Christian Medical Association court cases: Good news and bad news

This month's blog provides updates on two Christian Medical Association (CMA) federal lawsuits. Following case updates is information and help for health professionals who have experienced discrimination on the basis of their faith and conscience.

Good News: Victory in transgender mandate case

Becket, one of the nation's premier religious freedom law firms, has represented the interests of CMA members in challenging a 2016 mandate issued by the Department of Health and Human Services under the authority of the Affordable Care Act (Obamacare). Becket provides a synopsis of how the case has developed:

CASE SNAPSHOT

A federal mandate issued in 2016 required doctors to perform gender transition procedures on any patient, including a child, even if the doctor believed the procedure would be harmful. That rule was struck down in court after it was challenged by nine states, several religious organizations, and an association of over 19,000 healthcare professionals [CMDA]. In May 2019, HHS proposed bringing its regulations into compliance with those decisions and ensuring that the personal decision to undergo gender transition procedures is kept between patients and their doctors, free from government interference.

STATUS

On May 24, 2019, HHS proposed a new rule that follows a court ruling, complies with accepted medical research and protects both the medical judgment of the doctor and the unique, individual needs of the patient.

Meanwhile, on October 15, 2019, a federal judge confirmed his earlier ruling that the government's 2016 HHS mandate is unlawful, ensuring that doctors can continue practicing in their field of medicine without being forced to perform procedures that violate their faith.

Left unchallenged by our lawsuit, this unlawful and ideologically driven mandate would have imperiled the careers of many health professionals, by denying the ability to follow medical judgment and conscience. This court victory now protects the religious freedom and medical judgment not only of CMA members but also of health professionals nationwide.

Bad News: First-round loss in conscience rule case

Becket also represents the interests of CMA members in a lawsuit to defend the recent HHS conscience protection rule for health professionals. Becket provides the following synopsis:

CASE SNAPSHOT

Dr. Regina Frost

Regina Frost is an OB-GYN and a member of the Christian Medical Association. Religious healthcare professionals like Dr. Frost care for all patients and are consistently on the frontlines serving the most vulnerable members of our society, including underserved poor and migrant communities; victims of gang violence, sex trafficking, opioid addiction, and deadly epidemics and prisoners living with HIV. In May 2019, HHS released a new Conscience Rule enforcing existing laws that allow religious healthcare professionals to continue their important work without having to perform certain procedures which would be inconsistent with their beliefs. But several states, including the state of New York, are now suing to block this rule and force Dr. Frost and others to either violate their conscience or end their practice. Becket is defending medical conscience rights for religious healthcare professionals nationwide so that they can continue their ministry providing compassionate care across the globe.

STATUS

On June 25, 2019 Becket moved to intervene on behalf of Dr. Frost and the Christian Medical & Dental Associations in federal court, arguing that no healthcare professional should be forced to choose between violating her conscience or providing compassionate medical care. On November 6, 2019, a federal court ruled against the Conscience Rule, threatening the ability of religious doctors like Dr. Frost to serve communities without being forced to perform procedures against their beliefs.

Religious freedom protects the rights of individuals to live out their faith in all facets of their lives—including in their professions. This lawsuit threatens the ability of religious healthcare professionals to provide quality, compassionate healthcare, forcing them to choose between their conscience and their practice. 

What can you do if you have experienced discrimination?

While we await the government's decision to appeal this case, health professionals should know that while this loss represents a significant weakening of protections, existing federal conscience protection law remains in effect and HHS continues to receive complaints.

Filing a complaint with HHS is simple and straightforward: You simply relate your story of what happened--who, what, when, where: www.freedom2care.org/regulations.

Our Freedom2Care website also provides you with links to religious freedom law firms that provide pro bono legal aid: www.freedom2care.org/legal-help.

Message at Supreme Court: Constitution protects both minority and majority viewpoints

Speakers included the mother (center, in red) of a girl
who transitioned against the mother's will through
the intervention of government authorities.

I recently spoke outside the Supreme Court in the face of raucous protests on the day of oral arguments in a case involving transgender individuals and alleged sex discrimination, R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission. Speeches had resumed outside the court after a bomb scare had prompted police to clear the area.

Speeches resumed after police cleared the area for a bomb scare.

Members of the LGBT community relentlessly hassled and harried speakers on our side of the argument by launching wailing sirens, shouting with bullhorns in the faces of speakers and chanting mantras like "homophobe" while we spoke (a special irony given that our speakers included a lesbian and a former transgender man). I imagine their side had some reasonable arguments to make, but I could hear none over the sirens, bullhorn and chanting.
My remarks follow:

In a recent national poll of faith-based health professionals, virtually all of them declared, "I care for all patients in need, regardless of sexual orientation, gender identification, or family makeup, with sensitivity and compassion, even when I cannot validate their choices."
In that same poll, 91% of those faith-based health professionals also said they oppose "Redefining 'sex' in federal discrimination laws to mean gender identity, defined as one's internal sense of being 'male, female, neither or a combination of male and female.'"
So they treat all patients with care and compassion, but they need the freedom to recognize and rely on biology when treating their patients.
But some people think that to show compassion and respect for transgender individuals, the government has to force everyone to ignore not only the clear evidence of biology but also the clear meaning of the law.
That's why a few ideological members of the Equal Employment Opportunity Commission and activist judges have rejected the plain meaning of sex discrimination that Congress, women and doctors have all understood and relied upon for decades.

