In a ruling upholding the latest tangential attack on the Affordable Care Act by religious activists, a federal district judge in Texas blocked regulations prohibiting insurers, doctors, or hospitals from discriminating against transgender patients or women with an abortion in their medical history.
The judge, Reed O’Connor of Fort Worth, has been making a name for himself as a bulwark against LGBT rights, especially transgender rights. On Aug. 21, he issued an injunction blocking the Obama administration’s rules forbidding schools to discriminate based on gender identity, including transgender status. His rationale was the familiar retrograde argument about bathroom privacy. (This is the same argument justifying discrimination that got North Carolina Gov. Pat McCrory bounced from his job in the last election.)
Forty-eight hours after O’Connor issued that injunction, the attorneys general of Texas, several other conservative states and a passel of Christian and Catholic healthcare entities were in O’Connor’s court filing the latest lawsuit. O’Connor obliged them on Dec. 31, ruling that the healthcare institutions were likely to be able to show in court that the government’s rule would force doctors and hospitals to violate their own religious beliefs by making them perform abortions and transgender operations. (H/T to Mark Joseph Stern of Slate, among others, for catching the ruling soon after it was filed.)
Those plaintiffs “sincerely believe,” he wrote, that “such procedures would harm their patients and force their employees to ‘engage in material cooperation with evil.’”
As for Texas, Wisconsin, Nebraska, Kentucky, Mississippi and Kansas, O’Connor bought their argument that the government rule would force them to rescind their refusals to provide insurance coverage for abortions and gender transition procedures. Texas complained that it was already under investigation by the Department of Health and Human Services for refusing to comply with the law, at the risk of losing $42 billion in federal healthcare funding — overlooking the fact that the easiest way Texas could forestall such a loss would be to, you know, comply with the law.
O’Connor’s ruling represents yet another expansion of the Supreme Court’s 2014 Hobby Lobby decision that opened wide the door to allowing even inchoate religious objections to overrule laws of broad applications. Justice Ruth Bader Ginsburg noted memorably in her dissent that by selectively approving some religious claims — in that case, “religious” objections to providing health insurance coverage for contraceptives — the court “has ventured into a minefield.” The mines continue to detonate. O’Connor, indeed, cited the Hobby Lobby decision as justification for allowing religious tenets to trump government regulations.
The deeper flaw in O’Connor’s argument is that nothing in the HHS rule requires anyone to perform an abortion or a transition operation. As government lawyers told the judge, the Affordable Care Act brims with language protecting state laws on abortion and “medical judgment and religious and conscience-based objections” to any given treatment or procedure. The rule was designed to ensure that doctors, hospitals, and insurers didn’t refuse to treat certain patients purely because of discriminatory intent.
As healthcare expert Timothy S. Jost observes in Health Affairs, “O’Connor is simply wrong” to believe that the rule “requires anyone to pay for or perform abortions.” Nor does it “specifically require … practitioners or health care facilities to provide gender transition services.” It does, however, require insurers to cover such services if they’re deemed necessary by a doctor.
That cuts the ground out from some of the more fatuous arguments made against the rule, including those by the Becket Fund for Religious Liberty, which represented some of the plaintiffs. The rule would require doctors “to perform gender transition procedures on children, even if the doctor believes the treatment could harm the child, the fund said. Jost responds: “This is simply not true.” In fact, he notes, HHS rejected a proposal that it declare rules forbidding gender transition surgery for children under 18 to be “per se discriminatory.”
What the rule does, however, is protect transgender patients or others with gender identity issues, and women who have had abortions in the past, from discrimination. A doctor or hospital can’t refuse treatment to a woman because she had an earlier abortion or to a patient who has had gender reassignment surgery. Among the examples cited by the rule itself, a hospital or doctor would not be permitted to “deny, based on an individual’s identification as a transgender male, treatment for ovarian cancer where the treatment is medically indicated.” Conversely, the rule wouldn’t require that a professional “provide a traditional prostate exam to an individual who does not have a prostate, regardless of that individual’s gender identity.” The rule honors, rather than erodes, professional judgment and religious sensitivity.
With O’Connor’s ruling, the anti-discrimination rule is hanging by a thread. Appealing the injunction will fall to a new administration, which hasn’t yet demonstrated the same commitment to equal rights of patients as the outgoing crowd.
What seems clear is that the plaintiffs in this case aren’t really concerned with protecting the rights of doctors and hospital personnel so much as undermining those of certain types of patients. That’s what’s known as discrimination.