Law firms specializing in religious liberty cases have denounced a newly proposed rule from the Biden administration that critics say will force doctors to perform abortions and body mutilating “gender transition” surgeries, even if they’re morally opposed to the practices.
The U.S. Department of Health and Human Services announced on Monday a proposed rule that would implement antidiscrimination measures on the basis of sex, based on earlier actions by the Biden administration.
The measures draw from Section 1557 of the Affordable Care Act, which prohibits discrimination on the basis of sex, race and national origin.
The proposed rule would define “sex” as including sexual orientation and gender identity, in keeping with the U.S. Supreme Court decision Bostock v. Clayton County.
“This proposed rule ensures that people nationwide can access health care free from discrimination,” said HHS Secretary Xavier Becerra, as quoted in the announcement.
“Standing with communities in need is critical, particularly given increased attacks on women, trans youth, and health care providers. Health care should be a right not dependent on looks, location, love, language, or the type of care someone needs.”
Luke Goodrich of Becket Law is critical of the proposed rule, telling The Christian Post that it was “yet another proposal to force doctors and hospitals across the country to perform gender transitions and abortions in violation of their conscience and medical judgment.”
“This has been the announced policy of the administration since the first day President Biden took office,” he added. “But what they are doing here is proposing to codify that threatening and unlawful [mandate] as a new federal rule.”
“The new proposed rule is already dead on arrival when it comes to religious groups, because the Biden administration is already subject to multiple permanent injunctions from federal courts telling it, it is not allowed to require religious doctors and hospitals to perform transitions and abortions.”
Matt Bowman of the Alliance Defending Freedom said the administration “just came right out of the gate and told the world ‘you all have to behave this way and we’ll issue a regulation later.’”
“Agencies are supposed to not do anything like this except in a codified regulation, but the Biden administration hasn’t bothered to wait until they actually do it the right way,” Bowman told CP.
“So, by the time this regulation is finalized, which should be this time next year, they’ll have already been imposing this mandate for over two years by fiat.”
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Bowman explained that if the proposed rule is codified, “then the next administration would need to change it if it wanted to take a different approach.
“Unless, of course, it decides that regulations don’t matter and that we’re just going to regulate by website,” Bowman added, noting that there has been litigation already because “the Biden administration didn’t wait to impose this mandate, they just waited to let the public participate.”
“So, how can the courts enjoin something that’s simply proposed and not finalized yet? Because they imposed it before they did this. They’re formalizing something that they’ve already been forcing people to do.”
The proposed rule traces its origins to the Obama administration, which attempted in 2016 to require healthcare providers to perform gender transition procedures, including on minors, even if the providers held sincere religious objections.
The Obama-era mandate was challenged in court by multiple groups, and was eventually repealed during the Trump administration, only to be revived by the Biden administration.
In August 2021, U.S. District Judge Reed O’Connor of the Northern District of Texas issued a permanent injunction against a similar mandate that required medical facilities and health insurers to cover or to provide abortions and gender transition procedures.
O’Connor issued the permanent injunction in the case of Franciscan Alliance, Inc. et al. v. Xavier Becerra, concluding that the mandate violated the Religious Freedom Restoration Act.
“No party disputes that the [Transgender Mandate] threatens to burden Christian Plaintiffs’ religious exercise … 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,” he wrote.
“When the RFRA violation is clear and the threat of irreparable harm is present, a permanent injunction exempting Christian Plaintiffs from that religion-burdening conduct is the appropriate relief.”
In May, Judge Daniel Traynor of the U.S. District Court for the District of North Dakota granted the Christian Employers Alliance a preliminary injunction on the grounds that the mandate would “irreparably harm” the group.