Reading transgenderism into decades-old sex discrimination law
threatens women's rights and sports, as track star Selina Soule
(above) discovered. Photo: Alliance Defends

In the process, these activists are threatening to undermine the very protections against sex discrimination that Congress enacted, which have transformed opportunities for women.
So this case today is as much about the law and individual freedom as it is about gender.
We will have no individual freedom in our country if the government can require you to believe whatever the government wants you to believe.
The genius of our nation's constitutional protection of individual rights and freedom is not only that the minority is protected from the tyranny of the majority, but also that the majority is protected from the tyranny of the minority. The goal of our democratic republic is protecting the greatest freedom for each one of us, protecting us from government coercion, whether our views align with the majority or with a minority.
So let's all work together to protect each other's freedom to choose our beliefs, and to act in accordance with those beliefs, without government coercion. 

.

Dr. Allen Josephson (left), former chief of the
Division of Child and Adolescent Psychiatry and
Psychology at the University of Louisville, spoke
about how he lost his position after expressing his
professional opinions on the treatment
of youth experiencing gender dysphoria.

Thank you.

As expected, mainstream media coverage slanted toward
stories sympathetic to the LGBT community.

National poll: Faith-based health professionals care for all but need conscience protections on moral issues

By Jonathan Imbody, VP for Government Relations - Christian Medical Association and Director - Freedom2Care

Faith-based health professionals care with compassion and respect for all patients, but they will leave medicine rather than violate their conscience if forced to participate in morally objectionable procedures and prescriptions.

I recently delivered that message from our members, based on a professionally conducted poll, at the White House to the President's advisors; at the U.S. Capitol to Congressional staffers; at a U.S. House of Representatives office to legislators and staffers; and at the U.S. Department of Health and Human Services to agency officials.

The survey, a nationwide poll of faith-based health professionals, conducted by Heart and Mind Strategies, LLC, found that 91 percent said they would have to "stop practicing medicine altogether than be forced to violate my conscience." That finding holds significant implications for millions of patients, especially the poor and those in underserved regions who depend upon faith-based health facilities and professionals for their care. 

The survey of faith-based health professionals also found that virtually all care for patients "regardless of sexual orientation, gender identification, or family makeup, with sensitivity and compassion, even when I cannot validate their choices." The finding puts the lie to the charge that somehow conscience protections will result in whole classes of patients being denied care. 

"Faith-based health professionals actually seek out and serve marginalized patients to provide compassionate care," explained CMDA CEO Emeritus Dr. David Stevens in a news release. "All we ask as we serve is that the government not intrude into the physician-patient relationship by dictating that we must do controversial procedures and prescriptions that counter our best medical judgment or religious beliefs." 

Key poll findings include:

• Faith-based health professionals need conscience protections to ensure their continued medical practice.
• Conscience-driven health professionals care for all patients.
• Religious professionals overwhelmingly support a biological—not ideological--definition of sex.
• Religious health professionals face rampant discrimination.
• Access for poor and medically under-served patient populations depends on conscience protections.

Detail on the poll of faith-based professionals can be found at www.Freedom2Care.org/polling.

CMA is currently represented by the Becket law firm in two cases on which this poll has bearing: Franciscan Alliance v. Azar, which addresses an Obamacare transgender mandate, and New York v. HHS, which addresses a new federal conscience protection rule.

The U.S. Department of Health and Human Services (HHS) recently introduced two new regulations on which the poll has bearing: a final conscience protection rule and a proposed gender rule. For more information on these rules, see https://www.freedom2care.org/laws-regs-cases and click on Regulations.

U.S. encourages U.N. member nations to uphold life, reject policy tricks using abortion euphemisms

HHS Sec. Alex Azar

This email from a friend in the U.S. Dept. of Health and Human Services outlines the bold and right stance that U.S. leaders are taking at the United Nations regarding the value of early human life:

On Tuesday, President Trump spoke to the 74th United Nations General Assembly (UNGA) and boldly asked the nations to resist efforts to include abortion language (also known as “sexual and reproductive health rights” (#SRHR)) into the U.N.’s Universal Health Coverage promotion:

Americans will never tire of defending innocent life. We are aware that many United Nations projects have attempted to assert a global right to taxpayer-funded abortion on demand, right up until the moment of delivery. Global bureaucrats have absolutely no business attacking the sovereignty of nations that wish to protect innocent life. Like many nations here today, we in America believe that every child, born and unborn, is a sacred gift from God.

