A federal appeals court has affirmed a lower court’s decision that the Constitution protects a Catholic healthcare network from a federal requirement to perform gender-changing surgeries and abortions.
The case, Franciscan Alliance v. Becerra, hinged on an interpretation of an Affordable Care Act provision — Section 1557 — that prohibits discrimination against patients on the basis of sex. In May 2016, under the Obama Administration, the Department of Health and Human Services issued a rule interpreting the 2010 healthcare reform’s prohibition of “discrimination on the basis of sex” to include discrimination on the basis of “termination of pregnancy” and “gender identity.”
Franciscan Alliance, joined by nine states, the Christian Medical and Dental Association, and other organizations, claimed the rule violated the Administrative Procedure Act (APA) by defining “sex discrimination” inconsistently with Title IX, the federal statute prohibiting sex-based discrimination in schools that receive federal funding. Franciscan Alliance, a hospital network founded by the Sisters of St. Francis of Perpetual Adoration, also claimed that the rule violated the Religious Freedom Restoration Act (RFRA) by forcing it to perform abortions and gender-reassignment surgeries inconsistent with its sincerely held religious beliefs.
Under the Trump Administration, the HHS finalized a rule implementing Section 1557 (the “2020 Rule”), which adopted Title IX’s religious exemption and repealed the 2016 Rule’s definition of sex discrimination.
Just three days after HHS issued the 2020 Rule, the Supreme Court decided Bostock v. Clayton County, interpreting protection from “sex” discrimination to extend to sexual orientation and gender identity. Bostock triggered multiple lawsuits challenging the Trump Administration’s 2020 Rule. In two of those cases, courts entered nationwide injunctions preventing much of the 2020 Rule from going into effect, effectively reinstating portions of the 2016 Rule. One case, Whitman-Walker, enjoined the 2020 Rule’s incorporation of Title IX’s religious exemption.
While the Franciscan Alliance case was being considered by a district court, HHS issued a “Notification of Interpretation and Enforcement.” This so-called 2021 Interpretation stated that in light of Bostock, HHS would enforce Section 1557 to prohibit “discrimination on the basis of gender identity.”
But the district court in the case ruled in Franciscan Alliance’s favor: “We have recognized that the loss of freedoms guaranteed by the First Amendment, RLUIPA, and RFRA all constitute per se irreparable harm,” it said.
That ruling was affirmed by a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit on Friday.
“This ruling is a major victory for conscience rights and compassionate medical care in America,” Joseph Davis, counsel at Becket, the religious liberties law firm representing Franciscan, said in a press release. “Doctors cannot do their jobs and comply with the Hippocratic Oath if the government requires them to perform harmful, irreversible procedures against their conscience and medical expertise.”