The U.S. Department of Health and Human Services (HHS) announced
on June 12 that it had "finalized a rule under Section 1557 of the
Affordable Care Act (ACA) that maintains vigorous enforcement of federal civil
rights laws on the basis of race, color, national origin, disability, age, and
sex, and restores the rule of law by revising certain provisions that go beyond
the plain meaning of the law as enacted by Congress."
CMA and Becket express optimism
The Christian Medical Association (CMA)
expressed optimism that the new HHS rule, which was influenced by a CMA court
case and buttressed by CMA polling, will help protect medical judgment and the
exercise of conscience in healthcare.
"Health professionals know they must base medical
decisions on biology and science, not ideology," said Dr. Jeff Barrows, CMA's
Executive Vice President for Bioethics and Public Policy and an Ob-Gyn
physician. "Biological gender carries very significant health implications
that a physician must be able to recognize in making treatment decisions. The
freedom for a health professional to base decisions on the medical science
regarding biological gender also carries conscience concerns that should not be
overruled by politics or ideology.
"We are hopeful that this rule will help steer consideration
of gender issues in healthcare back toward science and away from politics and
ideology, back to the protection of professional medical judgment and the
freedom to adhere to long-observed ethical and moral standards."
Luke Goodrich, vice president and senior counsel at Becket—the
firm that represents CMA in its case against the 'transgender mandate--
added,
“No doctor should be forced to perform a procedure she believes would harm a
patient. The new rule will help ensure that all patients receive top-notch care
without forcing doctors to perform potentially harmful procedures in violation
of their religious beliefs and medical judgment."
CMA lawsuit and polling influenced new HHS rule
The new HHS rule was influenced by a successful and ongoing CMA
and Franciscan Alliance
lawsuit aimed at
stopping the previous administration's "
transgender mandate" that had
trampled medical judgment and nixed conscience objections over transgender
procedures and prescriptions. The old rule had interpreted "sex
discrimination" under Section 1557 of the Affordable Care Act (Obamacare)
to include not just biological sex but also termination of pregnancy and gender
identity, which the old rule defined as “one’s internal sense of gender, which
may be male, female, neither, or a combination of male and female.”
As Roger Severino, Director of the Office for Civil Rights
at HHS, explained in announcing the new final rule, "HHS will continue to
vigorously enforce federal civil rights laws prohibiting discrimination on the
basis of race, color, national origin, disability, age, and sex in healthcare,
as Section 1557 provides. 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."
In its announcement, HHS highlighted the impact that CMA's
successful
lawsuit
had on the rules, noting, "On December 31, 2016, a federal court
preliminarily enjoined, on a nationwide basis the prior administration’s
attempt to redefine sex discrimination in the 2016 Rule, concluding that the
provisions were likely contrary to applicable civil rights law, the Religious
Freedom Restoration Act, and the Administrative Procedure Act."
HHS also cited as rationale for its new rule CMA's national
polling of faith-based health
professionals that had been submitted to HHS during the public comment period
on the proposed rule.
HHS observed that CMA "commenters, however, cited a survey
showing that 97% of responding faith-based medical professionals attest that
they 'care for all patients in need, regardless of sexual orientation, gender
identification, or family makeup, with sensitivity and compassion, even when
[they] cannot validate their choices.' Thus, some commenters argue, the issue
is not one of refusing to care for certain patients based on identity, but
instead a matter of declining to participate in a discrete set of morally
controversial procedures and treatments that are available elsewhere."
CMA's polling also found that 91% said they would stop
practicing medicine apart from conscience protection.
Supreme Court redefines "sex discrimination"
While the HHS final rule highlighted the common understanding of
the term "sex" as referring to biological male or female, the Supreme
Court just a week later issued a decision reinterpreting "sex
discrimination" in employment to include discrimination based on sexual
orientation and gender identity.
According to the
majority
opinion, authored by Justice Gorsuch, if any employer “fires an individual
for being homosexual or transgender,” then the employer has fired that person
“for traits or actions it would not have questioned in members of a different
sex.” Thus, the employer has engaged in “sex discrimination” in violation of
federal law.
In his dissenting opinion, Justice Alito warned that the ruling
“is virtually certain to have far-reaching consequences.” In particular,
Justice Alito noted that “[h]ealthcare benefits may emerge as an intense
battleground under the Court’s holding,” because the Affordable Care Act
“broadly prohibits sex discrimination in the provision of healthcare.”
One example of that issue is CMA's "transgender
mandate"
lawsuit.
Winning the religious freedom aspect of that case now takes on even greater
importance.
As Justice Alito noted, “[S]ome employers and healthcare
providers have strong religious objections to sex reassignment procedures, and
therefore requiring them to pay for or to perform these procedures will have a
severe impact on their ability to honor their deeply held religious beliefs.”
Call to courage and spiritual battle
Clearly some of the foundations of our faith, medical science and
reality itself are under attack in the courts and in our legislatures. We know from
Scripture that spiritual forces lie behind attacks on God's immutable truth and
on the design of His creation.
Ultimately our enemy is not deceived legislators, activists or
judges but the false ideas and spiritual forces of deception that have blinded
eyes to the truth—truth that can set us free to live according to God's design.
Pray for our country, our courts, our lawmakers and CMDA,
that we might all conform our lives to God's truth and follow His perfect path
to human fulfillment and justice.
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