It took more than five years but a federal court has ruled that a mandate issued by the Department of Health and Human Services (HHS) requiring doctors to perform transgender surgery and treatment cannot be enforced, thanks to the First Amendment to the Constitution and the Religious Freedom Restoration Act of 1993 (RFRA).
Along the way, the plaintiffs, including a religious hospital, a group of physicians, an association of more than 20,000 Christian doctors and dentists, and nine states had to fight through multiple attempts by the HHS bureaucracy to rewrite the mandate in such a way as to make it appear palatable to the courts yet preserve the government’s leverage against medical professionals whose faith precluded their compliance.
The plaintiffs have been represented throughout the case by the Beckett Fund for Religious Liberty, a public interest group that specializes in religious freedom litigation.
Originally, the case, Franciscan Alliance, et. al. v. Becerra, was filed in the U.S. District Court for the Northern District of Texas. The appeals went to the Fifth Circuit Court of Appeals, which most recently directed the lower jurisdiction to re-examine its 2019 ruling for the plaintiffs to determine whether the federal government should be permanently barred from enforcing the mandate.
And boy did he! In a decision that left no room for loopholes, District Court Judge Reed O’Connor said:
“The Court GRANTS Plaintiffs’ request for a permanent injunction and PERMANENTLY ENJOINS HHS, Secretary Becerra, their divisions, bureaus, agents, officers, commissioners, employees, and anyone acting in concert or participation with them, including their successors in office, from interpreting or enforcing Section 1557 of the Affordable Care Act, 42 U.S.C. § 18116(a), or any implementing regulations thereto against Plaintiffs, their current and future members, and those acting in concert or participation with them, including their respective health plans and any insurers or third-party administrators in connection with such health plans, in a manner that would require them to perform or provide insurance coverage for gender-transition procedures or abortions, including by denying Federal financial assistance because of their failure to perform or provide insurance coverage for such procedures or by otherwise pursuing, charging, or assessing any penalties, fines, assessments, investigations, or other enforcement actions.”
Note that O’Connor included “gender-transition procedures or abortions” within the purview of his order.
“Today’s ruling is a victory for compassion, conscience, and common sense. No doctor should be forced to perform controversial, medically unsupported procedures that are contrary to their conscience and could be deeply harmful to their patients,” said Luke Goodrich, vice president and senior counsel at Becket.
“These religious doctors and hospitals provide top-notch medical care to all patients for everything from cancer to the common cold. Everyone benefits when doctors are able to follow their professional medical judgment and their Hippocratic Oath to ‘Do No Harm,’” he continued.
Would that O’Connor’s latest decision could be the final word in the case because no individual doctor or health care provider such as a hospital should be forced to perform any medical procedure that violates a religious conviction or that is deemed either unnecessary or unhealthy for the patient. But the transgender mandate is especially egregious when children are involved.
As Beckett explains in its background material on the case, when HHS first issued the mandate, it covered all private health insurance providers, except two:
“But there were two major insurance plans exempted from HHS’s mandate — the plans run by HHS itself: Medicare and Medicaid. Why? Research shows that not only are there significant risks with gender reassignment therapy – especially in childhood – such as heart conditions, increased cancer risk, and loss of bone density, but most children with gender dysphoria grow out of it naturally without these invasive procedures.
“The government’s own panel of medical experts concluded that these procedures can be harmful and advised against requiring coverage of these medical and surgical procedures under Medicare and Medicaid.”
But the Biden administration has 60 days to decide whether to appeal O’Connor’s ruling and the odds are that such an appeal will be filed. Why? The Supreme Court’s decision in Bostock v. Clayton County.
Officials at HHS announced in a May statement that Bostock means the transgender mandate will be enforced by the federal government, O’Connor’s decision notwithstanding:
“The Supreme Court has made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation. That’s why today HHS announced it will act on related reports of discrimination,” said HHS Secretary Xavier Becerra.
“Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences. It is the position of the Department of Health and Human Services that everyone – including LGBTQ people – should be able to access health care, free from discrimination or interference, period.”
Expect the appeal all the way to the Supreme Court. Then it will be fascinating to see how the conservative majority on the nation’s highest bench reacts. Bostock was a 6-3 decision, with conservative Justice Neil Gorsuch writing for the majority.
Will the justices, including conservatives Gorsuch, Thomas, Alito, Kavanaugh, and Barrett (who was not part of the Bostock deliberations), tell Americans the First Amendment does not protect them against being forced to perform a medical procedure they find abhorrent or unnecessary?