. “People will die,” said Kae Greenberg, staff attorney with the Center for HIV Law and Policy, which filed a brief in the case. “Preventive healthcare saves lives, and this case is about whose lives we consider worth protecting. It’s about cutting off people’s care based on them being gay or substance users or living their lives in a way the plaintiffs do not approve of. It’s using the law to legitimize bigotry.” The case, Kennedy v Braidwood, originated with Hotze’s Christian healthcare firm, Braidwood Management, which filed a lawsuit in 2020 objecting to the federal requirement that his company’s insurance plan cover PrEP. Braidwood, another Christian business and two individuals argued the daily PrEP medications “facilitate and encourage homosexual behavior”, saying the government violated their religious beliefs by making them support “sexual promiscuity”.

Braidwood challenged the requirement under the Affordable Care Act, also known as Obamacare, that insurers and group health plans cover preventive services, a provision that includes diabetes and cancer screenings, medications to reduce heart disease risks, contraception and vaccinations. Along with opposing PrEP, Hotze explicitly objected to STI screenings, counseling for alcohol use and childhood obesity interventions. A Texas district court sided with Braidwood, saying the US violated the firm’s religious freedom. The ruling also found that a taskforce of medical experts that recommended the preventive services covered by the ACA was unconstitutional because the experts hadn’t been confirmed by the Senate, and therefore health plans should not be required to cover the care.

The US government appealed the ruling on the taskforce, which is the issue now before the supreme court. The coverage mandates have remained in effect as the case has progressed, though the individual plaintiffs have been shielded from covering the services. The Trump administration has continued to defend the taskforce’s constitutionality, and the supreme court is not weighing religious objections. If the supreme court sides with Braidwood, it could lead to widespread loss of access to free preventive healthcare, with one study finding 39 million people received the threatened services. A 2023 Yale study estimated the loss of free PrEP could result in more than 2,000 preventable HIV infections within one year.

[...]

A decades-long mission

The high-stakes case, and Hotze’s role in it, have flown under the radar. But research from the progressive watchdog organization Accountable.US, which shared its findings with the Guardian, reveal the rightwing activist’s long history of pushing fringe ideologies before getting a signature cause before the supreme court. Hotze and his lawyers did not respond to requests for comment. In 1982, 31-year-old Hotze launched a petition in the city of Austin to legalize housing discrimination against gay people, the AP reported at the time. Heading a group called Austin Citizens for Decency, Hotze called gay residents “criminals” and “sodomites”, saying: “The issue is not housing. The issue is whether we allow our city council to grant public sanction to homosexual activity.” He said protecting LGBTQ+ people from discrimination is “like thieves or murderers trying to gain political power”. Hotze said in one interview he was less concerned about “property rights” and more worried about the “deviant, perverted lifestyle”. Voters overwhelmingly rejected his referendum. In 1985, Hotze backed a group of eight “anti-homosexual” Houston city council candidates identified as the “straight slate”. On ABC News, he stated, “We’re intolerant of those who participate in homosexual activity.” All eight candidates lost. Hotze runs the Hotze Health & Wellness Center, which has been in operation since 1989; Braidwood is his management firm that employs the center’s staff. He has marketed hormone therapies to treat a wide range of conditions and sold a vitamin product called Skinny Pak, the New York Times reported. Over the years, he has donated extensively to the Republican party and Texas politicians, including Senator Ted Cruz. Hotze’s public anti-LGBTQ+ activism picked up after the supreme court legalized gay marriage nationwide in 2015, with Hotze launching a “Faith Family Freedom Tour” and using the same homophobic language from his activism decades prior. Hotze said he was fighting a “wicked, evil movement” that celebrates anal sex, telling the Houston Chronicle: “Kids will be encouraged to practice sodomy in kindergarten.”

During the tour, he said “satanic cults” were behind gay rights, brandished a sword during a speech, and likened his fight to battling Nazis, the Texas Observer reported. That year, he and other rightwing activists successfully campaigned to repeal an equal rights Houston ordinance. At a 2016 evangelical conference, Hotze was filmed describing the LGBTQ+ rights movement as “termites [that] get into the wood of the house and … eat away at the moral fabric”. In 2017, Hotze rallied for Roy Moore, the failed Alabama senate candidate accused of sexually coercing teenagers in the 1970s. Hotze has also recently promoted anti-trans causes, testifying in 2023 in favor of a school district policy requiring staff to notify parents if students change their names or pronouns. Trans people, he said, “have a reprobate, perverted and morally degenerate mind”.

[...] In that case, and in the one now before the supreme court, Hotze has been represented by America First Legal, the rightwing legal group co-founded by Stephen Miller, Donald Trump’s influential adviser. The organization has brought a string of lawsuits, including efforts to undo trans rights and complaints accusing companies of discriminating against white men. Hotze has also been represented by Jonathan Mitchell, an anti-abortion lawyer behind Texas’s so-called “bounty hunter law” that allows private citizens to sue providers or people who “aid or abet” the procedure.

