The U.S. Department of Health and Human Services (HHS) revised a non-discrimination rule under Section 1557 of the Affordable Care Act (aka, Obamacare). In its announcement on June 12, HHS said “the plain meaning of the word ‘sex’” means being male or female “as determined by biology.”
An HHS press release said the revision “restores the rule of law by revising certain provisions that go beyond the plain meaning of the law as enacted by Congress.” The department also said the final rule will save taxpayers “approximately $2.9 billion in undue and ineffective regulatory burdens over five years.”
Roger Severino, Director of the department’s Office for Civil Rights, said, “HHS respects the dignity of every human being, and as we have shown in our response to the pandemic, we vigorously protect and enforce the civil rights of all to the fullest extent permitted by our laws as passed by Congress.”
“We are unwavering in our commitment to enforcing civil rights in healthcare,” he added.
The department explained the history of the final rule of Section 1557, saying that in implementing Obamacare, the previous administration had redefined sex discrimination in 2016 “to include termination of pregnancy and gender identity, which it defined as ‘one’s internal sense of gender, which may be male, female, neither, or a combination of male and female.’”
The Becket Fund for Religious Liberty challenged that redefinition, arguing that it trampled on religious liberty and freedom of conscience. The legal organization said the redefinition “would require a doctor to perform gender transition procedures on any patient, including a child, even if the doctor believed the procedure could harm the patient.”
Changing sex to include “termination of pregnancy” meant that medical professionals, health insurers and medical organizations would be forced to participate in performing abortions – or risk being sued for sex discrimination.
The Becket Fund explained that “there were two major insurance plans exempted from HHS’s mandate—the plans run by HHS itself: Medicare and Medicaid.” At the same time, “the mandate required virtually all private insurance companies and many employers to cover gender reassignment therapy or face severe penalties and legal action.” (emphasis theirs)
In response to the redefinition of “sex,” a coalition of more than 19,000 healthcare professionals, nine states, and several religious organizations filed two lawsuits against the mandate. Two different federal courts ruled that the federal agency had seriously overreached its authority.
According to HHS, the first court decided that the redefinitions of sex “were likely contrary to applicable civil rights law, the Religious Freedom Restoration Act, and the Administrative Procedure Act” The second court agreed.
In October 2019, the first court issued a final judgement “and vacated and remanded these provisions as unlawful,” so the department went to work creating this new final rule. The HHS announcement brings to an end – for now anyway – a long battle for common sense and religious freedom.