Biden’s transgender mandate suffers second big loss in appellate court

Denver, Colo., Dec 9, 2022 / 17:15 pm

The Biden administration may not force Catholic organizations and medical professionals to perform gender-transition surgeries or provide insurance coverage for them, the U.S. Eighth Circuit Court of Appeals has said in a Dec. 9 ruling that cited religious freedom grounds.

“The federal government has no business forcing doctors to violate their consciences or perform controversial procedures that could permanently harm their patients,” Luke Goodrich, vice president and senior counsel at Becket legal group, said Friday. “This is a common-sense ruling that protects patients, aligns with best medical practice, and ensures doctors can follow their Hippocratic Oath to ‘do no harm.’”

Becket serves as legal counsel for a coalition of Catholic organizations representing hospitals, doctors, and clinics that had filed the legal challenge to the mandate issued by President Joe Biden’s Department of Health and Human Services (HHS). The Catholic groups alleged that the mandate required them to perform and provide insurance coverage for gender-transition surgeries and abortions, against their conscientious objections.

Plaintiffs included four Catholic groups under the Religious Sisters of Mercy, along with the Catholic Benefits Association, the Catholic Medical Association, the Diocese of Fargo, and Catholic Charities of North Dakota. They were joined by the state of North Dakota.

The ruling from a three-judge panel with the Eighth Circuit noted that the Religious Sisters of Mercy believe “that performing gender-transition procedures would violate their medical judgment by potentially causing harm to patients.” Performing these procedures would violate their religious beliefs about human sexuality and procreation, as would providing insurance coverage to employees for such procedures.

The ruling affirmed a federal district court’s January 2021 decision granting injunctive relief. The appeals court sided with the lower court’s ruling that the intrusion on the Catholic plaintiffs’ free exercise of religion was sufficient to show “irreparable harm.”

“The government’s attempt to force doctors to go against their consciences was bad for patients, bad for doctors, and bad for religious liberty,” Goodrich added. “Today’s victory sets an important precedent that religious health care professionals are free to practice medicine in accordance with their consciences and experienced professional judgment.”

The ruling ends a long legal battle stemming from a similar rule dating back to the Obama administration in 2016. The administration of President Joe Biden issued changes in January 2021.

If finalized, the Biden administration rule would have empowered the HHS to force hospitals and doctors to perform gender-transition surgeries, in addition to expanding the Obama-era version of the rule to include abortion.  

The rule revised Section 1557 of the 2010 Affordable Care Act to add “sexual orientation and gender identity” and “reproductive health care services” including “pregnancy termination” to existing “protections against discrimination on the basis of sex.” 

It also reversed Trump-era conscience protections that sought to allow medical professionals to opt out of performing procedures against their beliefs.

The proposal met with strong opposition from religious doctors, medical organizations, and the United States Catholic Conference of Bishops, which condemned the move in a July 27 statement. The bishops objected to requiring health care workers “to perform life-altering surgeries to remove perfectly healthy body parts.”

“Assurances that HHS will honor religious freedom laws offer little comfort when HHS is actively fighting court rulings that declared HHS violated religious freedom laws the last time they tried to impose such a mandate,” the bishops said. “This is a violation of religious freedom and bad medicine.”

Another federal lawsuit, Franciscan Alliance v. Becerra, resulted in the Fifth Circuit Court of Appeals striking down the mandate in an Aug. 26 decision. The deadline to appeal that decision passed on Nov. 25.

In that case, religious medical groups including Franciscan Alliance, Christian Medical and Dental Society, and Specialty Physicians of Illinois had challenged the mandate.