(Photo: Diego M. Radzinschi/ALM)
The notion that a person who identifies as transgender or a woman who has sought to terminate a pregnancy could be denied as miniscule a request for medical care as asking for a Band-Aid rankles Joshua Block.
But Block, a senior staff attorney for the American Civil Liberties Union’s LGBT and HIV Projects, concludes that those possible scenarios qualify as one of the most unfortunate consequences of an injunction issued on the last day of 2016 by a Texas federal judge.
“The ruling is not limited to gender-transition-related health care or termination of a pregnancy,” said Block, who has filed a motion, still pending, to intervene in the case, Franciscan Alliance v. Burwell, in which U.S. District Judge Reed O’Connor of the Northern District of Texas in Wichita Falls, Texas, issued that injunction.
In his Dec. 31 ruling, O’Connor agreed with the plaintiffs challenging the federal government, including Texas and seven other states, and three private health care providers, among them, the Franciscan Alliance, a group of medical professionals with ties to a faith-based Roman Catholic medical system.
Based on the plaintiffs’ lawsuit naming as defendants Sylvia Burwell, the outgoing Secretary of the U.S. Department of Health and Human Services, and her federal agency, O’Connor enjoined the federal government from enforcing a rule created under the Affordable Care Act that barred any health program or activity receiving federal funds if they discriminated on the basis of sex. As the regulators interpreted the rule, sex discrimination included treating disparately individuals who had a gender identity different than their biological one, or a woman who had or was seeking to terminate a pregnancy.
Earlier in 2016, he ordered in another case a nationwide ban on an Obama administration policy allowing transgender people in public schools access to bathrooms assigned to the gender with which they identify. In 2015, before the U.S. Supreme Court ruling against all state bans of gay marriage, O’Connor granted in another Texas’ request not to extend family and medical leave benefits to same-sex couples.
In his most recent ruling in the Franciscan Alliance case, O’Connor determined that the ACA rule placed “substantial pressure” on the plaintiff doctors “to abstain from religious exercise” and therefore likely to violate the Religious Freedom Restoration Act.
O’Connor recognized that the new rule did not bar doctors and insurers from ever deciding not to treat or cover medical care for a transgender individual or woman who had or would seek to terminate a pregnancy. Instead, he determined the rule forced the doctors to make an individualized “assessment of every request for performance of such procedures or coverage of the same.” O’Connor wrote: “The rule therefore places substantial pressure on plaintiffs to perform and cover transition and abortion procedures” or “to provide the federal government a nondiscriminatory and ‘exceedingly persuasive justification’ for their refusal to perform or cover such procedures.”
Among the plaintiffs, Texas Attorney General Ken Paxton applauded O’Connor’s decision.
In a statement issued on Jan. 1, Paxton wrote: “This striking example of federal overreach under Obamacare would force many doctors, hospitals and other health care providers in Texas to participate in sex-reassignment surgeries and treatments, even if it violates their best medical judgment or their religious beliefs.”
ACLU’s Block, however, intends to vigorously oppose the injunction.
“We profoundly disagree with the ruling and there are numerous clear errors of fact and law that should be overturned on appeal,” Block said about O’Connor’s ruling.
The ruling enjoins any enforcement by the federal government against harassment of transgender individuals or women who have or seek to terminate pregnancies, Block said.
Doctors can say “I don’t want to treat you because you are transgender. I’m not going to give you even a blood test,” Block predicted.
The injunction affirmatively violates the rights of ACLU members, Block said, and despite that O’Connor declined to rule on the nonprofit’s motion to intervene before he issued his injunction.
If under the incoming Trump administration, the federal government fails to appeal O’Connor’s ruling, then the ACLU will pick up the baton, Block pledged.
“This has taken away the ability of Health and Human Services to protect people,” he said about O’Connor’s ruling.