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Appeals court weighs if Biden HHS can force doctors to perform transgender surgeries

The Fifth Circuit Court of Appeals heard arguments Thursday in a lawsuit brought by nearly 20,000 religious physicians challenging the Department of Health and Human Services rule they say requires doctors to perform gender transition procedures against their conscience.

President Joe Biden‘s administration is seeking the federal appeals court to lift a lower court order that protected Christian doctors from having to perform gender transition treatment under the Affordable Care Act. The administration contends the court order, which applies solely to the Christian medical group behind a 2016 lawsuit, is contestable because the rule they initially challenged is no longer in effect.

Christian Medical and Dental Society and Specialty Physicians of Illinois and the Catholic hospital system Franciscan Alliance penned a letter Monday arguing the recent rule proposed by the administration late last month could force their medical practitioners to offer gender transition and abortion services to patients, which are against their religious conscience. The rule is intended to provide religious exemptions, though plaintiffs argue it does not offer strong enough assurance.


A three-judge panel composed of Republican-appointed justices heard arguments over the case. The panel of judges included Jennifer Walker Elrod, a George W. Bush appointee, and Don Willett, and Kurt Engelhardt, both appointed by President Donald Trump.

Luke Goodrich, an attorney for the Becket Fund for Religious Liberty that represents the doctors, told the Washington Examiner that the judges seemed receptive to their arguments.

“The court asked a number of very pointed questions of the government, and the government didn’t always have particularly satisfying answers,” Goodrich said, noting that Willett asked whether the administration could assure that the government would not punish plaintiffs who refuse to provide transgender and abortion procedures.

“And the government said no. And that’s telling because a big part of the government’s position is that it hasn’t made up its mind yet whether to punish these doctors and hospitals,” Goodrich added.

Goodrich said the thousands of physician plaintiffs in the case provide quality healthcare services to every patient but do not offer abortion or transgender procedures that are against their religious conscience.

The coalition of Christian groups sued in a Wichita Falls, Texas, federal court to challenge an HHS rule issued in 2016 during President Barack Obama‘s administration. The rule interpreted Section 1557 as a means to bar physicians who receive federal funding or participate in ACA exchanges from discriminating on the basis of “gender identity” and “termination of a pregnancy.”

Challengers of the HHS rule said that refusal to follow it could result in losing federal funding if they refuse to provide abortions or gender transition treatment by violating the Religious Freedom Restoration Act of 1993. They also contend refusal of such procedures could result in multimillion-dollar penalties.

“Franciscan Alliance and the Sisters of St. Francis of Perpetual Adoration seek to carry on Jesus Christ’s healing ministry by providing the best possible care to every person who comes through our doors,” said Sister Petra Nielsen of St. Francis of Perpetual Adoration and member of the Corporate Board for Franciscan Alliance. “We are simply asking the courts to let us keep caring for all our patients with joy and compassion—as we’ve done for over 145 years.”

U.S. District Judge Reed O’Connor vacated a portion of the rule in 2019, though he denied an injunction. Then, HHS rescinded the rule in 2020, under the Trump administration. The plaintiffs still decided to appeal to the Fifth Circuit in March 2021 to request an injunction, and that court remanded the case for additional consideration under O’Connor.


O’Connor then entered a broad injunction against enforcing Section 1557 against the plaintiffs to require them to perform gender transition surgeries and abortion.

The Biden administration has argued the rule would not have the effect the groups were concerned about, saying federal protections for religious freedoms still applied to doctors and that the government would allow them to exercise their best judgment.

The Washington Examiner contacted HHS.

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