An organization representing over 60 Catholic archdioceses and dioceses have filed a claim in federal court against a new Obamacare regulation that will force religious hospitals, religious orders and faith-based employers to perform or insure sex reassignment procedures and abortion services.
A new Department of Health and Human Services regulation outlining Section 1557 of the Affordable Care Act will take effect for many health plans on Jan. 1 and require all health care providers, insurance providers and employers to cover or offer a broad range of transgender reassignment surgeries and procedures.
Despite concerns issued by the United States Conference of Catholic Bishops during the public comment period, HHS passed the regulation in May without giving religious exemptions to faith-based hospitals or religious employers who object to the regulation because of their deeply-held religious convictions.
Institutions that fail to comply with the regulation could face ruinous consequences, such as loss of Medicaid or Medicare funding, triple compensatory damages, or civil penalties. Plaintiffs say that the regulation could cause many Catholic organization's existence to be at stake.
The complaint for injunctive and declaratory relief was filed Wednesday in the United States District Court of North Dakota and pressed by the Diocese of Fargo, Catholic Charities of North Dakota and the Catholic Benefits Association, an organization that represents over 880 Catholic employers, 5,000 parishes and 90,000 employees.
Martin Nussbaum, the general counsel for the CBA, told the Christian Post on Thursday that CBA member organizations became alarmed when they started receiving gender dysphoria riders from their health insurers notifying that their plans for the new year would cover various transgender health services.
A rider sent out by United Healthcare that was sent to CBA clients lists the procedures that are expected to be covered under the new regulation — clitoroplasty (creation of clitoris), labiaplasty (creation of labia), orchiectomy (removal of testicles), penectomy (removal of penis), breast reduction, vaginoplasty (creation of vagina), hysterectomy (removal of uterus), phalloplasty (creation of penis), metoidioplasty (creation of penis, using clitoris) and a number of other services.
"When our member, who is a Catholic diocese, received this, their statement to me was 'How can we, a Catholic diocese that teaches what we teach regarding biology and sex, possibly give this plan to our members without creating scandal since it is so contrary to what we teach?" Nussbaum explained.
As for health care providers such as hospitals and doctors, Nussbaum warned that the regulation could force them to go against their best medical judgement and violate their religious beliefs should a patient come to them with gender dysphoria and wants to begin the gender transition process.
It should be noted that both Medicare and Medicaid are exempt from the regulation, as their HHS researchers found that "clinical evidence for gender reassignment surgery was inconclusive for the Medicare population at large."
Ironically, HHS is threatening hospitals with loss of Medicaid and Medicare funds if they don't perform procedures that neither of those programs are required to cover.
"For medical providers, the largest sanction for them is to deny them and exclude them from Medicare and Medicaid coverage. Hospitals would fail right and left if those dollars are not available to them," Nussbaum explained. "So, it is forcing them to either violate their conscience and medical judgement or give up the Medicare and Medicaid funding or seek judicial relief. That is what the hospitals are doing."
In addition to transgender services, HHS interpreted title Title IX discrimination protections on the basis of sex to also mean "termination of pregnancy," which has left many wondering if this is the Obama administration's attempt at creating an abortion mandate.
"There was a comment from the USCCB which asked, 'Hey, do you really mean to create a surgical abortion mandate?'" Nussbaum explained. "HHS responded with obfuscation, essentially saying, 'It is what is and there are other laws out there regarding abortion and they are what they are and we are not changing this.' In other words, we have serious concern HHS planted a seed that will ripen into an abortion mandate."
The regulation goes beyond forcing providers, insurers and employers to cover or perform the aforementioned services. Nussbaum added that the regulation also requires health care providers to use the pronouns preferred by the patients and open all sex-segregated programs, facilities, showers and wards on the basis of gender identity.
"Try to imagine how hard that would be for a sexual assault victim to have a transwoman show up in their support group," Nussbaum stated.
Nussbaum explained that the regulation also affects organizations that offer their own self-funded health plans, stating that Third Party Administrators, which are normally part of large insurance companies, will be required to comply with the regulation.
While HHS' regulation relies on Title IX civil rights protections, the agency did not carry over Title IX's requirement for broad exemptions for religious institutions in its regulation.
"During the comment period, the USCCB said 'Hey, you forgot the religious freedom exemption from Title IX when you brought this along,'" Nussbaum said. "HHS, when they made the rule final, they essentially said, 'We are not going to bring that in. You are going to have to look to get your religious liberty protected some other way.'"
Nussbaum stated that with many of the CBA member organizations' set to be affected by this regulation on Jan. 1., CBA has filed a motion for a temporary restraining order. However, it is not known yet on when the court will rule on the motion.
The CBA's lawsuit comes after a lawsuit was filed earlier this year by the Becket Fund for Religious Liberty on behalf of five states and organizations representing over 17,000 physicians.
While the Becket Fund's litigation seeks protection from the HHS mandate for health care providers, the CBA lawsuit seeks protection for not only hospitals and medical providers but also dioceses, religious orders and closely-held Catholic businesses.