Civil SocietyHealthcareJudicialFederal Judge Permanently Blocks ‘Transgender Mandate’ in Obamacare

Austin, TX, August 12, 2021 — Handing a victory to the Christian hospital and group of religious doctors that sued, a Fort Worth judge has permanently blocked the federal government from threatening medical providers with penalties for refusing to perform and insure abortions and gender modification procedures.

While the Obama administration first instituted the requirement as a rule to comply with the Affordable Care Act, colloquially called “Obamacare,” it was revived by the Biden administration earlier this year.

Federal code outlaws discrimination on the basis of sex. Under the Obama administration in 2016, the U.S. Health and Human Services Department (HHS) promulgated a pair of rules that said the refusal to perform abortions or transgender procedures counted as sex discrimination under Section 1557 of Obamacare.

The Trump administration altered these rules in 2020 to comply with the Religious Freedom Restoration Act (RFRA) and court rulings.

However, after the Supreme Court interpreted federal laws against sex discrimination to include gender identity in Bostock v. Clayton County, the Biden administration effectively restored the 2016 rules. President Joe Biden issued an executive order applying the Bostock ruling to Section 1557 and other statutes, and other federal agencies followed suit.

Now, Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas, who ruled against it previously, has ended the back-and-forth.

“Here, in the Amended Complaint, Plaintiffs identified the substantial burden on their religious exercise as resulting from HHS’s attempt to ‘forc[e] them to choose between federal funding and their livelihood as healthcare providers and their exercise of religion,’” O’Connor wrote in his opinion.

“That was the alleged RFRA violation then. That was the alleged RFRA violation before the Court in 2019. And that is the same RFRA violation the Court found today. Plaintiffs repeatedly challenge that same RFRA violation — no matter HHS’s Section 1557 interpretation du jour. To ignore this pattern would be to face the Neuralyzer.”

Calling HHS’s 2021 interpretation “a legal Penrose staircase,” O’Connor said the revised rules were effectively the same as the 2016 rules and still ran afoul of religious freedom laws. Because court orders have temporarily blocked the abortion and transgender mandates before with little effect, he said a permanent injunction was necessary to prevent the same claims from arising again.

“No party disputes that the current Section 1557 regulatory scheme threatens to burden Christian Plaintiffs’ religious exercise in the same way as the 2016 scheme: namely, by placing substantial pressure on Christian Plaintiffs, in the form of fines and civil liability, to perform and provide insurance coverage for gender-transition procedures and abortions,” O’Connor wrote.

“Here, Christian Plaintiffs contend that violation of their statutory rights under RFRA is an irreparable harm. The Court agrees and concludes that enforcement of the 2021 Interpretation forces Christian Plaintiffs to face civil penalties or to perform gender-transition procedures and abortions contrary to their religious beliefs — a quintessential irreparable injury.”

Under O’Connor’s injunction, doctors may conscientiously refuse to perform abortions or gender transitions without the threat of government penalties.