Jill Filipovic at Slate:

Should the very state of being pregnant place women in a subclass of citizen, vulnerable to criminal prosecution or civil penalties for behavior that would be perfectly legal from a nonpregnant person? Judging by their proposed legislation and various legal antics, the anti-abortion movement says: Yes. Pregnant women simply should not have the same rights as any other U.S. citizen. Take, for example, efforts to criminalize the crossing of state lines for abortion. There is a very, very long tradition in the U.S. of allowing people to travel out of state to access medical care, and it’s so deeply ingrained we barely think about it. Consider, for example, the businesswoman who lives in New Jersey but works in New York City and so goes to the dentist in midtown Manhattan, or the dad who lives on the Kansas side of Kansas City but takes his sick kid to a specialist at a hospital on the Missouri side. A great many Americans don’t think twice about crossing state lines for health care. Abortion opponents are trying to change that for one group of people: pregnant women.

Conservative legal groups are already drafting model legislation to prevent pregnant women from traveling for abortions by legally penalizing anyone who helps them, a strategy used by the state of Texas in one of its abortion bans, which allows anyone in the U.S. to sue those who assist women with abortions—and be rewarded with a bounty paid by the state. The architect of that Texas abortion bounty law was Jonathan Mitchell, an anti-abortion activist (and Donald Trump lawyer) who is currently representing a Texas man in his quest to probe into his ex-girlfriend’s abortion, which she allegedly sought outside of their home state. Mitchell filed a petition to learn the details of this woman’s abortion for, he says, a potential future lawsuit. But to be clear, the woman in question did absolutely nothing illegal: Traveling out of state for health care, including abortion, is not against the law in Texas or anywhere else. It’s just that Mitchell and other abortion opponents would like to change that—and are apparently happy to represent controlling (and, in another case Mitchell took on, allegedly abusive) men to do it.

They’re also happy to reclassify pregnant women as a kind of sub-citizen who, by simple virtue of their pregnancy status, are not entitled to the same legal freedoms and protections as anyone else. A Texas woman who goes to a Colorado abortion clinic is being treated differently from any nonpregnant person who travels for a medical procedure—and you can bet that this categorization of pregnant people as suspect, should they travel out of state, will lead to all sorts of investigations and abuses.

Take this hypothetical: Say the anti-abortion movement succeeds and makes it a crime to travel out of state for an abortion. Say a woman in Idaho (where abortion laws are so extreme, they have no exceptions for saving a woman’s health) travels to Washington state, where abortion is legal, and gets her hands on abortion-inducing drugs. Say she’s not pregnant. Say she takes the drugs anyway. Has she committed a crime? Or, to use a more likely legal model, say Texas makes it a crime to help a woman travel for an abortion, and a Texas woman goes to Colorado, gets abortion-inducing drugs, and takes them, despite not being pregnant. Is the friend who helped buy her plane ticket still liable? Presumably not: No pregnancy means no abortion, which means no violation of an abortion ban. But if the two women in these scenarios had been pregnant, the legal calculus would be entirely different.

Or to use a perhaps more realistic scenario: Mifepristone, an abortion-inducing drug, is also commonly used to treat Cushing’s syndrome, and researchers say it has tremendous potential to treat other illnesses, too, from various cancers to PTSD. Under an anti-abortion legal scheme, if a Texas woman with Cushing’s syndrome travels out of state, gets mifepristone, and takes it, she (or those who help her) would face potential legal consequences only if she’s pregnant. It’s her status as a pregnant woman—not the act of traveling or even taking an abortion-inducing drug—that is the problem. And generally, the law frowns on making a person’s status—rather than their actions—the basis of a crime or a lawsuit. That’s part of treating all people equally under the law, and offering all people the equal protection of it.

Preventing pregnant women from crossing into a state for a legal medical procedure isn’t the only way in which the anti-abortion movement is attempting to curtail basic rights and protections for anyone carrying a pregnancy. Earlier this year, abortion opponents argued before the Supreme Court that pregnant patients should be treated differently than nonpregnant ones in cases of serious medical emergencies—that doctors and other health workers should be permitted to give pregnant women a substandard level of care, and to essentially refuse to appropriately stabilize them. If a woman comes in and is very ill, she’s entitled to one standard of care; if she comes in and is very ill and pregnant, that standard of care is lower in states that criminalize abortion.

At issue in the Supreme Court case, a ruling in which is expected early this summer, is the Emergency Medical Treatment and Labor Act (EMTALA), a law initially written to prevent hospitals from dumping seriously ill patients who couldn’t pay. Pregnant women in particular were often coming into hospitals in labor, only to be refused care; there were stories of women birthing in hallways and cars. EMTALA says that any hospital receiving federal Medicaid dollars (which is most hospitals, both public and private) must provide lifesaving care to anyone who walks through their doors, regardless of their ability to pay. That means that hospitals have an obligation to stabilize ill patients. (If they don’t have the ability to appropriately stabilize a patient, they must move the patient to a facility that does.)