Judge Blocks Obamacare’s Abortion, Sex Change Mandates

HHS interpretation exceeds authority, 'likely violates' religious liberty

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A federal judge blocked the Obama administration's attempt to force doctors and healthcare providers to perform sex change operations and abortions under the Affordable Care Act.

Federal judge Reed O'Connor, a George W. Bush appointee, issued a preliminary injunction against the Department of Health and Human Services after it expanded Obamacare's anti-sex discrimination language to include "gender identity" and "termination of pregnancy."

The agency's interpretation would have forced "nearly every healthcare provider in the country" to provide abortions and sex change operations. The court determined that the agency exceeded its authority in drafting the rule and blocked the rule on Dec. 31—just hours before it was to take effect.

"The regulation violates the Administrative Procedure Act ("APA") by contradicting existing law and exceeding statutory authority, and the regulation likely violates the Religious Freedom Restoration Act ("RFRA") as applied to Private Plaintiffs," the injunction says.

An HHS spokeswoman told the Washington Free Beacon that the agency will continue to enforce non-discrimination statutes  "to the full extent consistent with the court's order."

"We are disappointed by the court's decision to preliminarily enjoin certain important protections against unlawful sex discrimination in our health care system," she said. The rule "is critical to ensuring that individuals, including some of our most vulnerable populations, do not suffer discrimination in the health care and health coverage they receive."

The agency proposed its new interpretation of Title IX in September 2015 as Obamacare was being implemented. The agency contended in its May 2016 announcement of the new rules that the expansion of sex discrimination to include abortion and gender identity "clarifies and codifies existing nondiscrimination requirements" in federal law.

However, the court found that such rule-making crossed the bounds of the law as it is written.

"The meaning of sex in Title IX unambiguously refers to ‘the biological and anatomical differences between male and female students as determined at their birth,'" the court found. "Congress clearly addressed the question at issue by incorporating Title IX’s existing legal structure, and HHS had no authority to interpret such a significant policy decision."

Franciscan Alliance, Inc., an Indiana-based network of Catholic hospitals, sued the agency, claiming that the statute violated its religious liberty since it would be forced to participate in abortion or sex change operations contrary to the Church's teaching. Franciscan argued that the agency ignored religious and abortion exemptions that were included in Title IX and said that the agency's interpretation would force doctors to perform medically unnecessary gender transitions for fear of being accused of discrimination.

The court found that the hospitals' and doctors' fear of enforcement action by the federal government "is reasonable."

"HHS stressed that some procedures ‘related to gender transition' may be required even if not ‘strictly identified as medically necessary or appropriate,'" the court said in its order. "Private Plaintiffs will be forced to either violate their religious beliefs or maintain their current policies which seem to be in direct conflict with the Rule and risk the severe consequences of enforcement."

Texas, Wisconsin, Nebraska, Kentucky, Kansas, Louisiana, Mississippi, and Arizona also joined the suit, arguing that the federal government overstepped the rights of states to regulate healthcare services provided in public hospitals. Each of those states has laws barring the use of taxpayer dollars for abortion—laws that would have been superseded by the agency's rules if they were to take effect.

"The Court finds [State] Plaintiffs have demonstrated that they face a substantial threat of irreparable harm in the absence of an injunction," according to the injunction.

The Franciscan suit is not the only one launched to block the Obama administration's mandates over abortion and transgender treatment.

The Catholic Benefits Association, which provides insurance coverage to 90,000 people and is administered by Catholic clergy, sued the HHS in December to block the rule in a North Dakota federal court. That suit goes one step further than Franciscan's in that it asks the court to protect religious employers, as well as religious healthcare institutions and states. CBA general counsel Martin Nussbaum told the Free Beacon that the preliminary injunction bolsters its case against the mandate.

"We framed the CBA lawsuit to address problems under both the 1557 Rule and Title VII and to protect both Catholic medical providers and other Catholic ministries and employers," he said in an email. "The Franciscan Alliance precedent will be very helpful to us in the CBA litigation. … The reasoning is thorough and quite good on almost every issue."

Bill McMorris   Email Bill | Full Bio | RSS
Bill McMorris is a staff writer for the Washington Free Beacon. He joins the Beacon from the Franklin Center for Government and Public Integrity, where he was managing editor of Old Dominion Watchdog. He was a 2010 Robert Novak Fellow with the Phillips Foundation, where he studied state pension shortfalls. His work has been featured on CNN, Fox News, The Economist, Colbert Report, and numerous print publications and radio stations. He lives in Alexandria, Va, with his wife and three daughters. His Twitter handle is @FBillMcMorris. His email address is mcmorris@freebeacon.com.

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