Biden & Becerra: HHS Policy Violates Religious Freedom and Conscience Rights

Secretary of Health and Human Services, Xavier Becerra, speaks during his nomination hearing on Capitol Hill in Washington, D.C., February 24, 2021. (Greg Nash/Reuters)

A new gender-identity policy will harm patients and impose burdens on the consciences of religious individuals and organizations.

Sam rushes to the hospital. Sam is obese and reports experiencing hours of abdominal pain. The nurse measures high blood pressure and looks at medical records, which say Sam is a male who had been on blood-pressure medication. Sam recently stopped taking them. The nurse classifies the case as a non-emergency and orders lab work.

But Sam is not a male. Sam is a “transgender male” — that is, a biological female — and Sam is pregnant. Sam is, in fact, in labor. Scrambling as the lab results reveal the pregnancy, the medical team intervenes — but too late. The baby dies.

This case, reported in the New England Journal of Medicine in 2019 (the patient’s name is changed), could become far more common if plans announced on May 10 by the Biden administration are left in place.

The U.S. Department of Health and Human Services declared, without advance notice, that, starting immediately, it will impose an obscure part of Obamacare called “Section 1557” as if it prohibits sexual orientation and gender identity (SOGI) discrimination — for practically the entire health field.

Medicine relies uniquely on biology — indeed, it is biology. Rewriting the meaning of “male” and “female” in the context of medicine is not only anti-science; it’s madness. Hospitals and doctors would be required to do dangerous things such as falsely list females as males in medical charts and codes, adhering to the patient’s gender identity rather than biology. Indeed, a new field of “gender-specific medicine” is being created to supplant basic biological fact.

The rule will harm women’s health care more broadly. Women’s and men’s bodies are, in many crucial ways, not the same. This isn’t just in the field of obstetrics and gynecology. Some drugs can be more effective and some more dangerous for women than they are for men. Women are at greater risk for certain cancers, while men are more at risk for others.

Obamacare elsewhere affirms this fact. The law permits HHS to create a separate category of preventive care for women, and that list excludes procedures for males, such as vasectomies. It is based on the idea that biological women require different and often more costly types of health care. Today’s woke mob likely would have balked at seeing such language in the statute.

HHS’s National Institutes of Health also specifically tells medical researchers that a “key part” of making science reproducible, rigorous, and transparent is to consider “sex as a biological variable.” For now, at least, NIH deems male and female to be “characteristics encoded in DNA, such as reproductive organs and other physiological and functional characteristics.”

One’s DNA doesn’t change when one “identifies” as the opposite sex. Now that HHS wishes to force the health-care field to pretend that men can be women and women can be men, the department is no longer exercising scientific expertise — it is mandating that professionals act contrary to science.

Politicians and bureaucrats stand to gain power by selling the idea that reality changes based on how a person might identify. After all, this gives the illusion of letting elites change reality merely by publishing their preferred narrative. Unfortunately, they will sacrifice vulnerable people along the way. The HHS rule will require hospitals and doctors to provide surgeries and hormones to “transition” people, even minors, from one sex to the other. President Biden’s assistant secretary at HHS, Rachel Levine (née Richard Levine), has supported such procedures for minors.

These practices take kids who need compassion and put them on the path of permanent mutilation, sterility, and depression. To mandate that doctors perform these procedures is an extreme violation not only of conscience rights but also of their ability to exercise basic medical judgment. The HHS rule will also require many health-insurance plans to cover gender-transition procedures.

The Biden administration’s reinterpretation of Section 1557 is not original — President Obama’s HHS imposed a similar rule in 2016. But those regulations were quickly blocked by a federal court in Texas for exceeding the agency’s statutory authority, and in 2019 the court deleted the language from the regulation.

Then the legal situation got even more complicated. President Trump’s HHS issued a new regulation that says simply that HHS will follow the statute, which bans discrimination on the basis of “sex” but does not reference sexual orientation or gender identity. But, as with nearly every regulation issued by the Trump administration, lawsuits were brought against that announcement, in New York as well as in D.C.

In 2020, those courts, while claiming not to disrupt the Texas ruling that had deleted “gender identity” from the Obama-era regulation, attempted to insert gender identity language back into the rule. One would think that simply following the words of the statute would be legally defensible, since that is the role of the executive branch, but those courts ordered the Trump administration to do otherwise.

Meanwhile, under a completely different statute, the Supreme Court declared in last summer’s Bostock v. Clayton County that the ban on sex discrimination in Title VII, which governs employment, prohibits hiring or firing someone on the basis of sexual orientation and gender identity. Despite the fact that the Court specifically insisted it was not ruling on other statutes, and despite the Texas court order against the Obamacare gender-identity regulations, HHS’s May 10 announcement forthrightly insists that it will enforce Section 1557 across the health-care field as if it includes sexual orientation and gender identity.

This decision is the result of President Joe Biden’s January 20 executive order reinterpreting every federal statute that prohibits sex discrimination to include SOGI. Under that executive order, the administration declared  that it would reinterpret the Fair Housing Act, resulting in a lawsuit from the College of the Ozarks over whether it must allow males into female-only dorms.

As with the Fair Housing Act announcement, HHS gave the public no opportunity to comment before announcing its new policy on Section 1557, a violation of other federal laws. Instead, HHS claimed it “will comply” with a string of other cases and laws, including the Religious Freedom Restoration Act. But the agency didn’t say how it interprets those laws and cases, aside from its extreme reading of Bostock.

Similar Obamacare litigation suggests that HHS’s alleged plan to comply with RFRA is meaningless. For a decade now, litigants have been fighting Obamacare’s contraception and abortion-pill mandate. The Obama administration always claimed to be complying with RFRA, but then argued in court that businesses are incapable of exercising religion (such as in the Hobby Lobby and Conestoga Wood Specialties cases) and that nuns and nonprofit groups don’t get to decide how to apply conscience to their health-care plans (such as in the Little Sisters of the Poor and March for Life cases).

The Biden administration picked up the baton on April 20, appealing a ruling in which a federal court had used RFRA to protect the Religious Sisters of Mercy from Section 1557. Based on past history, when a Democratic administration’s HHS promises to comply with RFRA, it simply means it will reinterpret RFRA as not protecting religious objectors.

This latest appeal is even more shocking because HHS secretary Xavier Becerra claimed during his Senate confirmation hearings, “I have never sued the nun — any nuns,” despite having litigated for years to remove a religious exemption from the Little Sisters of the Poor. Becerra was confirmed on March 18, and it took him only 33 days to litigate against yet another group of nuns. Surely this will not be the last religious group to see Becerra and the Biden administration in court.

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