Shane Richards, Class of 2023, Belmont Law

On August 26, 2022, the Fifth Circuit Court of Appeals handed down a ruling holding that the United States Government cannot punish Christian medical providers for refusing to conduct abortions and gender reassignment surgery. The Court held that punishing a Christian hospital for not conducting such operations would deprive such groups of their religious freedom and constitute a “per se irreparable harm.” It is well established that, while an abortion is a constitutional right, the government cannot force a doctor to provide an abortion against their religious beliefs. Further, most states have enacted statutes to protect doctors from civil actions that may result from a refusal to provide an abortion because of sincerely held religious beliefs. This case, however, reinforces another wrinkle in abortion law and drags another hotly debated topic into the spotlight for discussion: gender reassignment surgery.

This long-running case began in May, 2016, and has spent the last six years winding its way through the system, being remanded to the district court twice. The case began with the HHS’s interpretation of Section 1557 of the Affordable Care Act (“ACA”), which prohibited health care programs receiving federal funds from discriminating against patients “on the basis of sex.” In 2016, the HHS interpreted the rule to include discrimination on the basis of “termination of pregnancy” and “gender identity.” Groups of Christian Medical and Dental associations filed suit for a permanent injunction, challenging the validity of the HHS’s interpretation on religious grounds under the First Amendment, RLUIPA, and RFRA. Throughout the litigation and several administrations, the HHS’s issued several rules on its interpretation in light of new and pending litigation. Then, in March, 2022, the HHS issued a “Notice and Guidance on Gender Affirming Care,” holding that the refusal to give gender-reaffirming care, such as gender reassignment surgery, likely violates Section 1557. Questions of mootness arose because of the various alterations and the HHS asserted that it had not decided whether it would actually enforce Section 1557 against Christian medical providers. The Court rejected this argument.

The HHS also argued that the district court erred in granting a permanent injunction based upon the statute rather than just vacating the 2016 Rule, thereby granting relief beyond the scope of the complaint. However, the Court likewise dismissed this argument, holding that a challenge to an agency’s regulation is necessarily a challenge to the underlying statute as well. In short, the Government cannot eliminate one’s standing by altering an agency’s interpretation of the statute.

With those more procedural questions out of the way, the Fifth Circuit then dedicates only a paragraph to the more substantive part of the ruling that has captured some headlines: that the Government cannot punish Christian doctors, by way of withholding otherwise available federal funds and participation in ACA exchanges, for refusing to conduct abortions and gender reassignment surgeries. The portion of the ruling concerning abortion comes as no surprise and is a logical extension of the general rule that the Government cannot force or coerce a doctor from going against his or her sincerely held religious beliefs concerning abortion.

However, the more interesting part of the holding concerns gender reassignment surgery, making an addition to the growing number of federal cases concerning the constitutionality of gender reassignment surgery and gender identity. This case may be a harbinger for things to come as similar tensions between religious freedom and other constitutional rights also characterize gender reassignment surgery. It certainly, at a minimum, places these questions of gender reassignment surgery under consideration next to abortion, giving it a sort of publicity by proxy. This decision comes only three years after the Campbell v. Kallas decision from the Western District Court of Wisconsin, which mandated that a prison inmate be given the opportunity to undergo gender reassignment surgery. The Court held that prior failures to provide that surgery violated the prisoner’s Eight Amendment protections. However, the Campbell decision has been distinguished in other cases before the Seventh Circuit. Likewise, a case out of the Northern District of Indiana held the opposite of the Wisconsin Court in Renee v. Neal, holding that receiving gender reassignment surgery is not a “clearly established federal constitutional right.” This area of law is still burgeoning, but it will be interesting to see where it goes. Judging by its inclusion next to abortion in this case, similar legal contours may emerge to accommodate the widening acceptance of gender reassignment surgery as a necessary operation protected, to some extent, under the Constitution.

Works Cited:

Franciscan All., Inc. v. Becerra, No. 21-11174, 2022 U.S. App. LEXIS 24142 (5th Cir. Aug. 26, 2022).

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Renee v. Neal, 483 F. Supp. 3d 606 (N.D. Ind. 2020).Bottom of Form

https://www.msn.com/en-us/news/opinion/us-government-can-e2-80-99t-force-christian-groups-to-perform-abortions-gender-reassignment-surgery-court-rules/ar-AA11fmen

https://today.westlaw.com/Document/If7a83b9027cd11edaf97fc4e38a46710/View/FullText.html?transitionType=CategoryPageItem&contextData=(sc.Default)&firstPage=true&OWSessionId=NA&skipAnonymous=true&bhcp=1

https://www.reuters.com/article/us-health-abortion-access-idUSKBN1XT2HA

https://lawstreetmedia.com/news/health/federal-judge-rules-certain-gender-dysphoric-prisoners-have-constitutional-right-to-sex-reassignment-surgery/