Biden admin. can't make doctors perform gender reassignment surgeries, abortions: appeals court

Then-California Attorney General Xavier Becerra speaks outside the U.S. Supreme Court in Washington, D.C., November 12, 2019.
Then-California Attorney General Xavier Becerra speaks outside the U.S. Supreme Court in Washington, D.C., November 12, 2019. | SAUL LOEB/AFP via Getty Images

A federal appeals court has blocked the implementation of a Department of Health and Human Services rule requiring medical facilities to provide gender transition surgeries and abortions and health insurers to cover them, even if they hold religious objections to either procedure.

A three-judge panel of the United States Court of Appeals for the 5th Circuit released a unanimous decision last Friday in the case of Franciscan Alliance, Inc. et al. v. Xavier Becerra, upholding a lower court’s permanent injunction against the HHS mandate.

In March, HHS issued guidance declaring that “federally-funded covered entities restricting an individual’s ability to receive medically necessary care, including gender-affirming care, from their health care provider solely on the basis of their sex assigned at birth or gender identity likely violates Section 1557” of the Affordable Care Act. The appeals court panel agreed that the plaintiffs, which included a network of faith-based healthcare providers, had valid concerns over being harmed by the HHS mandate.

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Plaintiffs contended that the HHS mandate violated the federal Religious Freedom Restoration Act. Circuit Judge Don Willett, appointed to the bench by former President Donald Trump, authored the panel opinion. He concluded that throughout the debate over the mandate, “it has become even clearer that Franciscan Alliance’s RFRA claim is not moot,” rejecting the argument made by HHS that the plaintiffs.

“Just months ago HHS issued the 2022 Notice, which warned covered entities like Franciscan Alliance that refusing to offer gender-reassignment surgeries violates Section 1557,” wrote Willett.

“HHS has also repeatedly refused to disavow enforcement against Franciscan Alliance. In its brief on appeal, HHS simply says it ‘has not to date evaluated’ whether it will enforce Section 1557 against Franciscan Alliance — in other words, it concedes that it may.”

The panel also dismissed the plaintiffs’ claim that HHS had violated the Administrative Procedure Act, specifically maintaining that it contradicted preexisting law and exceeded its authority.

Willett wrote that the appeals court considered the APA claim moot since the parts of the mandate that went against the Act had already been struck down in an earlier ruling.

Becket, the religious liberty law firm that is helping to represent the plaintiffs, celebrated the decision. Counsel Joseph Davis called it “a major victory for conscience rights and compassionate medical care in America.”

“Doctors cannot do their jobs and comply with the Hippocratic Oath if the government requires them to perform harmful, irreversible procedures against their conscience and medical expertise,” said Davis in a statement released last Friday.

In 2016, the Obama administration implemented a regulation via Section 1557 of the Affordable Care Act that sought to require healthcare providers to perform gender transition procedures, including on minors, despite any sincere religious objections.

The Obama administration interpreted the federal ban on sex discrimination to include discrimination based on sexual orientation and gender identity, even though neither term is found in federal civil rights law passed by Congress.

Numerous religious groups that provide healthcare coverage filed suit against the Obama administration over the mandate, with litigation continuing into the Trump administration.

Although former President Trump moved to repeal the 2016 Rule, some courts restored parts of the mandate. President Joe Biden eventually revived the rule upon taking office.

The Biden administration has justified its approach by citing the 2020 U.S. Supreme Court decision Bostock v. Clayton County, which concluded that federal protections against sex discrimination codified in Title VII of the Civil Rights Act of 1964 also applied to sexual orientation and gender identity.

The Bostock majority opinion, which was written by Justice Neil Gorsuch, recognized that claims under the RFRA “might supersede Title VII’s commands in appropriate cases.”

“But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too,” wrote Gorsuch.

“So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.”   

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