 

Preceding this historic event, Alex M. Azar II (Secretary of U.S. Health and Human Services) and Mike Pompeo (U.S. Secretary of State) also made history in July by being the first secretaries to write a joint letter to many member nations encouraging them to join the U.S. in standing for life at all ages and stages.

Excerpt of their letter:

The United States appreciates our longstanding partnership in many global health areas. As a key priority in global health promotion, we respectfully request that your government join the United States in ensuring that every sovereign state has the ability to determine the best way to protect the unborn and defend the family as the foundational unit of society vital to children thriving and leading healthy lives. We remain gravely concerned that aggressive efforts to reinterpret international instruments to create a new international right to abortion and to promote international policies that weaken the family have advanced through some United Nations fora. …

We do not support references to ambiguous terms and expressions, such as sexual and reproductive health and rights in U.N. documents, because they can undermine the critical role of the family and promote practices, like abortion, in circumstances that do not enjoy international consensus and which can be misinterpreted by U.N. agencies.

 

The letter paid off. On Sept. 24, Secretary Azar, along with 19 nations representing 1.3 billion people, released a joint statement (excerpt below):

Such terms do not adequately take into account the key role of the family in health and education, nor the sovereign right of nations to implement health policies according to their national context. There is no international right to an abortion and these terms should not be used to promote pro-abortion policies and measures.

Further, we only support sex education that appreciates the protective role of the family in this education and does not condone harmful sexual risks for young people.

We therefore request that the U.N., including U.N. agencies, focus on concrete efforts that enjoy broad consensus among member states. To that end, only documents that have been adopted by all Member States should be cited in U.N. resolutions.

…

In summary, we have outlined four key principles driving the administration:

1. The Trump Administration is pro-life;
2. There is no “international right” to abortion;
3. U.N. agencies and bureaucrats should not intimidate or pressure other nations into accepting abortion policies; and
4. Nations have a sovereign right to make their own laws.

Finally, here are helpful resource links for those who desire to help amplify these exciting events:

• President Trump’s Speech to the UN General Assembly
• July Letter to the UN from Secretaries Azar and Pompeo
• 19 Nations Statement at the UNGA (Increased to 21 nations as of Sept. 25)
• HHS’ Office of Global Affairs
• The Protection of Life in Global Health Policy (PLGHP) assures proper oversight of taxpayer dollars, while helping to protect the dignity of every life, born and unborn.
• The Protection of Life in Global Health Assistance (PLGHA) is an expanded version of the Mexico City Policy (See Presidential Memorandum – Jan. 23, 2017 directing Departments of State and HHS, as well as USAID.
• Interagency PLGHA FAQs

U.S. advocates at U.N. for international religious freedom

An email received from a friend in the White House summarizes this historic advocacy:

"Today, President Trump became the first President to convene a meeting on religious freedom at the UN. He was surrounded by survivors of religious persecution from around the globe, civil society leaders, religious leaders, US business executives, US administration officials (Secretary Pompeo, Ambassador Brownback, and many others), members of the US Commission on International Religious Freedom (USCIRF), and members of the faith community. Over 130 UN Heads of State and Delegations, as well as UN Secretary Gutierrez, attended the event to hear the President address this crucial issue.

As many of you know, there is no better time for a meeting like this one. More than 80 percent of the world’s population live in nations where religious freedom is threatened or banned. We see people being persecuted for their religious beliefs at an alarming rate. Right now in China, one million Muslim Uyghurs are imprisoned simply because of their faith. In Iran, the persecution of Christians, Sunnis, Bahai’i, and Jews continues. And in Burma, the military continues to target Rohingya Muslims and Christians with discrimination and violence.

Houses of worship – sacred places that should never be a place of violence – have seen unspeakable tragedies in the past year. In Sri Lanka, 300 Christians were murdered during Easter services. In New Zealand, 51 men, women, and children were brutally killed while attending mosque. And in Pittsburgh and Poway, faithful Jewish communities faced deadly and cowardly anti-Semitic attacks.  

Around the world, religious prisoners of conscience continue to be imprisoned, detained, and disappear for their religious beliefs. The trend of religious intolerance is rising around the world.

Today, the President used the full weight of the US government and called out on the world’s stage that we must not ignore this frightening trend. Instead, he called for an end to discrimination and persecution of all people, of all faiths. America stands with believers in every country.

For those of you who were not able to watch it live, I have included the text of the President’s remarks from today, the Vice President’s remarks, and the video of the full event. I also included highlights of the President’s speech sent around by the WH Communications Team.

I hope you will consider sharing. And of course, I hope you will join the President and Vice President in their efforts to advance religious freedom around the globe.

Thank you.

“Today, I ask all nations to join us in this urgent moral duty. We ask the governments of the world to honor the eternal right of every person to follow their conscience, live by their faith, and give glory to God.” – President Donald J. Trump