Biden Administration Declares ‘Open Season’ on Religious Hospitals That Object to Gender Transitions

·4 min read

In 2016, the Obama administration’s Department of Health and Human Services issued a rule that would have forced doctors across the country to assist in transitioning patients out of their biological sex, regardless of a provider’s medical opinion or conscience objections.

“A provider specializing in gynecological services that previously declined to provide a medically necessary hysterectomy for a transgender man,” for example, “would have to revise its policy to provide the procedure for transgender individuals in the same manner it provides the procedure for other individuals.”

The rule left no room for religious physicians or institutions to breathe, instead menacing them with draconian fines, were they not to toe the controversial new line.

In stepped the Becket Fund for Religious Liberty, which swiftly secured a preliminary injunction in federal court that stopped the rule from going into effect, on the grounds that it violated the Administrative Procedure Act, and likely violated the Religious Freedom Restoration Act. It was a decision later confirmed in 2019, and made permanent by a 2021 ruling.

On August 4, however, Becket attorney Luke Goodrich, who has been working on the case since the Obama-era rule was first issued, will march back into the courtroom, having been dragged back in by the Biden administration and Secretary of Health and Human Services Xavier Becerra.

“They say that our lawsuit was only about the 2016 rule. . . . They say, ‘well, all you were challenging was the 2016 rule, and you won that, but now we’re using a different rule or a different rationale for imposing the same requirement on you, and so you have to file a new lawsuit,’” explained Goodrich.

Under the Biden administration’s theory, the Affordable Care Act provides the administration with “all the authority” it needs “to punish groups that don’t perform gender transitions and abortions,” Goodrich told National Review. The 2016 rule also included language that Becket alleges would force religious institutions to perform abortions.

According to Goodrich, “the merits are completely resolved and haven’t been appealed; the fight on appeal is about the scope of relief.” He described an effort to work around a losing legal argument by burdening religious objectors and opening up new fronts of battle.

“They want religious organizations to have to play Whac-A-Mole every time the government violates the Religious Freedom Restoration Act, and they want a ruling that will leave them free to keep violating religious liberty every time they shuffle the same legal requirement from one volume of the Federal Register to another,” he said.

That strategy is observable in the proposal of yet another, even broader rule — modeled after the 2016 one — issued by Becerra, who has made his political brand on waging one ruthless culture war after another.

As attorney general of California, Becerra sought to punish independent journalists who exposed Planned Parenthood’s sale of fetal remains harvested during abortions. The Los Angeles Times editorial board described his decision to charge those involved with felonies “disturbing,” and the progressive Mother Jones called it “chilling.”

He also happily enforced a plainly unconstitutional California statute requiring pro-life crisis pregnancy centers to provide pro-abortion materials to patrons, and, as a member of the U.S. House of Representatives, voted against legislation that would allow providers not to perform abortions without fear of government reprisal.

In a call with reporters last week, Becerra described the rule as an attempt “to make sure that whoever you are, whatever you look like, wherever you live, however you wish to live your life, that you have access to the care that you need so that your decisions are based on what you and your health-care provider and your physician or the person you depend on for medical decisions is available to you so you can access the care that you need.”

If Goodrich and his colleagues win on Thursday, that would mean that Becerra’s attempt to bully religious providers into submission would be “dead on arrival.”

Another victory for Becket would prohibit HHS from interpreting “the Affordable Care Act to require religious doctors and hospitals across the country to perform gender transitions or abortions, and importantly, that that relief applies to its most recently proposed regulation,” granting them a more permanent victory, according to Goodrich.

But if they lose, the ramifications would be even more breathtaking.

“If we lose, that means all these tens of thousands of religious doctors and hospitals all across the country are subject to massive financial penalties,” said Goodrich, who described such a scenario as “open season.”

“HHS can start punishing them tomorrow,” he said.

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