The U.S. Department of Health and Human Services chose not to appeal a recent court decision stating the agency could not force doctors and hospitals to perform abortions or “gender reassignment surgeries.”

On August 26, a three-judge panel of the 5th U.S. Circuit Court of Appeals ruled against HHS, affirming a lower court ruling which said health care practitioners could not be required to act against their conscience and best medical judgement.

The government agency had 90 days to appeal the case to the Supreme Court and did not do so. This means the August decision is final. It’s a big win for religious freedom.

Luke Goodrich, vice president and senior counsel for Becket Law (formerly the Becket Fund for Religious Liberty), celebrated the victory with a series of tweets:

Becket Law was representing the Franciscan Alliance, a Catholic hospital system, Christian Medical and Dental Associations (CMDA), and Specialty Physicians of Illinois.

The case stems from a 2016 reinterpretation of the Affordable Care Act (aka Obamacare) by HHS. Section 1557 of the act prohibited discrimination based on various characteristics, including sex.

HHS decided that “sex,” which before then meant being male or female, somehow included gender identity, sex stereotyping and pregnancy – which also included “termination of pregnancy.” The agency said it was now discriminatory if health care providers did not provide abortions or offer drugs, hormones and surgeries to transgender-identified individuals who were attempting to live as the opposite sex.

Becket Law opposed this government requirement, explaining:

The mandate elevated ideology over medicine. A growing body of research shows there are significant risks with gender reassignment therapy, such as heart conditions, increased cancer risk, and loss of bone density.

Moreover, most children who experience gender dysphoria grow out of it naturally without these invasive and irreversible procedures. So under the mandate, many doctors were being required to violate not only their religious beliefs, but also the Hippocratic Oath, on pain of draconian penalties.

The case has followed a convoluted and torturous route. Early on, a Texas court had issued a preliminary injunction barring HHS from enforcing the 2016 rule. The election of President Donald Trump also brought in new leadership for HHS, and the department began re-evaluating the redefinition of sex discrimination in Section 1557.

The lawsuit continued moving forward, and in 2019 Federal District Judge Reed O’Connor, of the Northern District of Texas, overturned the Obama Administration regulation. That decision was appealed to the Fifth Circuit.

In 2020, HHS finalized a new interpretation of Section 1557, adopting religious exemptions and removing the mandate But the department did not offer a new definition of sex discrimination, “reasoning that the Supreme Court’s impending decision in Bostock would likely have ramifications” for the definition of sex discrimination, the Fifth Circuit explained in its recent ruling.

Indeed. Three days later, the Court ruled in Bostock v. Clayton County that sex discrimination in employment law included homosexuality and transgenderism. The case triggered new lawsuits, including two that challenged the Trump administration’s 2020 rule protecting religious freedom in health care.

To complicate things further, President Biden came into office in January 2021 and issued an executive order stating that he would apply this reinterpretation of sex to other statutes and HHS began considering a new rule.

The case was sent back to the Judge O’Connor, and in August 2021, he issued a permanent injunction against the rule and in favor of Franciscan Alliance and more than 20,000 health care workers.

But HHS appealed that decision, along with the ACLU of Texas and River City Gender Alliance, an Omaha-based support group for “transgender, gender nonconforming individuals and their families.”

In its August 26 decision earlier this year, the Fifth Circuit ruled against them, affirming Judge O’Connor’s permanent injunction. With the administration’s decision not to appeal, that ruling now stands.

Becket Law is fighting a related case, on behalf of the Sisters of Mercy, the University of Mary, SMP Health System, and the State of North Dakota. That case is now in the Eighth Circuit, and a decision is expected soon.

The Alliance Defending Freedom has filed a similar case on behalf of the American College of Pediatricians, the Catholic Medical Association, and an OB-GYN doctor who specializes in caring for adolescents.

We’re thankful for Becket Law and their continued defense of religious freedom and freedom of conscience. And we pray these liberties remain protected.

The case is Franciscan Alliance v. Becerra.

Related articles:

ACLU Sues Catholic Hospital for Cancelling Transgender Surgery

Administration Can’t Force Doctors to Perform ‘Sex-Change’ Procedures, Court Rules

Court Rules Doctors Can’t Be Forced to Perform So-Called Gender-Transition Surgery

Federal Judge Strikes Down Rule Forcing Doctors to Perform Abortions and Transgender Surgeries

HHS to Force Religious Hospitals, Doctors to Prescribe Puberty Blockers and Perform Sex-Reassignment Surgeries

HHS Says ‘Sex’ Refers to Being Male or Female – Not ‘One’s Internal Sense of Gender’ or ‘Termination of Pregnancy’

Religious Freedom Lawsuit: Court Strikes Down HHS ‘Transgender Mandate’ for Health Care

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